HomeMy WebLinkAboutCOM 0964.024 2004-2006
CARLSMITH BALL LLP
A LIMBED LIABILITY LAW PARTNERSHIP
Ass TOWER SUITE 2200
1001 BISHOP STREET
HONOLULU, HAWAII 96813
TELEPHONE 808.523.2500 FAX 808.523.0842
W W W.CARISh=.COM
D1RECr DIAL NO. TLUIKWAN@CARLSMITH.COM OUR REFERENCE NO.:
808.523.2511 024248-9
August _ 2006
Ms. Zelma O. Swanson, Assistant Vice President
Commercial Escrow Officer
First American Title Company
1177 Kapiolani Boulevard
Honolulu, Hawai'i 96814
Re: Irrevocable Escrow Instructions for the Recordation of the Declaration of Restrictive
Covenant: Declarant: Captain Cook Ranch LLC: TMK No. 3/ 8-2-002: parcels 2 & 56
Dear Ms. Swanson:
My law film represents Captain Cook Ranch LLC (hereafter "CCR" the owner of the
above-referenced parcels of land situate at Kealakekua, District of South Kona, County, Island
and State of Hawai'i (the "Properties") that are further described in Exhibit "A" of the
Declaration of Restrictive Covenant attached as enclosures to these instructions. Please consider
this CCR's irrevocable instructions for the recordation of the attached executed Declaration of
Restrictive Covenant contingent on the action by the Hawai'i County Council by November 30,
2006 as described herein below.
The Hawai'i County Council is considering an amendment to the Hawai'i County General
Plan that would change the Land Use Pattern Allocation Guide (LUPAG) map designation for
those portions of the Properties encompassed by the proposed change (Item F-2) to `Rural' as
this designation is consistent with the State Land Use `Urban' District classification and the
Properties' current 'Residential Agricultural - 2 acre minimum' (RA-2a) county zoning.
Concerns have been raised that the proposed change of LUPAG map designation to 'Rural' could
be used as a basis for future rezoning of the Properties to a County zoned district category
allowing a greater density than the current RA-2a zoning.
Councilmember Virginia Isbell has asked the landowner in an earlier public meeting to
consider imposing a covenant restricting future up zoning of the affected Properties as a means
of addressing these concerns. CCR wishes to assure the Council that no rezoning of the
HONOLULU KAPOLEI HILO KONA MAUI GUAM SAIPAN LOS ANGELES t
Comm.l~a. {~I
Ref. To:
Ref. Date AUG 2 3 2006
First American Title Company
Attention: Ms. Zelma O. Swanson
August 2006
Page 2
Properties will not occur as the result of the 'Rural' designation and has volunteered to record the
enclosed executed Declaration of Restrictive Covenant upon the adoption and signing of
Ordinance Bill No. 309, provided that such Ordinance in its final form includes the proposed
map change F-2 of the LUPAG map designation to 'Rural' for these Properties as recommended
by the Planning Director on the attached map ("F-2 to Rural"). This map is a provided for
reference purposes only, and in not intended for recordation. .
Please find enclosed four (4) originals of such Declaration of Restrictive Covenant,
executed by my client Captain Cook Ranch LLC. This letter constitutes the irrevocable escrow
instruction duly authorized by my client Captain Cook Ranch LLC. You are hereby instructed as
follows:
1) This instruction is specifically conditioned upon the passage and signing into law
of Ordinance Bill No. 309 (2006) amending the Hawai'i County General Plan
specifically making incorporating LUPAG map change F-2 to Rural for the
Properties as recommended by the Planning Director and shown on the attached
map.
2) Upon receipt of such Ordinance Bill No. 309 making map change F-2 to Rural on
the LUPAG map of the Hawaii County General Plan, that is adopted by the
Hawai'i County Council and signed into law by the Mayor of the County of
Hawai'i, you are instructed to attach such ordinance, in its entirety, as Exhibit "B"
of the Declaration of Restrictive Covenant and thereupon immediately to record a
duplicate original of such Declaration of Restrictive Covenant at the Bureau of
Conveyances of the State of Hawaii.
