HomeMy WebLinkAboutCOM 0879.000 2006-2008
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Harry Kim Christopher J. Yuen
Mayor Director
Brad Kurokawa, ASLA
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(gounfij of Puf raii Deputy Director
PLANNING DEPARTMENT
101 Pauahi Street, Suite 3 • Hilo, Haw" 96720-4224
(808) 961-8288 • FAX (808) 961-8742
November 19, 2007
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Alan M. Okamoto, Esq. ev 1`
Nakamoto, Okamoto, Yamamoto
187 Kapiolani Street f7 :3
Hilo, HI 96720 G
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Dear Mr. Okamoto: t~+
Change of Zone Ordinance No. 06-105
Applicant: Hiluhilu Development, LLC
Request: Open and A-3a to Project District
Subject: 2007 Annual Progress Report
Tax Map Key: 7-2-5:1
This is to acknowledge receipt of your annual progress report dated October 16, 2007 in
compliance with Condition SS of Change of Zone Ordinance No. 06-105. We appreciate
the thoroughness of the report. The next annual progress report is due on or before
July 17, 2008. We will forward a copy of the report to the Hawaii County Council and
the Planning Commission for their information.
Condition J refers to the Planning Director's November 29, 2006 letter. Please refer this
letter and submit the additional information as requested by the Planning Director to
complete compliance with Conditions J and M.
If you have any questions, please feel free to contact Jeff Darrow at 961-8288, ext 259.
Sincerely,
CH HER J.
Planning Director
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Kona Planning Department O
Comm. No.
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Hawaii County is an Equal Opportunity provider and Employer.
NAKAMOTO OKAMOTO & YAMAMOTO
ATTORNEYS AT LAW, A LAW CORPORATION
ROY K. NAK OTO 187 KAPIOLANI STREET TELEPHONE (808) 961-0641
ALAN M. OKAMOTO HILO, HAWAII 96720 FAx (808) 935-3872
JEREL I. YA OTO
HENRY T. NARANOTO jerel@noyhawaii.com
October 16, 2007
Mr. Christopher Yuen
Planning Director
Planning Department
101 Pauahi Street, Room 3
Hilo, Hawaii 96720
Re: Ord. No. 06-105
Hiluhilu Development, LLC
TMK (3) 7-2-005: 001
Annual Report
Dear Mr. Yuen:
Pursuant to Condition SS of Ordinance No. 06-105 which rezoned the above
identified property to Project District, Applicant Hiluhilu Development, LLC, submits
this annual report.
Applicant reports on the status of the conditions of the rezoning as follows:
A. The applicant, successors or assigns shall be responsible for complying
with all of the stated conditions of approval.
Applicant, its successors or assigns shall comply with all stated conditions
of approval.
B. The applicant shall comply with all conditions of approval of the State
Land Use Commission's Decision and Order (Docket No. A03-744)
dated May 19, 2005.
Applicant will comply with this condition. Attached hereto as Exhibit "A"
and by reference made a part hereof is the Second Annual Report and
exhibits that have been submitted by Applicant to the State Land Use
Commission. ~J $a
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C. The applicant shall comply with the conditions as set forth in the Water
Agreement between K-W Ka'u, LLC and the Water Commission of
the County of Hawaii dated June 15, 1999.
Applicant will comply with this condition. Applicant, Department of
Water Supply and Kohanaiki Shores, LLC signed an agreement in 2007 to
develop water systems and to transfer water rights. This agreement
amends the 1999 Water Agreement between K-W Kau (Applicant), the
Water Commission of the County of Hawaii, Applicant and K-W
Kohanaiki (Kohanaiki Shores LLC), successors in interest to the terms of
said agreement. The 2007 agreement identified the work to be done which
included completing the pumping stations and outfitting the Kau Well 1,
building storage and transmission water system from those well through
the Petition area and across State lands to connect to the northern end of
the Department of Water Supply's water main along Queen Kaahumanu
Highway. A copy of the 2007 Agreement is Exhibit "Y' to the LUC
Second Annual Report.
D. The project shall consist of a maximum of 725.2 acres for single-family
and multi-family residential, commercial uses, hotel, university and
public school facilities, dry forest preserve, archaeological and cave
preserve areas, active and passive parks, a trail system and
supporting infrastructure.
Applicant will comply with this condition.
E. The maximum number of residential units allowed shall be 1,116 units,
including the on-site affordable housing units.
Applicant will comply with this condition.
F. The maximum number of hotel rooms shall be 120.
Applicant will comply with this condition.
G. Commercial spaces for medical, office, retail, classrooms and health
related uses and hotel shall be limited to 102 acres.
Applicant will comply with this condition.
H. Active and passive parks (Open, Park and Preservation) shall be
developed on a minimum of 177.8 acres. A "Constraints Area" which
includes the approximately 55-acre dry forest preserve, archaeological
sites/cave and park areas, shall be set aside in the project area.
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Applicant will comply with this condition. Although Applicant revised its
plans and will not construct a golf course, a 20 acre active park will be
provided to the County Department of Parks & Recreation. There will be
baseball and/or soccer fields and associated facilities. These facilities will
benefit the entire Kona community.
I. The uses allowed in the Project District shall be all permitted uses
allowed by right in the RS, RM, CN and CV zoned districts, and
related facilities. Uses allowed by Use Permit in the CV district, other
than golf courses, may be allowed by use permit.
Applicant will comply with this condition.
J. A detailed Master Plan of the Project District, which includes the
location and number of residential lots and units, hotel, university and
public school facilities, commercial uses, parking, open space and
recreational areas and other related improvements on the property,
shall be submitted to the Planning Director within two (2) years from
the effective date of the Project District Ordinance or prior to
submission of plans for plan approval or subdivision approval,
whichever occurs first.
Applicant will comply with this condition. A detailed Master Plan of the
Project District has been approved by the Planning Director by letter dated
November 29, 2006. A copy is enclosed as Exhibit B.
IC. Substantial construction of the proposed development shall commence
within five (5) years from the effective date of the Project District
Ordinance. "Substantial construction" means the actual start of
construction of project infrastructure under a bona fide contract of
not less than ten million dollars ($10,000,000.00). Prior to
construction, the applicant, successors or assigns shall secure Final
Plan Approval for the proposed development from the Planning
Director in accordance with Section 25-2-70, Chapter 25 (Zoning
Code), Hawaii County Code. Plans shall identify proposed
structures, fire protection measures, paved accesses and parking stall,
and other improvements associated with the proposed uses.
Applicant will comply with this condition.
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L. The following design standards shall apply:
1. Landscaping for the development shall comply with the
Planning Department's Rule No. 17, Landscaping
Requirements. Landscaping rules, such as the screening of
single-family residential from commercial areas, shall be
applied according to the actual uses.
2. The height limit for structures within the project area shall not
exceed the following:
a. Single-family residential development: 35 feet
b. Multiple-family residential and hotel developments: 45
feet
c. Office and retail commercial development (not more
than 3 stories): 45 feet.
3. The minimum off-street parking and loading space
requirements of Chapter 25, Hawaii County Code shall be
complied with, including compliance with the American
Disabilities Act (ADA) requirements.
Applicant will comply with all requirements of this condition.
M. The variances from Chapters 23 (Subdivision) and 25 (Zoning), Hawaii
County Code, as presented in Planning Department Exhibit 2
(Applicant's November 21, 2005 letter with attached Tables pages 1 to
6 related to Variance Requested from Sections in Subdivision and
Zoning Codes, and Applicant's Figure 2 - Conceptual Character of
Town Center/Residential Village Center, Figure 3a - Residential
Village Center Alternative: 4,000 SF Lot, Figure 3b - Residential
Village Center Alternatives: 6,000 SF Lot, Figure 4a - Conceptual
Plan: Roadway Concepts - Dedicable, Figure 4b - Conceptual Plan:
Roadway Concepts - Nondedicable, and Figure 5 - Residential Village
Center Alternatives: Zone Lot Line Concepts) shall be allowed under
the Project District. The applicant shall submit detailed plans to the
Planning Director showing street designs and cross-sections, and
adjacent building designs, with the Master Plan. The Planning
Director may require modifications to the street sections to provide
sufficient on-street parking where the plans do not provide adequate
off-street parking (such as the 4,000-square foot lots with a one-car
garage and insufficient setbacks to allow parking in driveways), and
may require further changes necessary for public safety and
convenience. All roads built with the variances allowed under this
condition will be non-dedicable. With regard to the requested zero
line building setbacks, the applicant shall conform to the current
Hawaii County Building Code requirements. As part of the Master
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Plan, the applicant shall submit plans for pedestrian movement
through the project district, which shall identify areas where
sidewalks will be included to permit safe pedestrian access to the
Town Center and other important points in the development.
Applicant will comply with this condition.
N. To ensure that the project is developed according to its stated goal of
creating a mixed use residential community, the project must include
residential development. The project shall have at least one
residential unit for every 600 square feet of nonresidential
development (under roof). Space used by the University shall not be
included in the calculation of nonresidential space. There is no
minimum requirement for the nonresidential development.
Applicant will comply with this condition.
0. The permitted hotel, designated as the "University Inn and Conference
Center," shall function as a business hotel and in conjunction with
University operations. It shall not be operated under a time-share
plan or other arrangement that provides for shared ownership of
individual units on the basis of time intervals, or club membership
allowing periodic use.
Applicant will comply with this condition.
P. Occupancy of the hotel shall not be granted until the construction of the
Queen Kaahumanu Highway, Phase 11 widening improvements to
four lanes from Kealakehe Parkway to the Kona International
Airport at Keahole has been secured by the State entering into a
construction contract for the improvements, or until construction has
commenced on the 20,000 square foot University building, or the
building's completion has been assured by bond or other security
acceptable to the Planning Director, whichever comes first.
Applicant will comply with this condition.
Q. No retail commercial structures may be located closer than 1,500 feet
from the Queen Kaahumanu Highway right-of-way.
Applicant will comply with this condition.
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R. To ensure that the commercial development corresponds with the
applicant's representations regarding neighborhood-scale commercial
development, no single retail establishment shall have more than
45,000 square feet of developed area under roof.
Applicant will comply with this condition.
S. Total retail space (not including restaurants) shall not exceed 75,000
square feet under roof until the construction of the Queen
Kaahumanu Highway, Phase II widening improvements to four lanes
from Kealakehe Parkway to the Kona International Airport at
Keahole has been secured by the state entering into a construction
contract for the improvements. The square footage of improvements
leased or given to the University of Hawaii shall not count against this
limit.
Applicant will comply with this condition.
T. The applicant shall set aside a "Constraints Area" including the
approximately 55-acre dry forest preserve, archaeological sites/cave
and park areas on the project site.
Applicant has had the "Constraints Area" inventoried and surveyed. An
inventory map is attached to the LUC Report as Exhibit "H". The
preservation areas in the "Constraints Area" have been fenced off and are
clearly visible. Also, the fire break around the dry forest preserve has
been completed.
U. The applicant shall develop one 20 acre active park site prior to
occupancy of the first residential unit on the property. The 20 acre
active park site shall include two playing fields which may be one
baseball field and one soccer field, or two baseball fields or two soccer
fields, parking lot and restrooms, with the specific requirements to be
determined in consultation with the Department of Parks and
Recreation. The 20 acre active park shall be constructed to county-
dedicable standards, and the county shall accept dedication.
Applicant will comply with this condition.
V. There shall be an 800-foot setback from the Queen Kaahumanu
Highway. No structures, other than those allowed under Condition
No. 7 of the Land Use Commission's Decision and Order, shall be
allowed within the 800-foot setback area. A copy of the metes and
bounds description for this open space area, and proposed covenant(s)
shall be submitted to the Planning Director for review and approval
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prior to receipt of Final Plan Approval or land alteration activities,
whichever occurs first. The approved covenant(s) shall be recorded in
the Bureau of Conveyances prior to the issuance of Final Plan
Approval, or land alteration activities, whichever occurs first. A copy
of the recorded covenant(s) shall be provided to the Planning
Department.
Applicant has recorded in the Bureau of Conveyances as Document No.
2007-006828 the 800 foot setback area. A copy of the document recorded
in the Bureau is Exhibit "I" in the LUC Report.
W. All project utilities shall be underground.
Applicant will comply with this condition. The only pre-existing
overhead line will be HELCO line.
X. The applicant shall construct the following roads to access other
properties and the regional road system:
1. Project access road from the Queen Kaahumanu Highway to
the eastern boundary of the project. (Road "1" on attached
map Exhibit "B"): Road "1" shall intersect with the Queen
Kaahumanu Highway at a location approved by the State
Department of Transportation, and shall connect with Makalei
Drive at the eastern (mauka) end. The road shall be
constructed on an 88-foot wide right-of-way, as a two-lane
road, to county-dedicable standards as a collector road, from
the Queen Kaahumanu Highway to the intersection with Road
"Y'. From Road "Y' to the intersection with Makalei Drive,
Road "1" shall be constructed to county-dedicable standards
as a minor street, except that design standards shall be varied
to permit the connection with Makalei Drive without
encroaching into the Lowland Dry Forest Preserve. The
connection with Makalei Drive shall be designed to not
encroach into the Lowland Dry Forest Preserve. The grade
shall not exceed 10%, except near the connection with Makalei
Drive. At the Queen Kaahumanu Highway, the intersection
shall be improved in accordance with one of the following two
options:
(a) If a grade separated interchange is available to connect
Road 1 to Queen Kaahumanu Highway when Applicant
is ready to construct Road 1, Applicant will connect
Road 1 to such interchange and in such case, Applicant
will contribute $1,500,000 to the Department of
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Transportation.
(b) If a grade separated interchange is not available to
connect Road 1 to Queen Kaahumanu Highway when
Applicant is ready to make the connection, Applicant
shall improved the intersection at its expense as
required by the Department of Transportation, but
shall include, at a minimum, a deceleration and an
acceleration lane on Queen Kaahumanu Highway, a
left-turn lane on Queen Kaahumanu Highway, a refuge
lane for vehicles turning left into Queen Kaahumanu
Highway, and a dedicated right-turn and left-turn lane
from the Road "1" to Queen Kaahumanu Highway. If
warranted, at the request of Department of
Transportation, the applicant shall install traffic signals
and a second left-turn lane from the main project access
road to the Queen Kaahumanu Highway.
2. "Mid-Level Road" from Road "1" to Kaiminani Drive (Road
"2" on Exhibit "B"): The applicant shall construct the mauka
half-section of a 120-foot wide right-of-way to county-dedicable
standards as a collector road. The applicant shall construct
the intersection at Kaiminani Drive meeting with the approval
of the Department of Public Works, but the intersection shall
include a left-turn lane on Kaiminani Drive.
3. A north-south collector road at approximately the 600-foot
elevation (Road "3" on Exhibit "B"): The north-south
collector road shall be designed to function as a portion of a
collector road (Road "4") connecting Highway 190 with Road
"l"and the Queen Kaahumanu Highway. Road "3" shall be
constructed to county-dedicable standards as a 60-foot wide
collector road with an 88-foot wide right-of-way. The
applicant shall construct the intersection between Road "3"
and Road "1" meeting with the approval of the Department of
Public Works.
4. New Connector Road to Mamalahoa Highway Project (Road
"4" on attached Map Exhibit "B"). The Applicant shall
construct Road "4", at the sole expense, as a two-lane 60' wide
county-dedicable collector road, including shoulders and
swales, within an 88' right-of-way. The final design and
maximum grade of road "4" shall be determined by the
Director of Public Works after consultation with the Planning
Director. The Applicant shall not be required to install
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streetlights, except at the intersection with Highway 190, or
utilities. If another private developer is required to participate
in building Road "4" as a condition of land use approvals, the
Applicant's share shall be limited to the portion of Road "4"
on the Applicant's property or on State land. The County Of
Hawaii shall obtain the necessary right-of-way outside of the
applicant's property.
5. A road to connect south to the future extension of Holoholo
Street - Nana Street (Road "5" on Exhibit "B"): The
applicant shall build Road "5" within the project area to
county-dedicable standards as a minor street, and it shall
intersect with Road "1".
6. The Planning Director may require other local streets within
the project to provide local connections to the adjoining
property to the north and south as a condition of subdivision
approval or plan approval.
7. At the western (makai) end of Makalei Drive, the applicant
shall provide safety improvements necessary to make a safe
transition to Road "1", which may include, but are not limited
to, rumble strips and establishing superelevation for the curve,
as required by the Department of Public Works.
8. The following road improvements shall be completed before a
certificate of occupancy is issued for any portion of the subject
property, or completion of any single-family homes, whichever
comes first:
(a) Road "1", at least from the Queen Kaahumanu
Highway to the intersection with the Mid-Level Road
(Road "2");
(b) the intersection of the main project access road with the
Queen Kaahumanu Highway; and
(c) the Mid-Level Road (Road "2) from the main project
access road to Kaiminani Drive, and the Kaiminani
Drive intersection.
9. The following road improvements shall be secured by bond or
other surety meeting with the approval of the Planning
Director to guarantee that the improvements will be completed
within two (2) years after the issuance of a certificate of
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occupancy for any portion of the subject property or
completion of any single-family homes, whichever comes first:
(a) the remaining portion of Road "1
(b) Road "Y', and
(c) Road "5."
10. (a) The Applicant shall complete Road "4" no later the six
years after the effective date of this ordinance, except as
may be allowed under Condition "UU". The Applicant
shall assure the completion of Road "4" by bond or
other security accepted by the Planning Director no
later than the issuance of a certificate of occupancy for
any building, other than the University or DOE
building, or final subdivision approval for any
subdivision creating single-family residential lots.
Certificate of occupancy for any building, other than
the University or DOE building shall not be issued, and
final subdivision approval for any subdivision creating
single-family residential lots shall not be granted, until
the necessary right-of-way for Road "4" has been
obtained from any other private landowner.
11. Makalei Drive is a "minor road" and will not be open to the
public until the collector Road 4 is open for public use.
Applicant will comply with all of these conditions.
Applicant has obtained the approval of the Department of Land & Natural
Resources (DLNR) to the alignment of Road 2 on Exhibit "B" to the
rezoning ordinance. Applicant has secured a right of entry from DLNR to
conduct planning, land survey, engineering and environmental studies for
Road 2 and a waterline and reservoir within State land. Construction
plans for Road 2 are currently being reviewed by the County Department
of Public Works. The State Department of Accounting & General
Services issued a finding of no significant impacts for the Environmental
Assessment covering Road 2 on the State land.
Applicant has submitted an amendment to the Environmental Assessment
to cover the realignment of a portion of Road 2 and to cover the
construction of waterlines and a 1,000,000 gallon water storage tank. This
assessment is currently being reviewed by DLNR.
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Applicant is having on-going discussions with DLNR and Lynch
Investments regarding the alignment and construction of Road 4.
Additionally, Applicant is having an updated traffic study done for review
by the State Department of Transportation.
Y. There shall be no direct access from individual lots to collector streets.
Applicant will comply with this condition.
Z. Construction vehicles shall not utilize Makalei Drive.
Applicant will comply with this condition.
AA. No vehicular security gate shall be installed within sixty (60) feet of any
proposed county road and a turnaround gate shall be provided within
the private road or property on the county road side of the gate.
Applicant will comply with this condition.
BB. All development generated runoff shall be disposed of on-site and shall
not be directed toward any adjacent properties. A drainage study
shall be prepared and submitted to the Department of Public Works
prior to issuance of any construction permit. Drainage improvements
shall be constructed, meeting with the approval of the Department of
Public Works, prior to issuance of a certificate of occupancy for any
buildings, or final subdivision approval for any subdivision creating
single-family residential lots.
Applicant will comply with this condition. Drainage studies have been
completed and approved by the required County and State agencies.
Drainage plans have been approved by the State Department of Health.
CC. A Solid Waste Management Plan shall be prepared and submitted for
approval to the Department of Environmental Management prior to
submitting plans for Plan Approval review. Approved
recommendations and mitigation measures shall be implemented in a
manner meeting with the approval of the Department of
Environmental Management.
Applicant will comply with this condition. Applicant is discussing the
same with the State Department of Health and the County.
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DD. A wastewater treatment system shall be constructed, meeting the
approval of the State Department of Health and/or Department of
Environmental Management, whichever is applicable. All wastewater
shall be treated at an approved wastewater treatment plant, to a
minimum of secondary treatment, with R-1 effluent, unless a greater
level of treatment is required by the Department of Health.
Wastewater shall be used for irrigation of landscaping or other
beneficial reuse to the maximum extent feasible.
Applicant has obtained approval from the State Department of Health for
the proposed treatment plan design. Construction documents are being
prepared and will be submitted for review and approval. A copy of the
letter approving the Wastewater facilities plan is attached as Exhibit "D"
in the Second Annual Report to the LUC.
