HomeMy WebLinkAboutCOM 0725.000 1996-1998 °
o,Mtr os Virginia Goldstein
Stephen K. Yamashiro 6i~ Director
Mayor Russell Kokubun
Depary Direcv,r
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PLANNING DEPARTMENT '
25 Aupuni Street. Room 109 • Nilo, Hawaii 96720-0252
(808) 961.8288 • Fax (808) 961-6742
February 13, 1998
Mr. Duane Kanuha
Chalon International of Hawaii, Inc.
101 Aupuni Street, Suite 206
Hilo, Hawaii 96720
Dear Mr. Kanuha:
Change of Zone Ordinance No. 93-109 (REZ No. 747)
Special Management Area Use Permit No. 341
Use Permit No. 111
Applicant: Chalon International of Hawaii, Inc.
Subject: Annual Progress Report
Tax Map Key: 5-7-03: Portions of 02 and ] 0
This is to acknowledge receipt of your annual progress report by letter dated December 12, 1997,
and a facsimile of table attachment on February 4, 1998, that was inadvertently omitted. Thank
you for complying with this requirement. As your summary is most comprehensive, we shall
acknowledge that this annual report also provides a status report for the above applicable permits.
We also acknowledge receipt on February 9, 1998, of a copy of the agreement between the
Department of Water Supply and Chalon International of Hawaii, Inc. in regards to compliance
with Condition No. B(2) of Change of Zone Ordinance No. 93-109. Thank you for submitting
this document for our files. Based on the agreement, compliance with Condition No. B(2) has
been met, therefore, the effective date of Change of Zone Ordinance No. 93-109 and SMA
Use Permit No. 341 is retroactive to February 27, 1996, the date of signed agreement.
By copy of this letter, we shall transmit your report and the agreement to the County Council and
Planning Commission for their information.
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~F'EB '1 3 1998
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Mr. Duane Kanuha
Chalon International of Hawaii, Inc.
Page 2
February 13, 1998
We look forward to the filing of your next annual report on or before November 8, 1998. Should
you have any questions, please contact Susan Gagorik or Phyllis Fujimoto at 961-8288.
Sincerely,
GIIVIA GOLDSTEIN
Planning Director
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CHALON INTERNATIONAL of Hawaii, Inc.
101 AUPUNI ST., SUITE 206 HILO, HAWAII 96720 . TELEPHONE: (808) 934-7033 FAX: (808) 934-7231
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TRANSMITTAL -
DATE: 12/17/97
TO: Virginia Goldstein
Planning Department
FROM: DUANE KANUHA
PROJECT: Mahukona Annual Progress Report
TRANSMITTAL ACTION
®As Requested ?For Review and Comment ?For Your Use
?For Signature ?As Indicated on Transmittal Item?For Approval
TRANSMITTAL ATTACHED
®Originals ?Copy(s) ?Reproducibles ?Reports
? Mail ? FAX ®Hand Delivery
NO. OF TRANSMITTALS: ~
REMARKS:Re-submittal of above referenced letter with corrections as noted
Jy R'n'OkLibUii.
COPY TO:Chalon (Kohala)
?With attachments ?Without attachments
CHALON INTEKNATIONAL of Hawaii, Inc.
P.O. BOX 249 HAWI, HAWAII 96719 TELEPHONE: (808) 889-6257 FAX: (808) 889-5252
December 12, 1997
Ms. Virginia Goldstein, Director
Plaruung Department
County of Hawaii
25 Aupuni Street, Room 109
Hilo; HI 96720
SUBJECT: ANNUAL PROGRESS REPORT -ORDINANCE NO. 93-109
MAHUKONA, NORTH KOHALA, HAWAII
TMK: 5-7-03:02 Portion and 10 Portion
Dear Ms. Goldstein:
In compliance with Condition "U" of Ordinance No. 93-109, Chalon
International of Hawaii, Inc. hereby submits the annual progress report
for 1997. Condition "U" states that:
"(U) an annual progress report shall be submitted to the Planning
Director prior to the anniversary date of the change of zone. The
report shall included but not be limited to, the status of the
development and to what extent the conditions of approval are being
complied with. This condition shall remain in effect until all of the
conditions of approval have been complied with and the Planning
Director acknowledges that further reports are not required."
The anniversary date of Ordinance No. 93-109 is November 8, 1993 and
therefore this annual report should have been submitted to your office
prior to that date. We apologize for the lateness of its submittal.
