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HomeMy WebLinkAboutCOM 0981.002 2006-2008 02/05;2008 10:91 8088854114 WEEPATENT Post-ir 5aX Note 7671 Date .~O a~.s^~T io FromZ. EC: co.mePe M126 -C M co ~Phone M/ e6Y , p C[ FE.p%(7^e r}GarteC g~~y7ry1 ~~Q~t~~1~ { U~,.w~,,~,'P• FPhGw# l & FaxN 2008 On 51 -Qg ~LJ~.J 1!_~4 p y bb, C~O~~(~UP, r'L.E~ r'O ~Itan for g ingiirie the opportunity to comment on the subject resolution. Resolution 517-08 gives Parker Ranch Land Trust credit against its fair share obligations for an casement to be used for Waimea Trails & Grcenways. I understand that the easement documents have been signed by all parties atnd I look forward to being able to use the trail along Waikoloa Stream in Waimea. The County's consultant has been working on the design documents for the trail for nine years now and we are all ready for its construction to start this year. My comments have solely to do with a question of timing: When should Parker Ranch Land Trust be given credit against its fair share obligation? In my opinion, this resolution is prornad ue (in that regard only) for the following reasons; 1. According to Judge Ibarra (relevant portion of Ids decision is attached), Hawaii County's Fein share system is illegal. At any time, the County could be required to pay back fair Share contributions if ordered by a court. it would make sense to first pass a development impact fey ordinance that complies with State law and then give credit for legally owed impact fees. I understand that Pete HotTamann's office is finalizing the draft impact ree ordinance auttiorea t~ the County's impact fee consultant, so this should not cause undue delay. 2. 1 note that Condition' "O" of the Parker Ranch zoning ordinwice requires that "the applicant shall provide 30 + acres of land...: ' It does not say that the applicant shall provide "an easement" or "use of applicant's land." It is very clear that a fee simple transfer of the tale to laud was envisioned. In contrast, Condition "M(1 xa)(h)" which describes the requirement fo, open space or park purposes in the commercial areas of the Wei mea Town Center clearly talk_< about "open space/park easement or other legal encumbrance." There is a big difference to tht people of Waimea. , Condition "0" states that "furthermore, said [park] site(s) shalt be dedicated to the County upo r its request. The value of dedicated land and any improvements provided on the said site(s) shill be credited against the applicants fair share contribution ofthe parks and recreation assessmen'. required in Condition H herein." Although the word "dedicated" is not defined in the ordinanc 2; the County Park Dedication Code (8-2) makes it clear that there is a difference between "a perpetual and everlasting easement" and "dedication in fee simple title or ownership." Condition "H" allows Parker Ranch credit only for "the fair market value of land contributed or the cost of any improvements required." It does not allow credit for easements conleifttd. So, it does not appear that Parker Land Trust should gut credit against fair share requirements for the 8.5 acres of land until it dedicates the land in fee simple title to the County. The:refo:re, this resolution is premature. 1 Gomm. No. • 2 Ref. To: Presented C Ref. Dote FEB 0 5 2008 02/05/2008 10:91 8086854114 WEBFATENT F41(c The County's ownership in fee of the 8,5 acres would be of great benefit to both the County ank. Parker Ranch Land Trust. According to Clem Lam, Chair of the WT&G Committee of volunteers, the Parker Land Trust easement for the Waimea Trails & Grecoways project prohibits its use by equestrians. Ironically, Parker Ranch, one of the state's greatest pauiolo institutions, is preventing Paniolo's on horses from using the portion of the trail within the easement. if the County owned the land outright, it could make that decision. Waimea's Paniolo tradition contributes to our sense of place. Constructing trails so that their use can be shared by pedestrians, bike riders and equestrians makes sepse for a Paniolo town like Waimea. The Hawaii Recreational Use Statute (HRS Chapter 520) normally protects private land ow ne: from liability when the landowners allow recreational use of their lands without charge. By charging County taxpayers $563,259.65 for the right to use the 8S acre easement, Parker Raru1, Land Trust appears to be venturing into a gray area of the statute. Parker Ranch Land Trust is definitely controlling the use of the land. If the County owned the land outright, Parker Ranch Land Trust would appear to be otit of the picture liability wise, As an indirect beneficiary of Parker Ranch Foundation (having had two surgeries, one life-sating, petformcd at North Hawa i Community Hospital), I want