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HomeMy WebLinkAboutCOM 0494.000 2006-2008 ' 2Y Of p y..,,~wy' K~. ~ Harry Kim Christopher J. Yuen Mayor Director ?~;i ro!N h;; Brad Kurokawa, ASLA LEED®AP /-(1'~~~y,•_ ~t ~tj Deputy Direcor PLANNING UEPAR'I'MEiVT 101 Pauahi Street, Suite 3 Hilo, Hawaii 9(720-3043 (8081961-8288 FAX (808) 96]-8742 C-i June 25, 2007 r~~ v Steven S.C. Lim, Esq. Cazlsmith Ball LLP P. O. Box 686 Hilo HI 96721-0686 Dear Mr. Lim: Change of Zone Ordinance No. O1 69 (REZ 967) Applicant: Daniel Joseph ("Mike") McKenna (Previously EHP Corporation) Request: A-Sato CG-20 for Approximately 5.083 Acres of Land Subject: Response to Letter Dated June 19, 2007 Regarding Easement Tax Map Key: 7-5-3:19 This is to acknowledge receipt of your letter dated June 19, 2007 regarding our request to negotiate in good faith with the owners of TMK: 7-4-8:001 to grant an easement over TMK: 7-5-3:19 to Henry Street in our March 16, 2006 and May 23, 2007 letters. Your letter describes in detail the attempts your client has made to negotiate in good faith to grant an access easement to Queen Liliuokalani TrusdRutter Development over your client's property, and the obstacles that have occurred from preventing this action from being finalized. For clarification purposes, the initial s-yeaz administrative time extension request that was originally requested on January 9, 2006 to comply with Condition D (complete construction within 5 years) was granted in our March 16, 2006 letter until August 24, 2011. In our letter, we asked that the owners of TMK No. 7-5-3:19, if requested by the owners of TMK No. 7-4-8:001, negotiate in good faith over the granting of an easement in favor of the RCX-zoned portion of TMK 7-4-8:001 over TMK No. 7-5-3:19 to Henry Street, provided further that (1) the easement serves a predominantly residential development, (2) the easement does not significantly interfere with the use of TMK No. 7-5-3:19, and (3) the owners are paid fair market value for any easement. From your letters dated May 11 and June 19, 2007, you have continued to show that your client has been negotiating in good faith to achieve this request although the granting of the easement has not occurred as of this date. We are continuing to request that your client work with the owners of TMK: 7-4-8:001 to finalize the granting of the access easement over TMK: 7-5-3:19 to Henry Street and to keep us informed regarding the final outcome of the granting and purchase of the easement. Comm. No. 7" Ref. To: Hawaii County is an Egual OpporhAnity Provider and Employer. Ref• dpte li IIJ ~ 7 7Rtt7 ' Steven S.C. Lim, Esq. Carlsmith Ball LLP Page 2 June 25, 2007 ' If you have any questions, please feel free to contact Jeff Darrow at 961-8288, ext 259. Sincerely. CHRISTOPHER J. ~ EN Planning Director " JWD:stnn P:\public\wpwin60Ueff\Letters\Time Ext\LLim-TER-REZ967-CondD(4).doc cc w/copy of letter: ~I-Iawaii County Council Planning Commission Planning Department-Kona Rutter Development Corp. CARLSMITH ALL LLP ' ALRdITED LIABILITY LAW PARTNERSHIP - ~ 121 WAIANUENUE AVENUE P.O. Box 686 HILO, HAWAII 96721-0686 TELEPHONE 808.935.6644 FAx 808.935.7975 W W W.CARLSMHN.COM JZELKOC~CARLSMITH.COM OUR REFERENCE NO.: 059190-00001 June 19, 2007 Christopher Yuen Planning Director Planning Department 101 Pauahi Street, Suite 3 Hilo, Hawaii 96720 Re: Change of Zone Ordinance No. Ol 69 (REZ 967) Satisfaction of Condition for 5-Year Administrative Time Extension To Complete Construction Applicant: Daniel Joseph ("Mike") McKenna Tax Man Kev: (317-5-003:019 Deaz Mr. Yuen: As you aze aware, our firm represents Daniel Joseph "Mike" McKenna ("Mckenna") in his administrative time extension request to comply with Condition D of Ordinance No. 01-69 which changed the Zoning district classification from Agricultural 5 acres (A-Sa) to General Commercial 20,000 sq. ft. (CG-20) on the property located at TMK: (3) 7-5-003:019 ("Subject Parcel"). This letter acknowledges receipt of your letter dated May 23, 2007 responding to our report on McKenna's compliance with the Condition imposed by the Planning Department (copy attached). Condition D required completion of construction within 5 years