The attached table shows the conditions that have been complied with to
date, which generally relate to grading and land clearing activity. Chalon
has spent most of this year preparing the project site for grading activity
and defending against litigation in the 3~d Circuit Court and the Hawaii
Supreme Court.
These pending legal challenges have affected Chalon's desire to commit
long term financial support to other phases of the Mahukona project
until the property's entitlement status is reaffirmed. We are pleased to
report that the Hawaii Supreme Court issued Summary Disposition
Order No. 1905 dated June 16, 1997 affirming the lower court's
' Ms. Virginia Goldstein, F ling Director
Annual Progress Report for Ordinance No. 93-109
December I1, 1997
Page 2
judgment of May 17, 1995 which sustained the Plallrling Commission's
decision to GRANT SMA Permit No. 341 to Chalon International and
DENY Appellants request for contested case hearing (Civil No. 93-418).
On the second pending appeal (Civil No. 93-417), the 3'd Circuit Court on
Apri128, 1997 ruled that appellant's did have standing to participate in
the proceedings but denied all other substantive issues raised by
appellants. Appellants filed a Notice of Appeal with the Hawaii Supreme
Court on May 27, 1997 and opening/ansH~erir_g briefs were filed late this
year.
Grading activity commenced on the property during the end of March.
Golf course centerline roadways were constructed and various clearing
work around several golf holes has also commenced. Prior to this
grading activity, the 40-foot shoreline setback and centerline roadways
were surveyed and staked out, and archaeological protection fencing was
installed.
We do not anticipate that any time extensions for the remaining
conditions will be necessary as Chalon proceeds with the rest of the
project.
Please feel free to call on me at 934-7033 if there are any questions
regarding the above.
Sincerely,
Duane K uha, Vice President
CHALON IN'T'ERNATIONAL OF HAWAII, INC.
attachment as
Cc Takeshi Okumura
Steve Lim/Carlsmith (Hilo)
2
CH.aLUl`J iN"ir'RNATIONAL of Hawaii, Ino.'t~ r~
'~U~ AuPUNI £T., 5~~iTE eD6 NtlO, HA'~.~NI 96720 . 'CLi.I?PI~bAz+-J', ~$Ciq-~^:bl~~~)1,7~1 IPgg (4tk~1 934-73:11
SAX COVER SHE~~T' ~ "
DATE: 2!4/98
Number of pages ~~chading cover sheet:5
TO. Susan. Gregorik
Planning Department
FAX NO' 961-8742 ~
~
FROM: QUANE KANUHA
SUBJECT' Attachment to Mar,u;~ona Progress Report =
MFSS,4uE:Per ycur request, the subject attachmer;t is being {ax'ed fierewiln.
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CARLSMITH BALL WICHMAN CASE & ICHIKI
ATTORNEYS AT LAW _
APARTNERSHIP INGLUOING IAW CORPORATIONS ,
121 WAIANUENUE AVENUE
P.O. BOX 686
HILO, HAWAII 96721-0686 ~
TELEPHONE (808) 935-6644
FAX (808) 935-7975
W W W.CARLSMITH.COM
LETTER OF TRANSMITTAL
To: Planning Department DATE: February 9, 1998
25 Aupuni Street
Hilo, Hawaii 96720 RE: Chalon International of Hawaii, Inc
Ordinance No. 93-109
Attention: Susan Gregorik C~t Cl~
Mailed X Hand Delivered
THE FOLLOWING IS (ARE) TRANSMITTED HEREWITH:
COPIES DATE DESCRIPTION
copy 02/27/96 Agreement between Water Commission of the County
of Hawaii and Chalon International of Hawaii, Inc. (in
satisfaction of Condition B(2) of Ordinance No. 93-109
For Your Information For Review and Comment
L- For Your Files L-J For Necessary Action
XI Per Your Request 'For Signature and Return (Black Ink)
u Per Our Conversation ~ See Remarks below
REMARKS:
$y /
Steven S.C. Lim
xc w/enclosure: Duane Kanuha
a
LAND COURT SYSTEM RE ULAR SYSTEM
RETURN BY: MAIL ( ) PICKUP ( ) TO:
STEVEN S.C. LIM
CARLSbfITH BALL WICHM.4N
CASE AND [CHIKI
121 Waianuenue Avenue
Hilo, Hawaii 96720
AGREEMENT
THIS AGREEMENT, entered into this 27th day of February , 1996, by and between
the WATER COMMISSION OF THE COUNTY OF HAWAII, hereinafter referred to as the
"Commission", and CHALON INTERNATIONAL OF HAWAII, INC., hereinafter referred to
as "Chalon",
WITNESSE"C H:
WHEREAS, Chalon wishes to develop for agricultural, residential, recreational, resort
and accessory uses those certain lands situated in Mahukona and Kapaanui, North Kohala, Hawaii,
hereinafter referred to as the "Land", and more particulazly described in Exhibit "A" attached hereto
