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HomeMy WebLinkAboutCOM 0968.000 1998-2000 Stephen K. Yamashiro tv w M4~ Harry A. Takahashi Mayor Managing Director Henry Cho Deputy Managing Director COUNTY OF HAWAII 15 Aupuni Street, Room 215 • Hilo, Hawaii 967204252 • (808) 961-8211 L Fax (808) 961.6553 KONA: 75-5706 Kuakini Highway, Suite 103 a Kailua-Kona, Hawaii 96740 (808)329-5226 • Fax(808)326-5663 October 25, 2000 Honorable James Y. Arakaki, Chairman and Members of the County Council County of Hawaii 25 Aupuni Street Hilo, HI 96720 Dear Chairman Arakaki and Members: Change of Zone Ordinance No. 96 8 (REZ 765) Applicant: 1250 Oceanside Partners (Hokuli'a) Request: Amendment to Condition M (Roadway Improvements) Tax Map Key: 7-9-6:Portion of 1; 7-9-12:Por. of 3, 4, & 5; 8-1-4:Por. of 3 State Land Use Boundary Amendment Application (SLU 00-008) Request: Agricultural to Rural Change of Zone Application (REZ 00-009) Request: A-5a to RA-2a Applicant: P. Mariah Kosters Tax Map Key: 6-2-11:28 State Land Use Boundary Amendment Application (SLU 00-007) Request: Agricultural to Rural Change of Zone Application (REZ 00-008) Request: A-5a to RA-2a Applicant: Andrew Kelsey Tax Map Key: 6-2-9:22 Change of Zone Application (REZ 99-027) Applicant: Queen Liliuokalani Trust Request: A-5a to RCX-2a Tax Man Key: 7-4-8:Portion of 1 Burl Sys Corntn. No._ F;,:. Nc. Honorable James Y. Arakaki, Chairman and Members of the County Council Page 2 October 25, 2000 As required by Chapter 4, Sec. 5-4.3(C), Hawaii County Charter, transmitted herewith for the County Council's consideration and action are the Planning Commission's letters and enclosures regarding the above-referenced requests. Sincerely, Fo? Stephen I¢. Yamdshiro Mayor LI00600MAY Enclosures cc: Planning Department rr os!y,, Stephen K Yan ashiro Mayor (gIIUUfg of ~r£uttii PLANNING COMMISSION 25 Aupuni Street, Room 109 • Hilo, Hawaii %7204252 (808) 961-82M • Pax (808) %1-9615 OCI 2 5 2000 Honorable James Y. Arakaki, Chairman and Members of the County Council County of Hawaii 25 Aupuni Street Hilo, HI 96720 Dear Chairman Arakaki and Members: Change of Zone Ordinance No. 96 8 (REZ 765) Applicant: 1250 Oceanside Partners (Hokuli'a) Request: Amendment to Condition M (Roadway Improvements) Tax Man Key; 7 9-6•Portion of 11 7-9-127Portions of 3 4 and 5. 8-1-4•Portion of 3 The Planning Commission, after a duly held public hearing on October 6, 2000, voted to recommend for your approval the proposed legislative bill to amend Condition M (roadway improvements) of Ordinance No. 96 8, which reclassified lands from an Agricultural (A-5a) and Unplanned (U) to Agricultural (A-1 a) zoned district. The project site is the Hokuli`a development located approximately 2 miles west (makai) from Kealakekua Village at Honuaino 3' and 4"', Hokukano 1" & 2"a, Kanuenue I" & 2"d, Haleki`i, Keekee 1" & 2"a, Ilikahi, Kanakau V & 2"a Kalukalu 1s`, 2"a & Yd, and Onouli 1", North and South Kona, Hawaii. The Commission concurs with the following Planning Director's reasons for recommending favorable consideration of the request: Condition M of Ordinance No. 96-8 currently states that: "All roadway improvements stated in Condition L of this ordinance shall be dedicated to the County of Hawaii." The applicant is requesting that Condition M be amended in order to allow them the option of maintaining the proposed Halekii Street extension in private ownership and Honorable James Y. Arakaki, Chairman and Members of the County Council Page 2 to make the language of Condition M consistent with the language of similar roadway- related conditions contained within other land use permits previously issued by the Planning Commission to allow the proposed Hokulia project. These conditions of approval included Condition 8 of Use Permit No. 115 and Condition No. 9 of Special Management Area Use Permit No. 345. Condition M of Ordinance 96-8, as proposed by the applicant, would read as follows (new material underscored): "M. All roadway improvements stated in Condition L of this ordinanc- shall be dedicated to the County of Hawaii ,provided that. in lieu of dedication. Haleki'i Street may be retained in private ownership. subject to a perpetual easement for public use and a road maintenance agreement meeti~tg with the approval of the Department of Public Works. and provided further that all improvements shall meet with the approval of the Department of Public Works." According to the applicant, the primary purpose of this request is to allow the Haleki'i Street extension as well as the proposed stub-out to the property line (Road Q to remain in private ownership. An easement to allow public access over the Haleki'i extension has been provided in accordance with existing conditions of approval. This will ensure public use of the roadwav for access to the shoreline park without pl -icing the responsibility of maintenance of and liability for these improvements on the County of Hawaii. Oceanside will be responsible for the construction, maintenance, repair and replacement of these subject roads at no cost to the County of Hawaii. " The applicant goes on further to state that, "Our proposed amendment would assure perpetual public access over the Haleki'i Street extension. This would allow Oceanside to install and maintain the landscape along the road in keeping with the character o the project, as is presently addressed in the Road Maintenance Agreement dated September 16, 1 ?99, between the County of Hawaii and 1250 Oceanside Partners." Approval of this amendment request will not be contrary to the General flan or Zoning Code nor to the original reasons for granting of the change of zone. The applicant's request to amend Condition M will simply provide the applicant with the option to maintain the proposed Halekii Street extension under private ownership. The maintenance of the Halekii Street extension in private ownership will not compromise the effectiveness or safety of traffic movements within the project site or within this particular section of South Kona. The private ownership of internal roadways w ithin a particular development is not uncommon to the County. Various subdivisions and resort developments throughout the island maintain privately-owned internal roadway systems that have not had any adverse effect upon the effectiveness and safety of the County's roadway system. Honorable James Y. Arakaki, Chairman and Members of the County Council Page 3 Public access along the proposed Halekii Street extension to the proposed shoreline park located along the coastal portion of the project site will be ensured by the establishment of public access easements as will be required by the proposed amended Condition M as well as conditions of approval included within Special Management Area Use Permit No. 345 and Use Permit No. 115. Therefore, a favorable recommendation of the applicant's request will not compromise public accessibility to the coastal areas of the project site. The scope of the proposed project, as represented by the applicant and a, approved through the adoption of Ordinance No. 96-8 by the County Council, w ill not change as a result of this favorable recommendation of the proposed amendmem to Condition M.. The consistency of the proposed Hokulia development with the applicable goals, policies, standards and courses of action of the Hawaii County General Plan will be preserved. For your favorable consideration, an amendment to Ordinance No. 96-8 is transmitted. We are enclosing a copy of the request, a copy of the staff background, public testimonies and additional documents for your information. Sincerely, /Z/ Richard B. Baker, Jr., Chairman Planning Commission Loceansiderez765QPC Enclosures cc: Mr. Robert Stuit Mr. William L. Moore R. Ben Tsukazaki, Esq. Department of Public Works Department of Water Supply West Hawaii Office Kazu Hayashida, Director/DOT-Highways, Honolulu June 20, 2000 Ms. Virginia Goldstein County of Hawaii, Planning Department 25 Aupuni Street Hilo, Hawaii 96720 Subject: Amendment to Condition M Zoning Ordinance No. 96-8 TMK: 7-9-06: Honuaino 3rd and 4`h, Hokukano I" and 2nd, Kanuenue l"' and 2"d, Haleki'i, Keekee V and 2"d, Ilikahi, Kanakau lst and 2"d, Kalukalu lst and 2"d, and Onouli 1", Portion of 1; 7-9-12: Portions of 3,4, and 5; and 8- 1:04: Portion of 3; North and South Kona, Hawaii Island. Hokuli'a by 1250 Oceanside Partners Dear Ms. Goldstein: This is to request an amendment to Condition M contained in County of Hawaii Ordinance No. 96-8 (Zoning Ordinance). This Zoning Ordinance, which reclassified approximately 683.592 acres of land from Agricultural-5 acre (A-5a) and Unplanned (U) to Agricultural-1 acre (A-la) was originally adopted as Ordinance No. 94-73 on June 23,1994 and amended by Ordinance No. 96-8 on January 15, 1996. More specifically, 1250 Oceanside Partners (Oceanside) is requesting an amendment to Condition M of Ordinance No. 96-8 which currently states: "All roadways improvements stated in Condition L of this ordinance shall be dedicated to the County of Hawaii." Oceanside requests that Condition M be amended in order to make the language consistent with the language of conditions in companion permits for the project, those being Condition 8 of Use Permit No. 115, and Condition 9 of Special Management Area Permit No. 345. Condition M of Ordinance 96-8 would thus read as follows, (new language in italics): "All roadway improvements stated in Condition L of this ordinance shall allow for perpetual public use by easement or shall be dedicated to the County of Hawaii." t.