3) Immediately upon recordation of the Restrictive Covenant, please deliver:
i) two (2) duplicate execution originals of the Restrictive Covenant with the
recordation information thereon to the undersigned, and
ii) one (1) duplicate execution original of the Restrictive Covenant with the
recordation information thereon to:
Ms. Virginia Isbell, Council Member
Hawai'i County Council
25 Aupuni St.
Hilo, Hawaii 96720
4) Should such Ordinance not include amendment F-2, or should this Ordinance not
be passed into law on or before November 30, 2006, then this instruction shall
lapse and you are instructed to return the enclosed documents to the undersigned.
c,
First American Title Company
Attention: Ms. Zelma O. Swanson
August 2006
Page 3
With regard to your fees and costs and the recording fees and costs, please bill the
undersigned for your costs and fees for the recordation of the attached Declaration of Restrictive
Covenant.
If you have any questions with respect to the above instructions, please don't hesitate to
call me.
Sincerely,
Tim Lui-Kwan
Enclosures: [Declaration of Restrictive Covenant; LUPAG Map "F-2 to Rural"]
cc: Michael W. Gibson, Esq., Manager, Captain Cook Ranch LLC
Honorable Virginia Isbell, Hawai'i County Council Member
Honorable Stacy K. Higa, Hawai'i County Council Chairperson
Mr. Christopher J. Yuen, Planning Director, County of Hawai'i
4 8441 5 18-0385.1.024248-00009
LAND COURT SYSTEM REGULAR SYSTEM
Return by Mail ? Pickup ? To:
TITLE OF DOCUMENT:
DECLARATION OF RESTRICTIVE COVENANT
PARTIES TO DOCUMENT:
DECLARANT: CAPTAIN COOK RANCH LLC, a Hawaii limited liability company,
whose mailing and business address is 75-5722 Kuakini Highway, Suite 208,
Kailua-Kona, Hawaii 96740.
Affects Tax Map Key(s) Hawaii 8-2-002: parcels 002 and 055
DECLARATION OF RESTRICTIVE COVENANT
THIS DECLARATION OF RESTRICTIVE COVENANT is made this
day of August, 2006 by CAPTAIN COOK RANCH LLC, a Hawaii limited liability company,
whose mailing address is 75-5722 Kuakini Highway, Suite 208, Kailua-Kona, Hawaii 96740
("Captain Cook Ranch" and hereinafter also called the "Declarant"').
RECITALS:
WHEREAS, Captain Cook Ranch is the fee owner of those two certain parcels of
land known as: i) Lot 8-A, containing 72.321 acres, more or less, identified by Tax Map Key No.
(3) 8-2-002-002 and ii) Lot 8-13, containing 22.881 acres, more or less, identified by Tax Map
Key No. (3) 8-2-002-055, both located in Kealakekua, Hawaii and each being more particularly
described in Exhibit "A" attached hereto and made a part hereof (the "Property"); and
WHEREAS, the Property is entirely within the State Land Use (SLU) "Urban"
district and presently zoned by the County of Hawaii as "RA-2a" (Residential and Agriculture
with a minimum lot size of two acres) as defined by Sections 25-5-50 though 25-5-57 of the
Hawai'i County Code; and
WHEREAS, the County Council of the County of Hawai'i by adoption of
Ordinance No. has amended the General Plan of the County of Hawai'i to change the
designation of the Property to "Rural" on the Land Use Pattern Allocation Guide (LUPAG)
Map, which General Plan designation is consistent with the Property's SLU "Urban"
classification and "RA-2a" County zoning, and
WHEREAS, in consideration thereof, Declarant wishes to assure that the rural
character of the Property is maintained in the future, and that such "Rural" designation on the
LUPAG Map of the Hawai'i County General Plan is not used as a basis for rezoning the Property
to a County zoning classification providing a density greater than that allowed by the present
zoning.