and made a part hereof; and
WHEREAS, the County of Hawaii and the Hawaii County Council have, by the
adoption of certain permit approvals and zoning ordinances, to include without (imitation Ordinance
No. 93-109, approved Chalon's request for development of portions of the Land; and
WHEREAS, the Hawaii County Water Use and Development Plan, a component of
the State Hawaii Water Plan, identifies the South Kohala coastal area as facing a possible ground
water supply shortage due to the large imbalance of projected future demand over the estimated
sustainable yield for the Waimea aquifer: and
WHEREAS, the County and the Commission are proposing to supplement the South
Kohala coastal area's water supply with ground water from North Kohala by the construction of an
interregional water system identified as the Kohala Coast Water Transmission System, as oeneralh
depicted in Exhibit'`B" attached hereto and made a part hereof; and
WHEREAS, the Kohala Coast Water Transmission System would also provide an
alternative ground water source and supply for the existing North Kohala water system. thereb}
improving system reliability and provide for the future water needs of North and South Kohala; and
WHEREAS, the parries recognize the long term importance of upgrading and
improving the existing Notth Kohala water system in a comprehensive and cost efficient manner.
and
WHEREAS, the Departments of Water Supply and Planning, upon consultation with
the State Department of Health and the Department of Land and Natura] Resources, have determined
that a water source(s) of sufficient quality and quantity has been established to service the
requirements of the proposed development of the Land in satisfaction of Condition B(1) of
Ordinance No. 93-109 and any other applicable permit and zoning approvals granted to Chalon for
the Land which require establishment of such water source(s); and
WHEREAS, the parties are desirous of undertaking a water source development
program and entering into an agreement setting forth the conditions upon which the parties hereto
shall undertake and develop the water source to service the development proposed for the Land in
accordance with Ordinance No. 93-109, and the relevant zoning and permit approvals granted to
Chalon, and the uses provided for in the applicable provisions of Chapter 23 (Subdivision) and
Chapter 2~ (Zoning Code) of the Hawaii County Code;
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
promises contained herein, the parties hereto agree that upon the effective date of this Agreement,
which effective date shall be upon the approval of this Agreement by the affirmative vote of the
Water Commission of the County of Hawaii, Chalon shall have satisfied the agreement and
appropriate security requirements of Condition B(2) of Ordinance No. 93-109, and any other
applicable permit and zoning approvals granted to Chalon for the Land which require that an
agreement and appropriate provisions for security be executed between Chalon and the County of
Hawaii for the actual development of a proven potable water source, transmission and distribution
system.
A. Particination in Kohala Coast Water Transmission System Project.
In full satisfaction of all applicable water development provisions of Condition B(2)
of Ordinance No. 93-109 and the permit and zoning approvals for the Land, Chalon shall dedicate
real property interests to the County and/or the Commission for its pro rata participation share as
determined herein towards the cost of planning, engineering, and constructing the Kohala Coast
Water Transmission System.
B. Pro Rata Calculation.
The pro rata participation share for Chalon in the Kohala Coast Water Transmission
System shall be valued at two dollars ($2.00) per gallon of potable water required for full
development of the Land. The total water requirement for full development of the Land pursuant
to the applicable zoning and permit approvals granted to Chalon is 0.280 million gallons of water
per day of potable water. Therefore, the total pro rata participation share for Chalon in the Kohala
Coast Water Transmission System for full development of the Land shall be valued at Five Hundred
Sixty Thousand and No/100 Dollars ($660,000.00).