EE. University of Hawaii Condition. Applicant shall provide the following
to relocate the University of Hawaii operations:
1. Connectivity with the University of Hawaii 500 acre site.
Applicant shall allow the University of Hawaii to connect with
its wastewater and water supply systems. Applicant shall also
allow the University of Hawaii to connect electrical and
telecommunication systems to facilities installed within the
project. These connectivity sites shall be to the University's
satisfaction and located along its northern boundary on Road
If1ff.
2. Build Applicant's wastewater treatment system to handle the
wastewater from the initial University of Hawaii building and
design the wastewater treatment system to accommodate
future expansion for wastewater from future expansion of the
University of Hawaii academic operations.
3. Construct an initial classroom and administration building of
20,000 square feet, with associated parking at Applicant's
expense. If the University of Hawaii's design results in the cost
of design and constructing the building and associated parking
exceeding $5,000,000, Applicant shall have be responsible for
the first $5,000,000 and the University shall be responsible for
the balance. The building shall be constructed on the State
land designated for University use. Construction on the
building shall commence as soon as the University has required
the necessary consents and approvals. If the necessary
consents and approvals cannot be obtained by the State, the
University shall have the right to lease from Applicant
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appropriate space to house University of Hawai'i at West
Hawaii until the necessary consents and approvals are
obtained at comparable lease rates now being paid by the
University of Hawai'i until the 20,000 square foot building can
be constructed on the State land at Applicant's expense.
Applicant shall commence construction of the building, or
assure its construction by a bond or other security accepted by
the Planning Director and the Chancellor of Hawaii
Community College, before the issuance of a certificate of
occupancy for any building, other than the DOE building, or
final subdivision approval for any subdivision creating single-
family residential lots. Applicant shall complete construction
of the University building no later than two (2) years after the
issuance of a certificate of occupancy for any building, other
than the DOE building, or final subdivision approval for any
subdivision creating singe-family residential lots. The location
and design of the building (interior and exterior) and related
improvements will be on terms determined by the University of
Hawaii. The University of Hawaii shall consult on design of
said building with Applicant.
Applicant will comply with all of these conditions relating to the
University of Hawaii. Applicant has developed a detailed conceptual plan
for a building complex which would comply with this condition and has
submitted the same to the University for comment and approval. A copy
of the letter and conceptual plan of the building complex is attached as
"B" to the LUC Report.
Applicant submitted a draft for the extension of the Memorandum of
Understanding which covered joint planning opportunities with the
University. The extension agreement was sent to the University's General
Counsel's office in January 2007. The Board of Regents has not yet taken
action on the extension. Pending approval, Applicant will continue
discussions with the University on the new building complex.
FF. The Applicant shall enter into an agreement with the DOE, in
accordance with the terms of the State Land Use Decision and Order
(Docket No. A03-744) dated May 19, 2005. If the Applicant's
agreement with the DOE is later amended, the Applicant shall file a
copy of such amendment with the Planning Department and shall
comply with the terms of the amended agreement. The applicant shall
contribute to the DOE an 5,000 square-foot building within the
project site to use for a period of twenty (20) years, subject to the
following conditions:
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1. No rent or common area maintenance fees will be charged to
the DOE.
2. The building will be used as instructional and office space for
the school complexes located in West Hawaii.
3. The building will meet DOE facility standards, with finished
classrooms, workshops and offices.
4. The Applicant will collaborate with the DOE on the
requirements of the building in order to develop building plan
subject to DOE approval.
5. The finished building will be available to the DOE within two
(2) years of the issuance of a certificate of occupancy for any
multifamily residential building, or within two (2) years from
the completion of any single-family residential building within
the development, whichever comes first.
6. Following the initial twenty (20) year period when the building
will be made available to the DOE, the building will be made
available to the DOE for additional years, at the prevailing
rental rates.
7. If the DOE and the Applicant determine that despite good
efforts, a building cannot be provided, or DOE no longer needs
the facility and its design has not been completed, the
Applicant will make an equivalent school fair-share cash
contribution in an amount to be determined by the DOE. This
cash contribution shall be expressly reserved for use within the
Kealakehe complex of schools.
8. The value of the building and its use is meant to be credited
against any DOE requirements under the State Land Use
Decision and Order.
Applicant will comply with all of the requirements of this condition.
Applicant has discussed the terms of an Agreement with the Department
of Education Staff and the West Hawaii Complex Superintendent. A draft
agreement has been circulated but a final agreement has not been reached.
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GG. An Emergency Response Plan shall be submitted to the Civil Defense
Agency for review and approval, prior to the issuance of a certificate
of occupancy.
Applicant will comply with this condition.
HH. To ensure that the Goals and Policies of the Housing Element of the
General Plan are implemented, the applicant shall comply with the
requirements of Chapter 11, Article 1, Hawaii County Code, relating
to Affordable Housing Policy. This requirement shall be approved by
the Administrator of the Office of Housing and Community
Development prior to receipt of Final Plan Approval and/or Final
Subdivision Approval for any subdivision creating single-family
residential lots, whichever occurs first. The reduction in minimum lot
sizes and the increase in density permitted by Section 11-8, Hawaii
County Code, for affordable housing built on-site shall not apply to
this project district because the reduction in minimum lot sizes has
already been incorporated into the conditions of this project district
zoning, and the limit on residential units stated is meant to include
affordable units built on-site. Applicant shall satisfy its affordable
housing requirements by on-site construction of units, and not utilize
any affordable housing credits generated off-site.
Applicant will comply with this condition. Applicant has had initial
discussions with the County Office of Housing & Community
Development on the scope of the housing agreement. Applicant
anticipates building affordable units incrementally on the site. Once
Applicant determines the desired mix of affordable housing units, it will
present a draft agreement to the Office of Housing & Community
Development and will address any concerns that arise. Once an agreement
is finalized, it will be submitted to the County Housing Agency for review
and approval.
II. Should any unidentified sites or remains such as artifacts, shell, bone, or
charcoal deposits, human burials, rock or coral alignments, pavings
or walls be encountered, work in the immediate area shall cease and
the Department of Land and Natural Resources-Historic Preservation
Division (DLNR-HPD) shall be immediately notified. Subsequent
work shall proceed upon an archaeological clearance from the DLNR-
HPD when it is found that sufficient mitigation measures have been
taken.
Applicant will comply with this condition.
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JJ. The applicant shall implement the Integrated Natural Cultural Resource
Management Plan (INCRMP) dated May 19, 2005, for the Lowland
Dry Forest Preserve (Exhibit "D" and "F" to the INCRMP).
Preservation actions, with fire control as a priority, shall begin no
later than six months after the effective date of this ordinance.
Applicant will comply with this condition. All preservation areas have
been inventoried and fenced. A fire break around the dry forest preserve
has been established and is being maintained.
The data recovery plan was approved by the State Historic Preservation
Division. The Preservation Plan received interim approval from the
division.
Discussions are ongoing with the State DLNR and non-profit groups
regarding the management and stewardship of the Lowland Dry Forest
preserve.
The Palamanui Dry Forest Working Group has been formed and is
composed of Dr. Pat Hart, Lisa Hadway of DLNR, Thomas Lee, Roger
Harris and Susan Cordell. This group met four times in the last year. This
group has also had discussions with the North Kona Dry Land Forest
group about cooperative efforts to preserve the native dry land forest.
KK. The applicant shall protect all uhiuhi and `aiea trees, and shall use best
efforts to preserve the major stands of wiliwili trees.
Applicant will comply with this condition.
LL. The applicant shall implement the INCRMP for the cave areas (Exhibit
"E" to the INCRMP).
Applicant will comply with this condition.
MM. The applicant shall implement the Archaeological Preservation Plan
(Exhibit "C" to the INCRMP), along with any amendments and
modifications thereto as approved by the State Historic Preservation
Division.
Applicant will comply with this condition.
NN. The Planning Director may approve modifications to the INCRMP
conforming to the general purposes of the INCRMP, after
consultation with the DLNR-DOFAW.
16
Applicant will comply with this condition.
00. To ensure that the property will be developed as an integrated project,
the applicant shall establish covenants to all deeds to any parcels,
except parcels to be conveyed to individual residents, that require a
master association to administer the development of the project
district in accordance with the conditions of land use approvals. The
covenants shall give notice that the various parcels are subject to an
overall zoning that requires coordinated development. Until the
master association is formed, the applicant shall be responsible for
ongoing duties such as the management of the Dry Forest Preserve
Area and other stewardship duties, and for contingent project
responsibilities. After the formation of the master association, those
responsibilities, except for offsite infrastructure requirements, shall
be transferred to the master association.
Applicant will comply with this condition.
PP. The applicant shall make its fair share contribution to mitigate the
potential regional impacts of the property with respect to parks and
recreation, fire, police, solid waste disposal facilities and roads. The
fair share contribution shall become due and payable on the sale or
lease of residential units subject to such contribution. The fair share
contribution shall have a maximum combined value of $6,411.25 per
multiple family residential unit ($9,991.20 per single family residential
unit). The total amount shall be determined with the actual number
of units according to the calculation and payment provisions set forth
in this condition. The fair share contribution per multiple family
residential unit (single family residential unit) shall be allocated as
follows:
1. $3,162.49 per multiple family residential unit ($4,817.93 per
single family residential unit) to the County to support park
and recreational improvements and facilities;
2. $99.95 per multiple family residential unit ($232.42 per single
family residential unit) to the County to support police
facilities;
3. $307.46 per multiple family residential unit ($459.06 per single
family residential unit) to the County to support fire facilities;
4. $137.04 per multiple family residential unit ($200.98 per single
family residential unit) to the County to support solid waste
facilities; and
17
5. $2,704.31 per multiple family residential unit ($4,280.82 per
single family residential unit) to the County to support road
and traffic improvements.
The fair share contribution shall be waived for the affordable housing
units. In lieu of paying the fair share contribution, the applicant may
contribute land and/or construct improvements/facilities related to
fire, police, and solid waste disposal facilities and roads within the
region impacted by the proposed development, subject to the review
and recommendation of the Planning Director, upon consultation with
the appropriate agencies and approval of the County Council. With
respect to the fair share contribution for parks and recreation, that
contribution for all residential units will be satisfied when Applicant
completes and offers for dedication all of the land facilities for the
active use park described in Condition "U" above. The fair share
contribution for roads will be satisfied upon completion of the Mid-
Level Road (Road "2"), Road "3", Road "5" and Road "4".
Applicant will comply with this condition.
QQ. Should the Council adopt a Unified Impact Fees Ordinance setting forth
criteria for imposition of exactions or the assessment of impact fees,
conditions included herein shall be credited towards the requirements
of the Unified Impact Fees Ordinance.
Applicant will comply with this condition.
RR. Comply with all other applicable County, State and Federal laws, rules,
regulations and requirements.
Applicant will comply with this condition.
SS. An annual progress report shall be submitted to the Planning Director
prior to the anniversary date of the approval of this Project District
Ordinance. The report shall include, but not be limited to, the status
of the development and the extent to which the conditions of approval
are being satisfied. This condition shall remain in effect until all of
the conditions of approval have been satisfied and the Director
acknowledges that further reports are not required.
Applicant will comply with this condition.
TT. An initial extension of time for the performance of conditions within the
ordinance, except for the six-year time limit in Condition X.10, may
18
be granted by the Planning Director upon the following
circumstances.
1. The non-performance is the result of conditions that could not
have been foreseen or are beyond the control of the applicant,
successors or assigns, and that are not the result of their fault
or negligence.
2. Granting of the time extension would not be contrary to the
General Plan or Zoning Code.
3. Granting of the time extension would not be contrary to the
original reasons for the granting of the Project District.
4. The time extension granted shall be for a period not to exceed
the period originally granted for performance (i.e., a condition
to be performed within one year may be extended for up to one
additional year).
5. If the applicant should require an additional extension of time
the Planning Department shall submit the applicant's request
to the County Council for appropriate action.
Should any of the conditions not be met or substantially complied
with in a timely fashion, the Planning Director may initiate rezoning
of the subject area to its original or more appropriate designation.
Applicant will comply with this condition.
UU. The Planning Director may permit an extension of the six-year time limit
to complete Road "4" in Condition X.10, provided that the
requirements of Condition "TT" are met, and, in addition, the new
deadline for the completion of Road "4" is not more than two (2)
years after the completion of any building, including single-family
residential buildings, other than the University building or the DOE
Building.
Applicant will comply with this condition.
19
+ill~~l IYY11~ rWO~1~I~Y1111
If you have any questions, please feel free to contact our office.
Very truly yours,
A4 J4~
Alan M. Okamoto
AMO:jht
Enclosures
cc: Guido Giacometti w/o encl.
Roger Harris w/o encl.
Guy Lam w/o encl.
Thomas Lee w/o encl.
Alan Ong, w/o encl.
Abe Mitsuda, Off. State Planning w/ encl.
Anthony J. Ching, Exec. Off, Land Use Comm. w/ encl.
Amy Self, Deputy. Corp. Counsel w/ encl.
Bryan Yee, Deputy Atty. Gen. w/ encl.
20
Of Counsel:
NAKAMOTO, OKAMOTO & YAMAMOTO
ATTORNEYS AT LAW
A LAW CORPORATION
ALAN M. OKAMOTO 1826
ROY K. NAKAMOTO 850
JEREL 1. YAMAMOTO 2807
187 Kapiolani Street
Hilo, Hawaii 96720
Telephone No.: (808) 961-0641
Attorney for Petitioner
HILUHILU DEVELOPMENT, LLC
BEFORE THE LAND USE COMMISSION
OF THE STATE OF HAWAII
In the Matter of the Petition ) DOCKET NO. A03-744
of )
HILUHILU DEVELOPMENT, ) SECOND ANNUAL REPORT;
LLC ) EXHIBITS A - J; >
CERTIFICATE OF SERVICE
To amend the Land Use District ) =
Boundary of Certain Lands )
situated at Kau, District )
of North Kona, County
)
of Hawaii, Island of Hawaii, )
State of Hawaii. )
SECOND ANNUAL REPORT
HILUHILU DEVELOPMENT, LLC ("Petitioner") submits its Second Annual
Report as required by the Findings of Fact, Conclusions of Law, Decision and Order filed
on June 13, 2005.
z1c%fi,Rr/ Q
DEVELOPMENTS SINCE PREVIOUS ANNUAL REPORT
Rezoning Application With The County of Hawaii Was Approved
The rezoning application of Hiluhilu Development, LLC was approved by the
County Council of the County of Hawaii and by the Mayor effective July 17, 2006.
Attached as Exhibit A is Ordinance No. 06-105.
As part of the rezoning, Petitioner agreed to: (I) build a 20,000 square foot
building for the University of Hawaii on the State lands designated for the university; (2)
build new roadways north of the Petition area over State land and private land to connect
to Mamalahoa Highway; (3) provide twenty (20) acres of land for a regional park
containing soccer and baseball fields to the County of Hawaii.
University Building on State Land
Petitioner agreed with the County Council to Condition EE3 of the rezoning
ordinance. The condition provides that Petitioner will build a 20,000 square feet of
building with parking for the University on the State land which is adjacent to the
Petition area. The condition resulted after discussions with Chancellor Rockne Freitas,
The siting and building features are subject to the approval of the University of Hawaii.
The condition is also subject to a cost limit of $5,000,000.00. If the 20,000 square foot
building with parking costs more than $5,000,000.00, the University can decide whether
it wishes to reduce the area or provide additional funds to cover the difference between
the actual cost and the $5,000,000 limit. The University's West Hawaii operations are
presently using 12,000 square feet of lease space in Kealakekua.
The University building will be provided with access to the water, electrical and
wastewater systems that are being building within the Petition area.
Petitioner developed a detailed conceptual plan for a one story, 20,000 square foot
building complex which would comply with the rezoning condition. The conceptual plan
was sent to the University on August 16, 2007. A copy of that conceptual plan and letter
are attached hereto as Exhibit B.
Under the conceptual plan, the building complex would be located on the corner
of the connector road between the Petition area and Kaiminani Drive and the main
mauka-makai road (designated as Road 1 in the rezoning ordinance). This location will
provide university staff and students access from Kaiminani Drive to the south and
through Road 1 to Queen Kaahumanu Highway to the north. This access will allow
access to the university site without having to go through the Queen Kaahumanu
intersection with the Kona Airport road. When the new collector road is built, there will
an additional access to Mamalahoa Highway.
Petitioner will be discussing the conceptual plan with the University to see if the
location and the building design concept are acceptable.
University Memorandum of Understandine
Petitioner has had a non-binding Memorandum of Understanding (MOU)
covering joint planning with the University. The MOU was extended twice. Petitioner
submitted a document for an additional extension for 2007 and 2008 to the University's
General Counsel's Office in January 2007. Petitioner also forwarded some background
information relating to the project and the North Kona area. The University Board of
Regents has not taken any action on the extension. Pending such action, Petitioner will
continue communications with the University on the new building complex.
mmeu\ennum reW I'll 00` 1v is 3
Construction of Road 4
Exhibit B to the rezoning ordinance show a new road designated as Road 4. The
south end of that road will joint the midlevel road through the Petition area which is
designated as Road 3. Road 4 extends through the State lands that abut the Petition area
to the north and continues into the privately owned lands of Lynch Investment. The
mauka end of Road 4 within the Lynch land will intersect with the Mamalahoa Highway.
That intersection is north of the Makalei Drive Mamalahoa Highway intersection.
Condition X4 of the rezoning ordinance requires construction of Road 4 as well as
Roads 1 (mauka-makai collector), 2 (collector road to Kaiminani Drive), 3 (mid-level
collector road), and 5 (stub out road to the southeast corner of the Petition area for further
connection to other land).
Petitioner had discussions with the Department of Land & Natural Resources and
with Lynch Investment representatives about the construction of Road 4. The responses
from the State and Mr. Lynch were positive and Petitioner concluded that the right of
way would be available for Road 4. A copy of Peter Lynch's letter is attached as
Exhibit C.
In order to minimize adverse impacts to Makalei Estates residents of through
traffic, the County Council provided that Road l will not connect to the bottom of
Makalei Drive until Road 4 is built.
Exhibit B to the rezoning ordinance is a conceptual layout of the road system
providing access through the Petition area. Petitioner's proposed road system is
consistent with the conceptual map in the rezoning ordinance.
4
Regional Park
Petitioner will comply with Condition U of the rezoning ordinance which requires
a 20 acre regional park.
Status Report on Commission's Conditions of Approval
As to the Conditions of Approval in the Commission's Decision and Order of
June 13, 2005, here is a status report on compliance.
1. Affordable Housinp-
Petitioner shall provide affordable housing opportunities for residents
of the State of Hawaii to the satisfaction of the County, acting in accordance with
the County's Ordinance No. 05-23, Affordable Housing Policy For the County of
Hawaii. Petitioner shall provide no less than 100 onsite affordable units in
accordance with the Petitioner's representations to the Commission or whatever
number of affordable units is deemed acceptable by the County in accordance with
the County's Ordinance No. 05-23, Affordable Housing Policy For the County of
Hawaii, whichever is greater. The location and distribution of the affordable
housing units or other provisions for affordable housing shall be under such terms
as may be mutually agreeable between the Petitioner and County.
Petitioner will work with the County of Hawaii to satisfy its requirements
consistent with Ordinance No. 05-23, Affordable Housing Policy for the County of
Hawaii. All affordable housing units will be built within the Petition area. There will be
not less than 100 affordable housing units. Petitioner has had initial discussions with the
County Office of Housing & Community Development on the scope of the housing
agreement. Petitioner anticipates building affordable units incrementally on the site.
Once Petitioner determines the desired mix of affordable housing units, it will present a
draft of a housing agreement to the Office of Housing and will address any concerns that
they have. Thereafter, Petitioner will submit the finalized agreement for approval by the
County Housing Agency.
mnmw~,,.e croon zram~w, zJ
2. Public School Facilities.
Petitioner shall contribute to the development, funding and
construction of public school facilities as determined by and to the satisfaction of the
DOE. Petitioner shall enter into an agreement with the DOE covering the specific
terms of such contribution prior to final subdivision approval and file such
agreement with the Commission and the County.
Petitioner has discussed the terms of an agreement with DOE staff and the
West Hawaii Complex Superintendent. A draft agreement was prepared and circulated
under which Petitioner proposed to provide the DOE with the rent free use of 8,000
square feet building for 20 years to satisfy this condition. A final agreement has not yet
been reached.
3. Wastewater Facilities.
Petitioner shall design and construct its wastewater disposal system in
compliance with the requirement of the County and the DOH.
Petitioner has obtained approval from the State Wastewater Division of
the Department of Health for the treatment plant design. Attached hereto as Exhibit D is
a copy of a letter approving the Wastewater facilities plans of Petitioner. Construction
documents are being prepared.
4. Wastewater Agreement For Underground Injection Offsite.
Prior to final subdivision approval, Petitioner shall provide the
Commission and the County with a copy of the executed agreement to inject
wastewater underground offsite and above the UIC line on the adjacent State-
owned land to the south of the Petition Area, or with other such landowner and
location as approved by DOH.