~ ~j r6) ~ 78-GA31 0,'i Drive ''K15, Kuilua-Fonu, Hol"'Iff 96, 4V Iclcphonc 808-324-1500 Fov 8017-324 0177 iAw hol:ifha com ATMcfq; C 9 bs t 8m 3".11 -Page Two- The primary purpose of the request is to allow the Haleki'i Street extension as well as the proposed stub-out to the property line (Road C) to remain in private ownership. An easement to allow public access over the Haleki'i extension has been provided in accordance with existing conditions of approval. This will ensure public use of the roadway for access to the shoreline park without placing the responsibility of maintenance of and liability for these improvements on the County of Hawaii. Oceanside will be responsible for the construction, maintenance, repair and replacement of these subject roads at no cost to the County of Hawaii. Furthermore, we believe the amendment of Condition M of Ordinance No, 96-8 will not result in any reduction in public rights available under the current zoning and/or land use approvals. Ordinance Nos. 96-7, 96-8 and 97-36, Special Management Area Use Permits No. 345 and 356 and Use Permit No. 115 and Development Agreement No. 1 all provide sufficient saf.guards and requirements related to public use of the Haleki'i Street extension within Hokuli'a. With respect to the assurance of public use of Haleki'i Street, the following conditions of approval of the various land use permits assure public use and access of this l oadway by alternate means: Use Permit No. 115, Condition No. 8 The AIN Drive-Haleki'i Street extension shall be constructed as an arterial along its general mauka-makai alignment as shown on the General Plan Facilities Map to County dedicable standards, meeting with the approval of the County Department of Public Works. The mauka-makai alignment of Ali'i Drive-Haleki'i Street shall be installed prior to issuance of a certificate or occupancy or golf course opening, whichever occurs first. The Ali'i Drive-Haleki'i Street extension shall allow for perpetual public use by easement or be dedicated to the Cour ty. (Emphasis added). Special Management Area Use Permit No. 345, Condition No. 9: The Ali'i Drive-Haleki'i Street extension shall allow for perpetual public use by easement or be dedicated to the County. (Emphasis added). Gr~a 78-6831 dli'i Pr //K15, 1- it ~i-Kona. Hdwuii 0674C 7clephon, 805 324-1500 Fat'. WS324 0171 II uivi) holmhu com -Page Three- For your information, as part of Final Subdivision Approval for the initial phase of the Hokuli'a project, a perpetual public easement for public access over Haleki'i Street and other project roadways to provide access to the shoreline park has been executed and recorded with the Bureau of Conveyances. A copy of the easement document is attached for your information. Enclosed herewith is the following: 1. Filing fee of $250 payable to the County of Hawaii; 2. Tax Clearance for the properties, involved; 3. List of Surrounding Property Owners; 4. Twenty (20) copies of the application letter. Please call me if you have any questions or require additional information regarding this request. Thank you for your consideration of this matter. Si er Robert A. Stuit Vice-President, Development 1250 Oceanside Partners Attachments cc: William L. Moore, WLM Planning, wio attachments R. Ben Tsukazaki, Esq, TY & M, w/o attachments G~~a 78-6831 ill -i f), na: 4R15, Fal I,, crMnt, Harv,aii 967-0 RIcI, hoi c 308-32--1500 17a 508-329-01~ 1 wwH_hchuharom 130=n1'.EMsa.doc-10/04/00 COUNTY OF HAWAII PLANNING DEPARTMENT BACKGROUND REPORT 1250 OCEANSIDE PARTNERS (HOKULI'A) AMENDMENT TO CONDITION M CHANGE OF ZONE ORDINANCE NO. 96- 1250 Oceanside Partners (Hokuli'a) is requesting an amendment to Condition M (roadway improvements) of Ordinance No. 96-8 which reclassified lands from Agricultural (A-5a) and Unplanned (U) to Agricultural (A-la) zoned district. The project site is tha Hokuli'a development located approximately 2 miles west (makai) from Kealakekua Village at Honuaino 3 a & 4a', Hokukano 151 & 2"a, Kanuenue 151 & 2"a Haleki'i, Keekee ls` & 2"d. Ilikahi, Kanakau 15` & 2"a Kalukalu Is` 2nd & 3`a, and Onouli ls`, North and South Kona, Hawaii, TMK: 7-9-06: Portion of 1; 7-9-12: Portions of 3, 4 and 5; and 8-1-04: Portion of 3. BACKGROUND INFORMATION 1. June 28, 1994 - Effective date of Change of Zone Ordinance No. 94-73 that rezoned approximately 637 acres of land from an Agricultural-5 acres (A-5a) and Unplanned (U) to an Agricultural-I acre (A-la) zoned district (See Exhibit A- Excerpt of Ordinance No. 96-8). The proposed change of zone would affect the mauka half of the 1,.i40-acre project site known as Hokuli'a (formerly known as the Villages at Hokukano). The change of zone will accommodate the development of a 367-lot agricultural/residential subdivision consisting of lot ranging in size from 1 acre to 3 acres. Development of the residential-agricultural subdivision is anticipated to begin in 1995 and be completed within 10 to 15 years, when build-out of the approximately 367 residences is aliticipated. Approval of Ordinance No. 94-73 is subject to, in part, the following Conditions L, M and N: "L. Roadway improvements and access(es) to the subject property, including all plans and construction, shall meet with the approval of the Department of Public Works. Prior to the issuance of Final Subdivision Approval for any portion of the subject property, the applicant shall: r' C l- (1) construct the channelization and signalization of the Mamalahoa Highway-Haleki'i Street intersection; (2) determine the final right-of-way alignment of the entire Mamalahoa Bypass road as shown in Exhibit "C", including its intersection areas and its acquired ownership or control. The applicant shall provide the Planning Director with a metes and bounds description of each road right-of-way segment involved and evidence of its ownership or control as deemed necessary by the Planning Director. In lieu of the applicant obtaining; or acquiring ownership or control of any segment within the Phase Two portion of the Mamalahoa Bypass road, the requirement shall be deemed fulfilled upon the county's formal initiation of condemnation action for such segments and an agreement has been entered into to between the applicant and the county providing for the applicant's reimbursement to the county for the acquisition of the lands condemned; (3) construct Phase One of the Mamalahoa Bypass as shown in Exhibit "C", consisting of two lanes with sufficient right-of-way for a total of four lanes; (4) construct the channelization improvements on Kuakini Highway at its intersection with the north end of the Mamalahoa Bypass; (5) construct the extension of Haleki'i Street through the subject property as generally reflected in Exhibit "B", which phasing of improvements shall be approved by the Department of Public Works. A barricade or breakaway gate, meeting with the requirements of the Department of Public Works, shall be installed by the applicant as part of the required Haleki'i Street improvements prior to the completion of Phase 1 of the Mamalahoa Highway Bypass or the construction of any dwelling unit or golf course clubhouse facility, whichever occurs first. The purpose of this condition is to prevent the use of Haleki' i Street as a vehicular thoroughfare between the existing Mamalahoa Highway and the Phase 1 section of the Mamalahoa Highway Bypass until the entire proposed Bypass has been completed and opened for general public use; and (6) provide roadway stub-outs, generally shown in Exhibit "B", to provide future connections between the subject property, the AM Highway, and southern extensions there from; provided that such stub-outs shall be constructed in accordance with the construction phasing as approved by the Department of Public Work:,. -2- The applicant shall construct the Mamalahoa Bypass to State Department of Transportation-Highways Division Standards for a regional arterial bypass highway or segments thereof, and shall provide a landscape buffer along highway sections within five hundred feet of existing dwelling , as required by the chief engineer, to reduce the impacts of noise and light on the residents therein and to generally beautify the highway appearance in such locations. Roadway segments providing the bypass's connection with the existing highways at its north termini shall be built to Bounty dedicabee standards for secondary arterials, pursuant to Chapter 23 of the Hawaii County Code, instead of the State DOT standards for rr ajor arterials, in the case where the roadway segment is consistent with a Department of Transportation plan which provides for such segments to be a lesser, connector road and for the later extension of the arterial bypass highway to be substantially further north or south before merging with other arterial roadways; provided that the applicant shall enter into a reimbursement agreement with the County which sets forth the terms and conditions of reimbursement for costs incurred for the construction, land acquisition and design of the Mamalahoa Highway Bypass out of funds paid to the state and/or county by other developers or landowners whom the county may determine as benefiting from the Bypass Highway and which funds are available to the county for such purpose; and provide further, that the total amount of reimbursement due to the applicant shall not exceed the total cost of land acquisition, design and construction of the Bypass Highway incurred by the applicant, less the pro rata portion attributed to the subject property; (M) Prior to Final Subdivision Approval of any portion within Area 2 as shown in Exhibit "D" except for the golf course, golf clubhouse, lodge and related facilities, the applicant shall: (1) complete the construction of the Phase Two of the Mamalahoa Bypass consisting of two lanes with sufficient right-of-way for a total of four lanes as shown in Exhibit "C", meeting with the approval of the Department of Public Works, in consultation with the State Department of Transportation-Highways Division; and (2) complete the construction of the Mamalahoa Bypass channelization improvements at its intersection with Mamalahoa Highway and Napo'opo'o Road, meeting with the requirements of the Department of Public Works, in consultation with the State Department of Transportation-Highways Division; (N) All roadway improvements stated in Condition L and M of this ordinance shall be dedicated to the appropriate government entity. Those improvements associated with the Mamalahoa Highway Bypas: shall by offered to the State Director of Transportation pursuant to Section 264-1 -3- of the Hawaii Revised Statutes. Any connector roadways, and any portion of the Mamalahoa Highway Bypass not accepted by the State Director of Transportation shall be dedicated to the County, as provided by law;" 2. August 10, 1995 - Applicant submitted a request to amend Conditions L (various roadway improvements), N (dedication of roadways), P (bonding of infrastru(tural improvements) and Q (regional roadway improvements) and to delete Condition M (construction of improvements prior to Final Subdivision Approval) of Ordimice No. 94-73. The purpose of the requested amendments was due to the realignment of the proposed Mamalahoa Bypass Highway. 3. January 15, 1996 - Effective date of Ordinance No. 96-8 which amended vat ions conditions of approval within Ordinance No. 94-73, including a revision to Condition N that results in a new Condition M: (material deleted is bracketed with material added underscored): [N]M. "All roadway improvements stated in Condition L [and M ]of this ordinance shall be dedicated to the [appropriate government entity. Those improvements associated with the Mamalahoa Highway Bypass shall by offered to the State Director of Transportation pursuant to Sect on 264-1 of the Hawaii Revised Statutes. Any connector roadways, and any portion of the Mamalahoa Highway Bypass not accepted by the State Director of Transportation shall be dedicated to the County, as provided by law]County of Hawaii;" 4. April 20, 1998 -The applicant and the County of Hawaii enters into a Development Agreement to identify obligations of the applicant to provide assurance that infrastructural obligations are met in a timely manner, to provide assurances tc the applicant that it may complete full development of the Hokuli'a project (previ(,usly Hokukano project) and the Mamalahoa Highway Bypass, to allow the applicant and the County to enter a reimbursement agreement for costs associated with the Bypass and to reduce or eliminate uncertainty in the responsibilities of the applicant and the County relating to the development of the project and the Bypass. The agreement will: "(i) provide for the parameters within which the obligation of Oceanside for public or other improvements will be met; (ii) provide assurances to Oceanside that the project will not be restricted or prohibited by the subsequent enactment or adoption of more restrictive Land Use regulations, including but not limited to changes in zoning classifications or -4- revocation of Oceanside's approvals, except when, with the agreement of Oceanside, it becomes necessary to preserve the public health, safety and welfare; and (iii) provide appropriate assurances to Oceanside that it may complete the development and construction of the Project in accordance with all Land Use Regulations and Approvals applicable to the Project on the date of this Agreement, subject to Oceanside's adherence to and performance of all material conditions of this Agreement." The scope ;md purpose of the agreement is consistent with Ordinance No. 93-97, the application, preraration and administration of development agreements as provided by Ordinance No. 93-97. The roadway alignment has been agreed to by the landowners and the County of Hawaii Department of Public Works. Oceanside has continued discussions with each of the landowners along the Bypass route regarding acquisition of right-of-way sufficient to build the road. Oceanside has finalized options to purchase these portions of the right-of- way from several of the landowners. Condemnation procedures are pending for two of the parcels. 