of the effective date of the Ordinance No. Ol -69 (August 24, 2001), therefore the deadline to complete construction would have been August 24, 2006. However on Mazch 16, 2005, the Planning Director granted an administrative time extension up to and including August 24, 2011 in accordance with the provisions of Condition P to comply with Condition D and required the following (copy attached): This time extension is given on the condition that the owners of TMK No. 7-5-003:019, if requested by the owners of TMK No. 7-4-008:001, negotiate in good faith over the granting of an easement in favor of the RCX-zoned portion of TMK 7-4-008:001 over TMK 7-5-003:019 to Henry Street, provided further that (1) the easement serves a predominantly residential development, (2) the easement does not significantly interfere with the use of TMK No. 7-5-003:019, and (3) the owners are paid fair market value for any easement. HONOLULU ~ KAPOLEI HILO ~ KONA ~ MAUI ~ GUAM ~ SAIPAN ~ LOS ANGELES Christopher Yuen June 19, 2007 . Page 2 McKenna's efforts to satisfy this Condition have been in vain. As we stated in our letter dated May 11, 2007, McKenna attempted to negotiate in good faith the granting of an access easement over the Subject Parcel and in favor of the Queen Lili'uokalani TrusURutter Development's (collectively "QLT/Rutter Development") property at TMK: (3) 7-4-008:001, or in the alternative, the purchase of the Subject Parcel by QLT/Rutter Development to no avail (copy attached). Although we requested a copy ofQLT/Rutter Development's concept plan for the proposed residential project, LeeAnn Crabbe of QLT stated that Rutter Development was not prepared to release their concept plan. To date, McKenna has not received a request by QLT/Rutter Development for an easement over the McKenna property which was apre-requisite of the Condition imposed by the Planning Department. The Condition imposed is quite clear that if our client is not paid fair mazket value for any easement, or the easement would significantly interfere with the use of the Subject Pazcel and most importantly if there is no request from QLT/Rutter Development for an easement, an agreement to grant an easement would not be required. QLT/Rutter Development has not been forthcoming with their concept plan for the proposed residential project and it is our understanding that there has been no action regazding the potential purchase of the Subject Parcel by QLT/Rutter Development since our office passed on the purchase information to the same. Our client should not be delayed in the development of the Subject Pazcel as they aze now by having to wait on QLT/Rutter Development to provide information, develop plans for it's property, or purchase the Subject Parcel as the Condition imposed by the Planning Director is negatively affecting our client's ability to obtain financing for it's own development. Your letter dated May 23, 2007 states that although our correspondence to the Planning Department described in detail the attempts McKenna made to negotiate in good faith the granting of an access easement to QLT/ Rutter Development, the actual action of granting the easement and the purchase of the easement has not been finalized. The condition however, did not state McKenna was required to grant the easement, only that McKenna would negotiate in good faith which he has done. Assuming that the Planning Department takes the position that the condition requires the actual granting of an easement, we would argue that the Planning Department does not have authority to condition approval of a development on the developer having to negotiate directly with adjoining property owners, since such a condition "would unlawfully delegate the municipality's authority to those property owners whose property adjoins the subject property"t. We believe this to be an ultra wires act on behalf of the Planning Department and it is interfering with McKenna's vested property rights and McKenna's right to the use and enjoyment of his property including development and the financing for the Subject Parcel. ~ 83 Am Jur 2d § 479, Zoning and Planning, Authority to Impose Conditions. Christopher Yuen June 19, 2007 