C. Term and Method of Participation.
1. The term of this Agreement shall be for a period of fifteen (15) years
following its effective date, which effective date shall be upon the approval of this
Agreement by the Water Commission of the County of Hawaii. During this fifeen
(l~) yeaz period, Chalon agrees to cooperate on a pro rata basis with the County
and/or Commission in the planning and implementation of the Kohala Coast Water
Transmission System, subject to the limitations in Section D, below. The term
"cooperate" as used herein is strictly limited to Chalon's obligation to dedicate real
property interests to the County and/or Commission pursuant to the terms herein.
2. Upon a formal request by the County and/or the Commission, Chalon
agrees to grant by warranty deed, from the inventory of real property owned by
Chalon at the effective date of this Agreement, subject to the terms herein, perpetual
easements, interests and/or title to real property or combinations thereof t9 the
County and/or Commission, with an appraised value of at least $60,000.00, for use
as well site(s), storage facility site(s), and transmission corridors directly related to
the construction of the Kohala Coast Water Transmission System, as generally
depicted in Exhibit "B" attached hereto.
3. The parties hereto are aware that Chalon's agreement to grant the real
property interests by warranty deed as provided herein is subject to the precondition
that Chalon clears title to those real property interests prior to conveyance to the
County and/or Commission, at Chalon's sole cost and expense. In the event that
Chalon incurs substantial expense in its effort to grant clear title to any or all of the
3
real property interests pursuant to the terms herein, and upon agreement of the parties
hereto, specific credit towards fulfillment of the 560,000.04 pro rata participation
share may also be given to Chalon for all reasonable costs of title searches, clearing
and quieting title to the real property and/or interests to be conveyed to the County
and/or Cormission pursuant to the terms herein, including reasonable attorneys fees
and costs.
D. Failure of Parties to Perform• Non-Participation in the Koh11n Coast
Water Transmission Project.
1. In the event that the County and the Comtission fail to secure
construction funding for the Kohala Coast Water Transmission System project within
the effective term of this Agreement, Chalon shall have no further oblioa[ion to
cooperate on a pro rata basis in the Kohala Coast Water Transmission System, and
the County and the Commission shall on demand of Chalon immediately thereafrer
terminate and release any and all rights or title to real property or other security held
in furtherance of this Agreement unless further provided for under pazagraph ? of this
Section D.
2. In the event that the County and the Commission fail to secure
construction funding for the Kohala Coast Water Transmission System project within
the effective term of this Agreement, and the parties mutually agree that any of the
perpetual easements, interests and/or title to real property granted to the County
and/or Commission pursuant to this Agreement should not be aeleased and shall be
retained by the County and/or Commission for public purposes, Chalon, at Chalon's
sole option, shall be (a) credited and paid for the total appraised value of the real
property interests retained by the County and/or Commission, (b) credited with the
full and final payment of permanent and transferable `Water Units" which shall be
defined herein as permanent and transferrable water units, each consisting of 600
gallons per day of potable water, including the payment in full of all applicable water
commitment fees. water facility charges, capital assessment fees or similar charges.
and which may be transferred, at Chalon's sole discretion so long as Chalon is the
developer, to real property situated within the North Kohala District of the County
of Hawaii, or (c) a combination of the above two options as determined by mutual
agreement of the parties hereto. Determination of the number of Water Units granted
to Chalon as provided herein shall be by mutual agreement of the parties hereto.
3. Throughout the term of this Agreement, Chalon reserves the right to
independently develop a dedicable water well(s) system and related facilities to sen e
the Land, hereinafrer referred to as the "water source", to be 6ocated in the area
shown in Exhibit "C" attached hereto and made a part hereof. The planning and
designing of such water source shall be made in consultation with the Commission
and all costs related to the development thereof shall be borne entirely by Chalon.
4
If Chalon elects to independently develop such a dedicable water well(s) system and
related facilities, Chalon shall have no further obligation to cooperate on a pro rata
basis in the Kohala Coast Water Transmission System and pay the $560,000.00 pro
rata payment provided herein, provided that if dtuing the effective term of this
Agreement the County and Commission exercise their right to retain any of the
perpetual easements, interest and/or title to real property granted by Chalon, the
provisions relating to cash credits and/or permanent and transferrable Water Units
shall survive any expiration or termination of this Agreement and Chalon, its assigns
and successors in interest shall retain said credits until paid for, and said Water Units
until finally assigned for development.
E. General Conditions.
1. Chalon may, with the prior consent of the Commission, assign or
allocate any oral] of the Water Units earned pursuant to the terms of Paragraph D2
of this Agreement to developers of parcels within the North Kohala District of the
County of Hawaii.