Parker Ranch Land. Trust not to ta.,;e on unnecessary risks. Also, the easement extends to the centerline of Waikoloa Stream. I understand that the County Code places the responsibility for keeping streams clear of debris, on the land owner. Does Parker Ranch Land Trust really want to continue to have that responsibility? Maybe the easement document takes care of that issue. I hope so, for Parker Ranch's sake. Much of the easement is within the 100-year flood plain of Wa,.Qloa Stream and is unttsaLle J r other purposes. If the County is going to pay $560,000 for an easement to 8.5 acres of hard a private owner could not build or grow anything on. one would think that the land would come without any "strings.' For comparison, the County Impact Fee Study at p. 54 presents 2006 costs per acre for land that could actually be used for residential construction. The average residential land asking price for parcels in the size range from 5 ':o 9.99 acres was $83,461 per acre during the real estate bubble. If the County gives credit for an easement in this situation, and never requests that the laid be dedicated to the County, will it follow this approach for the rest of the park land Parker Rancl Land Trust has agreed to dedicate to the County (the 21.5 acres that will be use for Waimea District Park)? What strings will it allow Parker Land Trust to attach to that land? Will old people like me be allowed to use.the park or did that idea go out with the horse and buggy? 2 eJ N Fence ~ p, o M a n • ~ Ir KA.h~ 1 ti Vnn 2 min tv wnc. avemgm (W 2' min. V.riK &nrmb•d Figure 2 Typical Trail Groaa:'actio,, Waimea Trail: & (.reenvvai ,sc OrMTam mrana^a~ ~n ~~~Mmm~, ie w~ a , :ew i r NOT TO SCALE ~:'t4" cc: Joseph K. Kamelamela, Esq. Kenneth R. Kupchak, Esq. ~Ig William Meheula, Esq. IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII COUNTY OF HAWAII, a municipal ) CIVIL NO. 00-1-181K (Consolk ate:) corporation, ) CIVIL NO.05-1-015K (Consol'c ate it Plaintiff, ) FINDINGS OF FACT, CONCLUSIONS OF LAW, and vs. ) ORDER C&J FAMILY LIMITED PARTNERSHIP, et } Trial pales. al., ) July 9-13, 2007 Defendants, } July 16.20, 2007 July 23.27, 2007 July 30-August 2, 2007 Post , rial Proposed Fin in -()f-' ?3ct, Conclusions of Law, anj Order, subm~ne& August 23, 2007 Judaea. Honorable Ronald Ibarra FINDDNGS OF FACT, CONCLUSIONS OF LAW, and ORDER 1 heney c-reify thot nils H o fun, tnN a d ca ttK dopy of the crigino) m fne in thif office. Qsrk, Tbvd' ~of Hewau 3. Third-party Defendant 125D Oceanside Partners ("Oceanside") is a Hawa i limited partnership with its principal place of business on the Island, Coun h , ar d State of Hawaii. The Property 4. The Coupe's, Defendants Robert Nigel Richards as Trustee of the Marilyn -_--LE Wilson Trust, and Miles Hugh Wilson own a plot of land that consists of about 300-acres in Onouli, Island of Hawaii, that runs from the ocean to the Mamalahoa I Highway, and is the land area designated by tax map key parcels 8-1-007-057 and 8-1.007-45 including Parcel 168, This land area contains the 3.348 aU? parcel of land ("the Property") that is the subject of these consolidated condemnation actions. (Exhibits J-290,14391, J-14% 5. Seventy-two (72%) percent of the Property belongs to the Coupe's, and twE r ty eight (28%) percent of this land belongs to Defendant Robert Nigel Richards, Trustee Under The Marilyn Sue Wilson Trust and Miles Hugh Wilson. (Exhit ri s J-439, D-147). County Need 6. By 1979, the County recognized a need for a road to bypass the Mamalaho8. Highway due to the projected inadequacies of existing highway, high accident rates, higher anticipated traffic volume and congestion, and the need for a ro continuously around the island in a 1979 study conducted by the Hawaii Department of Transportation entitled Hawaii Belt Poad Holualoa to Papa Preliminary Engineering Report. (Exhibit D-2). a 7. In 1982, the Kona Regional Plan had identified traffic problems along the Mamalahoa Highway, and determined that the traffic was equal to or exceadeJ the roadway design capacity. The County also found that the rapid increa;a in traffic placed a heavy burden on the roadway network, and increased both :r i i . time and inconvenience. (Exhibit D-14). 8. In response, the County adopted the proposed 1979 State Bypass Hignwa; arc AN Drive Extension on the 1989 County General Plan Public Facilities Map. (Echibit J-245). 