HomeMy WebLinkAboutCOM 0964.051 2004-2006
CARLSMITH BALL LLP
A LIMITED LIABILITY LAW PARTNERSHIP
ASB TOWER, SurrE 2200
1001 BISHOP STREET
HONOLULU, HAWAII %813
TELEPHONE 808.523.2500 FAx 808.523.0842
W W W.CARLSMrrtf.COM
DIRECT DIAL NO. TLUIKWAN®CARLSMrrH.COM OUR REFER&Z:E NO.:
808.523.2511 -,-624248-9
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August 25, 2006
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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 firm 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 No
Comm. •
Ref. To:pfO~
f. Uate SEP 0 7 2
HONOLULU KAPOLEI HILO KONA MAUI GUAM SAIP L NGELES
First American Title Company
Attention: Ms. Zelma O. Swanson
August 25, 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:
I) 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 Hawai'i 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 fill in the ordinance number on the documents and
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 Hawai'i.
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, Vice-Chairperson
Hawai'i County Council
25 Aupuni St.
Hilo, Hawai'i 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.
First American Title Company
Attention: Ms. Zelma O. Swanson N
August 25, 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. As a final matter upon receipt of this letter, please provide me with a simple
confirmation with a copy to Councilwoman Virginia Isbell (at the address set out above) that you
have received this letter together with the executed covenant.
If you have any questions with respect to the above instructions, please don't hesitate to
call me.
Sincerely,
m Lui wan
Enclosures: [Declaration of Restrictive Covenant; LUPAG Map "F-2 to Rural"]
cc: Honorable Virginia Isbell, Hawai'i County Council Vice-Chairperson
Honorable Stacy K. Higa, Hawai'i County Council Chairperson
Honorable James Y. Arakaki, Hawai'i County Council, Member
Honorable Pete Hoffman, Hawai'i County Council, Member
Honorable Fred C. Holschul, M.D., Hawai'i County Council, Member
Honorable Donald Ikeda, Hawai'i County Council, Member
Honorable Bob Jacobson, Hawai'i County Council, Member
Honorable K. Angel Pilago, Hawai'i County Council, Member
Honorable Gary Safarik, Hawai'i County Council, Member
Mr. Christopher J. Yuen, Planning Director, County of Hawaii
Ms. Constance R. Kiriu, Hawai'i County Clerk
Michael W. Gibson, Esq., Manager, Captain Cook Ranch LLC
Date : February 24. 2006
N Hokulia i Keopuka / Kealakekua Areas
LEGEND
w I' =Extensive Agriculture
ImportantAg.Lands
Low Density Urban
Medium Density Urban
S Open Area
Orchards
Proposed Conservation
Proposed ExtensiveAg
Proposed ImportantAg Lands
Proposed Rural
Resort
Rural
s
I'
N 46II KEKU
Extensive Ag. and ° z
Orchards to Conservation
/ rf
L Tr.
Kealakekua v ,fir \
Bay
Important Ag. Lands to Rural F-2 1 -
0 0.5 1 2 3
Miles
S. Kona- 1
25
LAND COURT SYSTEM REGULAR SYSTEM
Return by Mail F] Pickup F~ 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-1a" (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 County of Hawai'i 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 cancel or amend this covenant nor seek to rezone any such portion of the Property
which is designated Rural on the LUPAG Map of the County of Hawai'i General Plan from its
present "BA-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 inure to the benefit of the County of Hawaii
and 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 County of Hawai'i 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 h-~ACk UtAL W
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 swom 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 Na t
Notary Public, *Statf Hawaii
My commission expires: 121 to
2
i
LOT 8-A
SUBDIVISION OF LOT 8-A-1-A
BEING PORTIONS OF
ROYAL PATENTS 3607 AND 7533
LAND COMMISION AWARD 8452, APANA 9 TO A. KEOHOKALOLE
AND ROYAL PATENTS 4386 AND 7532
LAND COMMISION AWARD 8452, APANA 10 TO A. KEOHOKALOLE
(CERTIFICATE OF BOUNDARIES No. 134)
Situated at Kealakekua and Knawaloa, South Kona, Island of Hawaii. Hawaii
Beginning at the North comer of this parcel of land, being also the Easterly comer of Lot 8-A-2,
con the Southwesterly side of Lower Government Main Road (Napoopoo Road), the coordinates of said
paint of beginning, referred to Government Survey Triangulation Station "PALEMANO", being 10,840.46
feet North and 4,046.63 feet East and thence running by azimuths measured clockwise from True South:
i
Along the remainder of R.P. 3607 and 7533, L.C. Aw. 8452, Ap. 9 to A. Keohokalole, on
the Southwesterly side of Lower Government Main Road
(Napoopoo Road), for the following six (6) courses:
1. 337055'30" 94.75 feet;
2. 325045' 136.57 feet;
3. 331058' 70.48 feel;
4. 341016' 43.54 feet;
5. 335025' 72.33 feet;
6. 323041' 65.93 feet;
Thence along Lot A- 1, being a remainder of R.P. 3607 and 7533, L.C. Aw. 8452, Ap. 9
to A. Keohokalole, for the following five (5) courses:
7 57000' 247.39 feet;
8. 59001'30" 22.19 feet;
9. 329001'30" 104.15 feet;
10. 38002' 50.32 feet;
11. 329001'30" 200.21 feet;
12. 79054' 34.73 feet along Lot 8-D, being a remainder of R.P. 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole,
13. 42050' 568.76 feet along the same;
14. 41006' 306.52 feet along Lot 8-B, being a remainder of R.P. 3607 and 7533,
EXHIBIT A
Page I of 5
TOWILL, SHIGEOKA & ASSOCIATES, INC.
