HomeMy WebLinkAboutCOM 0997.001 2006-2008
Charles Flaherty
From: Charles Flaherty [oneheart@aloha.net]
Sent: Wednesday, February 20, 2008 1:30 PM
To: 'counciltestimony@oo.hawaii.hi.us'
Cc: 'Ford, Brenda'; 'Hoffmann, Pete'; 'Donald Ikeda'; 'jjaco@oo.hawaii.hi.us'; 'shiga@co.hawaii.hi.ue;
'enaeole@co.hawaii.hi.us'; 'KAPILAGO@co.hawaii.hi.us'; 'Dominic Yagong';
'jyoshimoto@co.hawaii.hi. us'
Subject: Oppose Bill 235
Aloha mai Chairman Pilago and members of the Planning Committee,
1 am opposed to Bill 235 which would amend Condition M of rezoning Ordinance 96-7.
In 1994, the people of District 7 re elected Keola Childs to the County Council. Mr. Childs, who is now an
employee of the Kim administration, was intimately involved in negotiating Condition M with the community.
Mr. Childs and then-Mayor Yamashiro repeatedly promised the people living and working around the Haleki'i
Street area that Condition M would prevent their street from becoming a major connector road. The community
believed that Condition M, their contract with the county, would be honored and that they could go on with their
lives without worry.
So these good people were unaware when current Planning Director Chris Yuen quietly slipped a General Plan
amendment through former-Chairman Higa's County Council in 2006. That General Plan amendment designated
Haleki'i Street as a major connector road. That maneuver was the County's first step in breaking its contract with
the community.
Last month, the Planning Commission took the second step towards breaking the contract by recommending
changing Condition M.
Now this Council is being asked by the Kim administration to take the third and final step in breaking the County's
contract with the community. They are trying to entice you and the community with more promises.
1 hope you have read Sections 4 and 10 on pages 1, 4-6 of the Addendum to the Hokuli'a settlement agreement
which I e-mailed to you on Monday. It is very important that this Council know that, despite repeated assurances,
Mayor Kim and his administration have broken All but one of the written promises in these sections of
this contract.
Regardless of its intentions, I have learned the hard way that I cannot trust the county administration's promises,
whether they are spoken or written.
Please do not become a part of the administration's legacy of broken trust
The county administration went forward with the Hokuli'a project, despite a judge's warning. The result was a
$265 million lawsuit which threatened to bankrupt the County. That threat was eliminated when the Hokuli'a
plaintiffs settled our legal action, a legal action that the county lost.
The same judge recently cleared the way for completion of the Bypass Highway. This time, the county won. So
why isn't the administration moving forward to complete the entire Bypass Highway?
The county can post a bond to cover any potential future liability from the Coupe legal action. So there's no
longer any excuse for not completing the entire Bypass Highway.
Meanwhile, don't break your contract with the community.
Please do not amend Condition M in Ordinance 96-7 and vote "nea" on Bill 235. p l
Comm. No. l
Ref. To: 08-60A
2/20/2008 Ref. Date FEB 9. 0 7003
Charles Flaherty
From: Charles Flaherty loneheart@aloha.net]
Sent: Monday, February 18, 2008 2:41 PM
Cc: 'Ford, Brenda'; 'Hoffmann, Pete; 'Donald Ikeda'; 'jjaco@co.hawai1.hi.us; 'shiga@co.hawaii.hi.us';
'enaeoie@oo.hawaii.hi.us'; 'KAPILAGO@oo.hawaii.hi.us'; 'Dominic Yagong';
jyoshimoto@co.hawaii. hi.us'
Subject: Oppose Bill 236
Aloha mai Chairman Pilago and members of the Planning Committee,
I am opposed to Bill 235 which would amend Condition L of rezoning Ordinance 96-8.
In 1994, the people of District 7 re-elected Keola Childs to the County Council. Mr. Childs, who is now an
employee of the Kim administration, was intimately involved in negotiating Condition L with the community.