9. The County further conducted the following studies: (Test of W. Moore, 71~-i J7.: (Test of N. Bums, 7110107). a. The 1989 Hawaii County Council General Plan adopted the 1979 Stab Bypass Highway and the AN Highway. (Exhibit J-245). b. A 1993 study by Parson, Brinckerhoff, Quade and Douglas found that a bypass highway would be sufficient to relieve all existing and projecte c future regional congestion on Mamalahoa Highway. (Exhibit J-384. c. A 1998 study prepared for the Hawaii Department of Transportation, entitled Hawaii's Long Range Land Transportation Plan Final Report, recognized the need for the Mamalahoa Bypass Highway based on tra i c safety considerations. (Exhibit J-382)- d. A 1998 study prepared for the State of Hawaii Department of Transportation recognized the need, based on traffic safety considerations, for the Mamalahoa Bypass Highway. (Exhibit J-1351. 80, The improper delegation of condemnation authority to a private party inva' dz -ls County Resolution 266-00. Impact Fees 81, The Development Agreement also purports to amend, supersede or subsU! vAo ter ordinances and the impact fee statute. The OevMopment Agreement imposes n impact tee, and the County has not enacted an impact fee ordinance pursu.!.~t qc section 46-141 of the Hawaii Revised Statutes, as amended. Haw. Rev St r § 46-141. 82. The "fair share" assessment imposed as to the Defendants and the other landowners were based on Oceanside's study and recommendation. 81 The "fair share" assessment is based on benefits and impacts to the landowr E,rs from the Mamalahola Bypass Highway. 84. County does not have statutory authority to impose a "fair share" assessmern but has statutory authority to enact impact fee ordinances pursuant to section 4k- 141 of the Hawaii Revised Statutes, as amended. 85. The "fair share" assessment under the Development agreement, in substance s tantamount to an impact fee that does not conform to section 46-141 of the. Hawaii Revised Statutes, as amended. 86. The portion of the Development Agreement that imposes the "fair share" assessment against the Coupe's is void for not being in compliance with sectio, 46.141 of the Hawaii Revised Statutes, as amended. -t I Trustee under the Marilyn Sue Wilson Trust; CU Coupe Family Lirr tsd Partnership and Miles Hugh Wilson for violating section 46-140 of tr Hawaii Revised Statutes, as amended. Defendants, Counterclaim Plaintiffs, and Third-Party Plaintiffs Robert Nigel Richards, Trustee under the Marilyn Sue Wilson Trust, C&J Family Limited Partnership and Miles Hugh Wilson have failed to meet their burden of proof aF rc.0 other allegations in Count 1. 3. Count 2: [Declaratory Judgment That Development Agreement is Illegal The condemnation and "fair share" assessment provisions of the Developrnml Agreement are declared illegal. Judgment is hereby ordered to be entered i t favor of Defendants, Counterclaim Plaintiffs, and Third-Party Plaintiffs Rohr r: Nigel Richards, Trustee under the Marilyn Sue Wilson Trust, CU Family LhT red Partnership and Miles Hugh Wilson and against Plaintiff and Counterclaim Defendant County of Hawaii, and Third-Party Defendant 1250 Oceanside Partners because County Resolution 266-00 illegally delegated the County's power of condemnation through the Development Agreement to a private parrs,, Third-Party Defendant, 1250 Oceanside Partners. Defendant, Counterclaim Plaintiffs, and Third-Party Plaintiffs Robert Nigel Richards. Trustee under the Marilyn Sue Wilson Trust, CU Family Lim led Partnership and Miles Hugh Wilson have failed to meet their burden of proof as 'r; all other allegations in Count 2, t3 costs and expenses incurred by the COUNTY for the acquisition of the condemned land in conjunction with the COUNTY'S exercise of its cendea r atr' n powers." (Exhibit J-45). Development Agreement Reimbursement 37. Oceanside retained the Parsons engineering firm, specifically Wayne Yosh'cka, to develop the reimbursement model based on traffic analysis. (Test. of t^i Yoshioka, 7/23/07 (45;21-40:10)). In developing his methodology, Yoshioka relied heavily on the traffic model from the 1991 Hawaii Long Range Highw rr Plan ("LRP"). (Exhibit J-347); (Test of W. Yoshioka, 7/23/07 (53:25-54A) J. 38. The LRP used 1986 traffic data with 1987 traffic conditions. (Exhibit J-347) 39. Yoshioka used the Traffic Analysis Zone ("TAZ's" j from the t RP. ; Exhibit,' : 471 (Test. of W. Yoshioka, 7/23/07 (63:8 65:14)). These TAZ's are regional are< e that are used to geographically divide the island. 40. Yoshioka's report relied upon the completion of the AN Highway and only analyzed the traffic situation out to 2005 and 2010. (Exhibit J-384); (Test of W Yoshioka. (7/23107 (71,2-4)). Yoshioka did not analyze the traffic impact of tir: workforce for the Kohala resorts driving from Ka'u. (Test ofW Yoshioka, (6' S- 19)). 