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HomeMy WebLinkAboutCOM 0964.057 2004-2006 Page 1 of 1 Murashige, Laura From: rivaut@netscape.com Sent: Wednesday, September 06, 2006 3:36 AM To: counciltestimony@co.hawaii.hi.us Subject: OPPOSING F-2 COVENANT LOOPHOLES plus CONCERNS Attachments: SEPT 5 2006 COUNTY COUNCIL TESTIMONY.doc Dear County Council, Please take the time to review all the testimony carefully. Thank you for your consideration, Dore Dokos-Loewenthal P., cn - Netscape. Just the Net You Need. = rn _ n Comm. No. Ref. To: Pressi Ref. Vate _ 2006 9/6/2006 Council Testimony page I Submitted Sept. 5, 2006 Dore Dokos-Loewenthal P.O. Box 503, Captain Cook, Hi. 96704 PART ONE TIME URGENT! POTENTIAL LOOPHOLES IN RESTRICTIVE COVENANT FOR AMENDMENT F-2 PART TWO PRIOR KNOWLEDGE OF ENVIRONMENTAL CONCERNS, RISKS AND REGULATIONS PART THREE COUNTY LIABILITY FOR ENVIRONMENTAL DAMAGE PART FOUR PUBLIC PARTICIPATION PART FIVE HAWAII STATE PRECAUTIONARY PRINCIPLE POLICY TIME-URGENT F-2 LOOPHOLES TO AVOID- RESTRICTIVE COVENANT LANGUAGE Dear Mayor Kim, Members of the County Council and the Planning Director, We appreciate your ongoing efforts to make the F-2 amendment's restrictive clause language truly protective of the nearly 100 acres above Kealakekua Bay. There are several concerns to be dealt with in order to make this clause protective. The following observations are based on a draft of restrictive covenant by Captain Cook LLC that Ms. Isbell gave us to review. Loophole tied to change of LUPAG 1. According to County of Hawaii Planning Department Rules, Practice and Procedure, Rule 4. General Plan Amendments, an amendment to change the LUPAG Map Land Use Designation can be initiated by the landowner, through the Planning Commission, County Council, or by the Planning Director. The F-2 amendment was 1 Page 2 in fact initiated by the Planning Director. Therefore, I must question how protective this restrictive clause is which is only effective until the LUPAG Map Land Use Designation is changed again, since the option to change the LUPAG designation is immediately available to the County Cormcil and the Planning Director? Loophole: no discernable lasting time element There is no discernable time element for this restrictive covenant. It is inappropriately tied to the LUPAG map designations which the Planning Director, the majority of the County Council, and you are even now trying to change. Loophole: termination of covenant triggers 2. The actual covenant itself might be subject to change by the owner/owners merely by changing the parcel size, the I,UPAG map designation, or the State of IlawaiPs change of land zone definitions. Loophole: upcoming revisions by SLUC and KCDP 3. The State Land use Commission has a project underway to revise Rural land use concepts. The Kona Community Development Plan is working on revising rural land use concepts. It is highly probable that some revision of terminology and definitions will be reflected in County Code amendments in the upcoming months and years as a result of the work being done by the SLUC and KCDP. Loophole: tied to terminology and revisions 4. Therefore, the F-2 restrictive covenant should not be tied to County Code amendments regarding terminology, definition, and classification of rural land use. THAT WOULD CREATE A SIGNIFICANT LOOPHOLE. Loophole: developer, s disclaimers 5. Legal documents drafted by the attorney of a developer are designed to protect the developer's interest, not the public's interest. This particular document falls into that category. It contains sufficient disclaimers to allow the. developer to negatively impact the Pali and Kealakekua Bay through future actions. Obviously, the Kona community will not consider this covenant truly protective unless it can be expected to have full effect permanently. Anything else will just look like a political ploy to placate the community's concerns without really protecting the land or the Bay. A cosmetic restriction that simply slightly slows the process leading to higher density development is not sufficient protection for Kealakekua Bay and Marine Life Conservation District. . Therefore, as discussed with you, we need to have this document reviewed by an attorney to incorporate language favorable to the public's interest; to evaluate its worth in terms of the community's concerns. We are doing this with due diligence. 2 page 3 The F-2 amendment would greatly raise the land value for one particular entity, Captain Cook LLC; remove important agricultural land from the Kona Coffee Belt; and provide Captain Crook, LLC with entitlements that could not be rescinded if the F-2 amendment is passed. 'therefore, the issue of the F'-2 amendment is one that should not be railroaded through the County Council. I think it is fair to say that this F-2 issue is the canary in the mine shaft in terms of public perception. With the Kona Community Development Plan in process of being drafted, many citizens are aware of land use issues. Since it is an election year, there is even more scrutiny of how our officials are dealing with these issues. Amendment F-2 is an issue that requires accountability. It requires the will to take a stand to protect Kealakekua Bay and the agrarian lands of the Pali. What you do with amendment F-2 and your vote will set the future course for these lands, the coral reefs and the tropical fish ecosystems of Kealakekua Bay. Please remember, this a fragile, irreplaceable area beloved by island residents who have expressed their deep concern over passing amendment F-2, PART TWO PRIOR KNOWLEDGE OF ENVIRONMENTAL CONCERNS, RISKS AND REGULATIONS Throughout the testimony submitted opposing General Interim Amendment