Upon further review of the situation for the back up Underground
injection well required by the State Department of Health for the sewer treatment plant,
Petitioner determined that the well could be located within the Petition area. The State
Department of Health concurred.
Imma,.'. „za.osiwz a. 6
5. Traffic Impacts and Mitigation.
Petitioner shall fund, design and construct its share of local and
regional transportation improvements as determined by the SDOT and the County,
which includes but is not limited to:
a. Midlevel connection with Ka'iminani Drive.
Petitioner shall provide at its sole cost and expense a two-lane
roadway between the Petition Area and Ka'iminani Drive in an alignment approved
by the County and the University and acceptable to any other State agency with a
property interest in the land on which the two-lane roadway is located.
This is also a condition of the County Rezoning.
The alignment of the road (designated Road 2 on Exhibit B to the
rezoning ordinance) was approved by the State Department of Land & Natural
Resources.
Petitioner obtained a right of entry from the Department of Land &
Natural Resources to conduct planning, land survey, engineering and environmental
studies for Road 2 and a waterline (Exhibit E).
Construction plans for this road are currently under review by the
Department of Public Works of the County. The Department of Accounting and General
Services issued a finding of no significant impacts for the Environmental Assessment
covering Road 2.
An amendment to the Environmental Assessment to cover the
realignment of Road 2 and to cover construction of waterlines and a 1,000,000 gallon
water storage tank on the State lands has been completed and is currently being reviewed
by the Department of Land & Natural Resources.
nnamrowiaw 11e0111 7
b. Mauka-Makai Connector Road.
A mauka-makai connector road providing public access
between Queen Kaahumanu highway and the Mamalahoa Highway shall be
provided at Petitioner's sole cost and expense. Said mauka-makai connector road
shall connect through such connector road to Mamalahoa Highway as Petitioner
and the County may agree.
Petitioner will comply with this condition. The County of Hawaii
zoning conditions concerning the connector roads between Queen Kaahumanu Highway
and Mamalahoa Highway were covered in a prior section of this Report. The collector
road system to accomplish the connection will be via what is marked as Roads 3, 4 and a
portion of Road 1 makai of its intersection with Road 3. Once Road 4 is built, Petitioner
will connect Makalei Drive and Road 1.
C. Right-Of-Way for An Alternative Mauka-Makai Connector
Road.
Petitioner shall reserve a right-of-way along the east (mauka)
portion of the Petition Area to support the possible future connection to the
Mamalahoa Highway. Petitioner shall construct at its sole cost and expense all
portions of said future road that is within the Petition Area. Any proposed road
construction plans and associated utility easements which may impact the Lowland
Dry Forest Preserve shall be subject to prior review and approval of the
Commission and shall include consultation with the County, such that County
engineering standards or other County requirements do not adversely impact the
Lowland Dry Forest Preserve.
Petitioner's plans include rights-of-way that will allow connection
to a new connector to Mamalahoa Highway. (Road 4 on Exhibit B to the rezoning
ordinance) Petitioner will be responsible for the costs of the road within the project
which will provide that connection.
Petitioner found that the right of way to connect to the new road
going to Mamalahoa Highway was best done in the alignment shown on Exhibit B of the
rezoning ordinance as Road 3. The advantages of that location are that it avoids the dry
land forest preserve, avoids the native dry land forest remnants on the adjacent State
lands through which Road 4 would have to pass and it allows a better road design from
the standpoint of grades.
Petitioner has had ongoing discussions with the State and with
Lynch Investments on the alignment of Road 4. Attached hereto as Exhibit C is a copy of
a letter dated June 16, 2006, from Peter Lynch expressing their willingness to convey an
88 foot right of way for said roadway. A tentative alignment corridor has been
determined. Additional permits and approvals are being sought.
d. Request to Limit Vehicle Traffic on Portions of Makalei Drive.
In the event that the maaka-makai road connector road utilizes
Makalei Drive, then to promote greater traffic safety, Petitioner shall prior to final
subdivision approval, use reasonable efforts to petition the County to limit motor
vehicle traffic on Makalei Drive as a through street, as it transverses Makalei
Estates, to only those vehicles that have a gross vehicle weight of less than 10,000
pounds.
The dedication of the roads within the Makalei Estates Subdivision to the
County has been delayed for technical reasons. When the dedication goes through.
Petitioner will also ask that the County adopt an ordinance that limits motor vehicle
traffic speeds and limit the vehicles using Makalei Drive to less than 10,000 pounds gross
vehicle weight as required by this condition.
The construction of Road 4 is expected to reduce the potential through
traffic on Makalei Drive. Since Road 4 will have better grades and will be opened to
heavy truck traffic, there will be little reason for heavy trucks to go through Makalei
Drive.
6. Integrated Natural Cultural Resource Management Plan (INCRMP).
Petitioner shall implement the revised INCRMP including completion
of all plans (with appropriate approvals), covenants and easements required under
the revised INCRMP. Such implementation shall include, but not be limited to the
following-.
Petitioner has been implementing this condition. Petitioner is drafting
Master Covenants that will apply to the Petition area. The covenants will include the
provisions described in the Integrated Natural Cultural Resource Management Plan
(INCRMP). Petitioner is also drafting Master Design Guidelines which will apply to
development within the Petition area. The design guidelines cover preservation of
culturally significant views, use of native vegetation for landscaping and preservation of
certain landforms. Petitioner will also be preparing Conservation Easements to cover the
preservation access described in the INCRMP. Drafts of the documents will be circulated
to the Land Use Commission and the County Planning Department. The Cultural
Advisory Committee has met and will be meeting again later this year.
Petitioner obtained the following additional studies which were attached to
the First Annual Report hereto as Exhibits B, C, D, and E respectively. Exhibit B is an
Updated Biological Study done by Dr. Patrick Hart. Exhibit C is a study done by Robert
Peck regarding insects and invertebre in the Project Area. Exhibit D is a survey done by
Dr. Patrick Hart regarding the Hawaiian Hawk (lo). Exhibit E is a study done by Marcos
Gorresen and Kathryn Turner in November 2005 regarding the Hawaiian Hoary Bat in
the Project Area.
Robert Rechtman has completed the data recovery plan which has been
approved by the State Historic Preservation Division.
An inventory map, a copy of which is attached as Exhibit I, showing all
preservation sites is currently being finalized. All preservation areas have been fenced so
they are clearly visible. Petitioner finished the fire break area around the dry land forest
"W.11 ."'~2....m,re" 10
and continues to monitor it. Petitioner is in the process of contacting prospective cultural
monitors.
a. Preservation of Significant Historic, Cultural and Natural
Resources.
Petitioner shall preserve all of the identified significant
historic, cultural, and natural resources on the Petition Area as represented by the
Petitioner to the Commission.
Petitioner will comply with this condition. As reported above,
these sites have been identified and marked. They will also be shown on the Inventory
Map.
b. Historic Preservation Mitigation Plan.
Petitioner shall submit data recovery plans and preservation
plans to the SHPD and obtain approval of those plans within one year of the
issuance of this Decision and Order. If said plans as approved vary from those
incorporated into the revised INCRMP, Petitioner shall amend the revised
INCRMP to reflect SHPD's recommendations and submit the amended revised
INCRMP to the Commission for its approval prior to final subdivision approval.
The State Historic Preservation Division has approved the Data
Recovery Plan and given interim approval to the Preservation Plan. The approval letter
was previously submitted. There are no changes to these plans which were incorporated
into the INCRMP.
Pursuant to the above approval, Petitioner has completed the data
recovery as outlined in the approved Data Recovery plan.
The Preservation Plan is awaiting final approval from the Historic
Preservation Division.
N1,1d,1- ,.1,-12 111151) r- 1 1
C. Preservation of Lowland Dry Forest.
Petitioner shall permanently protect the Lowland Dry Forest
Preserve. Any proposed road construction plans, irrigation well sites and proposed
access and utility easements which may impact the Lowland Dry Forest Preserve
shall be subject to prior review and approval of the Commission.
Petitioner will comply with this condition. As reported above, a
fire break around the perimeter of the dryland forest has been established. Petitioner has
the additional information from the updated biological study. Potential corridors and
sites for roads, irrigation wells, access and utility easements have been identified.
Because of the elimination of the golf course, Petitioner is reassessing the irrigation wells
and their placement within the Petition area.
d. Coordination of Lowland Dry Forest Preservation Efforts.
Petitioner shall use reasonable efforts to coordinate its
preservation of the Lowland Dry Forest Preserve with the State of Hawati i
Department of Land and Natural Resources as the Lowland Dry Forest Preserve
extends in some places onto the neighboring state-owned property. Such
coordination shall include, but not be limited to: sharing information regarding
updated biological surveys; coordinating the development of a fire prevention plan;
establishing appropriate firebreaks; and exploring contingencies for using the
Project's irrigation systems to control brush fires.
Discussions are ongoing with the State DLNR, and non-profit
groups regarding the management and stewardship of the Lowland Dry Forest Preserve
and possibly some of the forest area on the State lands.
Firebreaks have been established around the Palamanui dry forest
preserve.
The Palamanui Dry Forest Working Group has been formed and is
composed of Dr. Pat Hart, Lisa Hadway from the State Department of Land & Natural
Resources, Thomas Lee, Roger Harris and Susan Cordell. This group has met four times
12
in the last year. This group has had discussions with the North Kona Dry Land Forest
Group about cooperative efforts to preserve the native dry land forests.
Petitioner and the Working Group have met with other interested
community groups about participating in the management of the preserve and forest
preservation.
e. Preservation of Flora Outside of Lowland Dry Forest.
Petitioner shall preserve all flora that are federally listed as
Endangered Species throughout the Petition Area. Petitioner shall to the extent
practicable, preserve flora identified as non-endangered indigenous and Species of
Concern by incorporating such plants into the Project's landscaping and
exclusionary fenced areas.
Petitioner will comply with this condition.
f. Unidentified Archaeological Finds.
If any burials, archaeological or historic sites such as artifacts,
marine shell concentrations, charcoal deposits, or stone platforms, pavings or walls
are discovered during the course of construction of the Project, then all construction
activity in the vicinity of the discovery shall stop until the issuance of an
archaeological clearance from the SHPD that mitigative measures have been
implemented to its satisfaction.
Petitioner will comply with this condition.
g. Preservation of Native Hawaiian Gathering and Access
Rights.
Petitioner shall preserve and protect any established Native
Hawaf'ian traditional and customary rights exercised for subsistence, cultural and
religious practices on the Petition Area.
Petitioner will comply with this condition.
h. Updated Biological Survey.
Petitioner shall submit an updated biological survey of the
Petition Area to the Commission before construction of the Project begins. The
updated biological survey shall include but not be limited to, detailed information
M,,,nuµxnnuN 1,I III 16Q„" 13
pertaining to any significant invertebrates and Hawaiian Hoary Bats within the
Petition Area.
Petitioner has submitted the additional studies in its last annual
report regarding updated biological study, insects and invertebre, Hawaiian Hawk and
Hawaiian Hoary bat.
Based on the presence of a specimen of the aiea (host tree for the
moth) in the Petition area, Robert Peck's study indicated that there was a probability of
locating the Blackburn's sphinx moth in the Petition Area. Since the time of the study,
Petitioner's botanist Patrick Hart has been in the area of that tree but did not see any
moths. Dr. Hart will continue to inspect those areas to see if there are signs of the moth.
Gorresen and Turner's report recommended preventing tree cutting
or grubbing in forested areas during September through May during the breeding season
of the Hoary bat. Petitioner will be conducting construction activities during the breeding
season of the bat, but most of the construction will be in open areas where there are very
few standing trees and no forested areas will be affected.
Petitioner will implement the following safeguards to protect the
bat: a) Prior to the start of construction in forested areas, Petitioner will have the bat
biologists go through the area where roads and waterlines will be constructed and do a
reconnaissance for any Hoary bats; b) Petitioner will have the bat biologists do
inspections at construction sites for the bat in September and December. If bats are
sighted in a construction area during breeding season, the biologist will be immediately
consulted on mitigative measures to prevent harm to the Hoary bat and those measures
will be implemented.
~oa,o 14
i. Cultural Monitor for Grubbing and Grading Activities.
Petitioner shall retain the services of an appropriate number of
qualified cultural monitors such that all grubbing and grading activities within the
Petition Area are duly monitored.
Petitioner will comply with this condition. Prospective cultural
monitors have been contacted about serving and a list will be prepared.
7. Open Space Buffer.
Petitioner shall maintain an open space buffer on the Petition Area
along Queen Kaahumanu Highway with a minimum width of 800 feet. The only
man-made structures allowed in this open space buffer shall be the Northern
Project Access Road, the Project's wastewater treatment plant, limited portions of
the Project's golf course, and a groundwater monitoring well - as represented by
the Petitioner to the Commission. Petitioner shall appropriately screen such uses to
maintain the visual continuity of such buffer.
Petitioner has complied with this condition. An Open Space Buffer
notice has been recorded in the Bureau of Conveyances as Document No. 2007-006828.
A copy is attached hereto as Exhibit I.
8. Civil Defense.
Petitioner shall, on a fair-share basis, fund and construct adequate
civil defense measures as determined by the State and County Civil Defense
Agencies.
Petitioner will comply with this condition.
9. Air Ouality Monitoring.
Petitioner shall participate in an air quality-monitoring program as
specified by the DOH.
Petitioner will comply with this condition once construction activity in the
project is scheduled to begin.
10. Noise and Avigation Easement.
Petitioner shall notify all prospective buyers and future occupants of
the Petition Area or portions of the Petition Area that over flights can occur from
„~11-1 - 15
aircraft using KOA Airport. Petitioner shall grant to the State an avigation (right
of flight) and noise easement in the form prescribed by the SDOT on any portion of
the Petition Area subject to noise levels exceeding 55 Ldn.
Petitioner will comply with this condition.
11. Notification of Potential Nuisances - Agricultural.
Petitioner shall notify all prospective buyers and future occupants of
the Petition Area or portions of the Petition Area of potential odor, noise and dust
pollution if there are any lands in the Agricultural District surrounding the Petition
Area.
Petitioner will comply with this condition. Documents for this purpose
will be developed in conjunction with Petitioner's sales and leasing documents.
12. Notification of Potential Nuisances - HELLO.
Petitioner shall notify all prospective buyers and future occupants of
the Petition Area or portions of the Petition Area of the potential noise and air
quality impacts associated with the existing use and proposed improvements to
Hawaii Electric Light Company, Inc.'s Keahole Generating Station and Airport
Substation.
Petitioner will comply with this condition. Documents for this purpose
will be developed in conjunction with Petitioner's sales and leasing documents.
13. Hawai'i Right to Farm Act.
Petitioner shall notify all prospective buyers and future occupants of
the Petition Area or portions of the Petition Area that the Hawaii Right to Farm
Act, Chapter 165, HRS, limits the circumstances under which pre-existing farm
activities may be deemed a nuisance if there are any lands in the Agricultural
District surrounding the Petition Area.
Petitioner will comply with this condition.
14. Drainage Improvements.
Petitioner shall fund the design and construction of drainage
improvements required as a result of the development of the Petition Area to the
satisfaction of the appropriate State and County agencies.
Petitioner will comply with this condition.
16
Drainage studies have been completed and approved by the required
County and State agencies. Drainage plans have also been approved by the County
Department of Public Works and the State Department of Health.
15. Integrated Solid Waste Management Plan.
Petitioner shall cooperate with the DOH and the County to conform
to the program goals and objectives of Chapter 342G, HRS, and the County's
approved integrated solid waste management plans in accordance with a schedule
and timeframe satisfactory to the DOH. Petitioner shall, in coordination with
appropriate State and County government agencies, assist in the planning and
promotion of solid waste recycling facilities for the Project. This condition shall be
included in the Project's CC&Rs.
Petitioner will comply with this condition and is discussing the same with
both the State DOH and County.
16. Groundwater and Near Shore Water Monitoring.
Petitioner shall participate in the coastal water-monitoring program
with the SDOT Airports Division. Petitioner shall conduct groundwater monitoring
from a monitoring well to be located at the makai end of the Petition Area.
Monitoring programs and mitigation measures shall be approved by the DOH.
Petitioner will comply with this condition. Petitioner has had discussions
with State Department of Transportation Airports Division engineers have agreed that
monitoring of that will be coordinated with Airport monitoring programs. Petitioner will
construct subject monitoring well by December 31, 2008. A final agreement has not yet
been reached.
Since a golf course will not be constructed, Petitioner believes that the risk
of contamination of ground water from fertilizers or other chemicals has been
substantially reduced.
17
17. Water Service.
Petitioner shall fund and construct adequate water source, storage,
and transmission facilities and improvements as represented to the Commission and
as required by the County Department of Water Supply to accommodate the
Project.
Petitioner will comply with this condition.
Petitioner, County Department of Water Supply and Kohanaiki Shores,
LLC signed an agreement to develop water systems, and transfer water rights. This
agreement amended a 1999 Water Agreement between the Department of Water Supply
and the predecessors in interest to Petitioner (K-W Kau) and Kohanaiki Shores, LLC (K-
W Kohanaiki). The agreement concerns work needed to complete the pumping station
and outfitting of the Kau Well 1, building the storage and water transmission system from
those wells, through the Petition area and across State land to connect to the northern end
of the Department of Water Supply's water main along Queen Kaahumanu Highway.
The result of this construction will be to make potable water available for
the Petition Area and for the Kohanaiki Shores property (the Kohanaiki property). The
agreement results in Petitioner obtaining an additional 875 units. When combined with
the 262 units that Petitioner has for the construction of the Kau Well 2, Petitioner will
have 1,137 units.
The completion of the water improvements will also provide the
Department of Water Supply with a 1,000,000 gallon storage tank above Queen
Kaahumanu Highway which will relieve the demands of the Kahaluu Shaft in Kailua-
Kona. Under the Agreement, Petitioner may negotiate with Kohanaiki Shores, LLC to
buy additional water unit systems that will provide water to the project sites and the
1-1 ~11 .11-1~'.,~'- 18
adjacent State land which is designated for the University of Hawaii. A copy of the
Amended Water Agreement is attached hereto as Exhibit J.
Design and engineering construction plans have been submitted and are .
currently under review by Petitioner, Kohanaiki Shores, LLC, the Department of Water
Supply and appropriate government agencies.
Petitioner still plans to develop brackish water wells for irrigation.
Because there will not be a golf course, the placement and capacity of those irrigation
wells is being reassessed.
18. Best Management Practices.
Petitioner shall implement best management practices to reduce or
eliminate soil erosion and groundwater pollution and implement dust control
measures during the development process in accordance with DOH guidelines.
Petitioner will comply with this condition.
19. Water Conservation Measures.
Petitioner shall implement water conservation measures and best
management practices, such as use of indigenous and drought tolerant plants and to
the extent possible, use Species of Concern and Endangered Species, and
incorporate such measures into common areas landscape planning, and shall
incorporate low flow fixtures into the construction of all residential and commercial
units.
Petitioner will comply with this condition.
The covenants and design standards for Palamanui will require owners to
use a list of plants which will include indigenous and drought tolerant plants common to
the area. Low flow fixtures will be part of the design standards as well.
20. Energy Conservation Measures.
Petitioner shall incorporate solar energy and energy conservation
techniques where feasible into design of all residential and commercial units.
19
Petitioner will comply with this condition.
21. Hazardous Materials.
Storage and/or disposal of hazardous materials on the Petition Area_
shall comply with all applicable DOH requirements and all necessary permits shall
be obtained.
Petitioner will comply with this condition.
21 Golf Course.
Petitioner shall comply with the principles of the DOH's "Guidelines
Applicable to Golf Courses in Hawaii" (July 2002, Version 6). Petitioner shall
develop and maintain the golf course in accordance with the Audubon
International's Signature Silver Program standard. To the extent practicable, the
Petitioner will utilize R-1 recycled wastewater to irrigate the golf course.
During the rezoning application, Hiluhilu revised the project and will not
construct a golf course.
Since there will be no golf course, many of the potential impacts such as
leaching of fertilizers and pesticides arising from the operation of a golf course will be
lessened.
Petitioner will be using the treated wastewater for irrigation. The
wastewater will be treated to produce waters of R-1 quality. The treated wastewater will
be used for irrigation of landscaped portions of the road, the 20 acre active park area,
passive parks and for landscaping of the common areas.
The treated wastewater will also be available for irrigation of larger areas
such as the hotel site and for use in the plant propagation activities for native Hawaiian
plants.
Although the elimination of the golf course lessens the recreational
opportunities for golfers, the changes also included the 20 acre active park area. The
?0
baseball fields and soccer fields with associated facilities will benefit the entire Kona
community. The County Parks & Recreation Department had expressed the need to these
recreational opportunities in Kona.
23. University Inn and Conference Center.
As represented before the Commission, the Project shall include an
approximate 120-unit University Inn and Conference Center, which shall serve as a
business hotel and provide accommodations in conjunction with University
operations. The University Inn and Conference Center shall not be designed and
operated as resort-type hotel or be used for time-share purposes.
