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CARLSMITH BALL LLD
A LIMITED LIABILITY LAW PARTNERSHIP
121 WAIANUEIYUEAVENUE ~V6J~ FEB 1 PM 2 45
P.O. Box 686 ~v
HILO, HAWAII 96721-0686 COU",,
TELEPHONE808.935.6644 FAx8Q8.935.7975 r0W', ?°},iNr+U
W W W.CARLSMrrFi.COM
SLIMSCARLSMITH.COM OUR REFERENCE NO.:
056825.1
February 1, 2008
Casey Jarman
Hawaii County Council-Clerk
25 Aupuni Street,
Hilo, Hawaii 96720
Re: Planning Director (REZ 07-000067/REZ 866):
(1) Planning Director Initiated Change of Zone for 37.88 Acres of
Land From Single-Family Residential 15,000-Square Foot (RS-15) to
a Residential and Agricultural 5-acre (RA-5a) District; and
(2) Repeal of Ordinance No. 97-102, Which Rezoned 37.88 Acres of
Land From an Agricultural 5-acre (A-5a) to a
Single-Family Residential 15.000-Square Foot (RS-15 District
Dear Ms. Jarman:
We represent Kohala LLC ("Kohala"), the owner of approximately 37.88 acres of
land located at Tax Map Key (3) 5-9-001: 008 (the "Subject Pioperty"). In connection with the
Planning Commission's ("Commission") hearings on the above referenced Planning Director
initiated proposed repeal of Ord. No. 97-102 and downzoning of the Subject Property
(collectively the "Downzoning"),1 am writing to inform you of deficiencies in the public notice
required under Hawaii County Code, § 25-2-43 (c). In addition to public notice defects, Kohala
was not properly noticed on all Commission hearings, as required by Haw. Ct. Code § 25-2-43
(d). Finally, Kohala is not aware of any sign posting for the proposed Downzoning, as required
by Haw. Ct. Code § 25-2-12 and Planning Commission Rule 11-4.
As a result of these defects, the Downzoning cannot now be heard by the Hawaii
County Council. Instead, the Downzoning must be returned to the Commission for further
hearings, which will have to be properly noticed. Kohala recognizes that these jurisdictional
Gomm. Mo q -
Ref. To:
Ref. Date 2Q0
Casey Jarman
February 1, 2008
Page 3
defects may seem like mere technicalities. However, should the Downzoning be enacted by the
Hawaii County Council, Kohala's currently entitled 50-lot subdivision will be reduced to
approximately 7 lots. In light of the potentially devastating effect of the Downzoning, Kohala is
obligated to raise these deficiencies in an attempt to protect its valuable and Constitutionally
protected property rights.
Notice of the first Commission hearing on the Downzoning was published three
times in two newspapers, as required by Haw. Ct. Code, § 25-2-43 (c). However, no subsequent
hearing were so noticed. In the same way that a property owner who initiates a zoning change is
legally obligated to serve notice on surrounding owners and lessees of record, as provided under
Haw. Ct. Code § 25-2-42 (b), in this case the Planning Director, as the initiating party, had the
legal duty to publish proper notice informing the public of his proposed zoning amendments.
This duty is clearly set forth in Haw. Ct. Code § 25-2-43 (c), which states as follows:
Notice by mail to surrounding property owners and lessees of
record or properties within the boundaries shall not be required
In lieu of mailing written notice to surrounding property
owners and lessees of record, the director shall publish notice of
the commission's public hearing in at least two newspapers of
general circulation in the County, once a week for three
consecutive weeks, with the last notice to be at least ten day prior
to the hearing. The notice shall specify the time, date and place of
the hearing, its purpose and a description of any property which
may be involved.
Haw. Ct. Code § 25-2-43 (c).
Notice of the December 12, 2007, hearing was published one time only, despite
the fact that at the prior hearing, held August 31, 2007, the Downzoning had been continued
indefinitely. Unlike other hearings where a firm date for a continued hearing is established, and
interested members of the public are therefore provided an opportunity to attend the scheduled
continued hearing, in this instance no such date was determined at the August hearing.
Therefore, it was impossible for any interested person in attendance at the August hearing to
know when the Downzoning matter would next be before the Commission. In fact, because an
October hearing date was discussed at the August hearing, it is likely that any person interested
Casey Jarman
February 1, 2008
Page 4
in the Downzoning would have checked the Commission agenda and/or newspapers in
anticipation of the October hearing and, seeing nothing listed, assumed the Downzoning matter
was settled and no longer being considered by the Commission.
