HomeMy WebLinkAboutCOM 0687.044 2004-2006 LAWRENCE R. JOHNSON
72-4085 Alahe'e Place
Kailua-Kona, HI 96740-8448
Telephone: 808-325-7088
Facsimile: 808-325-5 877
Cellulaz:808-960-4101
Apri126, 2006
Public Meeting Re: Palamanui
Ladies and Gentlemen thank you for holding this public forum and for holding it here in Kona.
4000 cars added to the already crowded Queen K highway. And this is approved by our Planning
Director? Why is it that Mr. Yuen has never to our knowledge publicly discussed the traffic
impact Palamanui will have on the community? Why is that left up to members of the
community? It's his job is it not to keep you and us informed? Our best estimate is 4000 cazs.
That is 4000 cars at an average length of 20' per caz in grid lock yields 80,000 feet of bumper to
bumper cars! Divide that by 5280 feet in a mile and you come up with 15.15 miles of new traffic
each morning and evening!
Then throw in another traffic light, 1 mile north of the Airport, our new four lane road will end at
the Airport only to be funneled into two lanes, what a mess this will be. Oh, but you say we will
have the new 41ane road into Kona. Again do the math and the additional 15.15 miles of
bumper to bumper traffic is now only 7.57 miles of two lane bumper to bumper traffic added to
the already grid locked traffic that exists today.
By the way it is 6.5 miles from the airport road to Palani Road in Kona!
The other day I read in West Hawaii Today about a developer that had agreed to build a road
zlong with affordable housing at his new sub division. Seems now he wants out of building the
road and says if the county requires him to build the road he would no longer be able to build the
affordable housing. This tactic is becoming all to prevalent it's called Bate and Switch.
In 1994, then planning Director Goldstein wrote, and this is a part of the County records, that
Makalei Drive shall be designated as a minor road intended exclusively for access to abutting
property and not as the required connector road. She also stated in a memo of Nov. 2 1993 that
Makalei Drive was to remain in private ownership. Neither of these rulings or correspondence
has ever been challenged or refuted and in my opinion her rulings and the substantiating County
records aze the law.
So now we have before us Bill 224 requesting rezoning of the area below Makalei Estates and
guess what? The requirements for the 80' wide Mauka Makai connector road is omitted. Then to
add insult to injury, Mr. Yuen comes along with a "housekeeping" Bill # 225 to clean up
ambiguities, which following a maze of legalese, also relieves the developer of any obligation
t_
Comm. No.
Ref. TorresgtRf~d nc
Ref. t)ale~~,S!!J
build a 80' wide Mauka Mauai connector road but instead allows him to connect to Ms.
Goldstein's "Minor road to remain in private ownership" - Makalei Drive.
We had to hire Attorneys to read through all the mumbo jumbo of these two bills. There
conclusion and I quote:
"Bi11225 has a "housekeeping" component in that it clarifies that a number of development
conditions aze no longer applicable to the Makalei Estates subdivision. However, neither Bill
225 nor Bi11224 appears to satisfactorily address the issue of a Mauka Makai connector road.
The combined effect of the bills is azguably to relieve HiluHilu Development LLC of its
obligations to build an 80 foot wide mauka makai connector road on its property." End quote.
We urge you to put these bills on hold until the Mauka Makai connector road built to county
standards is a reality. Yes, this will mean waiting for the Lynch property negotiations but so be
it. Then revisit the project and see if we still want the added 4000 or more cazs to the Queen K
highway.
Thank you,
~~2~.v~-~ r i
Lawrence R. Jo n
AL~1"bN
FL~YD
CONFIDENTIAL
I N G ATTORNEY-CLIENT
LAWYERS COMM[TNICATION
q~„,~,, ~,a,,.Al,,, ~,w„„m April 26, 2006
Board of Directors
I >x$vm ~ sooxe Makalei Estates Communil.> Association
Ifailua•Kona, HawaiS
P.O. Box 2002
ke~~f Kailua-Kona, Hawaii 96745
Re: Hawaii County Council Bills 224 and 225
Dear Board Members:
Thank you for contacting our office with your concerns
about HawaiS County Council Bills 224 and 225. You asked us
for an assessment of Planning Director Chris Yuen's assertion
that the changes to HawaiS County Ordinance 93-45 that are
proposed by Bill 225 are of a "housekeeping" nature.
Please note that in preparing this letter, our analysis was
limited to the drafts of Bills 224 and 225 and supporting
materials you provided to us. We understand that the
development issues pertaining to Makalei Estates and Palamanui
have a long and complex history. We have not undertaken a
detailed review of all the facts and issues pertaining to Makalei
Estates or Palamanui. Accordingly, there may be additional
documents or information that if brought to our attention would
change our analysis or the conclusion reached herein.