Petitioner will comply with this condition.
24. Compliance with Representations to the Commission.
Petitioner shall develop the Petition Area in substantial compliance
with the representations made to the Commission. Failure to so develop the Petition
Area may result in reversion of the Petition Area to its former classification, or
change to a more appropriate classification.
Petitioner will comply with this condition. However, during the rezoning
process, Petitioner had to modify the plans which were presented to the Commission.
After the approval of the Petition, there was a dramatic increase in fuel
costs which created a corresponding increase in the cost of electricity. This increased the
projected operating cost of the golf course for pumping irrigation water to the point that it
would have had to operate at a substantial loss. Since there are no indications of when or
whether electrical costs will decline, Petitioner could not saddle owners of Palamanui
with such a loss and the golf course had to be dropped.
There was also a dramatic increase in material and labor costs. Petitioner
did not want to increase the housing prices; thus this was further justification not to
develop the golf course.
21
During the rezoning process, Petitioner was asked to cover a number of
costly off-site capital improvements. These included $5,000,000 for the university
building on State land and the construction of Road 4. Petitioner also had to comply with
the new affordable housing requirements which greatly increased the requirements and its
attendant costs.
In order to partially offset the increased costs, Petitioner discussed an
increase in the number of residential units for Palamanui. The rezoning ordinance
authorized a maximum of 1,116 units which is 271 more units than the original plan. The
main constraint on the actual number of units that can be built will probably be the water
units available.
The supporting infrastructure for Palamanui, even with the increased
residences will be more than adequate. Access to Palamanui will be from three points:
Queen Kaahumanu Highway, Kaiminani Drive and Mamalahoa Highway. A fourth
access through Makalei Drive will allow those residents convenient makai access.
Petitioner is having an updated traffic study prepared for review by State
DOT. The data from the updated study shows that the planned road and intersection
improvements will be adequate for Palamanui.
Although there will be no golf course, Petitioner will be using open space
areas for stormwater management.
Attached hereto as Exhibit E is a copy of the Grading Permit obtained.
Attached hereto as Exhibit G is a copy of the NPDES Permit from the State Department
of Health.
w.ro,n row.,,,," 22
25. Notice of Change of Ownership.
Petitioner shall provide notice to the Commission of any intent to sell,
lease, assign, place in trust, or otherwise voluntarily alter the ownership interests in
the Petition Area, prior to development of the Petition Area.
Petitioner informed the Commission by letter dated July 12, 2007, that
Petitioner was transferring ownership of the property to Palamanui Global LLC. This
was done to allow the original development team to bring in additional equity partners
and financing. Mr. Lam will retain his equity interest and will be actively involved in
management. Mr. Schwab will also retain his equity interest. The addition of Hunt
Development with its background in housing development will facilitate the next phase
of Palamanui. Hunt Development will also work with Mr. Lam in the management of
Palamanui.
26. Annual Reports.
Petitioner shall timely provide without any prior notice, annual
reports to the Commission, OP and the County in connection with the status of the
subject Project proposed for the reclassification area, and Petitioner's progress in
complying with the conditions imposed. The annual report shall be submitted in a
form prescribed by the executive officer of the Commission. The annual report
shall be due prior to or on the anniversary date of the approval of the Petition.
This report is being submitted in compliance with this Condition.
27. Release of Conditions.
The Commission may fully or partially release the conditions
provided herein as to all or any portion of the Petition Area upon timely motion and
upon the provision of adequate assurance of satisfaction of these conditions by the
Petitioner.
Petitioner is not seeking to be released from any conditions imposed at the
present time.
23
28. Notice of Imposition of Conditions.
Within seven days of the approval date of the Petition, the Petitioner
shall (a) Record with the Bureau of Conveyances a statement that the Petition Area
is subject to conditions imposed herein by the Commission; and (b) File a copy of
such recorded statement with the Commission.
The Notice of Imposition of Conditions was recorded in the Bureau of
Conveyances on June 23, 2005, as Document No. 2005-123996.
29. Recordation of Conditions.
Petitioner shall record the conditions imposed herein by the
Commission with the Bureau of Conveyances within sixty days after the receipt of
the Decision and Order pursuant to Section 15-15-92, HAM
The Conditions contained in the Decision and Order was recorded in the
Bureau of Conveyances on September 7, 2005, as Document No. 2005-178780.
Dated: Hilo, Hawaii, October 16, 2007
Respectfully submitted,
Alan M. Okamoto
Jerel I. Yamamoto
Attorneys for Petitioner Hiluhilu
Development, LLC
24
COUNTY OF HAWAII STATE OF HAWAII
BILL NO. 224
Draft 9
ORDINANCE NO. 06 105
AN ORDINANCE AMENDING SECTION 25-8-3 (NORTH KONA ZONE MAP), ARTICLE 8,
CHAPTER 25 (ZONING CODE) OF THE HAWAI'I COUNTY CODE 1983 (2005 EDITION),
BY CHANGING THE DISTRICT CLASSIFICATION FROM AGRICULTURAL (A-3a) AND
OPEN TO PROJECT DISTRICT (PD) AT KAU, NORTH KONA, HAWAI'I, COVERED BY
TAX MAP KEY 7-2-5:1.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII:
SECTION 1. Section 25-8-3, Article 8, Chapter 25 (Zoning Code) of the Hawaii County
Code 1983 (2005 Edition), is amended to change the district classification of property described
hereinafter as follows:
The district classification of the following areas situated at Kau, North Kona,
Hawaii, shall be Project District (PD):
PARCEL "A":
Beginning at the northwest comer of this parcel, being also along the east side of
Queen Kaahumanu Highway (Project No.: 19 BC-01-71), the coordinates of said point of
beginning referred to Government Survey Triangulation Station "AKAHIPUU", being
9,071.21 feet North and 23,751.69 feet West and thence running by azimuths [treasured
clockwise from true South:
I. 291 ° 46' 30" 5726.03 feet along the Kukio-Ooma Government
Tracts;
2. 17° 56' 2314.09 feet;
3. 115° 03' 36" 5449.47 feet along the Government Lands of Makaula;
4. 189° 19' 55" 2044.65 feet along the east side of Queen Kaahumanu
Highway (Project No.: 19 BC-01-71) to the
point of beginning and containing an area of
274.861 Acres.
EXHIBIT "A"
PARCEL "B":
Beginning at the northwest comer of this parcel, being also along the south side of
Kukio-Ooma Government Tracts, the coordinates of said point of beginning referred to
Government Survey Triangulation Station "AKAHIPUU", being 6,947.06 feet North and
18,434.23 feet West and thence running by azimuths measured clockwise from true South:
1. 2910 46' 30" 784.96 feet along the Kukio-Ooma Government
Tracts;
2. 2800 28' 22" 2806.44 feet along the Kukio-Ooma Government
Tracts;
3. 2900 55' 24" 3323.43 feet along the Kukio-Ooma Government
Tracts;
4. 170 14' 2844.54 feet along Lots 36, 37, 38, 44, 15, 14, 13, 12,
11, 10 and 9 of Makalli Estates - Phase 2
(File Plan 2294);
5. 1009 15' 30" 1838.50 feet along the Government Lands of Makaula;
6. 1150 03' 36" 5137.19 feet along the Government Lands of Makaula;
7. 1970 56' 2314.09 feet to the point of beginning and containing
an area of 450.343 Acres.
All as shown on the map attached hereto, marked Exhibit W' and by reference
made a part hereof.
SECTION 2. In accordance with Section 25-2-44, Hawaii County Code 1983 (2005
Edition), the County Council finds the following conditions are:
(1) Necessary to prevent circumstances which may be adverse to the public
health, safety and welfare; or
(2) Reasonably conceived to fulfill needs directly emanating from the land use
proposed with respect to:
(A) Protection of the public from the potentially deleterious effects of the
proposed use, or
(B) Fulfillment of the need for public service demands created by the
proposed use.
2
A. The applicant, successors or assigns shall be responsible for complying with all of
the stated conditions of approval.
B. The applicant shall comply with all conditions of approval of the State Land Use
Commission's Decision and Order (Docket No. A03-744) dated May 19, 2005.
C. The applicant shall comply with the conditions as set forth in the Water Agreement
between K-W Kau, LLC and the Water Commission of the County of Hawaii dated
June 15, 1999.
D. The project shall consist of a maximum of 725.2 acres for single-family and multi-
family residential, commercial uses, hotel, university and public school facilities,
dry forest preserve, archaeological and cave preserve areas, active and passive
parks, a trail system and supporting infrastructure.
E. The maximum number of residential units allowed shall be 1,116 units, including
the on-site affordable housing units.
F. The maximum number of hotel rooms shall be 120.
G. Commercial spaces for medical, office, retail, classrooms and health related uses
and hotel shall be limited to 102 acres.
H. Active and passive parks (Open, Park and Preservation) shall be developed on a
minimum of 177.8 acres. A "Constraints Area" which includes the approximately
55-acre dry forest preserve, archaeological sites/cave and park areas, shall be set
aside in the project area.
I. The uses allowed in the Project District shall be all permitted uses allowed by right
3
in the RS, RM, CN and CV zoned districts, and related facilities. Uses allowed by
Use Permit in the CV district, other than golf courses, may be allowed by use _
permit.
J. A detailed Master Plan of the Project District, which includes the location and
number of residential lots and units, hotel, university and public school facilities,
commercial uses, parking, open space and recreational areas and other related
improvements on the property, shall be submitted to the Planning Director within
two (2) years from the effective date of the Project District Ordinance or prior to
submission of plans for plan approval or subdivision approval, whichever occurs
first.
K. Substantial construction of the proposed development shall commence within five
(5) years from the effective date of the Project District Ordinance. "Substantial
construction" means the actual start of construction of project infrastructure under a
bona fide contract of not less than ten million dollars ($10,000,000.00). Prior to
construction, the applicant, successors or assigns shall secure Final Plan Approval
for the proposed development from the Planning Director in accordance with
Section 25-2-70, Chapter 25 (Zoning Code), Hawaii County Code. Plans shall
identify proposed structures, fire protection measures, paved accesses and parking
stall, and other improvements associated with the proposed uses.
L. The following design standards shall apply:
L Landscaping for the development shall comply with the Planning
Department's Rule No, 17, Landscaping Requirements. Landscaping rules,
such as the screening of single-family residential from commercial areas,
shall be applied according to the actual uses.
2. The height limit for structures within the project area shall not exceed the
following:
4
a. Single-family residential development: 35 feet
b. Multiple-family residential and hotel developments: 45 feet
c. Office and retail commercial development (not more than three
stories): 45 feet.
3. The minimum off-street parking and loading space requirements of Chapter
25, Hawaii County Code shall be complied with, including compliance with
the American Disabilities Act (ADA) requirements.
M. The variances from Chapters 23 (Subdivision) and 25 (Zoning), Hawaii County
Code, as presented in Planning Department Exhibit 2 (Applicant's November 21,
2005 letter with attached Tables pages 1 to 6 related to Variance Requested from
Sections in Subdivision and Zoning Codes, and Applicant's Figure 2 - Conceptual
Character of Town CenterlResidential Village Center, Figure 3a - Residential
Village Center Alternative: 4,000 SF Lot, Figure 3b - Residential Village Center
Alternatives: 6,000 SF Lot, Figure 4a - Conceptual Plan: Roadway Concepts -
Dedicable, Figure 4b - Conceptual Plan: Roadway Concepts - Nondedicable, and
Figure 5 - Residential Village Center Alternatives: Zone Lot Line Concepts) shall
be allowed under the Project District. The applicant shall submit detailed plans to
the Planning Director showing street designs and cross-sections, and adjacent
building designs, with the Master Plan. The Planning Director may require
modifications to the street sections to provide sufficient on-street parking where the
plans do not provide adequate off-street parking (such as the 4,000-square foot lots
with a one-car garage and insufficient setbacks to allow parking in driveways), and
may require further changes necessary for public safety and convenience. All roads
built with the variances allowed under this condition will be non-dedicable. With
regard to the requested zero line building setbacks, the applicant shall conform to
the current Hawaii County Building Code requirements. As part of the Master
Plan, the applicant shall submit plans for pedestrian movement through the project
district, which shall identify areas where sidewalks will be included to permit safe
5
pedestrian access to the Town Center and other important points in the
development.
N. To ensure that the project is developed according to its stated goal of creating a
mixed use residential community, the project must include residential development.
The project shall have at least one residential unit for every 600 square feet of
nonresidential development (under roof). Space used by the University shall not be
included in the calculation of nonresidential space. There is no minimum
requirement for the nonresidential development.
0. The permitted hotel, designated as the "University Inn and Conference Center,"
shall function as a business hotel and in conjunction with University operations. It
shall not be operated under a time-share plan or other arrangement that provides for
shared ownership of individual units on the basis of time intervals, or club
membership allowing periodic use.
P. Occupancy of the hotel shall not be granted until the construction of the Queen
Kaahumanu Highway, Phase 11 widening improvements to four lanes from
Kealakehe Parkway to the Kona International Airport at Keahole has been secured
by the State entering into a construction contract for the improvements, or until
construction has commenced on the 20,000 square foot University building, or the
building's completion has been assured by bond or other security acceptable to the
Planning Director, whichever comes first.
Q. No retail commercial structures may be located closer than 1,500 feet from the
Queen Kaahumanu Highway right-of-way.
P. To ensure that the commercial development corresponds with the applicant's
representations regarding neighborhood-scale commercial development, no single
retail establishment shall have more than 45,000 square feet of developed area
6
underroof.
Q. Total retail space (not including restaurants) shall not exceed 75,000 square feet
under roof until the construction of the Queen Kaahumanu Highway, Phase 11
widening improvements to four lanes from Kealakehe Parkway to the Kona
International Airport at Keahole has been secured by the state entering into a
construction contract for the improvements. The square footage of improvements
leased or given to the University of Hawaii shall not count against this limit.
T. The applicant shall set aside a "Constraints Area" including the approximately 55-
acre dry forest preserve, archaeological siteslcave and park areas on the project site.
U. The applicant shall develop one 20 acre active park site prior to occupancy of the
first residential unit on the property. The 20 acre active park site shall include two
playing fields which may be one baseball field and one soccer field, or two baseball
fields or two soccer fields, parking lot and restrooms, with the specific requirements
to be determined in consultation with the Department of Parks and Recreation. The
20 acre active park shall be constructed to county-dedicable standards, and the
county shall accept dedication.
V. There shall be an 800-foot setback from the Queen Kaahumanu Highway. No
structures, other than those allowed under Condition No. 7 of the Land Use
Commission's Decision and Order, shall be allowed within the 800-foot setback
area. A copy of the metes and bounds description for this open space area, and
proposed covenant(s) shall be submitted to the Planning Director for review and
approval prior to receipt of Final Plan Approval or land alteration activities,
whichever occurs first. The approved covenant(s) shall be recorded in the Bureau
of Conveyances prior to the issuance of Final Plan Approval, or land alteration
activities, whichever occurs first. A copy of the recorded covenant(s) shall be
provided to the Planning Department.
7
W. All project utilities shall be underground.
X. The applicant shall construct the following roads to access other properties and the
regional road system:
I . Project access road from the Queen Kaahumanu Highway to the eastern
boundary of the project. (Road "I" on attached map Exhibit "B"): Road "1"
shall intersect with the Queen Kaahumanu Highway at a location approved
by the State Department of Transportation, and shall connect with Makalei
Drive at the eastern (mauka) end. The road shall be constructed on an 88-
foot wide right-of-way, as a two-lane road, to county-dedicable standards as
a collector road, from the Queen Kaabumanu Highway to the intersection
with Road "Y. From Road "Y to the intersection with Makalei Drive, Road
"1" shall be constructed to county-dedicable standards as a minor street,
except that design standards shall be varied to permit the connection with
Makalei Drive without encroaching into the Lowland Dry Forest Preserve.
The connection with Makalei Drive shall be designed to not encroach into
the Lowland Dry Forest Preserve. The grade shall not exceed 10°1o, except
near the connection with Makalei Drive. At the Queen Kaahumanu
Highway, the intersection shall be improved in accordance with one of the
following two options:
(a) If a grade separated interchange is available to connect Road "1" to
Queen Kaahumanu Highway when Applicant is ready to construct Road
"1", Applicant will connect Road "1" to such interchange and in such case,
Applicant will contribute $1,500,000 to the Department of Transportation.
(b) If a grade separated interchange is not available to connect Road "1"
to Queen Kaahumanu Highway when Applicant is ready to make the
8
connection, Applicant shall improve the intersection at its expense as
required by the Department of Transportation, but shall include, at a
minimum, a deceleration and an acceleration lane on Queen Kaahumanu
Highway, a left-tum lane on Queen Kaahumanu Highway, a refuge lane for
vehicles turning left into Queen Kaahumanu Highway, and a dedicated
right-turn and left-tum lane from Road "1" to Queen Kaahumanu Highway.
If warranted, at the request of Department of Transportation, the applicant
shall install traffic signals and a second left-turn lane from the main project
access road to the Queen Kaahumanu Highway.
2. "Mid-Level Road" from Road "1" to Kaiminani Drive (Road "2" on Exhibit
"B"): The applicant shall construct the mauka half-section of a 120-foot
wide right-of-way to county-dedicable standards as a collector road. The
applicant shall construct the intersection at Kaiminani Drive meeting with
the approval of the Department of Public Works, but the intersection shall
include a left-turn lane on Kaiminani Drive.
3. A north-south collector road at approximately the 600-foot elevation (Road
"3" on Exhibit "B'): The north-south collector road shall be designed to
function as a portion of a collector road (Road "4") connecting Highway
190 with Road "I"and the Queen Kaahumanu Highway. Road "3" shall be
constructed to county-dedicable standards as a 60-foot wide collector road
with an 88-foot wide right-of-way. The applicant shall construct the
intersection between Road "3" and Road "I" meeting with the approval of
the Department of Public Works.
4. New Connector Road to Mamalahoa Highway Project (Road "4" on
attached Map Exhibit "B"). Applicant shall construct Road "4", at its sole
expense, as a two-lane 60-foot wide county-dedicable collector road,
including shoulders and swales, within an 88-foot right-of-way. The final
9
design and maximum grade of Road "4" shall be determined by the Director
of Public Works after consultation with the Planning Director. Applicant
shall not be required to install streetlights, except at the intersection with
Highway 190, or utilities. If another private developer is required to
participate in building Road "4" as a condition of land use approvals,
Applicant's share shall be limited to the portion of Road "4" on Applicant's
property and on State land. The County shall obtain the necessary right-of-
way outside of Applicant's property.
5. A road to connect south to the future extension of Holoholo Street - Nana
Street (Road " 5" on Exhibit "B"): The applicant shall build Road' 5"
within the project area to countydedicable standards as a minor street, and
it shall intersect with Road "1".
6. The Planning Director may require other local streets within the project to
provide local connections to the adjoining property to the north and south as
a condition of subdivision approval or plan approval.
7. At the western (makai) end of Makalei Drive, the applicant shall provide
safety improvements necessary to make a safe transition to Road "I", which
may include, but are not limited to, rumble strips and establishing
superelevation for the curve, as required by the Department of Public
Works.
8. The following road improvements shall be completed before a certificate of
occupancy is issued for any portion of the subject property, or completion of
any single-family homes, whichever comes first:
(a) Road "1", at least from the Queen Kaahumanu Highway to the
intersection with the Mid-Level Road (Road "2");
10
(b) the intersection of the main project access road with the Queen
Kaahumanu Highway; and
(c) the Mid-Level Road (Road "2) from the main project access road to
Kaiminani Drive, and the Kaiminani Drive intersection.
9. The following road improvements shall be secured by bond or other surety
meeting with the approval of the Planning Director to guarantee that the
improvements will be completed within two (2) years after the issuance of a
certificate of occupancy for any portion of the subject property, or
completion of any single-family homes, whichever comes first:
(a) the remaining portion of Road "I", including any necessary
improvements to the lower portion of Makalei Drive;
(b) Road "Y', and
(c) Road "5."
10. Applicant shall complete Road "4" no later the six (6) years after the
effective date of this ordinance, except as may be allowed under Condition
"UU". Applicant shall assure the completion of Road "4" by bond or other
security accepted by the Planning Director no later than the issuance of a
certificate of occupancy for any building, other than the University or the
State Department of Education (DOE) building, or final subdivision
approval for any subdivision creating single-family residential lots.
Certificate of occupancy for any building, other than the University or DOE
building shall not be issued, and final subdivision approval for any
subdivision creating single-family residential lots shall not be granted, until
it
the necessary right-of-way for Road "4" has been obtained from any other
private landowner.
11. Makalei Drive is a "minor road" and will not be open to the public until the
collector Road 4 is open for public use.
Y. There shall be no direct access from individual lots to collector streets.
Z. Construction vehicles shall not utilize Makalei Drive.
AA. No vehicular security gate shall be installed within sixty (60) feet of any proposed
county road and a turnaround gate shall be provided within the private road or
property on the county road side of the gate.