NOW, THEREFORE, the Declarant, hereby unilaterally declares that the Property
shall hereafter be subject to the following restrictive covenant and hereby further declares that
the Property shall be held, conveyed, mortgaged, encumbered, leased, rented, used, occupied and
improved subject to this Declaration as to the terms set forth herein and that this Declaration
shall constitute a covenant running with the land and shall be binding upon the Declarant and all
subsequent owners of the Property, their respective heirs, personal representatives, successors,
successors in trust and assigns (the "Subsequent Owners'
1. Neither the Declarant, nor any Subsequent Owner of the Property or any portion
thereof, shall seek to rezone any such portion of the Property which is designated Rural on the
LUPAG Map of the Hawai'i County General Plan from its present "RA-2a" zoning, until such
time as:
1
(a) The General Plan LUPAG designation for such relevant portion of the
Property is amended from "Rural" to some other designation, or
(b) The Hawai'i County Code is amended to delete "RA-2a" as a zoning
classification or to substantially change the definition thereof.
2. The provisions of this Declaration shall constitute covenants and servitudes running
with the land and shall be binding on the Declarant and all Subsequent Owners as to any portion
of the Property designated "Rural" on the LUPAG Map of the Hawai'i County General Plan by
Ordinance No. , attached hereto and made a part hereof as Exhibit "B".
IN WITNESS WHEREOF, the Declarant has executed these presents as of the day and
year first above written.
CAPTAIN COOK RANCH LLC, a Hawaii
limited liability company
By
MICHAEL W. GIBSON
Its Manager
STATE OF HAWAII )
SS.
CITY AND COUNTY OF HONOLULU )
On this day of August, 2006, before me personally appeared MICHAEL
W. GIBSON, to me personally known, who, being by me duly sworn or affirmed, did say that
such person executed the foregoing instrument as the free act and deed of such person in the
capacity shown, having been duly authorized to execute such instrument in such capacity.
Signature:
Print Name:
Notary Public, State of Hawaii
My commission expires:
2
LOT 8-B
SUBDIVISION OF LOT 8-A-1-A
BEING PORTION OF
ROYAL PATENTS 3607 AND 7533
LAND COMMISION AWARD 8452, APANA 9 TO A, KEOHOKALOLE
Situated at Kealakekua, South Kona, Island of Hawaii, Hawaii
Beginning at the Northeast comer of this parcel of land, being also the North comer of Lot 8-C,
on the Southwesterly side of Lower Government Main Road (Napoopoo Road), the coordinates of said
point of beginning, referred to Government Survey Triangulation Station "PALEMANO", being 9,839.42
feet North and 4,046.63 feet East and thence running by azimuths measured clockwise from True South:
1. 51032'30* 118.80 feet along Lot 8-C, being a remainder of R.P. 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
2. 335°12'30" 44.75 feet along the same;
3. 63031'30" 303.67 feet along the same;
4. 149045' 250.25 feet along the same;
5. 470 45' 34.59 feet along Lot 7, being a remainder of R.P. 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
6. 317045' 184.28 feet along Lots 7 and 6, being a remainder of R.P. 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to k Keohokalole;
7. 325000' 140.00 feet along Lots 6 and 5, being a remainder of R.P. 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
8. 41020' 103.17 feet along Lot 4-A, being a remainder of R. P. 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
9. 28015' 782.02 feet along Lots 4-A and 3, being a remainder of R.P. 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
10. 1119151 1,037.46 feet along Lot 1-A-1, being the remainder of R.P. 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
11. 221029'30" 394.17 feet along Lot 8-A, being a remainder of R.P. 3607 and 7533,
L.C. Aw. 9452, Ap. 9 to k Keohokalole;
12. 222059'30" 427.35 feet along the same;
13. 221006' 306.52 feet along the same;
I
14. 309053'30" 128.41feet along tut 8-13, being a remainder of R.P. 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole,
15, 232058' 277.25 feet along the same;
16. 243031'30" 238.60 feet along the same;
EXHIBIT A
Page 4 of 5
TOWILL, SHIGEO1cA & ASSOCIATES, IN-
SURVEYORS
t 27000EEMEMMA STREET " $WE 700 . HONOLULU, HMVAa 06913