5. September 18, 1999 - Phase I was granted Final Subdivision Approval (Subdivision No. 7168) by the Planning Director for the creation of 262 lots ranging is size from one to three acres. APPi IC'ANT'S REQUEST 6. By letter dated June 20, 2000, the applicant requests that Condition M be amended in a manner that does not require that all roadway improvements within the proposed development be dedicated to the County of Hawaii. 7. Supportive Information: In support of the request, the applicant submitted, in part, the following: "This is to request an amendment to Condition M contained in County of Hawaii Ordinance No. 96-8 (Zoning Ordinance). This Zoning Ordinance, whi :h reclassified approximately 683.592 acres of land from Agricultural-5 at;re (A-5a) and Unplanned (U) to Agricultural-1 acre (A-1 a) was originally adopted as Ordinance No. 94-73 on June 23, 1994 and amended by Ordinance No. 96-8 on January 15, 1996. More specifically, 1250 Oceanside Partners (Oceanside) is requesting an amendment to Condition M of Ordinance No. 96-8 which currently staff es: `All roadway improvements stated in Condition L of this ordinance shall be dedicated to the County of Hawaii.' -5- Oceanside requests that Condition M be amended in order to make the language consistent with the language of conditions in companion permits for the project, those being Condition 8 of Use Permit No. 115, and Condition 9 of Special Management Area Permit No. 345. Condition M of Ordinance 96-8 would thus read as follows, (new language in italics): `All roadway improvements stated in Condition L of this ordinance shall allow for perpetual public use by easement or shall be dedicated to the County of Hawaii.' The primary purpose of this request is to allow the Haleki'i Street extension as well as the proposed stub-out to the property line (Road C) to remain in private ownership. An easement to allow public access over the Haleki'i extension has been provided in accordance with existing conditions of approval. This will ensure public use of the roadway for access to the shoreline park without placing the responsibility of maintenance of and liability for these improvements on the County of Hawaii. Oceanside will be responsible for the construction, maintenance, repair and replacement of these subject roads at no cost to the County of Hawaii. Furthermore, we believe the amendment of Condition M of Ordinance No, 96-8 (sic) will not result in any reduction in public rights available under the current zoning and/or land use approvals. Ordinance Nos. 96-7, 96-8 and 97-36, Special Management Area Use Permits No. 345 and 356 and Use Permit No. 115 and Development Agreement No. 1 all provide sufficient safeguards and requirements related to public use of the Haleki'i Street extension within Hokuli'a. With respect to the assurance of public use of Haleki'I Street, the following conditions of approval of the various land use permits assure public use; and access of this roadway by alternate means: Use Permit No. 115, Condition No. 8 The Ali'i Drive-Haleki'i Street extension shall be constructed a, an arterial along its general mauka-makai alignment as shown on the General Plan Facilities Map to County dedicable standards, meeting with the approval of the County Department of Public Works. The mauka-makai alignment of Ali'i Drive-Haleki'i Street shall be installed prior to issuance of a certificate of occupancy or golf course opening, whichever occurs first. The Ali'i Drive-Haleki'i Street extension shall allow for perpetual public use by easement or he dedicated to the County. (Emphasis added). Special Mangement Area Use Permit No. 345, Condition No. 9: The Ali'i Drive-Haleki'i Street extension shall allow for perpetual public use by easement or he dedicated to the County. (Emphasis added). -6- For your information, as part of Final Subdivision Approval for the initial phase of the Hokuli'a project, a perpetual public easement for public access over Haleki'I Street and other project roadways to provide access to the shoreline park has been executed and recorded with the Bureau of Conveyances. A copy of the easement document is attached for your information." APPLICANT'S AMENDED REQUEST 8. By letter dated October 4, 2000 (See Exhibit B), the applicant requested that the proposed amendment to Condition M be revised to address concerns expressed by the Department of Public Works in its memorandum dated September 15, 2000. In summary, the applicant is requesting that Condition M be amended as follows (material to be deleted is bracketed and material to be added is underscored): "M. All roadway improvements stated in Condition L of this ordinance shall be dedicated to the County[ of Hawaii]. provided that, in lieu of dedication. Haleki'i Street may be retained in private ownership, subject to a perpetual easement for public use and provided further that all roadway improvements shall meet with the approval of the Department of Public Works. In summary, the applicant is requesting that Condition M be amended to allow them the option of maintaining the proposed Haleki'i Street extension in private ownership. The proposed amendment to Condition M will not affect the dedication of the proposed Mamalahoa Highway Bypass to the County. AGENCIES' COMMENTS: 9. Department of Public Works (July 19, 2000 Memo): "We have reviewed the subject application to amend Condition M (Roadway improvements). We have no comments on or objections to the request." 10. Department of Public Works (September 15, 2000 Memo): "Please accept this revision to our response dated July 19, 2000 related to the subject request for amendment to condition M (Roadway improvements). We have no objection to Road C and the portion of Halekii Street makai of the Mamalahoa Highway Bypass remaining private with a perpetual public use easement. The amendment also appears to allow dedication of the Halekii Street extension mauka of the Mamalahoa Highway Bypass and the entire Mamalahoa Highway Bypass to be optional. If so, we object to the amendment as proposed by the applicant and urge clarification to require dedication of -7- the entire Mamalahoa Highway Bypass." 11. Applicant's Response to Department of Public Works comments: (See Exhibit B - Applicant's letter dated October 4, 2000) 12. State Department of Land and Natural Resources (July 7, 2000 Letter): "Thank you for your letter of June 23, 2000 and the opportunity to review and comment on the subject application. "The applicant, Oceanside 1250 Partners, is requesting an amendment to Condition M of Change of Zone Ordinance No. 96-8. The request is to change the wording in Condition M so that all roadways improvements stated in Condition L shall allow for perpetual public use by easement or shall be dedicated to the County of Hawaii. "The requested change will have `no effect' on significant historic sites." 13. Police Department (June 29, 2000 Memo): "Staff has reviewed the above-referenced amendment and has no comments or objections to offer at this time." 14. Fire Department (July 11, 2000 Memo): "We have no comments regarding the above-referenced Change of Zone Ordinance." AGENCIES - NO RESPONSE 15. Department of Water Supply, Civil Defense, Real Property Tax Division, Office of Housing and Community Development, Department of Land and Natural Resources-Land Division, Department of Health, State Department of Transportation and State Land Use Commission -8- COUNTY OF HAWAII STATE OF HAWAII BILL NO. 181 (Draft 6) ORDINANCE NO. 96 8 AN ORDINANCE AMENDING SECTION 25-87 (NORTH KONA ZONE MAP) AND SECTION 25-88 (SOUTH KONA ZONE MAP), ARTICLE 3, CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE, AND ORDINANCE NO. 94-73, WHICH CLASSIFIED CERTAIN LANDS FROM AGRICULTURAL (A-5a) AND UNPLANNED (U) TO AGRICULTURAL (A-I a) AT HONUAINO 3RD AND 4TH, HOKUKANO 1ST AND 2ND, KANAUEUE 1 ST AND 2ND, HALEKII, KEEKEE 1 ST AND 2ND, ILIKAHI, KANAKAU 1ST AND 2ND, KALUKALU 1ST, 2ND AND 3RD AND ONOULI 1ST, NORTH AND SOUTH KONA. HAWAII, COVERED BY TAX MAP KEY 7-9-06:PORTION OF 1, 7-9-12:PORTIONS OF 3, 4, AND 5 AND 8-1-04TORTION OF 3. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Ordinance No. 94-73 is amended as follows: "SECTION 1. Section 25-87, Article 3, Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of properties described hereinafter as follows: The district classification of the following area situated at Kanaueue 1st and 2nd, North Kona, Hawaii, shall be Agricultural (A-la): PARCEL 1: Beginning at the Southeasterly comer of this parcel of land, being also a point on the Northerly boundary of Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions, being also a point on the division between North and South Kona, the coordinates of said point of beginning referred to Government Survey Triangulation Station "PUU OHAU" being 1,704.58 feet North and 6,126.02 feet East and running by azimuths measured clockwise from True South: 1. 710 45' 902.30 feet along Royal Patent 1670 to John D. Parish on a portion of Land Commission Award 387, Part 4, Section 2 to American Board of Commissioners for Foreign Missions to a point; 2. 1520 14' 1,055.02 feet along the remainder of Grant 865 to John Nakookoo to a point; EXHIBIT A 73. 335° 16' 30 329.74 feet to a point; 74. 336' 16' 30" 122.94 feet to a point; 75. 334° 3S' 30" 193.93 feet to a point; 76 335' 59' 267.46 feet to a point; 77. 