1313. All development generated runoff shall be disposed of on-site and shall not be
directed toward any adjacent properties. A drainage study shall be prepared and
submitted to the Department of Public Works prior to issuance of any construction
permit. Drainage improvements shall be constructed, meeting with the approval of
the Department of Public Works, prior to issuance of a certificate of occupancy for
any buildings, or final subdivision approval for any subdivision creating single-
family residential lots.
CC. A Solid Waste Management Plan shall be prepared and submitted for approval to
the Department of Environmental Management prior to submitting plans for Plan
Approval review. Approved recommendations and mitigation measures shall be
implemented in a manner meeting with the approval of the Department of
Environmental Management.
DD. A wastewater treatment system shall be constructed, meeting the approval of the
State Department of Health and/or Department of Environmental Management,
whichever is applicable. All wastewater shall be treated at an approved wastewater
12
treatment plant, to a minimum of secondary treatment, with R-1 effluent, unless a
greater level of treatment is required by the Department of Health. Wastewater
shall be used for irrigation of landscaping or other beneficial reuse to the maximum
extent feasible.
EE. University of Hawai' i Condition. Applicant shall provide the following to relocate
the University of Hawaii operations:
1. Connectivity with the University of Hawaii 500 acre site. Applicant shall allow
the University of Hawaii to connect with its wastewater and water supply systems.
Applicant shall also allow the University of Hawaii to connect electrical and
telecommunication systems to facilities installed within the project. These
connectivity sites shall be to the University's satisfaction and located along its
northern boundary on Road "1".
2. Build Applicant's wastewater treatment system to handle the wastewater from the
initial University of Hawai'i building and design the wastewater treatment system
to accommodate future expansion for wastewater from future expansion of the
University of Hawai'i operations.
3. Design and construct an initial classroom and administration building of 20,000
square feet, with associated parking, at Applicant's expense. If the University of
Hawaii's design results in the cost of design and constructing of the building and
associated parking exceeding $5,000,000, Applicant shall be responsible for the
first $5,000,000 and the University shall be responsible for the balance. The
building shall be constructed on the State land designated for University use.
Construction on the building shall commence as soon as the University has required
the necessary consents and approvals. If the necessary consents and approvals
cannot be obtained by the State, the University shall have the right to lease from
Applicant appropriate space to house University of Hawai'i at West Hawai'i until
13
the necessary consents and approvals are obtained at comparable lease rates now
being paid by the University of Hawaii until the 20,000 square foot building can be
constructed on the State land at Applicant's expense. Applicant shall commence
construction of the building, or assure its construction by a bond or other security
accepted by the Planning Director and the Chancellor of Hawaii Community
College, before the issuance of a certificate of occupancy for any building, other
than the DOE building, or final subdivision approval for any subdivision creating
single-family residential lots. Applicant shall complete construction of the
University building no later than two (2) years after the issuance of a certificate of
occupancy for any building, other than the DOE building, or final subdivision
approval for any subdivision creating singe-family residential lots. The location
and design of the building (interior and exterior) and related improvements will be
on terms determined by the University of Hawaii. The University of Hawaii shall
consult on design of said building with Applicant.
FF. Applicant shall enter into an agreement with the DOE, in accordance with the terms
of the State Land Use Decision and Order (Docket No. A03-744) dated May 19,
2005. If Applicant's agreement with the DOE is later amended, Applicant shall file
a copy of such amendment with the Planning Department and shall comply with the
terms of the amended agreement Applicant shall contribute to the DOE an 8,000
square foot building within the project site to use for a period of twenty (20) years,
subject to the following conditions:
I. No rent or common area maintenance fees will be charged to the DOE.
2. The building will be used as instructional and office space for the school
complexes located in West Hawaii.
3. The building will meet DOE facility standards, with finished classrooms,
workshops and offices.
14
4. Applicant will collaborate with the DOE on the requirements of the building in
order to develop building plan subject to DOE approval.
5. The finished building will be available to the DOE within two (2) years of the
issuance of a certificate of occupancy for any multifamily residential building,
or within two (2) years from the completion of any single-family residential
building within the development, whichever comes first.
6. Following the initial twenty (20) year period when the building will be made
available to the DOE, the building will be made available to the DOE for
additional years, at the prevailing rental rates.
7. If the DOE and Applicant determine that despite good efforts, a building cannot
be provided, or the DOE no longer needs the facility and its design has not been
completed, Applicant will make an equivalent school fair-share cash
contribution in an amount to be determined by the DOE. This cash contribution
shall be expressly reserved for use within the Kealakehe complex of schools.
8. The value of the building and its use is meant to be credited against any DOE
requirements under the State Land Use Decision and Order.
GG. An Emergency Response Plan shall be submitted to the Civil Defense Agency for
review and approval, prior to the issuance of a certificate of occupancy.
HH. To ensure that the Goals and Policies of the Housing Element of the General Plan
are implemented, the applicant shall comply with the requirements of Chapter 11,
Article 1, Hawaii County Code, relating to Affordable Housing Policy. This
requirement shall be approved by the Administrator of the Office of Housing and
Community Development prior to receipt of Final Plan Approval and/or Final
15
Subdivision Approval for any subdivision creating single-family residential lots,
whichever occurs first. The reduction in minimum lot sizes and the increase in
density permitted by Section 11-g, Hawaii County Code, for affordable housing
built on-site shall not apply to this project district because the reduction in
minimum lot sizes has already been incorporated into the conditions of this project
district zoning, and the limit on residential units stated is meant to include
affordable units built on-site. Applicant shall satisfy its affordable housing
requirements by on-site construction of units, and not utilize any affordable housing
credits generated off-site.
Il. Should any unidentified sites or remains such as artifacts, shell, bone, or charcoal
deposits, human burials, rock or coral alignments, pavings or walls be encountered,
work in the immediate area shall cease and the Department of Land and Natural
Resources-Historic Preservation Division (DLNR-HPD) shall be immediately
notified. Subsequent work shall proceed upon an archaeological clearance from the
DLNR-HPD when it is found that sufficient mitigation measures have been taken.
A. The applicant shall implement the Integrated Natural Cultural Resource
Management Plan (INCRMP) dated May 19, 2005, for the Lowland Dry Forest
Preserve (Exhibit "D" and "F" to the INCRMP). Preservation actions, with fire
control as a priority, shall begin no later than six months after the effective date of
this ordinance.
KK. The applicant shall protect all uhiuhi and 'aiea trees, and shall use best efforts to
preserve the major stands of wiliwili trees.
LL. The applicant shall implement the INCRMP for the cave areas (Exhibit "E" to the
INCRMP).
MM. The applicant shall implement the Archaeological Preservation Plan (Exhibit "C" to
16
the INCRMP), along with any amendments and modifications thereto as approved
by the State Historic Preservation Division.
NN. The Planning Director may approve modifications to the INCRMP conforming to
the general purposes of the rNCRMP, after consultation with the DLNR-DOFAW.
00. To ensure that the property will be developed as an integrated project, the applicant
shall establish covenants to all deeds to any parcels, except parcels to be conveyed
to individual residents, that require a master association to administer the
development of the project district in accordance with the conditions of land use
approvals. The covenants shall give notice that the various parcels are subject to an
overall zoning that requires coordinated development. Until the master association
is formed, the applicant shall be responsible for ongoing duties such as the
management of the Dry Forest Preserve Area and other stewardship duties, and for
contingent project responsibilities. After the formation of the master association,
those responsibilities, except for offsite infrastructure requirements, shall be
transferred to the master association.
PP. The applicant shall make its fair share contribution to mitigate the potential regional
impacts of the property with respect to parks and recreation, fire, police, solid waste
disposal facilities and roads. The fair share contribution shall become due and
payable on the sale or lease of residential units subject to such contribution. The
fair share contribution shall have a maximum combined value of 56,411.25 per
multiple family residential unit ($9,991.20 per single family residential unit). The
total amount shall be determined with the actual number of units according to the
calculation and payment provisions set forth in this condition. The fair share
contribution per multiple family residential unit (single family residential units)
shall be allocated as follows:
17
1. $3,162.49 per multiple family residential unit ($4,817.93 per single family
residential unit) to the County to support park and recreational
improvements and facilities;
2. 599.95 per multiple family residential unit ($232.42 per single family
residential unit) to the County to support police facilities;
3. $307.46 per multiple family residential unit ($459.06 per single family
residential unit) to the County to support fire facilities;
4. $137.04 per multiple family residential unit (5200.98 per single family
residential unit) to the County to support solid waste facilities; and
5. $2,704.31 per multiple family residential unit (54,280.82 per single family
residential unit) to the County to support road and traffic improvements.
The fair share contribution shall be waived for the affordable housing units. In lieu
of paying the fair share contribution, the applicant may contribute land and/or
construct improvements/facilities related to fire, police, and solid waste disposal
facilities within the region impacted by the proposed development, subject to the
review and recommendation of the Planning Director, upon consultation with the
appropriate agencies and approval of the County Council. With respect to the fair
share contribution for parks and recreation, that contribution for all residential units
will be satisfied when Applicant completes and offers for dedication all of the land
facilities for the active use park described in Condition "U" above. The fair share
contribution for roads will be satisfied upon completion of the Mid-Level Road
(Road "2"), Road "3", Road "5" and Road "4".
QQ. Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for
imposition of exactions or the assessment of impact fees, conditions included herein
18
shall be credited towards the requirements of the Unified Impact Fees Ordinance.
RR. Comply with all other applicable County, State and Federal laws, rules, regulations
and requirements.
SS. An annual progress report shall be submitted to the Planning Director prior to the
anniversary date of the approval of this Project District Ordinance. The report shall
include, but not be limited to, the status of the development and the extent to which
the conditions of approval are being satisfied. This condition shall remain in effect
until all of the conditions of approval have been satisfied and the Director
acknowledges that further reports are not required.
TT. An initial extension of time for the performance of conditions within the ordinance,
except for the six-year time limit in Condition X.10, may be granted by the
Planning Director upon the following circumstances.
1. The non-performance is the result of conditions that could not have been
foreseen or are beyond the control of the applicant, successors or assigns,
and that are not the result of their fault or negligence.
2. Granting of the time extension would not be contrary to the General Plan or
Zoning Code.
3. Granting of the time extension would not be contrary to the original reasons
for the granting of the Project District.
4. The time extension granted shall be for a period not to exceed the period
originally granted for performance (i.e., a condition to be performed within
one year may be extended for up to one additional year).
19
5. If the applicant should require an additional extension of time the Planning
Department shall submit the applicant's request to the County Council for
appropriate action.
Should any of the conditions not be met or substantially complied with in a timely
fashion, the Planning Director may initiate rezoning of the subject area to its
original or more appropriate designation.
UU. The Planning Director may permit an extension of the six-year time limit to
complete Road "4" in Condition X.10, provided that the requirements of
Condition "TT" are met, and, in addition, the new deadline for the completion of
Road "4" is not more than two (2) years after the completion of any building,
including single-family residential buildings, other than the University building or
the DOE building.
SECTION 3. In the event that any portion of this ordinance is declared invalid, such
invalidity shall not affect the other parts of this ordinance.
SECTION 4. This ordinance shall take effect upon its approval.
INTRODUCED BY:
UNCIL M BER, CO HA I
Hilo , Hawaii
Date of Introduction: June 5, 2006
Date of 1st Reading: June 21, 2006
Date of 2nd Reading: July 7, 2006
Effective Date: July 17, 2006
REf4R AM Lamm. 6 $ L L.
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AMENDMENT TO THE ZONING CODE
AMENDING SECTION 25-8-3 (NORTH KONA ZONE MAP)
ARTICLE 8, CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE
1983 (2005 EDITION), BY CHANGING THE DISTRICT CLASSIFICATION
FROM AGRICULTURAL (A-3a) AND OPEN (O)
TO PROJECT DISTRICT (PD)
AT KAU, NORTH KONA, HAWAII
PREPARED BY: PLANNING DEPARTMENT
COUNTY OF HAWAII
74-005001
DaUP: NoveerA>,r 30
EXHIBIT "A" (NILUMILU DEVELOPMENT. LLC'1166)
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ROADWAY ALIGNMENTS - CONCEPTUAL
Date: January 11, 2006
EXHIBR "B" (MLUHILU DEVELOPMENT, LLG)
OFFICE OF THE COUNTY CLERK
County of Hawaii
Hilo, Hawai'i -
Draft 5
Introduced By: Stacy- K. Riga "''R S L L VOTE
Date Introduced: June 5, 2006 AYES N 6 £X
First Reading: June 21, 2006 Amkaki
Published; June 30, 2006 Higa
Hoffmann X
REMARKS: Holschuh X
June 5, 2006-Drafts 1,2,6 3 postponed Ikeda x
to June 21, 2006 Council Meeting Isbell X
Jacobson X
Pilago X
Safarik X
B 1 0 0
Second Reading: July 7, 2006
To Mayor: July 11, 2006 (Draft 9)
ROLL CALL VOTE
Returned: July 17, 2006
AYES NOES ABS EX
Effective: July 17, 2006
Published: July 21, 2(106 Amkaki X
Higa x
REMARKS. Hoffmann x
Holschuh X
Ikeda X
Isbell x
Jacobson x
Pilage X
Safarik X
6 2 1 0
I DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council published as
indicated above.
APPROVED AS TO
FO AND LEGALITY:
COUNCIL CHAIRMAN
DY=PL" CORPORATION CO SEL
COUNTY OF HAWAII
JUL 14 W COUNTYCLERK
Date
224 (Draft 9)
Bill No.:
i1 Reference: C-6B7.95/PC-73
pprove sapproved this day
4)ROrd No.: U6 105
, ' OF HAWAII
FILE COPY
PALAMM14UI
August 15, 2007
Rockne Freitas, PhD
Chancellor
Hawaii Community College
Hilo, HI 96720
Subject: Hawaii Community College and The Universtiy of Hawaii Center at West
Hawaii Phase I Design
Dear Dr. Freitas:
We are pleased to enclose here a set of conceptual plans for the initial phase of the new
campus to be built at Kalaoa, North Kona just mauka of the Kona International Airport.
As you know, Palamanui is developing the land adjacent to the campus site, and will
construct the first phase of improvements for the new campus at no public expense.
We look forward to meeting with you and your staff to review these plans and to make
the needed adjustments to allow us to start final design and permitting. I understand that
the first meeting will be at your Hilo campus office on August 16, 2007.
All of the Palamanui staff remains excited about this project, and seeing it materialize on
the University site. Thank you for your continued commitment to this joint effort. We
look forward to working with you and your staff in a new beginning for the Community
College and University facilities in West Hawaii.
Please contact me at any time with your thoughts or questions.
Sincerely, /
V
Guy Lam
Cc: Chairperson Kitty Lagarreta & Members of the Board of Regents
President David McClain, UH Honolulu
Chairperson Laura Thielen, Board of Land and Natural Resources
Andy Smith, Governors Liason, West Hawaii
EXHIBIT "B"
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June 16, 2006
Council Chairman Stacy Higa
Hawaii County Council
County of Hawaii
25 Aupuni Street
Hilo, Hawaii, 96720
RE: Contribution of Land for portion of New Mauka/Makal Roadway
Within TMK (3) 7-2-6:009
Dear Chairman Higa:
Pursuant to our meeting held on June 7, 2006 in your office between you, myself and
Tom Yamamoto of my office, this will confirm our willingness to give the County a right-of-way
(approximately 88' wide) for the mauka/makai road within our property identified as TMK (3) 7-2-
6:0099. As we understand it, the most mauka section of the proposed road would connect to
Mamalahoa Highway and wind makai through State lands and then through the Hiluhilu
development to Queen Kaahumanu Highway.
We understand the benefit this brings to the Kona community as well as the entire island
as a network of highways are planned and built. We are prepared to make this contribution
without payment from the County. However, should any future development occur on our
property we ask that the value of this contribution be credited to any fair share contributions that
may be assessed against our development. Several connections to the roadway may be
required due to the roadway bisecting the property as it winds up the slope maintaining
acceptable grades. Also, certain portions of the land now zoned A-1 a will need to be relocated
to make way for the proposed alignment.
We are currently working with Hiluhilu regarding the alignment as well as preparing
archaeological, cultural, botanical and other related studies necessary to complete an
environmental assessment for the roadway.
Once the studies have been completed, the right of way identified and designed, we will
make the right of way available to the County or to another entity for construction which will
subdivide and dedicate the roadway to the County.
EXHIBIIT "C"
Council Chairman Stacy Higa
June 16, 2006
Page 2
We look forward to a continued cordial relationship over the coming years as we all work
toward completion of a much needed regional road.
Aloha,
:Ykalei, LLC
Peter Lynch
4P1'e`959`~
LINDA LINGLE CHIME LEINAALA FUKINO, M.D.
GOVERNOR OF HAWAII DIRECTOR OF HEALTH
¢P•BP3GPP~STATE OF HAWAII
DEPARTMENT OF HEALTH
P.O. BOX 3370 In reply, please Teter to'.
HONOLULU, HAWAII 96601 EMD/WB
575 - Palamanui wwtp-1
August 1, 2007
Mr. Stephen J. Herbert, P.E.
74-5606 Pawai Place #203
Kailua-Kona, Hawaii 96740
Dear Mr. Herbert:
Subject: Palamanul Wastewater Treatment Works Plans
Kau, North Kona, Hawaii
TMK: (3) 7-2-005: 001
File No. 575
Thank you for providing us with responses to our letter dated April 25, 2007 regarding the
Palamanui Wastewater Treatment Works engineering report. The Department of Health (DOH),
Wastewater Branch staff has reviewed the responses submitted for compliance with applicable
provisions of Chapter 11-62, Hawaii Administrative Rules and the Guidelines for the Treatment
and Use of Recycled Water, May 15, 2002.
Our review indicates that the report complies with the applicable provisions of Chapter 11-62,
Hawaii Administrative Rules and the Guidelines for the Treatment and Use of Recycled Water,
therefore, plans for the subject facility are approved and construction of the facility can proceed.
In addition to our "Approval to Construct", please be informed that in accordance with Section
11-62-23.1(e), prior to the "Approval to Operate", the treatment facility must be inspected and
approved to writing by the DOH. The following will be required prior to the "Approval to Operate"
being granted:
1. The injection wells will need to be permitted by the Safe Drinking Water Branch. A water
reuse plan will be required prior to the use of R-1 water for irrigation;
2. At the completion of the project construction, it is your responsibility to inform the DOH
and arrange for a joint final inspection. The inspection of the completed facility is to
verify information provided in the plan; and
3. In addition, in accordance with Section 11-62-50, you must apply for general permit
coverage at least 90 days prior to operation of your facility or apply for an individual
permit at least 180 days prior to operation of your facility. Application forms can be
downloaded from our web page at:
www.hawail.gov/health/environmental/Water/Wastewateriforms.htmi
EXHIBIT "D"
Mr. Stephen J. Herbert
August 1, 2007
Page 2 of 2
Please contact Gayle Takasaki of our office if you have any questions regarding the processing
of the permit.
Should you have any questions or concerns, please feel free to contact Tomas See or Sina
Pruder of our Branch at 586-4294.
Sincerely,
HAROLD K. YEE, P.E.
Chief, Wastewater Branch
SP/mt
R LINDA LINf.LE 11• ALLAN A. SMITH
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STATE OF HAWAII .w D B?U OF COWFANC
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POST OFFICE BOX 621 4nsroas PRESEAVnTau
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HONOLULU, HAWAII 96809 L-V
STIMIMKI
May 11, 2007
Mr. Roger Harris
Hiluhilu Development, LLC
P. O. Box 9007
Kailua-Kona, HI 96745
Subject: Request for Right-of-Entry to Hiluhilu Development, LLC, onto
Unencumbered State Lands at Makaula-Kalaoa, North Kona,
Hawaii. Tax Map Keys: 3Od/ 7-3-10: 42 & 44
Dear Mr. Harris:
In reference to your letter of March 27, 2007, Hiluhilu Development, LLC, requested
a right-of-entry onto unencumbered State lands at Makaula-Kalaoa, North Kona, Hawaii,
Tax Map Key: 3Fd/ 7-3-10: 42 & 44. Purpose of this right-of-entry is to allow Hiluhilu
Development to conduct surveys and other studies necessary to prepare an environmental
assessment, to construct a connector road along the boundaries of the abutting State parcels.
The current plans are to extend the Ane Keohokalole Street (formerly known as the Mid-
Level Road) from Kaiminani Drive to a its planned Palamanui subdivision to the north. This
roadway would be utilized to provide accesses to the inner portions of State lands approved
for set aside to the University of Hawaii for its proposed West Hawaii Campus. The
proposed roadway will be constructed to county dedicable standards using private fiords,
then later transferred to the County of Hawaii.