F-2, information has been entered on record to make sure the Hawaii County Planning Commission, Planning Director and members of the County Council are aware of current criteria, standards and regulations for protecting our coastal resources. Hawaii County has not been notably diligent or effective in implementing proactive comprehensive programs to protect our island's coastal ecosystems. The County has not been diligent or effective in enforcing Federal, State and Hawaii County General Plan regulations and mandates for environmental protection. Many other Counties and States have been far more stringent in enforcing requirements and standards to meet the Federal Clean Water Act. Many other Counties and States have initiated ordinance and research 3 Page 4 programs to keep coastal management protection effective and updated. PART THREE COUNTY LIABILITY FOR ENVIRONMENTAL DAMAGE Since the Hawaii Supreme Court recently ruled that Hawaii County, as well as the State , is responsible for protecting coastal waters, concerned residents are now on solid legal ground in demanding the County fulfill its duty to protect our coastal waters and ecosystems. If the County pursues a course of land use decisions and permit practices that are in conflict with Federal and State objectives to protect the environment, the County will be held liable for resulting adverse impacts and damage to natural resources. County officials, both elected and appointed, will be the ones held accountable if their decisions cause liability for the County. These officials are shielded from personal liability. However, it will not serve the citizens or the County to retain officials who create legal liability for the County and taxpayers. Hokulia is not a game that can be played twice in terms of evading responsibility for damage incurred to the coastal resources. PART FOUR PUBLIC PARTICIPATION Island residents are becoming increasingly aware of the correlation between land use decisions, the permitting process and potential adverse environmental impacts on watersheds, groundwater resources and coastal waters. Everything is now up for close examination, e.g., is informed public participation being hindered or encouraged on LUPAG Map land use 4 Page 5 decisions, General Plan Amendments, Special Area Management Use Permits, rezoning and development projects? Does watershed management employ Best Management Practices and Best Available Science and information from knowledgeable local residents in terms of potential pollution of the groundwater resources and coastal waters? Is County notification on land use issues affecting natural resources, like Kealakekua Bay and Marine Life Conservation District, being directly communicated to all concerned in a timely and comprehensible manner? Natural resources are part of the Commonwealth, belonging to all of us. All residents, not just owners or those within 300', deserve timely, clear and detailed notification on such issues, plus adequate time to research and respond. PART FIVE HAWAII STATE PRECAUTIONARY PRINCIPLE POLICY In 2004, the 22"d State Legislature passed a Senate Resolution implementing the Precautionary Principle Policy in regard to environmental protection. It says an obligation exists to assess alternatives and select the alternative with least potential impact on human health and the environment, including the alternative of doing nothing. The Precautionary Principle says when there is reasonable suspicion of harm, and there is scientific uncertainty, then we have the duty to take action to prevent harm. There is now sufficient scientific evidence to indicate the coastal waters of West Hawaii, including Kealakekua Bay, are showing signs of degradation. Information has been presented 5 Page 6 to the County Council regarding Non-Point Source Pollution, Cumulative Secondary Impacts of pollution and Submarine Groundwater Discharge and Seepage carrying pollution into coastal waters. There is at present scientific uncertainty on how to accurately identify, assess, measure, mitigate and prevent these types of pollution caused by development. Citizens have opposed F-2 as a LUPAG Map Land Use change because Rural designation can facilitate higher density zoning and development on these lands over the Bay. There is reasonable suspicion that harm caused by pollution from development could adversely impact Kealakekua Bay and Marine Life Conservation District. The County Council should be following the Precautionary Principle and voting to Delete F-2, as the Planning Commission did on May 26, 2006. Instead, the County Council wants to pass F-2 The F-2 amendment is proposed using the rationale of a pending subdivision of 33 RA2- acre lots. This pending subdivision is using a Special Management Area Use Permit #269 issued in 1988. Twenty years ago, the risk of harm from Non-Point Source Pollution, Cumulative Secondary Impact and Submarine Groundwater Discharge was not fully understood in assessing potential adverse environmental impact. Why does the Planning Director want to give a LUPAG Map land use change facilitating application for higher density development on the basis of a pending subdivision using a 20 yr. old SMA Use Permit for almost 100 acres above a Marine Life Conservation District? 6 Page 7 The Hawaii State Precautionary Principle states that when there is reasonable suspicion of harm, then we have the duty to take action to prevent harm. The citizens expressing their concerns about amendment F-2 to the County Council take that duty seriously because they love the land and coral reefs. The Planning Commission took that duty to protect the environment seriously. We hope the County Council will follow suit. 7