329° 13' 30" 141.50 feet to the point of begiiuiing and containing an area of 271.415 Acres. (Refer to Parcel 4 as shown on Exhibit "A".) All as shown on the map attached hereto, marked Exhibit "A" and by reference made a part hereof (herein after referred to as "subject property"). SECTION 3. These changes in district classification are conditioned upon the following: (A) The applicant, successors or assigns shall be responsible for complying with all of the stated conditions of approval; (B) The effective date of the rezoning shall be upon: (1) the execution of an agreement, between the applicant, Lyle Anderson, and the County through its Department of Water Supply and Planning, to assign water commitment rights in the Kealakekua Source Agreement to the current landowners of the subject property within one-hundred-eighty (180) days from the effective date of this ordinance; provided that a maximum ninety (90) day extension may be granted by the Planning Director with reasonable and sufficient justification; and (2) the acceptance by the Department of Water Supply of the required water commitment payment in accordance with its "Water Commitment Policy" within one-hundred-eighty (180) days from the effective date of this ordinance; (C) Subdivision plans for any portion of the subject property shall be submitted to the Planning Department and Tentative Subdivision Approval secured within four (4) years from the effective date of this rezoning as determined in Condition B; Final Subdivision Approval shall be secured within five (5) years from the effective date of this rezoning as determined in Condition B. For the purpose of this ordinance, -19- Final Subdivision Approval shall be defined as the subdivision of any agricultural zoned lot to a lot less than twenty (20) acres in size within the subject property; (D) A wastewater disposal system shall constructed in a manner meeting w;th the approval of the State Department of Health and/or the Department of Public Works, whichever is applicable; (E) All electrical and communication utilities lines within the subject property shall be placed underground, with the exception of the main 69 KV transmission line from the Mamalahoa Highway to the proposed electrical substation site; (F) A Flood Study of the subject property shall be submitted to the Planning Department in conjunction with plans submitted for subdivision review for any portion of the subject property. Drainage improvements shall be constructed in a manner meeting with the approval of the Department of Public Works, prior to the issuance of Final Subdivision Approval for the subject property; (G) An archaeological mitigation and interpretation plan shall be prepared and submitted for approval by the Planning Director, in consultation with the Department of Land and Natural Resources-Historic Preservation Division, prior to submitting plans for subdivision review. The Plan shall consist of three subplans: (1) an archaeological data recovery plan for the sites to undergo data recovery, (2) a detailed interim protection/preservation plan for the sites to uncergo preservation, and (3) an interpretation plan which shall include buffer zones, signage aad long-ranee preservation concerns which may be submitted at a later date. Approved mitigation measures shall be implemented prior to or in conjunction with an}' land alterations within the subject property; (H) A final comprehensive public access plan to be developed in consultatio with communitygrouos shall be submitted to and approved by the Planning Director prior -20- to final subdivision approval or any land alteration activity. whichever comes first. The final comprehensive public access plan shall be developed in consultation with the Planning Director and the Department of Land and Natural Resources and shall in ludg mauka makai and lateral shoreline accesses. parking area(s). signage. emergency response considerations restrictions on use (if any). provi i recreational and restroom facilities at appropriate locations and related improvements [The applicant shall be responsible to comply with Condition No. 8 of SMA Permit No. 345 issued to the applicant on November 5, 1993]; provided, that the construction of the coastline park and access ways shall be subject to the obtainin; of all necessary discretionary permits (e.g., Conservation District Use Approval, Special Management Area Use Permit, etc.); provided, further, that the applicant shall be responsible to comply with the following terms and conditions: [(1) The applicant shall develop and submit a comprehensive pubic shoreline access plan for the subject property and the properties described in the SMA Permit No. 345, subject to the review and approval by the Planning Director, in consultation with the Department of Land and Natural Resources, prior to Final Subdivision Approval, or any land alteration activity, whichever comes first;] (.]J[(2)] An area comprising twenty-five percent (25%) of the total park area, as shown on Exhibit "E" attached hereto and made a part hereof, shall be developed and improved by the applicant or its agent in phases within five (5) years from the date Final Subdivision Approval is obtained on the subject property. The first phase shall be completed and open to the public within thirty (30) days following the opening of the golf course; [(3) No more than a total land area of twelve (12) acres shall be permitted to be constructed, operated and maintained as part of the applicant':. golf course, approved as Use Permit No. 115, and included within the coastline park or the existing conservation district lands;] 7(x[(4)] [A] Iipon opening the first phase of the park area- a minimum of twenty-five (25) public parking stalls in addition to parking stalls for residents, guests, and employees within the subject property and the applicant's adjacent lands at the -21- principal shoreline access parking area(s), signage and provisions for public access for night fishing and marine food gathering purposes over designated vehicular and pedestrian access routes subject to restrictions which limit said uses to recreation uses only, and other restrictions which provide for the health and safety of the general public and residents alike The number of arcking stalls shall be increased commensurately with the approval of additional park phases in accordance with the public access plan; and (3)[(5)] The public shoreline access plan shall also integrate where appropriate, any public accessway(s) to interpretive trail system(s) and to the historical and archaeological sites to be approved by the Planning Director, in consultation with the Department of Land and Natural Resources in conjunction with the detail mitigation plan for the park area situated in the Conservation district. (1) Prior to final approval of a small lot subdivision plat within the subject property, the applicant shall convey to the County of Hawaii by way of a perpetual easement the right to public access and recreational use of [the] its privately owned coastline park and trails; provided, that restrictions [in accordance with Chapter 115, Hawaii Revised Statutes,] will be allowed to be established by the applicant, subject to the approval of the Planning Director, to promote public health and safety and the general security of the premises for residents and guest of the project to protect the area's pr. Stine condition, and to minimize any liability to the applicant, pursuant to Chapter 520, Section 520-4, Hawaii Revised Statutes. The applicant shall retain ownership of its [own the] coastline park and trails in fee simple and maintain all lands in the coastline park area and operate such facility for public recreational use in accordarce with the above terms and conditions. This condition shall not bg applicable to anv roadway, trail or other rights of way which are deemed public hiehwavs or trails is defined in Chapter 264, Hawaii Revised Statutes; (J) 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 Planning Director shall bt immediately notified. Subsequent work shall proceed upon an archaeological clearan( e from the Planning Director when it finds that sufficient mitigative measures have been taken. (K) A solid waste management plan shall be prepared meeting with the approval of the Department of Public Works prior to submitting plans for subdivision review. The Plan shall include, but not be limited to, the management of construction solid waste as well as operating and domestic solid waste generated by the subject property. Approved recommendations and mitigation measures shall be implemented at a time and in a manner meeting with the approval of the Department of Public Works; (L) Roadway improvements and access(es) to the subject property, including all plans and construction, shall meet with the approval of the Department of Public Works. Prior to the issuance of Final Subdivision Approval for any portion of the subject property, the applicant shall: (1) construct the channelization and signalization of the Mamalahoa Highway- Haleki'i Street intersection; (2) determine the final right-of-way alignment of the entire Manialahoa Highway Bypass [road as shown in Exhibit "C"J between the approximate vicinity of Keauhou and Captain Cook. including its intersection areas and its acquired ownership or control. The applicant shall provide the Planning Director with a metes and bounds description of each road right-of-way segment involved and evidence of its ownership or control as deemed necessary by the Planning Director. In lieu of the applicant obtaining or acquiring ownership or control of any segment [within the Phase Two portion] of the Mama] ahoa Highway Bypass [road], the requirement shall be deemed fulfilled upon the county's formal initiation of condemnation action for such segments and an agreement has been entered into [to] between the applicant and the county providing for the applicant's reimbursement to the county for the acquisition of the lands condemned; (3) construct [Phase One ofJ the Mamalahoa Highway Bypass [as shown in Exhibit "C"J its entirely between the approximate vicinity of Keauhou and Captain Cook, consisting of two lanes with sufficient right-of-way for a total of four lanes, provided further that the section of the Marnala_hoa Highway BypasS bet wren Keauhou and Haleki'i Street shall be complete available -23- for putbli Ilse prior to the occupancy of any dwelling unit within the entire project area; [(4) construct the channelization improvements on Kuakini Highway at its intersection with the north end of the Mamalahoa Bypass;] l4) [(5)] construct the extension of Haleki'i Street through the subject property as generally reflected in Exhibit "B", which phasing of improvements shall be approved by the Department of Public Works. [A] If. before the completion and opening of the entire Mamalahoa Highway Bypass a portion of said bypass is completed and opened and said portion provides a connection to Haleki'i Street. a barricade or breakaway gate, meeting with the requirements of the Department of Public Works, shall be installed by the applicant as part of the required Haleki'i Street improvements, [prior to the completion of Phase 1 of the Mamalahoa Highway Bypass or the construction of any dwelling unit or golf course clubhouse facility, whichever occurs first.] The purpose of this condition is to prevent the use ofHaleki'i Street as a vehicular thoroughfare between the existing Mamalahoa Highway and a portion [the Pht se 1 section ]of the Mamalahoa Highway Bypass until the entire proposed Mamalahoa Highway Bypass between the approximate vicinity of Keauhou and Captain Cook has been completed and