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Home My WebLink AboutCOM 0998.019 2006-2008 Murashige, Laura , From: Gail Byrne [gailbyrne@hawaii.rr.com] .~-,;--, . ,. Sent: Wednesda , Se tember 24, 2008 10:49 AM Y p . ~e.;:~ L, "~ ` ~~ ,.. ._ ,~~lJ To: counciltestimony@co.hawaii.hi.us Subject: Bill 237 -Kohala LLC testimony ,~GJ~ SEP 24 p~ ~ y 5 Attachments: 0802409 Pln Comm Council Kohala Ranch testimony.pdf; ATT00004.txt . L~*J l:-~ D80Z409 Pln Comm ATT00004.bct (61 Council Kohal... B) Aloha, If you don',t mind, p lease distribute the attached testimony to the Council before the 2nd reading of Bi11 237. Thank you, Gail Byrne 938-8880 Comm. No. 99 p•l 9 Ref. Toted ~ ~' 1 Ref. Date~F Preserving the North Kohala Coast Hawaii County Council 101 Pauahi St., Suite 3 Hilo, HI 96720-3043 September 24, 2008 Re: Support for Bi11237 - Rezoning TMK (31 5-9-1:8 to RA 15 acres Aloha, The six North Kohala nonprofit organizations and groups signing this letter represent nearly 400 families in North Kohala. First and foremost, we wish to thank the Council for its support in passing RA 15 acres zoning for this property. This rezoning is the best win-win-win-win solution for the landowner, the community, the County, and the natural resources. • This is a win for the landowner because he can still make a significant profit by building two multi- million dollar homes. It is a fact that homes that are surrounded by open space are worth more, so these two homes, individually, will be worth more than any of the seven homes that would be allowed under a RA-5 acres zoning. Also, the landowner is known to be a billionaire and one of the richest people in the world. He could still build two homes, make a profit, and put the rest of the property in conservation easement for a nice tax deduction. An individual who has brokered these types of easements in and around developments has offered their expertise and earlier this year we forwarded this offer in a letter to the landowner (through his representative). The bottom line is the landowner will profit at the proposed RA 15 acres zoning. • This rezoning certainly is more aligned with the community's 30+ years of work to protect this coastline and marine environment. And this zoning is aligned with the North Kohala Ccommunity Development Plan (CDP) that calls for protection of this coast and calls for the adherence to time limits on entitlements. The entitlements on this property have long expired and the County is completely within its rights to rezone this property. • This is a win for the County because it has an opportunity to review how the circumstances and contexts have significantly changed since the original zoning was granted and zone this land to a density that is more appropriate for the changed circumstances and our current understanding regarding land uses and their cumulative effects on natural resources. • This is a win for the natural resources. The steep slopes and many gulches on this property guarantee that any house construction will require a lot of cut and fill. Even if all the known best management practices (BMPs) were used, there will be more sediment that ends up in the water through runoff and/or air deposition. The footprint and amount of ground disturbed for two houses is significantly less, than seven homes (as would be allowed under RA 5 acres). RA - 15 acres provides better protection for the resources. Finally, we understand the concern regarding takings issues and are deeply saddened that the landowner might threaten the County with a lawsuit. However, we have asked three land use lawyers to look at this issue and all three concur that it is unlikely the landowner will prevail in a takings lawsuit. Not only does the landowner stand to still make a significant profit but, annual reports were not filed and the required progress on the proposed project was not made. For whatever reasons, the required conditions were not met -the applicant did not follow the required procedures. The 9`h circuit Court of Appeals has upheld an Ohau case that downzoned private property from resort to conservation for public benefit and resource protection. There is certainly cause for concern about lawsuits that will force the County to take action to protect natural resources from the cumulative effects of development as allowed under the Clean Water Act and under the Coastal Zone Management Act, and certainly to uphold the Public Trust Doctrine of our State Constitution. Rulings have upheld the validity of the Public Trust doctrine to trump private land rights specifically for the protection of water and beneficial uses. We do not want to see any lawsuits. We look forward to awin-win-win-win outcome where everyone benefits -the landowner, the community, the County, the resources. We have attached a summary of the many significant reasons and facts that support this change of zoning, which have been documented in previous testimony. Thank you for your consideration and proactive actions. Aloha, Stephanie Naihe Laxton Maikai'i Kamakani'O Kohala Kanoa Withington Kamakani 'O Kohala Ohana Gail Byrne Malama Kohala Kahakai Mike Isaacs Kohala