Page 3 Therefore, on behalf our client, we request that the Planning Department issue written confirmation that the condition to the 5-year time extension to complete construction of the project through August 24, 2011, pursuant to Ordinance No. 01-69 is hereby satisfied. If you have any questions, please feel free to contact Steve Lim or Jennifer Zelko. Sincerely, ~"f even S.C. Lim JLZ/1lh Attachments cc: Mike McKenna LeeAnn Crabbe/ Queen Lili`uokalani Trust Teny Lee, Esq. 4510-8611-9425.1 i+ta~~~i±. i". qtr os.r~, Harry Kim 4t'~ ~ Christopher J. Yuen Mnyor- P• Director' • e; • Bred KUI'OkeWe, ASLA, LEED'"' AP Depnty Director 4rE o:•rr~'' County of Hawaii PLANNING DEPARTMENT Aupuni Center I OI Pauahi Street, Suile 3 Hilo, Hawaii 96720 Phone (808)961-8288 • Fax (808)961-8742 March 16, 2006 Steven S.C. Lim, Esq. Carlsmith Ball LLP P. O. Box 686 Hilo HI 96721-0686 Dear Mr. Lim: Change of Zone Ordinance No. O1 69 (REZ 967) Applicant: Daniel Joseph ("Mike") McKenna (Previously EHP Corporation) Request: A-Sato CG-20 for Approximately 5.083 Acres of Land Subject: Administrative Time Extension to Comply With Condition D Tax Man Kev: 7-5-3:19 This is in response to your letter dated January 9, 2006 requesting an administrative extension of time in accordance with the provisions of Condition P to comply with Condition D (Complete Construction Within 5 years) of Change of Zone Ordinance No. Ol 69. Condition P allows for an administrative time extension for a period not to exceed the period originally granted. According to the letter submitted, there is reasonable and sufficient justification to allow for the requested time extension. The effective date for Change of Zone Ordinance No. O1 69 is August 24, 2001. Therefore, as requested, we will grant a 5-year time extension until August 24, 2011 to comply with Condition D. This time extension is given on the condition that the owners of TMK No. 7-5-3:19, if requested by the owners of TMK No. 7-4-8:001, negotiate in good faith over the granting of an easement in favor of the RCX-zoned portion of TMK 7-4-8:001 over TMK No. 7-5-3:19 to Henry Street, provided further that (1) [he easement serves a predominantly residential development, (2) the easement does not significantly interfere with the use of TMK No. 7-5-3:19, and (3) the owners are paid fair market value for any easement. Hawat`i County is an Equal Opportunity Provider and Employer • Steven S.C. Lim, Esq. • Match 16, 2006 Page 2 If you have any questions, please feel free to contact Jeff Darrow at 961-8288. Sincere %A~~L 1 CHRISTOPHER J. YU Planning Director CJY/JWD:SMN P:\WPWIN60UEFF\Letters\Time Ext\LLim-TER-REZ967-CondD.doc cc w/copy of letter: Hawaii County Council Planning Commission Planning Department-Kona I i CARLSMITH BALL LLP _ A LIMITED LIABILITY LAW PARTNERSHIP 121 WAIANUENUE AVENUE P.O. Box 686 Hn.o, HAWAII 9672]-0686 'II:LEPHONE 808.935.6694 Fax 808.935.7975 WWW.CARLSMITH.COM SLIM~CARLSMITH.COM OUR REFERENCE NO.: 059790.1 May 11, 2007 Christopher Yuen Planning Director Planning Department County of Hawaii 101 Pauahi Street, Suite 3 Hilo Hawaii 96720 Re: Change of Zone Ordinance No. 01-69 (REZ 967) Applicant Daniel Joseph ("Mike") McKenna (previously EHP Corporation) Compliance with Condition D or Ordinance No. 01-69 TMK (3) 7-5-003:019 Dear Mr. Yuen: t.. - This will report on compliance by tkie Applicant Daniel Joseph "Mike" McKenna with the condition of the Mazch 16, 2006 admini$+trative time extension to.comply with Condition D of Ordinance No. Ol-b9. That condition required the following: ' This time extension is given on the condition that the owners of TMK No. 7-5-3:19, if requested by the owners of TMK No. 7-4-8:001, negotiate in good faith over the granting of an easement in favor of the RCX-zoned portion of TMK 7-4-8:001 over TMK No. 7-5-3:19 to Henry Street, provided further that (1) the easement serves a predominantly residential development, (2) the easement does not significantly interfere with the use of TMK No. 7-5-3:19, and (3) the owners aze paid fair mazket value for any easement. In compliance with the above condition of the 5-year time extension until August 24, 2011 to comply with Condition D (complete