opened.for general public use; and (~5 [(6)] provide roadway stub-outs, generally shown in Exhibit "B", to provide future connections between the subject property, [the Alii Highway, and southern extensions there from:] and the adjacent properties to the north a id south* provided that such stub-outs shall be constructed in accordance with the construction phasing as approved by the Department of Public Works. The applicant shall construct the Mamalahoa Highway Bypass to [State Department of Transportation-Highways Division Standards for a regional arterial bypass highway or segments thereof, and] standards set forth by the Department of Public Works for Alii Highway with such modifications as may be deemed necessary by the Department of Public Works. The applicant shall provide a landscape buffer along highway sections within five hundred feet of existing dwellings , as required by the chief e igineer, to '4 reduce the impacts of noise and light on the residents therein and to generally beautify the highway appearance in such locations[. Roadway segments providing the bypass's connection with the existing highways at its north termini shall be built to county dedicable standards for secondary arterials, pursuant to Chapter 23 of the Hawaii County Code, instead of the State DOT standards for major arterials, in the case where the roadway segment is consistent with a Department of Transportation plan which provides for such segments to be a lesser, connector road and for tht: later extension of the arterial bypass highway to be substantially further north or south before merging with other arterial roadways]; provided that the applicant shall enter into a reimbursement agreement with the County which sets forth the terms and conditions of reimbursement for costs incurred for the construction, land acquisition and design of the Mamalahoa Highway Bypass out of funds paid to the state and/or county by other developers or landowners whom the county may determine as benefiting from the Mamalah^a Highway Bypass [Highway] and which funds are available to the county for such purpose; and provided further, that the total amount of reimbursement due to the applicant shall not exceed the total cost of land acquisition, design and construction of the Mamalahoa Highway Bypass [Highway] incurred by the applicant, less the pro rata portion attributed to the subject property; [(M) Prior to Final Subdivision Approval of any portion within Area 2 as shown in Exhibit "D" except for the golf course, golf clubhouse, lodge and related facilities, the applicant shall: (1) complete the construction of the Phase Two of the Mamalahoa Bypass consisting of two lanes with sufficient right-of-way for a total of four lanes as shown in Exhibit "C", meeting with the approval of the Department of Public Works, in consultation with the State Department of Transportation-Highways Division; and (2) complete the construction of the Mamalahoa Bypass channel ization improvements at its intersection with Mamalahoa Highway and Napo'opo' o Road, meeting with the requirements of the Department of Public Works, in consultation with the State Department of Transportation-Highways Division;] 25 (M)[(N)] All roadway improvements stated in Condition L [and M] of this ordinance shall be dedicated to the [appropriate government entity. Those improvements associated with the Mamalahoa Highway Bypass shall by offered to the State Director c f Transportation pursuant to Section 264-1 of the Hawaii Revised Statute Any connector roadways, and any portion of the Mamalahoa Highway Bypass not accepted by the State Director of Transportation shall be dedicated to the County. as provided by law] Courtly of Hawaii; j1 [O)] To ensure that the Goals and Policies of the Recreational Element of the General Plan are implemented, the applicant shall provide [a maximum of] two acres of land abutting the north side of Kona Scenic Park for public purposes prior to Final Subdivision Approval of the subject property. W(P)] In lieu of actual construction of infrastructural improvements as required under Conditions D, F, H, K, and L,[and M,] the applicant may enter into an agreement with the Planning Director to assure the county that the infrastructural improvements will be constructed together with the appropriate bond, surety or other security deemed acceptable to the Planning Director and the Corporation Counsel. Upon execution of such agreement and/or filing of the security with the County, Final Subdivision approval for the subject properry or portions thereof shall be granted prior to the actual construction of required infrastructural improvements; [(Q) The Applicant shall participate in the funding and construction of any regional roadway improvements as may be required by the State Department of Transportation, provided that any costs borne by the applicant shall be credited and limited to the amount of its fair share contribution for regional road and traffic impacts as required in Conditions L and M]; (P)[(R)j It shall be demonstrated to the satisfaction of the Planning Director that agricultural activity is being conducted on the subdivided lots within three years from the date of Final Subdivision Approval. For the purposed of this condition. "agricul ure" shall be defined as the cultivation of crops, including but not limited to flowers, vegetable. foliage, and fruits that are propagated for economic or personal use. An agricultural activity will be considered satisfactory: -26- (1) if such activity is implementing a conservation program for :he affected property(ies), as approved by the applicable soil and water cDnservation district directors and filed with the Soil Conservation Service; (2) if it provides a source of income to the person(s) who reside on the property; or (3) if the property is dedicated for agriculture uses in accordance with applicable Tax Department procedures and that such agriculture dedication shall be made a deed covenant and duly recorded with the State Bureau of Conveyances and a copy of the recorded deeds shall be filed with the Planning Department within one year from the date of Final Subdivision Approval. Each approved lot must comply with at least one of the above requirements to satisfy the conditions of approval of this ordinance; f~[(S)] Restrictive covenants in the deeds of all the proposed lots shall prohabit the construction of a second dwelling unit on each lot; provided that this shall not preclude the construction of a guest house as defined under Chapter 25 of the Hawaii County Code. A copy of the proposed covenant(s) to be recorded with the Bureau of Conveyances shall be submitted to the Planning Department for review and approval prior to final subdivision approval. A copy of the approved covenant shall be recited in an instrument executed by the applicant and the county and recorded with the Bureau of Conveyances likewise prior to final subdivision approval; LR1[(T)] [The Applicant shall pay its fair share contribution to address potential regional impacts of the subject property with respect to park, fire, police, solid waste disposal facilities, sewer and roads. The fair share contribution shall be initially based on the representations contained within the change of zone application and may be increased or reduced proportionally if the agricultural lot counts are adjusted. The fair share contributions described below shall be adjusted annually based on the percentage change in the Honolulu Consumer Price Index (HCPI). The fair share contribution for each agricultural zoned lot of the subject property less than ten acres in size shall be based on a maximum density for each lot as determined by the zoning resulting from this change of zone. The fair share contribution in a form of cash, land, facilities, or -27- any combination thereof shall have a maximum combined value of $ 4,701,205.74. In lieu of paying the fair share contribution, the applicant may construct such improvements/facilities related to park, fire, police, solid waste disposal facilities, sewers and roads with the approval of the appropriate agency(ies). Any contributions required by this ordinance that exceed the fair share requirement of this proposed development shall, at the applicant's request be credited towards any of the applicant's future developments that require infrastructural impact contributions; ) The applicant shall make `air share contribution to mitigate the potential regional impacts of the subject propertv with respect to parks and recreation fire police. solid waste disposal facilities. and road The amount of the fair .Share contribution shall be the sum which is the product of m tiplvi o the number of lots proposeI to be subdivided by the amounts allocated hereinbelow for each such lot, and shall become due and payable prior to final subdivision approval for any portion of the subject propem or its increments If the subjgct nrop~LfY i<.St~hdivided in two or more Vncrements the amount of the fair share contribution due and payable prior to final subdivision approval of each increment .Shall be a sum calculated in the same manner according to th number of additional proposed Iota in each such i~_ _ ncrement. The fair share contribution for each lot except for lots larger than ten acres in size or which are committed exclusively for golf course and park purposes shall be based on the maximum allowable density of building sit as tetermin v the zoning of such lot. The fair share contribution in a form of cash land facilities or any combination thereof acceptable to thg director in consultation with the affected agencies shall have a maximum combined value of S7,239,16 per lot Based upon the applicant's representation of intent to subdivide and develop up to 400 lots the indicated total fair share contribution is S2.825.664,00- however the total amount shall bg increased or reduced in proportion with the actual number of subdivided lots according to t calculation and payment provisions set forth in this Condition O The Lai share contribution shall be allocated as follows: LU $3.490.85 per lot for an indicated total of St 26 340 00 to the Co ntv t support park and recreational improve ents and facilities: -28- $168 40 per lot for an indicated total of 567.360.00 to the County to support police facilities: (1 $332 61 per lot for an indicated total of $133.044.00 to the County to support fire facilities: (41 145.62 per lot for an indicated total of 558.248.00 to the County to support solid waste facilities: LD $3.101 68 per Iot for an indicated total of $1.240.672.00 to the State or County to support road and traffic improvements. The fair share contributions described above shall be adjusted annually beginning three years after the effective date of this ordinance based on the percentage change in the Honolulu Consumer Price Index (HCPI)In lieu of paving the fair share contribution the applicant may construct improvements/facilities related to parks and rerreatjon fire police solid waste disposal facilities and roads within the region impacted by the proposed development subject to the approval of the planning directQr. _ The cost of constructing the improvements required in Conditions H K and I shall be credited against the sum specified in Condition R(1) for parks and recreatir,n Condition R(4) for solid w Rte facilities and in Condition R(5) for road and traffic improvements For, rposec of administering Condition R_ the value of land contributed or the cost of any improvements required or made in lieu of the fair share contribution shall be such amount as approved by the Planning njrector. upon consultation with the appropriate agencies. [(U) The Applicant shall conform, to the best extent practicable, with the guidelines as provided within the Strategies for Energy Efficient Architecture by Hawaiian Design and the State Model Energy Code, in the construction of dwellings within the subject property; ] ($J[(T)] In the event that the State Department of Education adopts an educational facilities impact fee program, the applicant shall participate in the requirements of the program; -29- (TA[(W)] Comply with all applicable laws, rules, regulations and requirements, including those of the Department of Health, Fire, and the Department of Water Supply; (U [(X)] Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance; (V)[(Y)] An annual progress report shall be submitted to the Planning Director prior to each anniversary date of the approval of this change of zone. The report shall address in detail the status of the development and the compliance with the conditions of approval. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required; and, j~W [(Z)] An extension of time for the performance of conditions within the ordinance, with the exception of Condition C, 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 change of zone; (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); and -3 0- (5) should the Applicant require an additional extension of time, the Planning Director shall submit the Applicant's request to the County Council for appropriate action. Further, should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate rezoning of the area to its original or more appropriate designation." SECTION 2. In the event that any portion of the ordinance is declared invaiid, such invalidity shall not affect the other parts of this ordinance. SECTION 3. This ordinance shall take effect upon its approval. INTRODUCED BY: COUNCIL MEMBER, COUNTY OF H All lawaii fIntron December 15, 1995 15, 1995 If 1st Reading: : f 2nd Reading: January 3, 1996 ive Date: January 15, 1996 A!--PP,CVED as to /C1-1M and GAMY DE CCRPC.^.ATICN COUNSEL COUNTY CF HAWAII Date -31- S I: • , 3 • i . :oval 11 ];'~1~ t II ~ ~-i~ ,:ij;,~ r li.~~„ 111.1 i ica n 1 r - _ ; III,; II I r 1 . t~? _ _ ~ _ I, fl.i, 1. 1il w N 21 1;+ II • • ; ~ i 1 • 1 • 1- I 1 i I ~i:•i 1~; 1•I i~11 _ 1 f I 1 If • :I : l a l:•. 1 ,11• 1 • 1 Il1ii 1j~~i I:n il: 11 ~ 1.1 t 1 - 1 i r/' • t / f • r 11' it 1 \Y\• /~1:i~• •il1 1 p Nili ilii i I i i:i:ii 1. ~~j;`.~•.rii ~+.il`i 1; 1 1\I Ipl 1_yyN ;1 IYIIIII j i I 1 _ 1- 1 1 _ N V •1 Z Z i W 0 = Z O / O X I- \ 4 ui U) ` w u"jlh`tt; jl) ill ~,~N~ ff-,.•:-' tr i wrt`,~t Q Cl) _ _l:f' '1 , 1 i 1, ~ { ~ •,1':;. ' • J" - .+~1' ~ ~ ` ' =fir? `.-:.oS' , r_.:..,,.. ..i F \I. r,> 0 U. A~t OO Fn . i' w -717 l I 1 / I I I. Rf ~(fty/(/ ,I`I Ill '1F~~'..f//~' / a •'i f ~F Y.r .11Y 1 y1 1r fr. i i + '/ya li i t^ /Y~ i dii 04 _C5 _ Z ~ i T TTY/~'•. ' i f yy} ~ 0 ccl N r ~ r a A,L,; ~yi'~. ~yii% j rt r IZ. J~ S / V 7,~ [ Ln l , o ic(~~ I\\\\~. ~~vN. (r'. /'11 .v~k'~5,,,,„vnre:.•. ,`;k~~h6n.~~«« t 1 OFFICE OF THE COUNTY CLERK County of Hawaii Hilo _ J Hawaii R E - " (Dia)'~AN)16 0 7 57 ; FIC- : =ROLLCALJ1{ VQXE COUNT GAYI55,v INOES ABS Ex Introduced By: Takashi Dan O - Aralcaki X Date Introduced: December 15, 1995 Bonk-Abramson x First Reading: December 15 1995 Childs x Published: NSA De Lima x Domingo X REMARKS: Osorio X Rath X Ray x Smith x 7 2 0 0 (DRAFT 6) ROLL CALL VOTE Second Reading: January 3, 1996 AYES NOES ABS Ex January 4, 1996 Arakaki X To Mayor: Returned: January 16, 1996 Bonk Abramson X Effective: January in, 1996 Childs X Published January 24, 1996 X De Lima Domingo x REMARKS: Osorio X Rath X Ray X Smith x 7 2 0 0 I DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as indicated above. ON - 4Fr,- CHAIRMAN COUNTY CLERK Approved HdSt~tpp~ Ch's day d 19~• Of Bill No.. 181 (Draft 6) JOR,COLIMY All Ref C-821/PC-91 erence: Ord. No.: 2:00 Gil, ? y A(7 10 1 n PLhWWV\ FF,:a T,v,F1Jr October 4, 2000 COUNTY OF ;,q','?AIl Ms. Virginia Goldstein Planning Director County of Hawaii 25 Aupuni Street, Room 109 Hilo, Hawaii 96720 Subject: Change of Zone Ordinance No. 96 8 (REZ 765) Applicant: 1250 Oceanside Partners (Hokuli'a) Request: Amendment to Condition M (Roadway Improvements) Tax Map Key: 7-9-6-Portion of 1. 7-9-12:Portions of 3. 4, and 5; 8-1-4: Portion of 3 Dear Ms. Goldstein: This is to respond to your letter dated September 20, 2000, and to the memorandum dated September 15, 2000, from Mr. Galen Kuba of the Engineering Division of the Department of Public Works related to the subject request for an amendment to Condition M of Ordinance 96 8. Our proposed amendment would assure perpetual public access over the Haleki'i Strect extension. This would allow Oceanside to install and maintain the landscape along the road in keeping with the character of the project, as is presently addressed in the Road Maintenance Agreement dated September 16, 1999, between the County of Hawaii and 1250 Oceanside Partners. In regard to the Mamalahoa Bypass, the entire roadway is required to be dedicated under the terms of the Development Agreement 1, Section 14, which, in parts, states: "The Bypass Highway shall be dedicated to the County in phases, if any, upon completion..." The subject request is not directed at the Bypass, and Oceanside intends to abide by the Development Agreement and dedicate the Bypass. In order to clarify this and our understandings regarding Haleki'i Street, I offer the following language to revise our proposed amendment, such that Condition M would read as follows: "All roadway improvements stated in Condition L of this ordinance shall be dedicated to the County, provided that, in lieu of dedication, Haleki'i Street may be retained in private ownership, subject to a perpetual easement for public use and provided further that all roadway improvements shall meet with the approval of the Department of Public Works." ~a EXHIBIT 78-68M Ali'i Dnvc #K15, Kuiluu-Flma, Hawaii 96740 T~ .3.~" 6500 Fax; 804-324-1300 www.holmlia.com q~4e Ms. Virginia Goldstein Planning Director County of Hawaii October 4, 2000 Page 2 Should you require further information or have any questions regarding this matter please contact me at 324-1500. Sincerely, b55~z Robert A. Stuit Vice President of Development xc: West Hawaii Office Mr. Galen Kuba, DPW Mr. William Moore Mr. Ben Tsukazaki, Esq. 10/05/00 08:41 FAX 808 524 0171 OCE,ANSIDE 1250 16001 a~ ?QiiO 0P. 5 PM 1 93 PLANNING; [)E ; F-F,MENT COUNTS OF HAIU/\II 78-6831 AIii Drive, Suite K15, Kailua-Kona, Hawaii 96740 Telephone; (808) 324-1500 Facsimile (808) 324-0171 Email Address: ramit@boluulia.com FACSBOLE TRANSMITTAL SHEET TO: Ms, virgioia Goldstein FROM, Bob Stuit COMPANY: County c_ Hawaii PAGES: 2 TELEPHONE: 961-82811 DATE: October 5, 2000 FACSUAME: 961-8742 FC: Datyn Arai, W. Hawaii Office RE; Copy of JA:ter re: Concerns about Condition M Dear Ms_ Goldstein: Attached is a letter to Galru Kubs addressing the concerns of the Departmeur of Public Works in regard to the language of Condition M in Ordinance 96-8. If you have questions please contact we at 324-1500- Thank you rC=Lfidtnt;pr,M The inform tation contained in this fax meaxr is intended only, for the individual or entity m wtuch it is add wVA and stay contain information that is privil eged, confidential and exempt for disclosure under applicable law. If the reader of this rneasgge is not the intendedre©pient or an agent responsible for delivering it to the intended recipient, you arc hereby nodal that you have reoelved this doctaaent in error, and that any review, dissemination, dislr>7mfion rM copying of this message is strictly protubhat If you have received this communication in error, Pkaue notify us iuunediatelyby telephone and return the orfguul message to us by mail. Thank you. i( (f~,rf 10/05/00 08:42 FAX 808 824 0171 OCEANSIDE 1250 fdJ002 October 4, 2000 Mr_ GalanKuba DeparMUM ofPtlblic Works County ofHewaii 25 Aupvai Strad Hilo, Hawaii 96720 Deer Mr. KubM This is to follow-up Ndth respect to your memorandum dared pctaber 4, 2000. rn order to address yt ur concerns related to continued maintontmee of the Haleldi Strad extension immvem'.11, we offcr the fvrlowft revision to the amendmeM of Condition K ,.All roadway improv=ets ststad in Condition L of this CVdinencc shall, be dedicated to L1e County of Hawaii, I vidcd that in line, of dedication. Halckii Strad maybe rotainad in pavato ownership, aublaa to a parpoMal easement &zt public use and a roadmaintmMO MX6 m0°n with the Mmvsl ofthe peparl wnt a public W CAL sndprovrded fntther that all uDPovemenh anall meet with tbu: approval of the Dopattmsnt of Public WD*P " Derm We hope, you concw that this amp s'revised addresces the DepubmanYs can rclatad to tha aasu w re of oonttnual public uw ~ Ce of ooatinMMmaiz?t<nan' of and approval of the, roadway fturrmemcwts and those improvaments. Should you havc M., questims regarding this raetu rpicase contact me at 324-1500. S' mealy obertA.Stuit + Vice President ofDE:velaPmmt Gal~rctm: . irubs~ 73.6831 AWL orw MK15, Kaflua-KOnd. IluwN<< 96740 lilephnne 808.311.6S00 pmx: 8o8-j24-1800 rww.hokklld,com DEPARTMENT OF PUBLIC WORKS COUNTY OF HAWAII HILO HAWAII Date October 4, 2000 t a To VIRGINIA GOLDSTEIN, Planning Director o~ s n From GALEN KUBA, Engineering Division Thru ROBERT K. YANABU, Chief Engineer T~ SUBJECT: CHANGE OF ZONE ORDINANCE NO. 96-8 (REZ 765) y z yy Applicant: 1250 Oceanside Partners Location: North and South Kona, Hawaii Tmk: 3/7-9-6:Por 1; 7-9-12:Pors of 3, 4 and 5; 8-1-4:Por. 3 This is to acknowledge receipt of the October 4, 2000 letter from Hokuli'a responding to our comments dated September 15, 2000. We have no objections to the proposed amendment to Ordinance No. 96-8 provided that the Road Maintenance Agreement is expanded to include the maintenance and proper operation of the roadway improvements. Should there be any questions concerning this matter, please feel free to contact me at 961-8327. GK c: ENG-Kona PLNG-Kona H:\Galen\Data\WP Files\MEMOS\Oceanside Mamalahoa.wpd(2) to tV October 6, 2000_ . To: The Planning Commission, County of Hawaii From: George A and Marian W. Wilkins 73-1410 A Kaloko Dr., Kailua-Kona, HI 96740 (808)325-6116 Re: 1250 Oceanside Partners (Hokuli'a) We are opposed to allowing the developers of Oceanside 1250 (Hokuli'a) to build roads and streets that are designated "private" as opposed to being dedicated as "county" roads. Even if there are dedicated easements to the public, these easements may be manipulated as to how much traffic is allowed and when. We already have heard from the same developer that the "public access" proposed for the nearby Keopuka project will be by permit only. We also know that at least one of our famous resorts has beach access parking for about two