Historic and Cultural Preservation Group Fred Cachola Malama Na Wahi Pana O Kohala Toni Withington Hui Lihikai Support for Bi11237 -Rezoning TMK (3) 5-9-1: 8 Page 2 of 4 Significant Reasons and Facts that Support this Change of Zoning a)This coastline is home to the most numerous and intact, pre-contact archeological and cultural sites in the State. b)The vast majority of land in North Kohala is zoned Ag-20 acres. c)The reef immediately offshore of this area is already severely impacted by up-slope development. d)The North Kohala Community Development Plan calls for the County to adhere to time limits set on development proiects and recommends Qreater protection for the North Kohala coastline, including a cultural district overlay that will provide better protection for the cultural and natural resources of this coast. Kohala LLC did not meet the conditions for a time extensions and the circumstances and contexts under which the original zoning and permits for this parcel were approved have significantly changed including, 1) Very compelling documentation that development and construction activities upslope of this area have already significantly degraded water quality. A State marine biologist has publicly stated that the reef immediately offshore of this property has been severely impacted and is "a mess". Low-lying coral has been killed and is now covered by a layer of filamentous algae and everything that lived in the sand, mollusks, worms and urchins, is dead. The scale of damage in this area, immediately offshore of Kohala LLC, is significantly greater than the damage that precipitated the EPA investigations and fines against Hokulia. Additional development of any kind will only contribute to this problem, especially development on this parcel that borders the ocean. There are no best management practices (BMPs) on the planet that can guarantee no further degradation. 2) There is an even greater body of evidence and support that the proposed Kohala LLC project is not at all aligned with what the community has consistently expressed with regard to preserving the coastline. The input received in the last two years during the community readiness program for the North Kohala Community Development Planning (CDP) process and the draft recommendations emerging from the focus groups for the CDP, including a call for rezoning the State coastal lands to Conservation, clearly identify preserving this coast free of any development. e)The land immediately north of this parcel will most likely be rezoned to Conservation in the next year (see item m, below). f) The parcel has steep slope with many gulches and rolling topography. Developing this parcel will require cut and fill and will result in more resource degradation during and after construction. g)There is absolutely NO takings issue or concern with the re-zoning of Kohala LLC to Ag-15 acres. Annual reports were not filed and the required progress was not made. For whatever reasons, the required conditions were not met -the applicant did not follow the required procedures. Again, there are no takings here. The 9`h circuit Court of Appeals has upheld an Ohau case that downzoned private property from resort to conservation for public benefit and resource protection. There is no takings with the regard to the Kohala LLC proposed re-zoning. Support for Bi11237 -Rezoning TMK (3) 5-9-1: 8 Page 3 of 4 h) There is certainly cause for concern about lawsuits that will force the County to take action to protect natural resources from the cumulative effects of development as allowed under the Clean Water Act and under the Coastal Zone Management Act, and certainly to uphold the Public Trust Doctrine of our State Constitution. Rulings have upheld the validity of the Public Trust doctrine to trump private land rights specifically for the protection of water and beneficial uses. i) The North Kohala community has been working for 30+ years to preserve this coastal area makai of Akoni Pule Hwy in open space. j) The community has repeatedly asked over the years that this coastline be zoned Conservation. k) Over 8,000 signatures have been gathered in three separate petitions asking for protection of this coast, including this area. 1) Over the last 30 years, there are multiple resolutions and plans at the State and County level calling for greater protection of this coastline, including purchasing private parcels. m) The North Kohala Community Development plan calls for the re-zoning of all State lands makai of Akoni Pule Highway in North Kohala to Conservation. A bill was introduced this last legislative session to downzone these State lands and passed both the House Committee on Water Land and Hawaiian Affairs and the House Committee on Agriculture. Organizations from around the State have testified in support of HB-2607 including the University of Hawaii and the Office of Hawaiian Affairs. The bill was killed by the Office of Planning who had concerns regarding the cost of downzoning but after conversations with the DLNR, we are confident there is a way to honor the intent of the bill. Support for Bi11237 Rezoning TMK (3) 5-9-1: 8 Page 4 of 4