Pursuant to the authority granted the Chairperson of the Board of Land and Natural
Resources at its meeting of September 28, 2001 (Item D-4), Hiluhilu Development, LLC, its
consultants, contractors and/or persons acting for or on its behalf (hereinafter referred to as
Permittee) is approved a right-of-entry onto State-owned lands at Makaula-Kalaoa, North
Kona, Hawaii. Purpose of this right-of-entry is to allow Permittee to conduct surveys and
studies necessary to prepare an environmental assessment for its proposed road construction.
This right-of-entry, under the terms and conditions cited above, which are by this reference
incorporated herein and further subject to the following:
PA ;MANUI
DATF ' EXHIBIT "E"
3L AO PP PL) TW
Hiluhilu Development Survey -,e Page 2 May 11, 2007
rMK: P/ 7-3-10: 42 & -14
1. The term of this right-of-entry shall be for one year, commencing on May 1, 2007 and
expiring on April 30, 2008, or upon completion of the survey/ studies, whichever is
the sooner. Additional extensions may be granted by District Agent should a need
arise;
2. Perrrrittee, its consultants, contractors and/or persons acting for or on its behalf shall
procure at its own expense, and maintain during the entire period of this right-of-
entry, from an insurance company or companies licensed to do business in the State
of Hawaii, a policy or policies of comprehensive public liability insurance in an
amount acceptable to the Department ($300,000 per incident/$500,000 aggregate) (or
minimum limits of $1,000,000 for bodily and property and $500,000 for fire) insuring
the State of Hawaii against all claims for personal injury, death, and property damage;
that said policy shall, cover the entire right-of-entry area or premises, including all
improvements and grounds and all roadways or sidewalks on or adjacent to the said
right-of-entry area or premises in the control or use by Permittee, its consultants,
contractors and/or persons acting for or on its behalf. Permittee, its consultants,
contractors and/or persons acting for or on its behalf shall furnish the Department
with a certificate(s) showing the policy(s) to be initially in force, keep certificate(s) on
deposit during the entire period and furnish a like certificate(s) upon each renewal of
the poticy(s). The procuring of this policy shall not release or relieve Permittee, its
consultants, contractors and/or persons acting for or on its behalf of its responsibility
under this right-of-entry as set forth herein or limit the amount of its liability under
this right-of-entry;
3. Permittee, its consultants, contractors and/or persons acting for or on its behalf shall
be responsible for restoring the area or premises to a condition satisfactory to the
Department of Land and Natural Resources upon completion of the project. All
demolition debris and other materials shall be removed from the area or premises;
4. Permittee, its consultants, contractors and/or persons acting for or on its behalf shall
indemnify, defend, and hold the State of Hawaii, Department of Land and Natural
Resources harmless from and against any claim or demand for loss, liability, or
damage, including claims for bodily injury, wrongful death, or property damage,
arising out of or resulting from: (1) any act or omission on the part of Permittee, its
consultants, contractors and/or persons acting for or on its behalf relating to
Permittee, its consultants, contractors and/or persons acting for or on its behalf use,
occupancy, maintenance, or enjoyment of the right-of-entry area or premises; (2) any
failure on the part of Permittee, its consultants, contractors and/or persons acting for
or on its behalf to maintain the right-of-entry area or premises and areas adjacent
thereto in Permittee, its consultants, contractors and/or persons acting for or on its
behalf use and control, and including any accident, fire or nuisance, owing out of or
Hiluhilu Development Survey Page 3 May 11, 2007
CNIK: 3"/ 7-3-10: 42 & 44
caused by any failure on the part of Permittee, its consultants, contractors and/or
persons acting for or on its behalf to maintain the area or premises in a safe condition;
and (3) from and against all actions, suits, damages, and claims by whomsoever
brought or made by reason of Permittee, its consultants, contractors and/or persons
acting for or on its behalf non-observance or non-performance of any of the terms,
covenants, and conditions of this right-of-entry or the rules, regulations, ordinances,
and laws of the federal, state, municipal or county governments;
5. All equipment shall be placed within the right-of-entry area or premises described on
the attached map;
6. No alcoholic beverages will be served or permitted in the right-of-entry area or
premises.
7. Permittee, its consultants, contractors and/or persons acting for or on its behalf will be
responsible for providing security for the right-of-entry area or premises.
8. At your option, you may hire an officer of the Division of Conservation and
Resources Enforcement (DOCARE). Please deal directly with the DOCARE office by
contacting: Mr. Sandy Sugiyama, at 887-6196 to make the necessary arrangements.
9. Perrittee and its consultants, contractors and/or persons acting for or on its behalf
shall supply to Land Division a name and local telephone number of the contact
person who can be reached at any time around the clock.
10. Permittee, its consultants, contractors and/or persons acting for or on its behalf shall
not cause or permit the escape, disposal or release of any hazardous materials except
as permitted by law. Permittee, its consultants, contractors and/or persons acting for
or on its behalf shall not allow the storage or use of such materials in any manner not
sanctioned by law or by the highest standards prevailing in the industry for the storage
and use of such materials, nor allow to be brought onto the right-of-entry area or
premises any such materials except to use in the ordinary course of Permittee, its
consultants, contractors and/or persons acting for or on its behalf business, and then
only after written notice is given to the State of Hawaii, Department of Land and
Natural Resources of the identity of such materials and upon the Department's consent
which consent may be withheld at the Department's sole and absolute discretion. If
any lender or governmental agency shall ever require testing to ascertain whether or
not there has been any release of hazardous materials by Permittee, its consultants,
contractors and/or persons acting for or on its behalf, then the Permittee, its
consultants, contractors and/or persons acting for or on its behalf shall be responsible
for the cost thereof In addition, Permittee, its consultants, contractors and/or persons
Hiluhilu Development Survey . Page 4 May 11, 2007
TNIK: P/ 7-3-10: 42 & 44
acting for or on its behalf shall execute affidavits, representations and the like from
time to time at the Department's request concerning Permittee, its consultants,
contractors and/or persons acting for or on its behalf best knowledge and belief
regarding the presence of hazardous materials on the right-of-entry area or premises
placed or released by Perrittee, its consultants, contractors and/or persons acting for
or on its behalf.
11. Permittee, its consultants, contractors and/or persons acting for or on its behalf agree
to indemnify, defend and hold the State of Hawaii, Department of Land and Natural
Resources harmless, from any damages and claims resulting from the release of
hazardous materials on the right-of-entry area or premises occurring while Permittee,
its consultants, contractors and/or persons acting for or on its behalf is/are in
possession, or elsewhere if caused by Permittee, its consultants, contractors and/or
persons acting for or on its behalf. These covenants shall survive the expiration or
earlier termination of this right-of-entry.
For purposes of this right-of-entry, "hazardous material" shall mean any pollutant,
toxic substance, hazardous waste, hazardous material, hazardous substance, or oil as
defined in or pursuant to the Resource Conservation and Recovery Act, as amended,
the Comprehensive Environmental Response, Compensation, and Liability Act, as
amended, the Federal Clean Water Act, or any other federal, state, or local
environmental law, regulation, ordinance, rule, or by-law, whether existing as of the
date hereof, previously enforced, or subsequently enacted.
12. Permittee, its consultants, contractors and/or persons acting for or on its behalf in the
exercise of this right-of-entry shall use appropriate precautions and measures to
minimize inconveniences to surrounding residents, landowners, and the public in
general;
13. Permittee, its consultants, contractors and/or persons acting for or on its behalf shall
not store any personal belongings in the right-of-entry area or premises during the
effective period of this right-of-entry;
14. All costs associated with the construction within the right-of-entry area or premises
shall be the sole responsibility of the Permittee, its consultants, contractors and/or
persons acting for or on its behalf,
15. In the event any unanticipated sites or remains such as bone or charcoal deposits,
human burials, rock or coral alignments, pavings or walls are encountered, Permittee,
its consultants, contractors and/or persons acting for or on its behalf in the exercise of
Itiluluhl Development Suivey Page 5 May 11, 2007
RAK: 3'a( 7 3-10 42 & 44
this right-of-entry shall stop work and contact the State Historic Preservation Division
in Kapolei at (808) 692-8015 immediately;
16. Permittee, its consultants, contractors and/or persons acting for or on its behalf shall
comply with all of the requirements of all municipal, state, and federal authorities and
observe all municipal, state and federal laws applicable to the premises, now in force
or which may be in force;
17. All disputes or questions arising under this right-of-entry shall be referred to the
Chairperson of the Board of Land and Natural Resources for a determination and
resolution of the dispute or question. The Chairperson's decision shall be final and
binding on the parties herein;
18. This right-of-entry is revocable and terminable at anytime for any reason in the sole
and absolute discretion of the Chairperson;
19. This right-of-entry or any rights hereunder shall not be sold, assigned, conveyed,
leased, let, mortgaged or otherwise transferred or disposed; and
20. The Department of Land and Natural Resources reserves the right to impose
additional, but responsible terms and conditions, as it deems necessary while this
right-of-entry is in force.
Pursuant to the Land Board's delegation of authority to me to issue rights-of-entry, I
am authorized to waive rent for rights-of-entry where no entity involved intends to profit
monetarily from its use. As your project meets this requirement, I hereby waive the rent.
Should you agree to the above terms and conditions, please sign in the space provided
below and submit a copy of the signature page to the Hawai'i District Land Office at 75
Aupuni Street, Room 204, Hilo, Hawai'i 96720.
Hiluhilu Development Survey Roe Page 6 May 11, 2007
TMK: 3rd/ 7-3-10: 42 & 44
If you have any questions or concerns regarding this matter, please contact Wesley
Matsunaga of the Hawai'i District Land Office at (808) 974-6203, or fax (808) 974-6222.
Very truly yours,
ALLAN A. S1 ITH
-Interim Chairp rso
ACCEPTED: j
Hiluhilu Development, LLC
By Its:
Dated: 12007
Hiluhilu Development Survey Page 7 May 11, 2007
'I:MK: 3rd/ 7-3-10: 42 & 44
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Ccunry o' Hcwnb: n C~-D3
DEPARTMENT OF PUBLIC Ti (31: kS 4
GRADING PERMIT NO.
Owner;HilUhi1u Development LLC Address-P-0- Bo:: 9007 _ Phone: 325-0199
Kailua-Kona, Hl 967x5
Civil =ng. /Surveyor Triad Engineering Address:73-4578 Old Mamalahoa Htdphona: 325-1874
David A. Grenier 1:ailua-Kona, HT 96740
License. No.! 63530
Contractor:Keauhou Kona Constr. CorpA,ddress: P-0. Box 9007 Phone: 325--6199
License No.: ABC-15060 Kai lux-Kona T-TT 96_745 -
ocatio i One mile north of Keahole Tax Map Key: (3) 7=2-0u1 Cut(CY):t «
Rona Airport - Mauka Area Graded (acre): /625!4t- AC Oispoojsal sit _ - - _
Estimated Starting Date: 3O O'1 Estimated Completion Data:p Od Fill (CY): 3 _020
(minimum 2 working days afte issu nca date) Borrow site: N/A
Remarks' Mass grading for backbone infrastructure and town center for
Palamall ro act. Conforms to project district zoning ordinance.
FCo.1,' X
Phone: 327-3690 Fax: 327-3693
t. 14 STATE CLNR•,{-- HIISTO I ESERVATION DIVISION +roved:
ReceiveaB~7~//0/~B 1e Date: II~Ib(t`
:fisted OR t tr i National Register of Hisiorlc Platys 19 PLANNING DEPARTMENT tttt t~ Approved:
Received ey: oata:NV 1' 2 A r/ 2DO5 Date: l)
3 ® DEPARTMENT OF PUBLIC WORKS 9 Apr for Permit Issuance:
Received a n14* Date: Y.JAN 2 ,mill Cato: .!7 O
I horoby certify t at all work as requested above I confornn to S Chal 10 o t V C upty Code.
o~ ACTIN AS °1`` GC {.GA OWNERS f~~' OW `t~1 ~ l7 6
Date:
the Department of Public Works, Engineering Division, upon completion of work,
n ate'.
(DP,N Inspector / engineer)
Ceunry of Hnwai, i; :n Equal Oppoim,,uy F ov.dtt or~d EnplnYCr
EXHIBIT "Frr
1.1/272006 13:99 ilERUHOU KONR CONSIRUC7ION CORP 4 32Y6S66 u,_,o",
OS 1E:52 OOc-928029
- -IS/20
N0v-1e-2008 3:04M Frum-STATL static Preservation 808 692 602 T-381 P-002/002 F-378
Sb,;,vq`j~, v'14:MflL5ttr
WfJ~P Ti :,J.NU u.1: NnTN4•L41"/JU2Cff
y
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conmms,
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'i •.°.~wmF~°' mnrbc~lmay.uv.acanwn
GLREM1V qCtlMw1~'/~IS
O VtiLp,MnSMlvM1,l•0.,us~!v'G AUtv.N. `!~T
STATE OF IJAWAiI c4na mutt w.ve +WrnLV o+
csAL4'/nnaN n~ bnvwa'h ua, u x~vnuXf
mas+wo
DEPARTMENT OIF LAND AND NATURAL RESO RCES ,.M
NANkVE~0a0.¢•E2M
'RIDR OnOh~" WM3Z
$TATt: HISTORIC rRESERvA'nON DIVISION
60t KAMOKILADOULEVA10. ROOM 3!5
KAPOLI, HAWAII 96707
November 16, 2006
Mr. Roger Harris LOGNO: 2006.3181
Hiluhilu Development, C.LC_ DOC NO: 0611 AJ10
p.0. Box 9007 Archaeology
Kailua-Kona, Hawai'i 96745
Deax Nis. Hams:
SDB•1MCT; Chapter 69-42 Historic Preservation Review -
Request for Grading Permit Approval - Falamann Project
Kau Ahupi x'a, North Kona District, Island of Hs ai4
TIMIL: 3 7-2-005:001
We are in receipt of your County of Hawaii - Department of Publi Works mass grading permit. We
received your fax containing the subject grading permit and a short er letter on November 13, 2006.
The proposed undertaking involves mass grading of 124.5-acres for backbone infrastructure and town
center for the Palnanui project.
The preservation plan for the subject property (Rechtman. R. 2006. A chaeologieo! Preservation F107 for
Nenry-Two Sites within the Palamanul Development Area TiKK 3 7-2-05, 1 por.) is currertdy under
review. Based on November 16, 2006 consultation between Dr. Mel ssa Kirkendall, SHPD Maui Wand
Archaeologist, and Dr. Robert Rechtman of Recbtrnan Consulting C, it is our understanding that all
twemy-two preservation sites am currently protected by 100-foot Inte im buffer zones, marked by orange
construction fencing, as called .for in the Recbtman (2006) preservatio plan.
Also, it is our understanding that data recovery of eighteen (18) site located on the subject property is
currently on-going and that all data recovery sites not currently bean worked on are prctacred by a 35-
foot buffer zone, marked by orange construction fencing.
Therefore, because it is our understanding that all interim prot tive measures for the twenty-two
prese varion sites, and eighteen (18) data recovery sites are in p e, we behove that The proposed
undertaking will have "no adverse cffcctr' on historic properties.
Pleasc contact Mr. Adam Johnson at (808) 6924015 if you have a y gmestions or concerns about this
letter.
Aloha+11anic 2L '0-~
1
hinon, Ad ministrator
oric Preservation Division
Al:
y4~. \ 1,59
lr/
LINDA LINGLE ~g, s sy CHIYOME L. WKINO, M.D.
GOVERNOR OF HAWAII ItIII DIRECTOR OF HEALTH
~ R E?VE®
STATE OF HAWAII p,UG p 1 2007
DEPARTMENT OF HEALTH In reply. please refer to
P.O. BOX 3378 p n Ar,~u r I.LCi EMDICwe
HONOLULU, HAWAII 96801-3378 pp,LA
07077PDCL.07
July 27, 2007
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
7005 1820 0005 8414 2148
Mr. Frederick Guy Lam
Managing Member
Hiluhilu Development, LLC
P.O. Box 9007
Kailua-Kona, Hawaii 96740
Dear Mr. Lam:
In accordance with the provisions of the Clean Water Act; Hawaii Revised Statutes,
Chapter 3421); and Hawaii Administrative Rules, Chapters 11-54 and 11-55; the Department of
Health (DOH) has reviewed the following application for a National Pollutant Discharge
Elimination System (NPDES) permit to discharge storm water run-off associated with
construction activity:
Facility/Site NPDES Permit No.
Palamanui - Phase 1 HI 5000110
A public notice of our proposed action to issue the Permit was published in the West Hawaii
Today on June 18, regarding the above facility/site.
The DOH made formatting changes to pages 1 & 5 and corrections to citations on pages 4 & 6.
After consideration of the expressed views of all interested persons and agencies, pertinent
Federal and State statutes and rules, the DOH hereby issues the enclosed NPDES Permit for the
discharge referred to above. There were no comments received during the comment period. This
action does not constitute a significant change from the tentative determination set forth in the
public notice.
This Permit will take effect on July 27, 2007.
EXHIBIT "Ge
Mr. Frederick Guy Lam
July 27, 2007
Page 2
You may request an opportunity to appeal any of the conditions of the issued permit and to
appear before the Director of Health (Director). Such requests must be submitted within
20 calendar days after receipt of this letter, and whether such requests are granted is within the
Director's discretion. Appeals to court regarding the Director's decision on permit conditions or
other matters are governed in HRS, Chapter 91.
Should you have any questions, please contact Mr. Darryl Lum or Ms. Leanne Watanabe of the
Engineering Section, Clean Water Branch, at (808) 586-4309.
Sincerely,
THOMAS E. ARIZUMIEnvironmental Management Division
DCL:cu
Enclosures: 1. Final Permit
2. Filing Fee Receipt No. 24004
c: Water Division (WTR-5), CWA Standards and Permits Office, EPA, Region 9
(w/enclosure No. 1)
Ms. Nancy Nakata, DHO-Kona (w/enclosure No. 1) [via e-mail only]
Mr. Clifford Furukado, DHO-Hilo (w/enclosure No. 1) [via e-mail only]
PERMIT NO. HI S000110
AUTHORIZATION TO DISCHARGE UNDER THE
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES)
In compliance with the provisions of the Clean Water Act, as amended, (33 U.S.C.
§ 1251 et seg; the "Act"); Hawaii Revised Statutes, Chapter 342D; and Hawaii Administrative
Rules (HAR), Chapters 11-54 and 11-55, Department of Health (DOH), State of Hawaii;
HILUHILU DEVELOPMENT, LLC
(hereinafter PERMITTEE),
is authorized to discharge storm water associated with the construction activities from the
Palamanui - Phase I project site in Kailua-Kona, Hawaii to the receiving water named the
Pacific Ocean, a Class AA, Marine Water, at the following coordinates: Latitude 19°44'59"N
and Longitude 156°01'39"W,
in accordance with the general requirements, reporting requirements and other conditions set
forth herein, and in the attached DOH "Standard NPDES Permit Conditions," dated
December 30, 2005.
All references to Title 40 of the Code of Federal Regulations (CFR) are to regulations that
are in effect on July 1, 2004, except as otherwise specified. Unless otherwise specified herein,
all terms are defined as provided in the applicable regulations in Title 40 of the CFR,
This permit will become effective on July 27, 2007.
This permit and the authorization to discharge will expire at midnight, July 26, 2012.
Signed this 27`^ day of July, 2007.
(For) Director of Healil
Final Permit
July 27, 2007
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EXHIBIT "H"
_•,r
poc 2007-008828
JAN 12, 2007 08;02 AM
LAND COURT SYSTEM REGULAR SYSTEM
Return by Mail (X) Pickup ( ) To:
Nakamoto, Okamoto s Yamamoto (AMO)
187 Kapiolani Street
Hilo, HI 96720
TITLE OF DOCUMENT:
DECLARATION OF COVENANTS
PALAMANUI (OPEN SPACE)
Affects: TMK [3] 7-2-005-001 This document
contains 9 pages.
hiluhilutrezoninglCovennnts(Open .Space)010507
EXHIBIT "I"
DECLARATION OF COVENANTS
PALAMANUI (OPEN SPACE)
HILUHILU DEVELOPMENT, LLC, a Hawaii limited liability company whose
address is P.O. Box 9007, Kailua-Kona, Hawaii 96745 (hereafter "Declarant"), hereby
establishes the following restrictive covenants relative to the use of the lands within the
Palamanui Project at Kau, North Kona, County of Hawaii, State of Hawaii, comprising
an area of 31,Tsg acres, more or less ("Open Space Area") as more particularly
described in Exhibit A, attached hereto and incorporated by reference herein and as
shown on the map, attached hereto and incorporated by reference herein as Exhibit B.
Declarant wishes to establish and record the restrictive covenants herein in order
to comply with Condition 7 of the Findings of Fact and Conclusions of Law and Decision
and Order for a State Land Use District Boundary Amendment in State Land Use
Commission Docket No. A03-744 approved on May 3, 2005, notice of which was
recorded by the Declarant on June 23, 2005 as Document No. 2005-123996 in the Bureau
of Conveyances, State of Hawaii and to comply with Condition V of County of Hawaii
County Council Ordinance 2006-105. Declarant was the Petitioner in this proceeding.