Mr. Childs and then-Mayor Yamashiro repeatedly promised the people living and working around the Haleki'i
Street area that Condition L would prevent their street from becoming a major connector road. The community
believed that Condition L, their contract with the county, would be honored and that they could go on with their
lives without worry.
So these good people were unaware when current Planning Director Chris Yuen quietly slipped a General Plan
amendment through former-Chairman Higa's County Council in 2006. That General Plan amendment designated
Haleki'i Street as a major connector road. That maneuver was the County's first step in breaking its contract with
the community.
Last month, the Planning Commission took the second step towards breaking the contract by recommending
changing Condition L.
Now this Council is being asked by the Kim administration to take the third and final step in breaking the County's
contract with the community. They are trying to entice you and the community with more promises.
1 hope you have read Sections 4 and 10 on pages 1, 4-6 of the Addendum to the Hokuli'a settlement agreement
which I e-mailed to you on Monday. It is very important that this Council know that, despite repeated assurances,
Mayor Kim and his administration have broken all but one of the written promises In these sections of
this contract.
Regardless of its intentions, I have learned the hard way that I cannot trust the county administration's promises,
whether they are spoken or written.
Please do not become a part of the administration's legacy of broken trust.
The county administration went forward with the Hokuli'a project, despite a judge's warning. The result was a
$265 million lawsuit which threatened to bankrupt the County. That threat was eliminated when the Hokuli'a
plaintiffs settled our legal action, a legal action that the county lost.
The same judge recently cleared the way for completion of the Bypass Highway. This time, the county won. So
why isn't the administration moving forward to complete the entire Bypass Highway?
The county can post a bond to cover any potential future liability from the Coupe legal action. So there's no
longer any excuse for not completing the entire Bypass Highway.
Meanwhile, don't break your contract with the community.
Please do not amend Condition L in Ordinance 96-8 and vote Ones" on Bill 236.
a
,
MW 2/20/2008
ADDENDUM TO SETTLEMENT AGREEMENT
This Addendum to Settlement Agreement (the "Addendum") is made by and among 1250
Oceanside Partners ("Oceanside"), the County of Hawaii ("County"), the Hawaii State
Department of Land and Natural Resources ("DLNR"), the Hawaii State Department of Health
("DOH'), Protect Keopuka Ohana ("PKU and Waiter John Kelly ("Kelly"), Charles Ross
Flaherty, Jr., ("Flaherty") Patrick M. Cunningham ("Cunningham") and Michele Constans
Wilkins ("Wilkins") (Kelly, Flaherty, Cunningham and Wilkins are collectively referred to
herein as the "Individual Plaintiffs"). Oceanside, County, DLNR, DOH, PKO and the Individual
Plaintiffs are referred to collectively herein as the "Parties" and each individually as a 'Tarty."
RECITAL
The Parties have each signed or are signing a Settlement Agreement, in the form attached
hereto as Exhibit "A," relating to the project commonly known as Hokuli a located in Kona,
Hawaii (the "Settlement Agreement"), on the understanding that this Addendum amends and
supplements, and for all purposes will be treated as part of, such Settlement Agreement (the
Settlement Agreement, as amended and supplemented by this Addendum, is referred to
hereinafter as the "Final Settlement Agreement").
NOW, THEREFORE, in consideration of the foregoing recital and in consideration of
the mutual terms, covenants, conditions, promises and benefits contained in the Settlement
Agreement and herein, and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS. For the purposes of this Addendum, capitalized terms shall
have the meanings set forth in the Settlement Agreement.
2. EFFECTIVE DATE. The Final Settlement Agreement shall be effective as of
the date ("Effective Date") when all of the following conditions have occurred: (a) all Parties
have signed the Settlement Agreement and the Addendum; and (b) the Court in the Litigation has
entered an Amended Decision.