41. The stated methodology for the allocation of a percentage of a developers 1, :ir share" assessment was the impact on traffic a prospective developer's projer would have or "but for" the bypass which developers would not be allowed to build. (Test. of W. Moore, 7/10/07 (60:24.61:9)). II 42. The Development Agreement contains a provision on "fair share" reimburs~rnei t from the County to Oceanside. (Exhibit J-45) 43. Section 15(c) of the Development Agreement requires the County to reimbi,rse Oceanside as soon as the County assesses a'fair share" contribution for n ; v . - zonings in the vicinity of the Mamaiahoa Highway pursuant to a percentage schedule in the Development Agreement. (Exhibit J-45). a. Specifically, Section 15(c) states, "in the event that the COUNTY cot':cta such "fair share" contributions, or similar fees, as may be allowed by f e rezoning ordinances from developers a.nd landowners whom the COUNTY has determined as benefiting from the Bypass Highway. th COUNTY shall reimburse OCEANSIDE frcm such funds as they are collected " (Exhibit J-45) 44. According to the Development Agreement, reimbursement funds are derived a± least, from the following three sources: (a) "fair share" contribution:; paid to tro County to address potential regional impacts of their development on road facilities; (b) an Impact Fee Ordinance that assesses or imposes an impact fce either for the County as a whole or for the region extending from Keauhou to Mitoiii, and, (c) any other monetary contribution paid to the County from developers or land owners that benefit from the Bypass Highway. (Exhibit J-451,. 45. According to the Development Agreement, Tor a period of thirty years, a percentage of this reimbursement lund will be paid to Oceanside. This percentage varies by geographic area, and is described as follows: (1) bNenty- five percent (25%) of the funds received from Keai-hou will be paid to Oceans de; I? (2) eighty percent (80%) of the funds received from the Honalo-Captain Coo c Existing Mamaloha Highway Corridor will be paid to Oceanside; (3) one hu ,dre.. percent (100%) of the funds received from the Honalo-Captain Cook-Mauka q,., j will be paid to Oceanside; (4) one hundred percent (100%) of the funds rec( iv -,9 from the Honalo-Captain Gook-Makai Area will be paid to Oceanside, and; i sixty-five percent (651h) of the funds received from the Captain Cook to Milc area will be paid to Oceanside. (Exhibit J-45). 46 County Ordinance 96-8 authorized a reimbursement process for the costs incurred by Oceanside for the construction of the Mamalahoa Bypass Highway from funds collected by the County from other developers or landowners tha have benefited from the road. (Exhibit J-354). 47. This provision also referred to the Development Agreement to set forth the to rn s and conditions of reimbursement for costs incurred for the construction, land acquisition and design of the Mamalahoa Bypass highway. (Exhib.ItJ-354). 48. The Development Agreement created a "fair share" allocation scheme that wac; based on benefits to landowners rather than on the impacts of their re-zoning (See generally Test. of$ill Moore, 719107- 711210 1, 49. The County then adopted this allocation based on benefits conveyed to the landowners rather than the impacts imposed by the landowners. (Test. of B. )eithead-Todd, 7/13/07 (23:23-25); J-362 at 3316). 50. None of the private landowners participated in the negotiations for this thirty-y :ai "fair share' allocation in the Development Agreement (E)ehibitJ-45). ~ 1> 51. The County has teed to pass an impact fee ordinance, but has never successfully adopted one. (Test of 8. Leithead-Todd, 7M3/07(2310-14)). Oceanside and County s Performance Under the Development Agreement 52 After Oceanside and County entered into the Development Agreement, Dwyer sent "threat letters regarding condemnation on Oceanside's behalf against landowners along the bypass. (Exhibits J-87; J-93; J-94; J-95; J-96). a. John R. Dw,,er, Jr-'s letter to Gary W. Vancil regarding John A. Pearne on May 29, 1998, stated, "(W]e would like to open discussions with Mr. Pearne to acquire that parcel at a mutually agreeable price so that eminent domain proceedings will not be necessary." (Exhibit J-93). b. John R. Dwyer, Jr.'s letter to Clifford J. Miller regarding the Kona Trust property on June 5, 1998, stated, "If Kona Trust is not willing to unequivocally agree that it will convey the subject Right-of-Way to Oceanside or the County (at its election) when the conveyance is requested by Oceanside, then Oceanside will be forced to rely on the condemnatior provisions of the Development Agreement." (Exhibit J-94). c. John R. Dwye , Jr.'s letter to Charles Coupe on May 26, 1999, stated, "[B)y submitting this matter to the County for condemnation, Oceanside would be abso,vgd from providing the COUpe/Wilson group any of the benefits it is offering to the owners. For instance in terms of monetary considerations, the County would offer only the fair market value of the parcel being condemned rather than the $17,000 per acre amount being la