Condition 7 of said Findings of Fact and Conclusions of Law and Decision and
Order provided:
"7. Open Space Buffer. Petitioner shall maintain an open space buffer on the
Petition Area along Queen Kaahumanu Highway with a minimum width of 800 feet. The
only man-made structures allowed in this open space buffer shall be the Northern Project
Access Road, the Project's wastewater treatment plant, limited portions of the Project's
golf course, and a groundwater monitoring well - as represented by the Petitioner to the
hduhdu\ rezoningiOpen Space Area Covenants 2
Commission. Petitioner shall appropriately screen such uses to maintain the visual
continuity of such buffer."
Condition V of said Ordinance 2006-105 provided:
"V. There shall be an 800-foot setback from the Queen Kaahumanu Highway.
No structures, other than those allowed under Condition No. 7 of the Land Use
Commission's Decision and Order, shall be allowed within the 800-foot setback area. A
copy of the metes and bounds description for this open space area, and proposed
covenant(s) shall be submitted to the Planning Director for review and approval prior to
receipt of Final Plan Approval or land alteration activities, whichever occurs first. The
approved covenant(s) shall be recorded in the Bureau of Conveyances prior to the
issuance of Final Plan Approval, or land alteration activities, whichever occurs first. A
copy of the recorded covenant(s) shall be provided to the Planning Department "
Subsequent to the approval of the Findings of Fact Conclusions of Law and
Decision and Order by the State Land Use Commission, Declarant dropped plans for
development of a golf course within Palamanui, rendering the provisions relating to the
golf course in Condition 7 inapplicable.
Declarant submitted a copy of this Declaration of Covenants together with the
metes and bounds description for the Open Space Area to the County of Hawaii Planning
Director and received approval as to said document and metes and bounds description.
Declarant hereby declares that the Open Space Area as described on Exhibit A
shall be subject to these covenants, conditions and restrictions.
hduh,U rezoninglOpen Space Area Covenants 3
1. Open Space Buffer. Petitioner shall maintain an open space buffer within the
Open Space Area. The only man-made structures allowed in the Open Space Area shall
be the Northern Project Access Road, the Palamanui wastewater treatment plant, and a
groundwater monitoring well - as represented by Declarant to the Commission.
Declarant shall appropriately screen such uses to maintain the visual continuity of such
buffer."
2. These covenants shall remain in effect until amended or rescinded by the
Declarant, its successor or assigns, with the prior written consents of the State Land Use
Commission and the County Council of the County of Hawaii. Said amendment or
rescission shall not take effect without such written consents and until recordation of the
appropriate amending or rescinding document in the Bureau of Conveyances of the State
of Hawaii.
3. Covenants to Run with Land. All of the foregoing restrictive covenants shall
run with the Open Space Area and any Deed, Mortgage, Agreement of Sale or Lease
shall state that the land described in any such document is subject to these restrictive
covenants.
4. Enforcement. Jurisdiction may be taken by the Declarant, its successors and
assigns, the State Land Use Commission, or the County of Hawaii to restrict or prevent
by injunction, mandatory or restraining, any violation or threatened violation of any of
these covenants without prejudice to the right of the Declarant, its successors and assigns
or any other owner of land to adopt or pursue any other remedy thereafter for the same
breach or failure, or for any subsequent breach or failure, or to adopt or pursue suitable
process to recover damages for any such breach or failure.
hduhilm rezoninWopen Space Area Covenants 4
5. Attorney's Fees, Liquidated Damaees. Should the owner of the Open Space
Area in an action for equitable relief or damages be found by any court to have violated
these covenants, conditions, and restrictions, said offending lot owner shall pay all costs
of the action and reasonable attorney's fees to the prevailing party in the action.
Dated: ( 2-1f -V' 2006.
HILUHIILU DEVELOPMENT, L~LC
By: /'r--t/ C, IN
Its Manag
By: ' w'm
Its Manager
Declarant
The foregoing Declaration of Covenants has been reviewed by and approved under
Conditio V of Ordinance 2006-105.
7
Plannmg Director
County of Hawaii
Approved as to form
Depu orporation Counsel
hiluhilu\rezoning\Open Space Area Covenants 5
STATE OF HAWAII )
SS:
COUNTY OF HAWAII )
On this 12 day of DecQm,tccr
200 , before me appeared -Fki2 -Petc^C)eA to me
personally known, who, being by duly swom, did say that he the Manager of HILUHILU
DEVELOPMENT, LLC, a Hawaii limited liability company, and that the instrument was
signed on behalf of the company, and said Manager acknowledged the instrument to be
the free act and deed of the company.
~.fUTARY q2 1 OL
* PUBLIC
Notary Public
State of Hawaii n
My commission expires:
STATE OF HAWAII )
SS:
COUNTY OF HAWAII )
On this I?- day of ),DQ~ trYtt~Pl l'
200__ p , before me appeared cif i Ca,G (%AQ Lq rA, to me
personally known, who, being by duly swom, did say that a the Manager of HILUHILU
DEVELOPMENT, LLC, a Hawaii limited liability company, and that the instrument was
signed on behalf of the company, and said Manager acknowledged the instrument to be
the free act and deed of the company.
P NEW
W
W Q I V R.IiUrV~
NOTARY 92
Notary Public
k PU60G State of Hawaii
4 ~3y ~QS~ ` My commission expires: - k9, 201 p
htluhdu\ rezoning\open Spate Area Covenants 6
STATE OF HAWAII )
SS:
COUNTY OF HAWAII )
On this day of-~L~5e-' 200f,2-, before me
appeared (2 5 7DI''6~AF- ;7 c/ C--t-- , to me personally known, who,
being by duly sworn, did say that he is the L-/~+y~l~•?cs 44cevro,~1- of the Planning
Department of the COUNTY OF HAWAII, a municipal corporation of the State of
Hawaii, that the seal affixed to the foregoing instrument is the corporate seal of said
County of Hawaii; that the foregoing instrument was signed and seated in behalf of the
County of Hawaii; and said ON, ilf doh er . Au e r7 acknowledged said instrument
to be the free act and deed of said County of Hawaii.
mac'.-rC ~~~G
PAT ICIA A KOLA
Notary Public
State of Hawaii
My commission expires:
hduhilu\ rezoningloven Space Area Covenants
EXHIBIT A
OPEN SPACE BUFFER
(800 FEET WIDE)
Affecting Lot 46 of M.W. Estate, - Phase 2,
Same Bring a Portion of Royal Patent 8265, Mabel. Aa ed 13-B to Paafoa
(Certificate of Boundaries No. 191)
At Kau, North Kona, Island of Haaaµ Harass
beginning at a spike (found) at the north comer of thin buffet, being also along the cast side of Queen
Kaahiutnmu Highway (Ptoj. No. 19 BC-O1-71), the coordinates of said point oFbeginning referred to Government
Sutvey Tm.gulauon Slanon"AKAHIPUU" being 194.43 fm Nonh and 19,564 98 fen W ev and thence running
by asamuth, measured clockwise from nut South.
1. 291' 46'3S" 819.25 feet along the Kukio-Ooma Government Tracts;
2. 9' 19' 55" 2093.34 Feet;
3. 115.03' 36.5" 831.12 feet along Parcel 9, sam< lusting a portion of Govetmncnt
Lnnds of Makauh (H.S.S. Plat 319) to a'/a" pipe (find);
4. 189. 19'55" 2044.60 feet along the east side of Queen Kaahncnanu Highway
(Prof. No. 19 BC-01-71) to the point of bcg..ung and
conniving so area of 37.998 A.,
M. EUZ
{F51 6,~ Dexdptian Pmpated by.
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PF0~,52AWµ R. M. TOWILL CORPORATION
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FIRST AMENDMENT TO WATER AGREEMENT
This First Amendment to Water Agreement (the "Amendment") is made as of
J u A,., b ry y k , 2006by and between HILUHILU _
DEVELOPMENT, LLC, a Hawaii limited liability company, ("Hiluhilu"), whose address is
P.O. Box 9007, Kailua-Kona, Hawaii 96745-9007, KOHANAIKI SHORES, LLC, a Delaware
limited liability company, ("Kohanaiki"), whose address is c/o Rutter Development Corporation
18012 Cowan, Suite 200, Irvine, CA 92614735563 and the Water Board of the County of
Hawaii ("Water Board"), whose address is 345 Kekuanaoa Street, Suite 20, Hilo, Hawaii 96720.
RECITALS
The Amendment is made in reliance on the following facts:
A. On June 15, 1999, K-W KAU, LLC, K-W KOHANAIKI, LLC and the WATER
COMMISSION OF THE COUNTY OF HAWAII entered into the Water Agreement (the "Water
Agreement") concerning, among other matters, the following: (a) responsibilities regarding the
development of the Kau Water System and the Kohanaiki Water System (jointly referred to as
the Water Systems) including Well l (State No. 4458-01) and Well 2 (State No. 44580-02);
(b) granting water rights to K-W Kau LLC for the property described as TMK (3) 7-2-5-1 and
referred to in the Water Agreement as the "Kau Property;" and (c) granting water rights to K-W
Kohanaiki LLC for the property described as TMK (3) 7-3-9-3 and 16 and referred to in the
Water Agreement as the "Kohanaiki Property."
B. Hiluhilu is the successor in interest to the rights of K-W KAU LLC under the
Water Agreement. When the Water Agreement was executed, the Kau Property was comprised
of approximately 1,002.6 acres of land. Since the Water Agreement was executed the Kau
Property has been subdivided into two parts: the upper portion has been subdivided in the lots
that comprise the Makalei Estate subdivision, roadways and the two well sites described in the
Water Agreement as Well #1 Well Site and Well #2 Well Site and such properties are referred to
herein as the "Makalei Property." The lower portion of the 1,002.6 acres, being approximately
725.2 acres, has been reclassified to State Land Use Urban and is being rezoned to Project
District and is referred to herein as the "Palamanui Property." The Makalei Property and the
Palamanui Property are jointly referred to as the "Kau Property.
C. Kohanaiki is the successor in interest to the rights of K-W KOHANAIKI LLC
under the Water Agreement. Kohanaiki is now developing the Kohanaiki Property.
D. The Water Board is the successor in interest to the former Water Commission of
the County of Hawaii.
E. The parties desire to enter into the Amendment to amend the Water Agreement as
forth below. The Water Agreement as amended by the Amendment shall be referred to as the
"Amended Water Agreement."
EXHIBIT "J"
1101)06
NOW THEREFORE, in reliance on the aforesaid facts and in consideration of the terms
and provisions set forth below, the parties agree that the Water Agreement is amended as
follows:
1. Successor Parties. Hiluhilu is the successor in interest to K-W KAU LLC under
the Water Agreement and all references in the Water Agreement to K-W KAU LLC are amended
to refer to Hiluhilu. Kohanaiki is the successor in interest to the rights of K-W KOHANAIKI
LLC under the Water Agreement and all references in the Water Agreement to K-W
KOHANAIKI LLC are amended to refer to Kohanaiki. The Water Board is the successor in
interest to the Water Commission of the County of Hawaii under the Water Agreement and all
references in the Water Agreement to the Water Commission of the County of Hawaii are
amended to refer to the Water Board.
2. Amendment of Subparaeraph 4.1.1. b. Subparagraph 4.1.1.b is amended and
restated in full to read as follows:
"b. Construction of improvements, meeting the DWS's Standards, to transmit
water to the Kohanaiki Property through the Palatrtanui Property with appropriate storage
tank or tanks for the Palamanui Development, and a storage tank or tanks near the makai
end of the Palamanui Property or State of Hawaii land if available, at an elevation
specified by the DWS, and extension of a pipeline from the storage tanks down to and
along Queen Kaahumanu Highway or through State land if available, to the DWS water
system on Queen Kaahumanu Highway. This route will involve installations along
roadways that will be dedicated to the County of Hawaii, and easements and rights over
and across the Palamanui Property, and if State land is available, through State of Hawaii
land."
3. Amendment of Paragraph 4.2. Paragraph 4.2 is amended and restated in full to
read as follows:
"4.2 Facilities Charges; Capital Assessment Fee. The Kohanaiki Commitment
shall be provided by the Water Board upon payment of facilities charges in accordance
with Rule 4-6 of the Department of Water Supply Rules and Regulations (Eff. October
21, 2004) in exchange for the conveyance to the Water Board of the Kohanaiki Water
System. The Capital Assessment Fee is waived because of the development of the water
source by Kohanaiki."
4. Amendment of Paragraph 5.1 and Paragraph 5.2. Paragraph 5.1 including
Subparagraphs 5.1.1. and 5.1.2 is deleted in full and intentionally left blank. Paragraph 5.2
including Subparagraphs 5.2.1 and 5.2.2 is amended and restated in full to read as set follows:
"5.2. Hiluhilu's and Kohanaki's Election to Complete Wells.
"5.2.1 Well No. 2. Hiluhilu has elected to complete Well #2 and has
substantially completed the improvements for Well 42. Hiluhilu has obtained a bond
guaranteeing the completion of Well 42 in a form and an amount satisfactory to the
Water Board, from a bonding company qualified and licensed to do business in the State
of Hawaii with a rating of not less than B+. Said bond names the Water Board as an
M27!1omv 110906
obligee. Hiluhilu shall have the exclusive right to complete Well No. 2 subject to the
Water Board's right to complete construction of the improvements as provided in
Paragraph 5.3.
"5.2.2 Well No. 1. Kohanaiki has elected to complete Well 41. Kohanaiki
shall have the exclusive right to complete Well No. 1 subject to the Water Board's right
to complete construction of the improvements as provided in Paragraph 5.3."
5. Amendment to Paragraph 7.1. Paragraph 7.1 is amended by adding the
following at the end to read as follows:
"Notwithstanding anything in this Agreement to the contrary, prior to completion
of the Water Systems, Kohanaiki shall have the right, upon prior written notice to and
the approval and consent of the Water Board, to assign its rights and interests, or portions
thereof, in the Kohanaiki Commitment and the Water Agreement, as amended, to
Hiluhilu but only for the benefit of, and used only in connection with the Palamanui
Property (and the Palamanui Development)."
6. Paragraph 10 is amended by replacing "American Arbitration Association for
Commercial Disputes" with "Dispute Prevention and Resolution, Inc. of Honolulu, Hawaii", and
by replacing Chapter 658, Hawaii Revised Statutes" with "Chapter 658A, Hawaii Revised
Statutes."
7. Hiluhilu represents and warrants as follows: Hiluhilu (as the successor of K-W
KAU, LLC) is entitled to a Water Commitment of 343 equivalent units ("EU") from Well #2
(the "Kau Commitment"). Of the EU from the Kau Commitment, Hiluhilu has allocated 81 EU
to the lots in the Makalei Property which Hiluhilu developed. Other than those 81 EU, Hiluhilu
has not allocated, assigned or transferred any EU in the Kau Commitment to any other person or
entity or for the use or benefit of any land and that it will not make any future allocation,
assignment or transfer without complying with Paragraph 7.1. of the Water Agreement, as
amended.
8. Kohanaiki represents as follows: Kohanaiki (as the successor of K-W
KOHANAIKI, LLC) is entitled to the Kohanaiki Water Commitment of 1907 EU (1125 EU
from Well #1 and 782 EU from Well #2). Kohanaiki has not allocated, assigned or transferred
any EU in the Kohanaiki Commitment to any other person or entity or for the use or benefit of
any land and that it will not make any future allocation, assignment, agreement or transfer
without complying with Paragraph 7.1. of the Water Agreement, as amended.
9. Effect of Amendment. Except as specifically amended above, the Water Agreement
dated June 15, 1999 shall remain in full force and effect.
In Witness Whereof, the parties hereto have executed the Amendment as of the day and
year first above written.
3-
:71w,V 110406
HILUHILU DEVELOPMENT, LLC KOHANAIKI SHORES LLC
By: KS DEVELOPERS LLC
By: Its Managing Member
By: KS INVESTORS, LLC
Its Managing Member
By: RUTTER DEVELOPMENT CORPORATION
Its Man
RECOMMENDED APPROVAL: WATER BOARD OF THE
COUNTY OF HAWAII
By: By:
anDepartment of Water Supply Its Chairman
APPROVED AS TO FORM AND LEGALITY:
Deputy Corporation Counsel
County of Hawaii
-4-
1 10906
STATE OF HAWAII )
SS.
COUNTY OF HAWAII )
On this Wj)~ day of o3 au , 200 "1 'before
me appeared Teyi zvd. 6(Av L61v%. , tome
personally known, who, being by duly sworn, did say that he is the
mekkrt4i nA WQ.&0e1z of HILUMLU DEVELOPMENT, LLC,
a Hawaii limi ed liability company, and that the foregoing instrument was signed
in behalf of said company; and said he- acknowledged said
instrument to be the free act and deed of said company.
0PP N
4 NOTARY 9Z
PUBUC Notary Public
y of N?~ State of Hawaii
My commission expires:
STATE OF HAWAII )
SS:
COUNTY OF HAWAII )
On this 34h day of Febrc a,-u , 2007 ,
before me appeared Th oM . Ga , to me personally
known, who being by me duly sworn, did say that 'he is the
of the WATER BOARD OF THE COUNTY OF
HAWAII and that the seal affixed to the foregoing instrument is the seal of the
Department of Water Supply of the County of Hawaii, and that the instrument was
signed and sealed in behalf of the Water Board by authority of said Water Board,
and said Thomas S. Goy, acknowledged the instrument to be the free
act and deed of the Water Board.
8 , Notary Public - 'Do reAn Sheata
State of /-j&wa;
My commission expires: 719/a of o
-6-
M,~ ; i W90e
STATE OF
SS.
COUNTY OF IVA" )
On this i/~'d day of f ft CAVN , 200 , before
me appeared [)Ayl? "L>lE , to me
~ ersonaUy known, who, being by duly sworn, did say that he is the
H el - G)(CC-C,11VE Ql'l!ICE'~- of RUTTER DEVELOPMENT
CORPORATION a California corporation, Manager of KOHANAIKI SHORES,
LLC, a Delaware limited liability company, and that the foregoing instrument was
signed in behalf of said company; and said QFf16Ej?.j acknowledged said
instrument to be the free act and deed of said company.
MONU& RAMIREZ
Co'"' N 1503006
- NotaryVubNc . COWomlo
Orange courNy Notary Public
MyCanm.EYpYNJu12l,2000 State of C&tt I ~"IJIA
My commission expires:'JDdo t~, Zug
7-
1 1
AGREEMENT TO DEVELOP WATER SYSTEMS
AND TRANSFER WATER RIGHTS
This Agreement to Develop Water Systems and Transfer Water Rights (the
"Development Agreement") is made as of September 14, 2006 by and between HILUHILU
DEVELOPMENT, LLC, a Hawaii limited liability company ("Hiluhilu" whose address is P.O.
Box 9007, Kailua-Kona, Hawaii 96745-9007 and KOHANAIKI SHORES, LLC, a Delaware
limited liability company ("Kohanaiki"), whose address is c/o Rutter Development Corporation
18012 Cowan, Suite 200, Irvine, CA 92614.
RECITALS
The Development Agreement is made in reliance on the following facts:
A. On June 15, 1999, K-W KAU, LLC, K-W KOHANAIKI, LLC and the WATER
COMMISSION OF THE COUNTY OF HAWAII entered into the Water Agreement (the "Water
Agreement") concerning, among other matters, the following: (a) responsibilities regarding the
development of the Kau Water System and Kohanaiki Water System including Well 1 (State
No. 4458-01) and Well 2 (State No. 44580-02); (b) granting water rights to K-W Kau LLC for
the property described as TMK (3) 7-2-5-1 and referred to in the Water Agreement as the "Kau
Property;" and (c) granting water rights to K-W Kohanaiki LLC for the property described as
TMK (3) 7-3-9-3 and 16 and referred to in the Water Agreement as the "Kohanaiki Property."
B. Hiluhilu is the successor in interest to the rights of K-W KAU LLC under the
Water Agreement. When the Water Agreement was executed, the Kau Property consisted of
approximately 1,002.6 acres of land. Since the Water Agreement was executed the Kau Property
has been subdivided into two parts: the upper portion has been subdivided into lots that comprise
the Makalei Estate Subdivision, roadways and the two well sites described in the Water
Agreement as Well #1 Well Site and Well #2 Well Site and such properties are referred to herein
as the "Makalei Property." The lower portion of the 1,002.6 acres, being approximately 725.2
acres, has been reclassified to State Land Use Urban and is being rezoned to Project District and
is referred to herein as the "Palamanui Property." The Makalei Property and the Palamanui
Property are jointly referred to as the "Kau Property.
C. Kohanaiki is the successor in interest to the rights of K-W KOHANAIKI LLC
under the Water Agreement. Kohanaiki is now developing the Kohanaiki Property.
D. The Water Board of the County of Hawaii (the "Water Board") is the successor to
the former Water Commission of the County of Hawaii.