construction within five yeazs) on August 11, 2006, our office requested of the Planning Department a copy of the proposed Queen Lili'uokalani Trust / Rutter Development (collectively "Rutter") Project Plan for TMK (3) 7-4-8:001 which ~ showed the proposed access across the McKenna Pazcel TMK (3) 7-5-3:19. On August 28, 2006 our office requested that the Planning Department apprise us on the status of our August 11, 2006 request regazding transmittal of the Rutter Project Plan. On August 30, 2006 we received HONOLULU ~ KAPOLEI ~ HILO ~ KONA ~ MAUI ~ GUAM ~ SAIPAN ~ LOS ANGELES i Christopher Yuen May 11, 200' Page 2 an email from Michael Eadie of Rutter Development regarding the proposed access from the QLT property across the McKenna property to Henry Street. See attached Exhibit A. On , September 5, 2006 I spoke with Michael Eadie of Rutter Development and was informed that Mr. Eadie would send us a project concept plan for review by Mr. McKenna regarding the proposed access. On September 12, 2006, my office received an email from LeeAnn Crabbe of QLT which indicated that Rutter Development was not prepared to release their concept plan for the proposed residential project, however they did provide proposed density calculations for the residential project showing 236 units on 23 gross acres, to include approximately 400 pazking stalls. On September 26, 2006, my office passed on MLS and other information on the McKenna property to QLT regazding a potential purchase of the McKenna property in order to obtain access to Henry Street and the water commitments that came with the McKenna property. I understand that the broker for Mr. McKenna contacted QLT regarding the potential purchase of the McKenna property, and as faz as I know there has been no action on that front since that time. Therefore, in light of the above attempts to negotiate in good faith over the granting of an access easement in favor of the QLT property over the McKenna property, or the purchase of the McKenna property, this will request that the Planning Department issue written confirmation that the condition to the 5-year time extension to complete construction of the project through August 24, 201 ],pursuant to Condition D of Ordinance No. 01-69 is hereby satisfied. If you have any questions, please feel free to contact me. Very truly yours, CARLSMITH BALL LLP Steven S. .Lim SSLIIny Enclosure cc: Mike McKenna LeeAnn Crabbe -Queen Lili'uokalani Trust Tent' Lee, Esq. 4848-0211-6353.1 f 1 1 I Lynn A. Hatakenaka From: Michael Eadie [meadie®rutterdevelopment.com] Sent: Wednesday, August 30, 2006 1:56 PM To: Lynn A. Hatakenaka Cc: deadie(t~rutterdevelopment.com Subject: FW: Access to Henry Street Attachments: 08-30-2006 04;06;08PM.PDF 08-30-2006 ;06;08PM.PDF(372 Dear Ms. Hatakenaka, I am forwarding a scan that shows in a general way how we would access our property from a point further down Henry Street. We are unaware of your plans for the property and whether you are contemplating any changes along your frontage that might allow for one coordinated access point for our respective properties. Presently, we see a lot of landscape improvements and a wall there. I will be back in my California office on Friday. Perhaps we could talk about this over the phone. In the interim, if you have any comments we would appreciate hearing them. Mahal o, Dave Eadie, CEO Rutter Development Corporation 18012 Cowan, Suite 200 Irvine, CA 92614 (949) 863-1298 Cell: (949) 933-9723 email: deadie@rutterdevelopment.com i 1 c i 1 d~~' r__.______.._...._ r r Lod l~ ~ior~ t o 0 • N O 01 Ol 7 Q T m N N C N N d 'p N U v a 6 ` ~Z ,s ~ ~v ~ \ i ~ ~ ~ ~ J~ C ~ ~ ~ f~` ~ ~ ~ . ~ F~r~• N ~ l / J l' 1 \ ( ( ry ~ `1 , 1 / / J a ~ ~ / 0 1\ ~ i,, ~ \.i ~ /r ~ ~ W i; { \ Y { ~ ar --I ar ~ YI ~ it ; 1 - ' I I '"H--~ I c ~ _~i_~ ~ ~~1 I _ ; ` u ' ~ ~ aal` ! \ 1 ~ ~ vtAY n \ ~ ~ ~ 1~; `1 ~ M \ I ` Y I t, ~ ~ `~k ; . < ~ tj3#i~ ~ t ~ t ~i ~1 `y 4; I J 4~.. wl i I. ~ `1 4 r j \ ~ u\ '1 ° ~ •i_i ~ ~ ~•:Y I M I k t ti V ~ I W ~ i ~ i! +it < .t ~ r ~ I u c i~~~ ~ ; ~ ~L;;a Z f~'i~~j `1i5 ~y I ~ 2 ! 5`-;f lnll i 4 ' r~ Z V ~ L j ~ • - r{l, - ~ s Z Y , W ` I,i t. 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