Z. Chalon may, with the prior consent of the Commission, assign or
allocate portions of the water allocation generated from any water source developed
pursuant to this Agreement to developers of parcels within the Land.
3. There shall be no final approval of any subdivision plat for the Land
unless and until the applicable provisions contained herein have been complied with.
This provision shall not preclude any consolidation and resubdivision of the Land or
portions thereof pursuant to the provisions of Section 23-7, Hawaii County Code.
The provisions of this paragraph shall not apply to the pending Subdivision File No.
88-I I 1 for the Kapaanui property identified as Tax Map Key (3) ~-7-?:portion of 1 I
and Tax Map Key (3) ~-7-03:03 and 10.
4. Chalon agrees that the water and Water Units made available to
Chalon under this Agreement shall be utilized exclusively within the North Kohala
District of the County of Hawaii.
This Agreement shall not be construed to be a commitment by either
the Commission to accept the water source, transmission and distribution systems
referred to above, or by any County of Hawaii department or agency to approve the
proposed development of the Land by Chalon.
6. Nothing in this Agreement shall in any way be construed to prohibit
or restrict Chalon from investigating and developing additional sources of potable
and non-potable water in order to address the water requirements of the Land.
5
7. Upon the approval of this Agreement by the affirmative vote of the
Water Commission of the County of Hawaii at a duly convened public hearing, the
Agreement and the appropriate security requirements of Condition B(2) of Ordinance
No. 93-109 and all applicable permit and zoning approvals for the development and
provision of potable wa[er to the Land shall be deemed satisfied, and all permits and
zoning granted for the Land shall be fully effective.
8. The parties hereto reserve the right to extend and/or revise the terms
of this Agreement as may be mutually acceptable, in writing, and executed by all
parties.
IN WITNESS WHEREOF, the parties hereto have set their hands on this ?7th day
of February, 1996.
RECOMMEND APPROVAL: WATER COMMISSION OF
THE COUNTY OF HAWAII
PLANNING DEPARTMENT OF
THE COUNTY OF HAWAII ~j~
I/ By 1~~
By hMrU r ~ Its Chairman
It Directo
CHALON INTERNATIONAL OF
ATTEST: HAWAII, INC., a Hawaii corporation
DEPARTMENT OF WATER SUPPLY
OF THE COUNTY OF HAWAII
By _
-moo kesl.i UI<..,••,•~cx.
By Its 5e.-,,o.- J:~,7i -c.a;~~-~
Its Manaoer
APPROVED AS TO FORM AND By
LEGALITY: 1~; J~o,~l Go~eS
Its V • ~ res. &_c_~o
Deputy Corporation Co nsel
County of Hawaii
6
•
STATE OF HAWAII )
SS.
COUNTY OF HAWAII )
1-~
On this 2. day of ~uw'e~ , 1996, before me personally appeared
G1~KQ , Sa-~ S , to me known (or proved to me on the basis of satisfactory evidence)
that he is the C'~~-~ Ma N , of the WATER COMMISSION OF THE COUNTY OF
HAWAII, and that the seal affixed to the foregoing instrument is the corporate seal of said WATER
COMMISSION, and that said instrument was signed and sealed in behalf of said WATER
COMMISSION by authority of said WATER COMMISSION, and said ~ ~ ~xh ~ , SQy~-gs
acknowledged said instrument to be the free act and deed of said WATER COMMISSION.
Notary Public, State of Hawaii
My cotnmission expires: ~'Z.~'7-G ~ h
STATE OF HAWAII )
SS.
COUNTY OF HAWAII )
On this ~ day of r1Ay , 1996, before me personally appeared
IAK~+tI 0+-' uHUP4 and htGt}f41rL GDr1ES , to me known (or proved to me on the
basis of satisfactory evidence) that they aze theme- ~ and V~us - Psi C~,a~ of
CHALON INTERNATIONAL OF HAWAII, INC., a Hawaii corporation, and that the seal
affixed to the foregoing instrument is the corporate seal of said corporation, and that said instrument
was signed and sealed in behalf of said corporation by authority of its Board of Directors, and said
Officers acknowledged said instrument to be the free act and deed of said corporation.
P.
Notary Public, State of Hawaii
My commission expires: Na`l' a~
S.
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