E. The Water Agreement provides in part that upon construction and conveyance to
the Water Board (as the successor to the Water Commission of the County of Hawaii) of the Kau
Water System (as described in the Water Agreement) and the Kohanaiki Water System (as
described in the Water Agreement), jointly referred to as the "Water Systems," Hiluhilu (as the
successor of K-W Kau LLC) is entitled to a water commitment of 343 equivalent units ("EU")
from Well #2 (the "Kau Commitment") and Kohanaiki (as the successor of K-W Kohanaiki
LLC) is entitled to a water commitment of 1907 EU allocated 1125 EU from Well #1 and 782
l02M99N-8
EU from Well #2 (the "Kohanaiki Water Commitment"). Hiluhilu has allocated 81 EU from its
Kau Commitment to the Makalei Estate Subdivision.
F. As described below, to date, Hiluhilu (and its predecessor) has partially
constructed the Kau Water System and the Kohanaiki Water System and such construction is
referred to as the "Pre-Development Agreement Completed Work." The Pre-Development
Agreement Completed Work consists of the following: (i) the drilling, casing and testing of two
(2) wells for the development of potable water, designated as Well No. I (State No. 4458-01)
and Well No. 2 (State No. 4458-02); (ii) built the pump house for Well No. 2 and related
improvements for Well #2 Well Site; (iii) outfitted Well No. 2 with a 700 GPM submersible
pump and motor (including motor controls, telemetry, chlorination, control building and other
appurtenances designed and constructed to the DWS's Standards) designed to deliver water to
the DWS's existing 0.30 MG Puukala Tank; (iv) constructed transmission pipeline from Well #2
to Puukala Tank; and (v) obtaining a bond guaranteeing the completion of the Kau Water System
naming the Water Board (or its predecessor) as an obligee.
G. The parties desire to enter into the Development Agreement to provide for the
completion of the design and construction of the Water Systems, the conveyance of the Water
Systems to the Water Board, the transfer of water rights among the parties and the modification
of the Water Agreement.
NOW THEREFORE, in reliance on the aforesaid facts and in consideration of the terms
and provisions set forth below, the parties agree as follows:
1. Amending Water Agreement. The parties agree to use their best efforts and do
all acts required to amend the Water Agreement on substantially the terms set forth in the
proposed First Amendment to Water Agreement (the "First Amendment to Water Agreement")
attached as Exhibit A. Upon execution of the Development Agreement, the parties agree to
jointly request the Water Board to enter into the First Amendment to Water Agreement in the
form of Exhibit A attached. Each party agrees to provide the Water Board with all appropriate
information requested by the Water Board. If on or before November 1, 2006, the Water Board
does not agree to accept the First Amendment to Water Agreement on the terms set forth in
Exhibit A or on such other terms agreed to by both parties, then either party may terminate the
Development Agreement by written notice of termination delivered to the other party by
registered mail at the address set forth above and neither party shall have any further obligations
or rights under the Development Agreement.
2. Agreement to Assign Water Rights. Subject to and conditioned upon
satisfaction of the conditions set forth in Paragraph 2.1 below and at the request of Hiluhilu,
Kohanaiki agrees to assign to Hiluhilu from the Kohanaiki Water Commitment in the amount of
359 EU from Well #1 and 516 EU from Well #2 or a total of 875 EU and agrees to do all acts
required by the Water Agreement, as amended, to make the assignment effective including
signing and delivering to Hiluhilu an Assignment in the form of Exhibit B attached and notifying
the Water Board of the Assignment.
2.1. Conditions to Assignment of Water Rights. Kohanaiki shall not assign
the water rights as set forth above, unless and until the following conditions are satisfied:
2
302]3399!0.8
(i) execution of the First Amendment to Water Agreement by
Kohanaiki, Hiluhilu and the Water Board;
(ii) executing of the Escrow Disbursement Agreement described in
Paragraph 6.1.1 and either (a) prior to the creation of the
Approved Budget (as defined in Paragraph 5.2), deposits into
escrow pursuant to the terms of the Escrow Disbursement
Agreement a letter of credit for $5,500,000 or such other
security approved by Kohanaiki, or (b) after the creation of the
Approved Budget, Hiluhilu, deposits into escrow pursuant to
the terms of the Escrow Disbursement Agreement a letter of
credit in the amount set forth in the Escrow Disbursement
Agreement or such other security approved by Kohanaiki.
2.2. Termination of Right to Transfer Water Rights. The right of Hiluhilu
to have Kohanaiki assign water rights as set forth above, shall terminate if the conditions in
Paragraph 2.1 have not been satisfied within ninety (90) days after Kohanaiki gives notice that it
is proceeding to construct the Kohanaiki Water System as set forth in Paragraph 6.1.2.
3. Design of Water Systems Improvements. Hiluhilu has provided an initial
layout of the Water Systems and the improvements required for the Water Systems which will
take water from Wells 1 and 2 over the Hiluhilu land to be connected to the Department of Water
Supply's water system on Queen Kaahumanu Highway to provide water to the Kohanaiki
Property. Those improvements include pipelines, water storage tanks and other improvements to
provide water for the Kau Property and the Kohanaiki Property. The initial layout is shown on
the diagram attached as Exhibit C and has been approved by Kohanaiki. After the signing of the
Development Agreement, Hiluhilu will continue with design of the water system improvements,
including consultation with the Department of Water Supply on the sizing of pipelines and water
storage tanks and other design features. Each party shall pay its own engineer for the cost of the
design of the water system until such time as the Department of Water Supply agrees on the
basic design of the water system improvements i.e. the size of pipelines and water tanks and
other basic design features and such costs shall not be part of the Water System Cost as defined
in Paragraph 5.1. Once the Department of Water Supply agrees on the basic design of the water
system improvements, all additional engineering and design costs shall be a Water System Cost.
Hiluhilu will keep Kohanaiki informed as that work progresses and all changes to the design set
forth on Exhibit C are subject to the approval of Kohanaiki. The final design of water system
improvements must be approved by the Department of Water Supply.
4. Construction Plans and Construction Contract.
4.1. Construction Plans. Upon completion of the design work described in
Paragraph 3 above, as approved by the Development of Water Supply, Hiluhilu will have plans
and specifications produced for the construction of the Water Systems and shall submit such
plans and specifications to Kohanaiki for their approval. The plans and specifications for the
Water Systems approved in writing by Kohanaiki shall be referred to as the "Approved Plans."
There shall be no changes in the Approved Plans except with the written approval of both
parties. The parties recognize that they need to consult with and obtain the approval of the
Department of Water Supply and the Water Board in order to finalize the plans and
3
eom3vaw-e
specifications for the construction of the Water Systems. Hiluhilu will also prepare and submit
to Kohanaiki, for its review and approval, a construction schedule which will include a final
completion date. The construction schedule approved in writing by Kohanaiki shall be referred
to as the "Approved Construction Schedule " There shall be no change in the Approved
Construction Schedule without the written approval of both parties.
4.2. Construction Contractor. Upon obtaining Approved Plans and
Approved Construction Schedule, the parties shall mutually select a contractor and enter into a
contract with the selected contractor to construct the Water System in accordance with the
Approved Plans and Approved Construction Schedule. In this regard, Kohanaiki is aware that
one of the principals of Hiluhilu also owns Keauhou Kona Construction Company. Hiluhilu and
Kohanaiki will attempt in good faith to negotiate a construction contract with Keauhou Kona
Construction Company that is acceptable to Hiluhilu and to Kohanaiki. If agreement on a
construction contract with Keauhou Kona Construction Company cannot be reached, the parties
shall mutually select and enter into a contract with one or more other contractors to construct the
Water System. The construction contract shall be on terms agreed upon by both parties and shall
include a deadline for final completion consistent with the Approved Construction Schedule and
required a completion bond. The construction contract shall include work that are classified as
Additional Cost (as defined in Paragraph 5. 1), only if Hiluhilu deposits a letter of credit in
accordance with Paragraph 6.2.
4.3. Conveyance and Use of Land for Water Systems. Hiluhilu agrees to
allow access to the Kau Property for construction of the Water Systems. Hiluhilu also agrees to
convey to the Water Board such Kau Property, including Well #1 Well Site and Well #2 Well
Site that is required to be transferred to the Water Board as provided in the Water Agreement, as
amended. There shall be no compensation paid to Hiluhilu for the conveyance of a portion of the
Kau Property as set forth above and/or for the use of the Kau Property for construction of the
Water Systems.
5. Water Systems Cost.
5.1. Initial Budget. Within sixty (60) days of the signing of the Development
Agreement, Hiluhilu will provide to Kohanaiki a project budget setting forth the estimated costs
to construct the Water Systems (the "Water Systems Cost"). The Water Systems Cost will
include all design costs, construction costs (including bonding, construction management,
insurance, labor and materials) for all Water Systems improvements, including outfitting of Well
No. 1, the pump house for that well, pipelines, valves, water storage tanks and other water
system improvements, fees and charges payable to the Water Board of the County of Hawaii, if
any, and the cost to acquire easements or other real property interests for land that is not Hiluhilu
Property. The Water System Cost shall include a reasonable estimate for contingencies.
Provided, however, The Water Systems Cost do not include the following which are being
provided by Hiluhilu, at no charge to this development venture: (a) the value of Kau Property
that is used and/or conveyed to the Water Board for the well sites, pump house, water storage
tanks, pipelines or other Water Systems improvements, and (b) the costs for the Pre-
Development Agreement Completed Work done by Hiluhilu. The project budget shall also
identify the work and costs required for delivering water to the Department of Water Supply's
water system on Queen Kaahumanu Highway to provide water to the Kohanaiki Property which
portion of the work and costs shall be referred to as the "Base Cost" and the balance of the work
4
3OM399\V-B
and costs to deliver the water to the Kau Property (with connectivity to the University of Hawaii
land to the south) shall be referred to as the "Additional Cost." The initial project budget
described above shall be referred to as the "Initial Budget."
5.2. Approved Budget. After completion of the design and construction plans
and specifications and before entering into the construction contracts to build the Water Systems,
the parties shall mutually agree upon modifications to the Initial Budget which approved
modified project budget shall be referred to as the "Approved Budget." The Approved Budget
shall set forth all Water Systems Cost including a reasonable contingency reserve and shall also
identify which Water Systems Cost are Base Cost and which are Additional Cost. The parties by
mutual agreement, may, from time to time modify the Approved Budget.
6. Payment of Water Systems Cost.
6.1. Payment of Base Cost. Kohanaiki shall each pay fifty four percent (54%)
of the Base Cost and Hiluhilu shall pay forty six percent (46%) of the Base Cost. Each party
shall pay its share of the Base Cost in a timely manner prior to the due date as set forth below.
6.1.1. Escrow Disbursement Agreement. Prior to execution of the
contracts for construction of the Water Systems, the parties shall enter into an Escrow
Disbursement Agreement on terms mutually agreeable to both parties, to provide for the payment
of the Base Cost and shall mutual select an Escrow Company to administer the Escrow
Disbursement Agreement. The Escrow Disbursement Agreement shall require each party to
provide a letter of credit from a bank and on terms approved by the other party, in the amount of
each party's share of the Base Cost shown on the Approved Budget which can be drawn upon to
pay the Base Cost as the work is completed and money becomes due or such other security
agreeable to the other party. The Escrow Disbursement Agreement shall also provide that prior
to obtaining an Approved Budget, Hiluhilu may deposit into escrow a letter of credit in the
amount of $5,500,000 from a bank and on terms approved by Kohanaiki or such other security
approved by Kohanaiki to secure its obligations under Paragraph 6.1 to pay forty six percent
(46%) of the Base Cost. If Hiluhilu does elect to deposit such $5,500,000 letter of credit prior to
obtaining an Approved Budget, then upon obtaining an Approved Budget, such $5,500,000 letter
of credit shall be replaced by a letter of credit in the amount required by the Approved Budget.
6.1.2. Hiluhilu's Failure to Deposit Letter of Credit. Upon obtaining
an Approved Budget, Kohanaiki may send Hiluhilu written notice (the "Notice") to deposit with
the Escrow Company pursuant to the terms of the Escrow Development Agreement the letter of
credit required by Paragraph 6.1.1. If Hiluhilu fails to deposit with the Escrow Company said
letter of credit or such other security agreed to by Kohanaiki in writing, in its sole discretion,
within ninety (90) days after Kohanaiki sends Hiluhilu the above Notice, then Kohanaiki may
elect to pay for and construct the Kohanaiki Water System itself by sending Hiluhilu written
notice at the address above of such election. If Kohanaiki elects to pay for and construct the
Kohanaiki Water System by itself, then Hiluhilu's right to compel Kohanaiki to assign to it a
portion of the Kohanaiki Commitment as provided in Paragraph 2 shall terminate but Hiluhilu's
obligations and responsibilities under the Development Agreement shall remain in full force and
effect except for its obligation to pay one-half of the Base Cost as set forth in Paragraph 6.1.
5
30273399N 8
6.2. Payment of Additional Cost. Hiluhilu shall be responsible for and pay in
a timely manner all Additional Cost. The work represented by the Additional Cost shall be part
of the construction agreement with the selected contractor only if Hiluhilu deposits with the
Escrow Holder pursuant to the terms of the Escrow Disbursement Agreement a letter of credit
from a bank and on terms approved by Kohanaiki in the amount of the Additional Cost as set
forth in the Approved Budget.
7. Right of First Refusal between Hiluhilu and Kohanaiki. If Hiluhilu
acquires 875 EU of the Kohanaiki Water Commitment as provided in Paragraph 2 above, the
transfer by Hiluhilu and/or Kohanaiki of a portion of their respective Commitment for other than
their respective development (the Palamanui Development for Hiluhilu or the Kohanaiki
Development for Kohanaiki) shall be subject to following right of first refusal: the parry who
wishes to transfer a portion of its Commitment (the "Offering Party") shall first send the other
party (the ("Receiving Party") a written notice setting forth the number of EUs being offered for
sale, the purchase price and the terms of sale; within 10 calendar days after the Receiving Party
receives the Offering Party's written notice, the Receiving Party may purchase the EU's for the
price and on the terms set forth in the Offering Party's written notice by delivering to the
Offering Party written notice of election to purchase the EUs and complying with the terms of
the Offering Party's written notice; and if the Receiving Party fails to send its written notice of
its election to purchase or fails to pay the purchase price and comply with the terms set forth in
the Offering Party's notice, then for a period of up to six months, the Offering Party may sell the
EU's offered for sale in the Offering Party's notice to a third party for the price and terms set
forth in the Offering Party's written notice. The right of first refusal set forth in this Paragraph 7
shall not be effective if Hiluhilu fails to acquire the 875 EU pursuant to Paragraph 2.
8. Governing Law. The Development Agreement shall be governed by the laws of
the State of Hawaii.
9. Successors and Assigns. Each party respectively binds itself and its partners,
successors, assigns and legal representative to the other party hereto and to partners, successors,
assigns and legal representatives of the other party in respect to covenants, agreements and
obligations contained in the Development Agreement. Neither party may assign its rights and
obligations under the Development Agreement except as otherwise specifically provided in the
Development Agreement or agreed to in writing by the other party.
10. Entire Agreement. This Agreement is the entire agreement of the parties and
supersedes all prior agreements or understandings regarding the subject matter of this agreement.
11. Counterparts; Facsimile Copies. The Development Agreement may be
executed in counterparts. Each counterpart shall be executed by one or more of the parties to the
Development Agreement and the several counterparts shall constitute one document to the same
effect as though the signature of all the parties were upon the same document. Facsimile copies
shall be deemed to be originals.
6
1oz]J199w-n
In Witness Whereof, the parties hereto have executed the Development Agreement as of
the day and year first above written.
HILUHILU DEVELOPMENT, LLC KOHANAIKI SHORES LLC
By: KS DEVELOPERS LLC
By: Its Managing Member
By: KS INVESTORS, LLC
Its Managing Member
By: RUTTER DEVELOPMENT CORPORATION
Its Mana
7
101]llnnN 9
In Witness Whereof, the parties hereto have executed the Development Agreement as of
the day and year first above written.
HILUHILU DEVELOPMENT, LLC KOHANAIKI SHORES LLC
By: KS DEVELOPERS LLC
By: G~ Its Managing Member
By: KS INVESTORS, LLC
Its Managing Member
By: RUTTER DEVELOPMENT CORPORATION
Its Manager
7
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HHWAN Davelopmalk LLC
P.O. Box 9007
Wo-Konm6 Hawai196745
Novamba 9, 2006
K ohmalm Sbaft . LLC
olO RVITEK D6 AXAVMMa CORPORATION
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RE: DevWopmm:AraemeneExtmstm
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I am writb 910 txmBem I m HHuMW Dwdopemg. LGC and KohmnaW Sbona,
LLC bm armA 1 o exumd o0lovember 1, 2006 am in pumpq Y 1 of dw
AGRUMMfWr 10 DBVEIAP WATER SYSTIEMS AND TRANSM WATSK
RtGkM betwesr dram from November 1, 2006 to Febrw y 1. 2007.
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M/CA 3Wcl 3kW yML11 6016E90646 WLT SNUIT/It
BEFORE THE LAND USE COMMISSION
OF THE STATE OF HAWAII
In the Matter of the Petition ) DOCKET NO. A03-744
of )
HILUHILU DEVELOPMENT, ) CERTIFICATE OF SERVICE
LLC )
To amend the Land Use District )
Boundary of Certain Lands )
situated at Kau, District )
of North Kona, County )
of Hawaii, Island of Hawaii, )
State of Hawaii. )
CERTIFICATE OF SERVICE
I hereby certify that the foregoing SECOND ANNUAL REPORT;
EXHIBITS A - J were duly mailed, postage prepaid to the following on this 161h
day of October. 2007
Mr. Anthony Ching Mr. Lou Zitnik, Interim Director
Land Use Commission UH Center at West Hawaii
P.O. Box 2359 81-964 Halekii Street
Honolulu, HI 96804-2359 Kealakekua, HI 96750
Mr. Abe Mitsuda Mr. Milton Pavao
Office of State Planning Department Of Water Supply
235 S. Beretania, 6th Flr. 345 Kekuanaoa St., Suite 20
Honolulu, HI 96813 Hilo, HI 96720
rvn.num,m .c~zo.oeism ~ l
Mr. Bruce C. McClure Christopher J. Yuen,
Department of Public Works Planning Director
County of Hawaii County of Hawaii
101 Pauahi Street, Suite 7 Planning Department
Hilo, HI 96720-4224 101 Pauahi Street, Suite 3
Hilo, HI 96720
Mr. Maynard Young Rockne Freitas
Director of Capital Improvements Chancellor
University of Hawaii Hawaii Community College
Auxiliary Services Building MC 378
1951 East-West Road 200 West Kawili Street
Honolulu, HI 96822 Hilo, HI 96720-4091
Amy Self, Esq. Bryan Yee, Esq.
Dept. of Corporation Counsel Deputy Attorney General
Hilo Lagoon Ctr. 425 Queen Street
101 Aupuni St., Ste. 325 Honolulu, HI 96813
Hilo, HI 96720
Alan M. Okamoto
Jerel 1. Yamamoto
,non.m,edi....<m..xnso re.
~M7r or
jarry Kim Christopher J. Yuen
Mayor Director
Brad Kurakawa, ASIA
LEEM AP
(90untu of ~Ntxf Taff Depury Director
PLANNING DEPARTMENT
101 Pauahi Street, Suite 3 • Hilo, Hawaii 96720-3043
(808) 961-8288 • FAX (808)961-8742
November 29, 2006 .
Mr. Roger Hams
Hiluhilu Development LLC
P.O. Box 9007
Kailua-Kona, HI 96745
Dear Mr. Hams:
Palamanui Master Plan
Project District Ordinance No. 06-105
TMK: 7-2-5:1
We have reviewed the Palamanui Master Plan submitted on November 14, 2006, as
required by Condition J of Project District Ordinance No. 06-105. While the conceptual
layout of the various land uses is okay, we would appreciate the submission of more
detailed plans for the small lots and multiple-family residential areas. Condition M of the
ordinance also state that detailed plans shall be submitted with the Master Plan, showing
street designs and cross-sections, and adjacent building designs. Condition M also states
"As part of the Master Plan, the applicant shall submit plans for pedestrian movement
through the project district, which shall identify areas where sidewalks will be included to
permit safe pedestrian access to the Town Center and other important points in the
development."
With regard to the "mixed use area," please be informed that Condition Q states that "No
retail commercial structures may be located closer than 1,500 feet from the Queen
Kaahumanu Highway right-of-way."
Should you have any questions regarding the comments above, please contact Norman
Hayashi or me at (808) 961-8288.
Sincer f;
f
C STOPHER
Planning Director
P;wpwin60\pc\]ettas\2006\harris palainanui mp 11-29-06 - - -
cc: Planning Department-Kona
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LX1 ~ai'i County is an Equal Opportunity Provider and Employer. EXHIBIT B