3. AMENDED DECISION. The following new Section 7.2 is hereby added to the
Settlement Agreement:
7.2 The Parties expressly state that no agreement has been reached for all
Parties jointly to submit a single form of proposed Amended Decision to be presented to
the Court. Each Party is free to stipulate or present such Party's own proposed language
for the Amended Decision at the appropriate time as requested by the Court, if applicable.
4. BYPASS HIGHWAY. The transportation section of the County General Plan
states "Construct a scenic corridor from Keauhou above the Kealakekua cliffs to Napo'opo'o as
both North and South Kona Courses of Action." Therefore, the County Administration, at the
request of Plaintiffs, shall work with the Plaintiffs to draft, introduce, and support legislation
before the County Council that would (1) allow for the designation of the scenic corridors in the
County, and (2) specifically designate the Bypass Highway as a scenic corridor, except that
portion of the bypass right-of-way passing through Hokuli'a. Oceanside has not requested that
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Agreement. A copy of the proposed form of revised stipulated permanent injunction, which the
Parties agree to submit to the Court for its consideration, is attached hereto as Exhibit "B."
8. RIGHT TO OBSERVE WORK DONE IN PERFORMING BASE LINE
WATER QUALITY STUDY AND MODIFIED WATER MONITORING PROGRAM.
The Individual Plaintiffs shall have the right to observe the data collection work done for the
Modified Water Monitoring Program pursuant to Section 16.2 and the Baseline Study pursuant
to Section 16.3 of the Settlement Agreement, to the extent practical. Oceanside shall ask the
third parties performing this work to give Oceanside and the Plaintiffs notice of their work
schedules, to the extent practical.
9. PUBLIC SHORELINE ACCESS. Oceanside confirms that the Haleki'i Street
Extension is to be dedicated to the County, and Oceanside agrees to grant a public access
easement over that portion of F Road which connects the Haleki'i Street Extension to the
Shoreline Park. The dedication and easement described in the preceding sentence shall. each be
made or granted not later than 30 days after the Bypass Highway is opened. Oceanside agrees
that there will be no gate on the Haleki'i Street Extension or on the portion of F Road that is
subject to the public access easement. Oceanside also confirms that Oceanside intends to
comply with the provisions of the CDUA for the Shoreline Park, including paragraph 26 of such
CDUA which provides as follows:
"The applicant shall provide for public access to the park at no charge, provided that
reasonable restrictions may be imposed on such access to protect the park from overuse
and activities prohibited by law. Public access to the park shall be available from dawn
to dusk, provided that, after dusk and before dawn, access shall be available on a
controlled basis and allowed by permit unless otherwise provided for in this approval."
10. AMENDMENTS TO SECTION 17 OF SETTLEMENT AGREEMENT.
10.1 Section 17.1 of the Settlement Agreement is hereby amended and restated
to read as follows:
17.1 Legislation to Amend County Grading and Grubbing Ordinance to
Increase Protection for Cultural Resources and Marine Environment In an effort to
minimize flooding and provide greater protection for cultural, historical and burial sites,
and the marine environment, and at the request of the Plaintiffs, the County
Administration shall work with Plaintiffs to draft, introduce (within six months after the
Effective Date) and support before the County Council legislation that would amend
Chapter 10 and Chapter 27 of the Hawaii County Code, consistent with the public
interest. The focus of these cooperative efforts shall be to amend Chapter 10 and Chapter
27 of the Hawaii County Code in a manner that would increase the level of education and
enforcement regarding minimization of flooding and protection of cultural, historical and
burial sites and the marine environment. Such amendments could include:
17.1.1 Modifying "Section 10-1 Purpose" to read as follows: "The
purpose of this chapter is to provide minimum standards to prevent flooding, soil erosion,
and sedimentation, thereby protecting public health, safety and welfare, public and
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private property, historic and cultural sites, state nearshore water quality standards, rivers,
streams, forests, watersheds, water aquifers, and all other land and natural resources
through the regulation of grubbing and grading associated with construction, agriculture
and other eatthmoving activities"
17.1.2 Requiring the County Department of Public Works ("DPW') to
independently verify the natural watercourses and drainage patterns represented in permit
application plans and map through inspection and inquiry, such as reference to past
permits granted to adjacent TMKs.