SHORT ANSWER
Bill 225 has a "housekeeping" component in that it clarifies
that a number of development conditions are no longer applicable
to the Makalei Estates subdivision. However, neither Bill 225 nor
Bill 224 appears to satisfactorily address the issue of a mauka-
makai connector road. The combined effect of the bills is
American Savings Bank Town arguably to relieve Hiluhilu Development LLC ("Hlluhilu") of an
)fin Ftoo~ obligation to build an 80-foot wide mauka-makai connector road
1001 B;shw snee` extendln from Queen Kaahumanu Hi hwa to Mamalahoa
Honolulu, Hawaii 96613 g g y
Phone: (808) 524.1800 Highway.
Fax: (808) 524-4591
Palanl Court, Sulce 104
74.5620 Palani Road
Kailas-Kona, Hawai'l 96740
Phone: (808)326-7979
Fax: (808)326.4779
www.ahft.tom 611634.2
April 26, 2006
Board of Directors
Page 2
FACTS
As you know, the property that includes Makalei Estates and a portion of
the proposed Palamanui development was rezoned from Unplanned to Agricultural
(A-3a) by County Ordinance 850 effective February 15, 1983. With respect to a
mauka-makai connector road, Ordinance 850 provided:
(G) that the proposed 80-foot wide right-of--way and its improvements
shall be extended to the Queen Kaahumanu Highway if and when
any development occurs within the existing Conservation District
portion of the parcel identified as TMK: 7-2-5-1 .
Ordinance 850 at 3.
County Ordinance 88-23 effective February 29, 1988 modified some of the
conditions imposed upon the rezoning but did not affect condition (G) of
Ordinance 850. County Ordinance 93-45 effective May 12, 1993 changed the
second word of condition (G) from "the" to "a':
(G) that a proposed 80-foot wide right-of--way and its improvements
shall be extended to the Queen Kaalrumanu Highway if and when
any development occurs within the existing Conservation District
portion of the parcel identified as TMK: 7-2-5-1 .
Ordinance 93-45 at 5-6.
Despite the requirements of Ordinance 93-45, our information is that
Makalei Drive was constructed as a 50-foot wide road with a maximum grade of
18%, and that no variance from the requirements of Ordinance 93-45 was
obtained.
Bills 224 and 225 proposed by the. Planning Department would change the
conditions applicable to the Palamanui development and Makalei Estates. Bill
224 applies to 725.204 acres of the Palamanui development located makai of
Makalei Estates. The Bill would change the zoning for Palamanui to Project
District.
With respect to the mauka-makai connector road, Bill 224 states as a
condition that the "applicant shall comply with all conditions of approval of the
State Land Use Commission's Decision and Order (Docket No. A03-744) dated
May 19, 2005 {"LUC Order). Bill 224 at 1, condition B. The LUC Order provides
in pazt as follows:
61]634.2
Apri126, 2006
Board of Directors
Page 3
5. Traffic Impact and Mitigation. Petitioner shall fund, design and
construct its share of local and regional transportation improvements
as determined by the SDOT and the County, which includes but is
not limited to:.. .
b. Mauka-Makai Connector Road. A mauka-makai connector
' road providing public access between Queen Kaahumanu Highway
and the Mamalahoa Highway shall be provided at Petitioner's sole
cost and expense. Said mauka-makai connector road shall connect to
Mamalahoa Highway as Petitioner and County may agree.
c. Ri¢ht-Of--Way For An Alternative Mauka-Makai Connector
Road. Petitioner shall reserve aright-of--way along the east (mauka)
portion of the Petition Area to support the possible future connection
to the Mamalahoa Highway. Petitioner shall construct at its sole cost
and expense all portions of said future road that is within the Petition
Area... .
d. Request to Limit Vehicle Traffic on Portions of Makalei
Drive. In the event the mauka-makai connector road connects
through Makalei Drive, to promote greater traffic safety, Petitioner
shall prior to final subdivision approval, use reasonable efforts to
petition the County to limit motor vehicle traffic on Malsalei Drive as a
through street, as it transverses Makalei Estates, to only those
vehicles that have a gross vehicle weight of less than 10,000 pounds.
LUC Order at 3-4.
Bill 224 imposes additional road construction requirements on Hiluhilu.
The Bill covers five roads that the applicant must either construct or share in the
cost of constructing. The roads are numbered 1 through 5 and are depicted on
Exhibit "B" to Bill 224. A copy of Exhibit "B" is enclosed for your reference.
Road 1 is to be constructed as an 88-foot wide right-of--way, two lanes, to
county-dedicable standards as a connector road, connecting Queen Kaahumanu
Highway to Malcalei Drive. Bill 224 at 6, condition Y.1. Road 2 is the main project
access road to I{aiminani Drive. Road 3 is a north-south collector road designed
to function as a portion of a future collector road, Road 4, connecting Mamalahoa
Highway with the project and Queen Kaahumanu Highway. Road 5 is a road to
connect south to the future extension of Holoholo Street.