SURVEYORS
1270 OMEN EMMA STREET • SUITE 700 • HONOLN U. R4W 96813
L
L.C. Aw. 8452, Ap. 9 to A. Keohokalole.
15. 42059'30" 427.35 feet along the same;
16. 41°29'30" 394.17 feet;
17. 111015' 101.40 feet along Lot 1-A-1, being the remainder of R. P 3607 and
7533, L.C. Aw. 8452, Ap. 9 to A. Keohokalole.
18. 102° 10' 1,118.00 feet along the same'.
19. 120015' 720.04 feet along the same;
20. 238043'30" 353.40 feet following along stonewall and Lot 9-A, being portions of
R.P. 4386 and 7532, L.C. Aw. 8452, Ap.10 to A. Keohokalole
(Certificate of Boundaries No. 134);
I
21. 240052' 348.70 feet following along stonewall and Lots 9-A and 6-A, being
portions of R.P. 4386 and 7532, L.C. Aw. 8452, Ap.10 to i
A. Keohokalole (Certificate of Boundaries No. 134);
22. 255°09' 20.17 feet following along stonewall and Lot 6-A, being portions of
R.P. 4386 and 7532, L.C. Aw. 8452, Ap.10 to A. Keohokalole
(Certificate of Boundaries No. 134);
23. 256°06'30" 26.44 feet following along the same;
24. 246°48'30" 99.61 feet following along stonewall and Lots 6-A and 5, being portions of
R.P. 4386 and 7532, L.C. Aw. 8452, Ap.10 to A. Keohokalole
(Certificate of Boundaries No. 134);
25. 234°44' 316.94 feet following along stonewall and Lots 5 and 3, being portions of
R.P. 4386 and 7532, L.C. Aw. 8452, Ap.10 to A. Keohokalole
(Certificate of Boundaries No. 134);
26. 234040'30" 161.22 feet following along stonewall and Lot 3, being portions of
R.P. 4386 and 7532, L.C. Aw. 8452, Ap.10 to A. Keohokalole
(Certificate of Boundaries No. 134);
27. 234°45'30" 132.01 feet following along the same;
28. 240005'30" 38.43 feet following along the same;
29. 240010'30" 306.44 feet following along stonewall and Lots 3 and 2, being portions of
R.P. 4386 and 7532, L.C. Aw. 8452, Ap.10 to A. Keohokalole
(Certificate of Boundaries No. 134);
Thence following along stonewall and Lot 2, being portions of R.P. 4386 and 7532, L.C.
Aw. 8452, Ap.10 to A. Keohokalole, for the next seven (7) courses,
the direct azimuths and distances between points along said stonewall
being:
30. 233025'30" 179.95 feet;
3t. 149001' 43.18 feet;
EXHIBIT A
Page 2 of 5
TOWILL, SHIGEOKA & ASSOCIATES, INC.
SURVEYORS
1270 QUEEN EMMA STREET • SUFTE 700 • HONOLULU. H#AM 96913
32. 228014' 94.26 feet;
33. 156038' 72.55 feet;
34. 245°58' 47.39 feet;
35. 229001'30" 161.95 feet;
36. 208034'30" 60.40 feet;
37. 313057' 300.52 feet along Lot 8-A-2, being portions of R.P. 4386 and 7532, L.C.