17.1.3 Preventing DPW from allowing the alteration of natural
watercourses insofar as those alterations affect neighboring properties and requiring
mitigation by the permit applicant of any redirection of water flows into existing natural
watercourses.
17.1.4 Requiring DPW to prepare flooding potential assessment reports,
and attaching such reports to all approved permits.
17.1.5 Requiring DPW to map all grubbing and grading permits issued by
TMK_ Any flooding observations made by the public and/or DPW employees or
flooding complaints made by the public would be documented and filed by TMK. The
DPW would be required to accumulate this and other information to make an annual
assessment of the specific and cumulative impacts of grubbing/grading permits on natural
watercourses and drainage patterns throughout the County. The DPW would be required
to investigate any significant changes noted in the annual grubbing/grading impact
assessment map and supporting documentation to the County Council, together with a
plan of action to resolve changes which resulted in additional flooding.
17.1.6 Requiring permit applications to identify the licensed heavy
equipment operator(s) that will perform grubbing/grading activities.
17.1.7 Requiring DPW to track permit violations by applicant, TMK, and
licensed operator, and requiring DPW to present an annual report to the County Council
of permit violations by applicant, TMK, and licensed heavy-equipment operator.
17.1.8 The implementation of educational processes as a part of the
permitting process;
17.1.9 Adding to Chapter 10 detailed definitions of activities falling under
the categories of grubbing, removal of surface vegetation, and grading, to provide better
notice to the permit holder of permitted activities;
10.2 The following new Section 17.6 is hereby added to the Settlement
Agreement:
17.6 In an effort to provide greater protection for cultural, historical and burial
sites, and at the request of the Plaintiffs, the County Administration shall work with
Plaintiffs to draft, introduce (within six months after the Effective Date) and support
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before the Comity Council kgmW w that would ammd Chapter 23 of the Hawaii
County Code, consistent with the public interest The focus of these cooperative efforts
shell be to antoend Chapter 23 of the Hawaii County Code to require rxMPaiscros of
SHPD Ambsoological Site Maps or any other SHPD dock of historic and
cultural site location, size, and/or since associated with an applicant's property to
all original and revised subdivision plat naps Sled with the County after the Effective
Date The legislation could require any diffarmtbs bdwem boundaries and/or location
of historic preservation easements to be resolved to the benefit of the cultural site being
litotected,
11. AUTHORITY. The persons signing below represent that tbey have the rAotity
to bind tl ek respective Party and that all necessary board of supervisors'. board of directors'.
shareholders' or other approvals have bow obtained.
12. SIGNATURES ON BEHALF OF PKO. This Addendum is being signed on
behalf of PKO by two duly authorized officers. By sigmas this Addendrma, such Officers ratify
and affirm the Settlement Agri, as amended and supplemented by this Addendum, as
bebalfcfPKO.
13. C01MMARTS. This Addendum may be exeeutod in am or more
cowtwpaM and all *a counterparts ball constitute but am and the same Addendum,
notwithsttadiugthat an Parties are tent signamsies to the same or original cwnterpart.
14. CONFLICTS Mn V= SBTIZEMEMT AGREEA=NT AND
ADDENDUM. Ia the event of any conflict between the Settlement Agreement and this
Addeidwu6 thin Addendum shall pwvW
IN V=4 0S WH)IDOF, the Parties have executed one or mom copies of this
Addendum as of the Effective Date.
1250 OCSANSME PARTNERS
By Red MR 1250.. huc., General Parma dlA~
By. Lylib Andemon.
Title: Cheimran
COUNTY OF HAWAII • APPROVED AS TO
FORM AND LEGALITY
gy Har i DEPUTY CORPORAIION COUNSEL
Title. Mayor COUNTY OF HAWAII
Date
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