dozen cars, and that was only after public protest. Before, there had only been parking for about four cars. Even with the additional parking, a bicyclist was turned away because there was "no parking" available. Apparently there will be no shoulders on the private roads. If not, how can one pull offthe street in an emergency? Where will people walk or bike? How will parking be handled in the Hokuli'a development? Will there be a guard shack at the entrance to screen those who want to drive on the private roads as there are at so many of our high-end resorts and homes? Will the hours of access be limited? What about the property owners' insurance? Will future home owners in the development who will own and be responsible for the upkeep of the streets even be able to get insurance for public use of their streets, and at what cost? Remember that the streets will not be constructed to county standards so if there are accidents the home owners association may be sued- This has already happened to one community organization in South Kona. But by then, the developer will be out of the picture. When this development was first being discussed, we and others were given a grand tour of the property and told about all the marvelous things the developer would do. It sounded great. But little by little the promises are falling by the wayside. Where's the bypass road? What about the reef damaging run-off that was never supposed to happen? What will be they want to get out of next? In considering the Oceanside 1250 development plan we are reminded of a perfume ad that used to be on television, "Promise them anything but give them........." You fill in the blank. Kenneth & Christine Sheppard Box 737 Honaunau HI 96726 October 6th TESTIMONY BEFORE THE PLANNING COMMISSION: The developer, 1250 Oceanside Partners is requesting an amendment to Condition VI of Ordinance No. 96-8 to change it to "All roadways improvements stated in Condition L of this ordinance shall allow for perpetual public use by easement or shall be dedicated to the County of Hawaii. " from its current: "All roadways improvements stated in Condition L of this ordinance shall be dedicated to the County of Hawaii." But they are quoting it inaccurately. CONDITION M ACTUALLY SAYS.... "All roadway improvements stated in Condition L (and M) of this ordinance shall be dedicated to the [appropriate government entity]. Those improvements associated with the Mamalahoa Highway Bypass shall be offered to the State Director of Transportation pursuant to Section 264-1 of the Hawaii Revised Statutes. Any connector roaduxays, and any portion of the Mamalalwa Bypass not accepted by the Skate Director of Transportation shall be dedicated to the County, as provided by law: County of Hawaii." Oceanside says it wants it amended in order to make the language consistent with the language of conditions in companion permits for the project, those being Condition 8 of Use Permit No. 115, and Condition 9 of Special Management Area Permit No. 345. But these Use Permit and SMA Permirs were granted in 1993 and referred only to the Haleki'i Street extension, whereas Ordinance 96.8 was granted in 1996 and covers not just the HalekN Street extension, but also the Bypass Road and its intersections with other major roads. Currently, Ordinance 96-8 provides for public rights which we believe would be significantly diminished by the proposed change to Condition M. These include, but are not limited to: • Ordinance 97-34, which created the resort zoning for 14 acres within Hokuli'a for the member's hale, requires Conditions L & M to be completed. • Roads would be built to County standards for infrastructure and all such improvements would be dedicated to the County of Hawaii. • The Bypass Road would be a scenic roadway as described in the current County General Plan. To ensure this occurs, it must be dedicated to the County. • Public ownership of all improvements in Conditions L and M will ensure public sightliness and good order, whereas this is not assured with private ownership. • The Bond (Subdivision Improvements Agreement and Bond #3SM 959 014 00) which covers the cost of building the Bypass Road requires that the Bypass Road be built to County standards. What is the effect of privatizing any portion of the improvements and utilities stated in Conditions L and M on the enforceability of the bond should any of said improvements be built to non-conforming standards? The Planning Commission, Department, and its Director have a fiduciary duty to independently assess what public rights are being impacted and determine appropriate means to orotect these rights. tB ~Idv ~ IdL~' i Testimony for the Planning Commission hearing of 10/06/00 Aloha to the members of the Planning Commission and its Director, My name is Charles Flaherty. I am a resident of Kealakekua speaking today for myself and many other individuals in our community with whom I have discussed the proposed change to Condition M of Ordinance 96-8. We have taken the time to attempt to understand the potential impact of this change, but we certainly are not paid experts. The primary question we hear in the community is "what are they up to now?". What reasons for making this change exist other than those Oceanside 1250 has spoken thusfar? We have good reason to believe they could have an agenda unknown to the public in light of the following information. Please refer to the attached articles regarding the experience of the town, Carefree Arizona, with Desert Mountain, one of Lyle Anderson first collaborative luxury golf resorts.. These articles explain how the town of Carefree came to sue Desert Mountain for breach of contract and then fraud. Carefree alleged Desert Mountain broke a promise which Desert Mountain never intended to keep. The lawsuit was finally settled with Desert Mountain being forced perform on its promise, but not before causing a great deal of stress and suffering to the community of Carefree Arizona. Now we have another community and another promise yet to be fulfilled. Our community is already suffering and stressed as a result of the run-off of soil at Hokuli'a. Oceanside 1250 has released a report on the impacts of the soil run-off on the coral reef It concludes there was little impact. It is important to note the report was prepared for and paid by Hokuli'a to a marine biologist, Richard Brock, who happened to design the mitigation meaures that failed to stop the runoff. Not surprisingly, his report directly contradicts the report of the State marine biologist, Bill Walsh. The State report concluded there was a massive spill of soil into the ocean and that the coral reef was severely impacted. Finally, we have the recent ruling of the State Land Use Commission that the proposed Keopuka Lands is an illegal use of land zoned agricultural. Interestingly, the Draft Environmental Impact Statement of Keopuka Lands states on p. 72, "The Villages of Hokukano (now "Hokuli'a by Oceanside 1250") proposed the same land uses as this project". The Oceanside 1250 property was zoned primarily ag-5 prior to zoning changes allowed by the County, zoning changes similar to those disallowed by the LUC in its recent declaratory ruling. A logical person could conclude that Hokuli'a development is an illegal use of agricultural land as well. Many in the community believe this proposed amendment change to have the potential to severely restrict public rights currently guaranteed in Ordinance 96-8. I hope the Commission can now appreciate the community's unwillingness to convey any of their rights to Oceanside 1250. It is our opinion that the Planning Commission, Department, and its Director have a fiduciary duty to independently assess what public rights are being impacted and to determine appropriate means to protect these rights. This position is based upon the recent State Supreme Court decision relative to Ka'upulehu. The proposed change to Condition M would enable Oceanside 1250 to make private any and/or all improvements and utilities described in the both Conditions L and M., not simply the Haleki'i Street extension and stub-out to the shoreline park. This would in-tum enable them to place restrictions on access to the roadways and the shoreline park, regardless of the representations the representatives of Hokuli'a are making. It would also allow Oceanside 1250 to construct sub-standard roadways, improvements and utilities. I already know about private sub-standard roadways constructed by Hokuli'a, as do my neighbors, some of which are here today. We live adjacent the Hokuli'a construction access road. All it took was an easement through Gary Yamagata's property and a driveway permit from the County to build this sub-standard mauka-makai connector.. As a result for many months, Monday through Saturday, often before and after lawful hours for construction activites, we have endured this public nuisance. Each day, scores of huge soil-laden trucks' Jacob-brakes blast us and the State noise laws. We can see the final subdivision approval, but we cannot yet see the Bypass highway and relief from the construction access road.. In addition, it would appear the enforceability of the bond for construction of the Bypass highway and associated improvements and utilities would be impacted.. This is because the Subdivision Improvements Agreement and Bond #3SM 959 014 00 states that all construction must be to County standards. In addition, the bond refers to plans already submitted to and approved by the County Planning Department. Are these plans to County standards? We would like the Commission to determine if the enforceability of the agreement and associated bond are being impacted. In our opinion, all construction, improvements, and utilities should be built to County standards for infrastructure and that these should be dedicated to the public through its construct, the County of Hawaii. Public ownership of all improvements and utilities will help ensure that the Bypass highway will be a scenic roadway as described in the current General Plan. Public ownership will help ensure that a community-based regional plan, to be prepared by our community and submitted as an Ordinance, will have maximum flexibility relative to these improvements. Public ownership will guarantee public rights in their entirity as they currently exist under Ordinance 96-8 and related laws. In general, the community believes the Planning Commission exists to serve the public interest first to the relative exclusion of any and all other parties and intervenors. No situation should be created where public rights can be transferred to a developer against the will of a community. We believe the Commission has a fiduciary duty to question with an equivalent expertise as is behind the representations of Oceanside 1250. It is our hope the evidence we have presented will further motivate you to question Oceanside 1250's intentions and to protect the public. The community urges the Commission to be careful and certain when dealing with Oceanside 1250. We do not believe this, if not illegally, then immorally obtained subdivision should not be granted any further consideration, whatsoever. In any case, should the Planning Commission have any doubt as to the impact upon public rights and the construction of improvements and utilities described in Ordinance 96-8, then the community believes you should defer a decision until all doubts have been addressed with due diligence and the appropriate expert counsel.. I and those for whom I speak thank the Commission and the Director for your time and consideration. Maa~harloo,, Charles Flaherty P O Box 922 Captain Cook HI 96704 DialogWeb Output Page 1 of4 DIALOG4VB: Ale- 0 Dynamic Search: Ar¢aa ® Records for: tyle anderson and lawsuit output Format. Full 1 outpwas Browser. Modify 4« r Em Records 12 of 12 In fiill Format F- 12. 