Aw. 8452, Ap.10 to A. Keohokalole (Certificate of Boundaries
No. 134); and R.P. 3607 and 7533, L.C. Aw. 8452, Ap. 9 to A.
Keohokalole;
38. 326°09' 165.11 feet along Lot 8-A-2, being a remainder of R.P. 3607 and 7533, L.C. '
Aw. 8452, Ap. 9 to A. Keohokalole;
39. 234036' 312.37 feet along the same;
40. 234°31' 484.62 feet along the same, to the point of beginning and containing an area of
72.321 Acres, more or less.
SUBJECT, HOWEVER, but not limited to,the following
EASEMENT R-I for future Road Widening ( 5 feet wide); and
EASEMENT SB-1 for Structural Setback Purposes.
O~~PT K. If
0 FF
LICENSED
PROFESSIONAL TOWILL, SHIGEOKA & ASSOCIATES
* LAND
SURVEYOR
No. 5075
ygwAll, Lf,S~
By:
November 28, 2003 Robert K.Y. e
1270 Queen Emma Street, Suite 700 Licensed Professional Surveyor
Honolulu, Hawaii 96813 Certificate Number 5075
EXHIBIT A
Page 3 of 5
TOWILL, SHIGEOKA & ASSOCIATES, INC.
SURVEYORS
1270 QUEEN EMMA STREET • SUITE 70D • HONOLULU, MW 96813
LOT 8-B
SUBDMSION 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. 51032'300 118.80 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. 63°31'30" 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. 317°45' 184.28 feet along Lots 7 and 6, being a remainder of R.P. 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A 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. 41 °20' 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. 280I5' 782.02 feet along Lots 4-A and 3, being a remainder of RP. 3607 and 7533,
L.C. Aw. 8452, Ap. 9 to A. Keohokalole;
t0. 11 1°15' 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. 8452, Ap. 9 to A. Keohokalole;
12. 222059'30" 427.35 feet along the same;
13. 221006' 306.52 feet along the same;
14. 309053'30" 128.41 feet along Lot 8-D, 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, SHIGEOKA & ASSOCIATES, INC.
SURVEYORS
1270 QUEEN EMMA STREET • SURE 700 • HONOLU{ U. HAIIMII 06813
17. Thence along the same, on a curve to the left with a radius of 40.00 feet, the chord
azimuth and distance being:
210°06'30" 44.06 feet;
18. 176041'30" 207.99 feet along the same;
19. Thence along the same, on a curve to the right with a radius of 200.00 fast, the chord
azimuth and distance being:
262°29'02.5" 28.25 feet;
20. 266032' 21.11 feet along along the same;
Thence along the remainder of R.P. 3607 and 7533, L.C. Aw. 8452, Ap. 9 to
A Keohokalole, on the Southwesterly side of Lower Government
Main Road (Napoopoo Road), for the following five (5) courses:
21. 4°56'30" 7.49 feet;
22. 334048' 53.35 feet;
23. 325°O8' 61.54 feet;
24. 315011' 55.98 feet;
25. 319053'30" 5.05 feet, to the point of beginning and containing an area of 22.880 Acres,
more or less.
TOGETHER WITH, but not limited to:
EASEMENT A-1 for Access Purposes affecting Lot 8-D;
And
SUBJECT, HOWEVER, but not limited to, the following :
EASEMENT A-2 for Access Purposes;
Portion of EASEMENT P-2 for "No Vehicular Access" Planting Screen Purposes;
Portion of EASEMENT R-2 for future Road Widening Purposes ( 5 feet wide and
Portion of EASEMENT SB-2 for Structural Setback Purposes.
EpT K. y
QOM 4Ftt. TOWILL, SHIGEOKA & ASSOCIATES
LICENSED
I'ROPESSwNAL
* LAND
SURVEYOR
No. 5076
y41~'A II, U 5
Rev. December 4, 2003 Robert K.Y. Lee
1270 Queen Emma Street, Suite 700 Licensed Professional Surveyor
Honolulu, Hawaii 96813 Certificate Number 5075
EXHIBIT A
Page 5 of 5
TOWILL, SHIGEOKA & ASSOCIATES, INC.
SURVEYORS
1270 OUEENEMYA STREET " SUITE 700 " HONOLULU, HKW196813