With respect to Road 4, Bill 224 provides in part that:
The applicant shall participate in the cost of constructing a road from
61[634.2
Apri126, 2006
Board of Directors
Page 4
the north end of Road "3" to Highway 190 (Road "4" on Exhibit "B").
If another private developer is required to participate in building Road
"4" as a condition of land use approvals, the applicant's share shall
be limited to any portions of the road on state land between the other
private developer and the applicant's property, and shall be one-half
' the cost of that portion. If Road "4" is constructed with public funds
without the participation of another private developer, the applicant's
share shall be one-third of the entire cost. The design standards and
maximum grade of Road "4" shall be determined by the Director of
Public Works after consultation with the Planning Director.
Bi11224 at 7, condition Y.4.
The Bill designates specific mad segments that must be completed before a
certificate of occupancy will be issued for the any portion of the project. Road 4 is
not among the roads that must be built. See- Bill 224 at 8, condition Y.8. Bill 224
additionally provides that certain road ixnpmvements shall be secured by a bond
to guarantee their construction with two years after the issuance of a certificate of
occupancy for any portion of the project. Road 4 is not among the mads.whose
construction must be bonded. Bill 224 at 8, condition Y.9.
Bill 224 also requires the applicant to provide safety improvements to the
makai end of Makalei Drive necessary to make a safe transition to the Palamanui
section, including rumble strips and establishing super-elevation for the curve, as
required by the Department of Public Works. Bill 224 at 7, condition Y.7.
Bill 225 affects the 273.82 acres of Makalei Estates. Bill 225 strikes almost
all the conditions of Ordinance 93-45, including the 80-foot wide right-of--way
condition, but leaves in place conditions relating to deed restrictions,
archeological resources, and compliance with rules. Other deleted conditions
relate to drainage (condition B), incremental development (conditions C and D),
zoning of increments and water supply (condition E), deadline for securing fmal
subdivision approval for increment 1 (condition F), participation in Keahole to
Kailua Sub Regional Plan (wndition H), solid waste management (condition I),
wastewater treatment system (condition J), disposition of construction wastes (K),
potential credits for Unified Impact Fee assessments (condition O), submission of
annual progress report to Planning Director (condition P), and extension of time
for performance of conditions (condition Q).
If approved as an ordinance, Bill 225 would become effective upon the
adoption of Hiluhilu's Change of Zone application.
611634.2
Apri126, 2006
Board of Directors
Page 5
LEGAL ANALYSIS
In part, at least, Bill 225 appears to be designed to carve Makalei Estates
out of the conditions imposed upon Hiluhilu and its predecessor for the
development of Palamanui. The deletion of the 80-foot wide right-of-way
condition from Ordinance 93-45 is appropriate in the sense that such a right of
way cannot be constructed through Makalei Estates in light of existing
development. To the extent the other deleted conditions relate to items that aze
no longer relevant to Makalei Estates or otherwise do not impact the subdivision,
their deletion from Ordinance 93-45 would also appear to be in order.
Unfortunately, the road construction obligations imposed upon Hiluhilu in
Bill 224 do not resolve the outstanding mauka-makai connector issue. The LUC
Order requires Hiluhilu to pay for a mauka-makai connector that connects to
Mamalahoa Highway as Hiluhilu and the County may agree. But the only mauka-
makai road expressly referenced in Bill 224 is Road 4 which is only partly located
on Hiluhilu's property. Moreover, Road 4 is not required to be completed before
the issuance of certificates of occupancy for Hiluhilu's project. As a result, it is
likely that Makalei Drive will be used as a connector between Queen Kaahumanu
Highway and Mamalahoa Highway in the Palamanui / Makalei Estates area until
an alternate road is built.
Makalei Drive is a 50-foot wide road that was not built to County azterial or
collector street standards. The maximum grade is 18%, which is 11% greater
than the grade allowed on major arterials and 8% greater than the grade allowed
on County collector streets. Hawaii County Subdivision Code at Section 23-50.
Nevertheless, the LUC Order contemplates the possibility that the mauka-
makai connector will connect through Makalei Drive. The combined effect of Bills
224 and 225 appears to be to release Hiluhilu from the obligation to construct an
80-foot wide mauka-makai right-of--way within any fixed timetable.
CONCLUSION
Many of the conditions imposed on the developer in Ordinance 93-45 and
deleted as to Makalei Estates by Bill 225 appear not to negatively impact the
subdivision. To the extent Bills 224 and 225 release Hiluhilu from an obligation
to construct an 80-foot wide right-of--way between Queen Kaahumanu Highway
and Mamalakcoa Highway, and require Hiluhilu instead to share the cost of
construction of a connector road on property it does not own at some unspecified
future date, Bill 225 is more than a "housekeeping" bill.
611634.2
April 26, 2006
Board of Directors
Page 6
Should you have any questions, please do not hesitate to contact me.
ery truly ,
KEVIN E. O RE
KEMJla
Enclosure
611634.2
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