The possibility of an October hearing was discussed at the August 31, 2007
hearing, where Kohala and the Planning Director stipulated to continue the matter to October 19,
2007, "subject to a continuance to a later hearing date in West Hawaii by agreement of the
parties and approval by the Planning Commission." See Stipulation to Continue August 31, 2001
Hearing, a copy of which is attached hereto as Exhibit A. The Commission sent a confirming
letter to Kohala, dated September 21, 2007, stating that the matter had been continued to the
October Commission hearing date, "tentatively scheduled for October 19, 2007." The
Commission assured Kohala that the Commission would "notify you of the details of the
continued hearing when they are confirmed." See Commission letter, a copy of which is attached
hereto as Exhibit B.
The Downzoning was not before the Commission in October, and the only notice
Kohala received of the December hearing was the Planning Director's letter dated November 15,
2007, stating that the Downzoning was scheduled to be before the Commission on December 12,
2007. Despite the Stipulation's open-ended language regarding the date of the continued hearing,
notice of the December 12, 2007 hearing was published one time only. Kohala asserts that
notice of the December hearing should have been published at least three times, as required
under Haw. Ct. Code § 25-2-43 (c). A partial procedural history on the Downzoning and
relevant hearing and notice dates are listed on the chart attached hereto as Exhibit C.
Kohala never agreed to the December 12, 2007 hearing date, nor was Kohala
informed of the Commission's approval of the December 12, 2007 hearing date, both of which
were required under the Stipulation.' In addition, Kohala was not timely noticed on the
December 12, 2007 hearing. The Planning Director's letter to Kohala regarding the December
hearing was dated November 15, 2007, too late to comply with Haw. Ct. Code § 25-2-43 (d),
' On December 7, 2007, Kohala sent a letter to the Commission stating numerous concerns with respect to the
Commission and Planning Director procedures on the Downzoning.
Casey Jarman
February 1, 2008
Page 5
which requires the Planning Director to provide property owners notice "no later than thirty
days prior to the commission's public hearing on the amendment." Despite these procedural
defects, the Commission held a hearing on the Downzoning on December 12, 2007, and there
continued the matter to January 11, 2008.2
A final point Kohala wishes to raise is the Planning Director's failure to post signs
at the Subject Property to notify the public of the proposed Downzoning. Under Haw. Ct. Code
§ 25-2-12 and Commission Rule 11-4 (a), such signs must be posted within ten days of
acceptance of an application for zoning amendment. The Planning Director initiated the
proposed Downzoning in June, 2007. Kohala is not aware of any public notification signs being
posted at the Subject Property.
For the reasons stated above, Kohala does not believe the Downzoning can be
heard by the Hawaii County Council at this time. Instead, the Downzoning must be returned to
the Commission for a further, properly noticed, hearing. In addition, an appropriate sign alerting
the public to the Planning Director's proposed zoning amendment should be posted on the
Subject Property.
Very truly yours,
STEV S. . LIM
JAB
Enclosures
cc: Ivan M. Torigoe, Esq., Attorney for Planning Commission
William Brilhante, Esq., Attorney for Planning Department
Amy Self, Esq., Attorney for Planning Department
Jennifer A. Benck, Esq.
2 Planning Director's notice to Kohala of the January 11, 2008 hearing was mailed December 17, 2007, and therefore
did not comply with the thirty day notice requirement under Haw. Ct. Code § 25-2-43 (d).
AUG-3p-2007 THU 05:52 PM CORPORATION COUNSEL FAX NO. 9618622 P. 02
CARLSMITH BALL LLP
STEVEN S.C. LIM 2505
121 Waianuenue Avenue
Hilo, HI 96720
Tel No. 808.935.6644
Fax No. 808.935.7975
Attorney for Applicant Kohala, LLC
BEFORE THE PLANNING COMMISSION
OF THE COUNTY OF HAWAII
In the Matter of the Planning Director Initiated: SPECIAL MANAGEMENT AREA USE
(1) Change of Zone (REZ 07-000067) from RS- PERMIT NO. 379
15 to RA-5a district, (2) Repeal of Ordinance
No. 97-102 from A-5a to RS-15 district, and (3) STIPULATION TO CONTINUE AUGUST
Revocation of Special Management Area 31, 2007 DARING
(SMA) Use Permit No. 379 to allow a 50-lot
single-family residential subdivision
and
Applicant Requested: (1) Amendment to
Condition C of Change of Zone Ordinance No.
97-102 and (2) Amendment to Condition 4
Special Management Area Use Permit No. 379
Property situate at Kahua 1 st, North Kohala,
TMK:(3) 5-9-001:008
STIPULATION TO CONTINUE AUGUST 31, 2007 HEARING
Applicant Kohala, LLC, by and through its counsel, Steven S.C. Lim of Carlsmith Ball
LLP, and Christopher J. Yuen, Planning Director, County of Hawaii, by and through his
attorney, William Brilbante, Deputy Corporation Counsel, hereby stipulate and agree to continue
the Planning Commission hearings In the Matter of the Planning Director Initiated: (1) Change
of Zone (REZ 07-000067) from RS-15 to RA-5a district, (2) Repeal of Ordinance No. 97-102
from A-5a to RS-15 district, and (3) Revocation of Special Management Area (SMA) Use Permit
No. 379 to allow a 50-lot single-family residential subdivision, and Applicant Requested: (1)
EXHIBIT A
AUG-30-2007 THU 05:52 PM CORPORATION COUNSEL FAX NO. 9618622 P. 03
i
Amendment to Condition C of Change of Zone Ordinance No. 97-102 and (2) Amendment to
Condition 4 Special Management Area Use Permit No. 379 from August 31, 2007 to the
Planning Commission hearing tentatively scheduled to be held in West Hawaii on
October 19, 2007, subject to continuance to a later hearing date in West Hawaii by agreement of
the parties and approval by the Planning Commission.
DATED: Hilo, Hawaii, AUG 3 0 W
STEVEN S.C. LlIlf
Attorney for App cant ohala LLC
DATED: Hilo, Hawaii,
WILLI HANTE
Atto y for Christopher J. Yuen
Planning Director, County of Hawaii
In the Matter ofthe Planning Director Initiated: (1) Change of Zone (REZ 07-000067) from RS-15 to RA-5a
district, (2) Repeal of Ordinance No. 97-102 from A-5s to RS-I5 district, and (3) Revocation of Special
Management Area (SMA) Use Permit No. 379 to allow a 50-lot single-family residential subdivision., and Applicant
Requested: (1) Amendment to Condition C of Change of Zone Ordinance No. 97-102 and (2) Amendment to
Condition 4 Special Management Area Use Permit No. 379;
STIPULATION TO CONTINUE AUGUST 31, 2007 HEARING
4$39-0562-5099.1.058825-00001
-2-
RECEIVED SEP 2 4 07
9
County of Hawaii
PLANNING COMMISSION
Aupuni Cmw • 101 Psuahi Sbut, Suite 3 • Hilo, Hzwi't 96720
Phom (808) 961-8288 • Fu (808) 961-8742
September 21, 2007
Steven S. C. Lim, Esq.
Carlsmith Ball, LLP
121 Waianuenue Avenue
Hilo, HI 96720
Dear Mr. Lim:
Special Management Area Use Permit No. 379
Request: Time Extension to Condition 4 of SMA 379
Change of Zone No. 866
Request: Time Extension to Condition C of Ord. 97-102
Applicant: Kohala LLC
Tax Map Key: 5-9-1:8
Planning Director Initiated
Change of Zone (REZ 07-000067)
Request: RS-15 to RA-5a
Repeal of Change of Zone Ordinance No. 97-102 (REZ 866)
Revocation of Special Management Area Use Permit No. 379
Tax Map Kev 5-9-1:8
The Planning Commission at its duly held public hearing on August 31, 2007, voted to continue
the above-referenced requests to the October Commission meeting in West Hawaii, which is
tentatively scheduled for October 19, 2007.
We will notify you of the details of the continued hearing when they are confirmed.
Should you have questions regarding the above, please contact Norman Hayashi of the Planning
Department at 961-8288, x205.
Sine e ,
William Oraham, Chairman
Planning Commission
Lkuhalellc0l pe
cc: Planning Department-Kona
Ha.ai'i ('minty is n- Fge17 Oppenunih' Provider and Entolover
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