4/9/12 05699199 WELLS GO DRY, OWNERS BLAME GOLF COURSES CAVE CREEK'S WATER IMPERILED, CRITICS CONIPLAEN ARIZONA REPUBLIC (AR) - WEDNESDAY July 18, 1990 By: Carol Sowers The Arizona Republic Edition: FINAL CHASER Section: VALLEY AND STATE Page: B i Word Count: 1,301 Memo: Column inches: 0035 CORRECTION: Published correction ran on 7/20/90: A map that appeared Wednesday on Page B6 had the locations of Cave Creek and Carefree reversed. Teat: Georgeanne Jannenga bought a house in Cave Creek five years ago because she is a "pioneer sort," enticed by the idea of living in tae splendor of the desert and using water from her own well. "I bought our land up here thinking we would have water permanantly," Jannenga said. But a year ago, the water pressure in her 180-foot-deep well began to drop. Water barely trickled out of the taps. In May, the well went dry. Jannenga is one of at least 14 Cave Creek homeowners whose wells have gone dry in the past few years. Many residents of Cave Creek and neighboring Carefree blame their growing water problems on Desert Mountain Properties' three golf courses, which stretch like verdant guilts across the desert along Cave Creek Road /document?docKey=12-492-5699199& docFormat=full&formTitie=Arizona&docLocation=brov 10/ 1 /00 DialogWeb Output Page 2 of4 east of Pima Road. Residents, municipal officials and a state water expert say that the golf courses, which are within Scottsdale's city limits, are sucking precious drinking rater out of the overtaxed Carefree-Cave Creek water basin. Since the three courses were built - in 1985, 1987 and 1989 - wells have gone dry, and the water supply has become endangered, critics say. Desert Mountain officials say that even though they have missed a deadline to use Central Arizona Project water to irrigate the courses, they are doing all they can to resolve the problem. But the water level is sinking fast. Since 1986, the water revel- in the 2,000-foot-deep basin has cropped an average of 11.7 feet a year, according to the state Department of Water Resources. In the past two years, the level has declined by 15 feet a ye_ar, with a single 70-foot drop underneath the Desert Mountain golf courses. "It is excessi"fe, and the reason is the golf courses," said Steve Szyprowski, a hydrologist and manager of the department's water-resources section. The Department of 'dater Resources monitors golf courses' wate: use but does not check their effect on small wells such as Jannenga's, which pump about 35 gallons an hour. As a result, no one is sure how many more wells may run dry. Frank Barrios, director of the water department's active-management area, agrees that the problem in the water basin is serious but added, "it is difficult to blame any one user. That is what you have hearings and lawsuits for." There have been hints of legal action. Carefree and Cave Creek town officials plan to meet Tuesday to discuss the possibility of a joint lawsuit against Desert Mountain to force the company to solve the water problem. Cave Creek Mavor Jackv Davis said the talk of lawsuits was triggered by a "public outcry" from residents who want their officials to "get tough." Missed Jan. 1 deadline Desert Mountain, a joint venture of businessman Lyle Anderson and Mobil Corp. promised Carefree five years ago that it would pipe Central Arizona Project water to the golf courses by Jan. 1, 1990. It missed the deadline. The company has set a new goal of July 1991. Since December, Desert Mountain officials have stepped up negotiations with Scottsdale over complex plans to irrigate the courses with untreated CAP water. Carefree Mayor David Dennison said he is pleased with the accelerated pace of the talks, but "to say we are happy would be a gross exaggeration." Desert Mountain officials say they are trying. /document?docKey=12-492-5699199&docFormat=full&formTitle=Arizona&docLocation=bro 10/1/00 DialogWeb Output Page 3 of 4 The courses are being watered with computerized irrigation tec!iniques to conserve drinking water, the officials said, and the links were :resigned to occupy 90 acres instead of the usual 130. Desert Mountain, however, refused to allow The Arizona Recubli,: to photograph water being stored or used at the golf courses, saying company officials feel water use has become a "sensitive issue." Erik Fulsinger, director of research for Desert Mountain ?rooe::ties, said that the company is working in "good faith," but the procedure for piping in CAP water has become "a 'Lengthy and comma tared procedure Dennisca agreed. "This has dragged on for 5 1/2 years," he said. "We nave been very patient." But the patience of municipaL officials and residents is frayi:.g. 'Clearly feeling pressure' Janr.enga, who said she has had to spend $500 to lay pipe to :hock up to the privately owned Cave Creek ;dater Co., is angry that her sell rar. dr_•. Dennison said he knows of no private wells going dry in Carefree, because most homes are hooked to the Carefree Water Co., whi also pumps water from deep with=in the 6-mile-long water basin. Flovd Marsh, Scottsdale's water-resources director, who is negotlating with Desert Mountain, said the company approached the city in Cecemt,er for the first time, demonstrating what he considers a renewed interest in solving the water problem. "Desert Mountain is clearly feeling the pressure from the public and officials up there," he said. But Fulsinger disagreed that the company is acting only under pressure. In hopes of halting the drain on drinking water, Desert Mountain and Scottsdale are negotiating a proposal for Scottsdale to buy Desert Mountain's Carefree Ranch Water Co. In exchange, Desert Mountain would transfer to Scottsdale its annual allotment of 954 acre-feet of CAP water to be piped from the CAP agceduct at Pima Road and Frank Lloyd Wright Boulevard. An acre-foot of water is the amount it would take to cover 1 a,:re to a depth of 1 foot. As part of the plan, Desert Mountain would build 2 1/2 miles of pipeline from its golf-course water-delivery system to link it to Scottsdale's CAP pipeline. $2,000 an acre-foot Desert Mountain could be connected to Scottsdale's system by July 1991, the date the developer has pledged to deliver CAP water, officials said. The plan also calls for Desert Mountain to pay Scottsdale a one-time fee of $2,000 an acre-foot for water used in excess of the CAP allotment to irrigate the courses. However, Fulsinger said that if negotiations with Scottsdale ccllapse, .../document?docKey=12-492-5699199&docFormat=full&formTitle=Arizona&docLocation=bro 10/1/00 DialogWeb Output Page 4 of 4 Desert Mountain will "find another way, come hell or high water," to deliver CAP water by the new deadline. Desert Mountain and other golf-course owners also are talking about what they consider a long-term solution - using treated sewage to green up the courses. That plan calls for all 11 of the existing golf courses north of the CAP aqueduct to share the $13 million cost of building a 12-:rile-long pipeline. The pipeline would carry CAP water north to Cave Creek Road. Tim Bray, president of Southwest Community Resources, a Scottsdale consulting firm that is coordinating the plan., said the pipeline could be in operation by December 1991. Bob Anderson, a Carefree town councilman, is aware of the olans to ease his town's water problems. But he is impatient. "Whatever is done, we are still a long way off from stopping -.:e use of groundwater," he said. "The situation is going to more and more critical. Caption: Photo (Page AZ) by Michael \4eister/The Arizona Republic Color photos by Michael Meister/The Arizona Republic Map by The Arizona Republic A sign near Pima Road lets motorists know how the community of Carefree feels about golf courses using the area's land and water. Many residents of Cave Creek and Carefree blame their growing water problems on Desert Mountain Properties' three golf courses. (1)A maintenance worker mows a tee at a Desert Mountain golf course. Nearby residents blame their growing water problems on the three golf courses. (2-3)The golf courses are watered with computerized irrigation techniques (above) :o conserve drinking water. A row of red lights lets workers know what areas already have been watered. Georgeanne Jannenga (right) sits on her well, which she says went dry in May. Copyright 1990, Phoenix Newspapers Inc. Descriptors: WATER, CAREFREE; CAVE CREEK; CONTROVERSY Arizom ReptidPhoenix Cruz (Dialog9 Filc 492): (e) 2000 Phoenix Ne gmpaa. All rights ,eaer eA D1997-2000 The Dialog Corporation - .../document?docKey=12-492-5699199&docFormat=full&fotmTitle=Arizona&docLocation=bro 10/1/00 DialogWeb Output Page I of 3 3 t.'. of 1:(.: 0 Dynamic Seweh: Ariz nm ®Records for lyM anderson and lawsuit output ~4 Fan,ae Full Record output as Browser kJ dbdiry Records 4 of 12 In full Format f a 4/9/4 061720,14 CAREFREE SUIT ACCUSES DESERT :INIOUNTAIN OF FRAUD HEARING ON WATER CASE SCHEDULED FOR JULY Arizona Republic/Phoenix Gazette ( AZ) - FRIDAY June 21, 1991 By: Chuck Hawley, Staff writer Edition: FINAL Section: Community Northeast Page: SNl Word Count: 711 Memo: Photo Reprints available. Please call 602-271-8298 for cost information. Teat: CAREFREE - officers and lawyers of Desert Mountain Development Corp. commu=ted fraud when they convinced Carefree officials in 1986 to drop objectLons to a use permit for ground-water irrigation of golf courses, the town claims in an amended lawsuit . A new version of the lawsuit claims that a written agreement be,-ween the town and the company was a sham perpetrated by Lyle Anderson . president of Desert Mountain, and one of the company's lawyers, James Johnson. Stephen Myers, the attorney who represents Carefree in the case, sa-.d a motion for permission to amend its case was filed Monday in the hop,:s that it would be heard in the near future. "This filing was made pursuant to the Court of Appeals decision earlier this month allowing us to return to Superior Court with an amended .ase," Myers said. Myers said a hearing on the amended case is scheduled for sometime in July. /document?docKey--4-492-6172044&docFotmat=fiill&formTitle=Arizona&docLocation=brow:l0/ I /00 DialogWeb Output Page 2 of 3 James Powers, the Phoenix lawyer who represents Desert Mountain, was indignant about the allegations. "The proposed complaint, as you know, contains complaints against this firm and one of its partners," Powers said. "Those complaints are defamatory, preposterous and can only be based on deliberate ignorance of the facts. We would consider it a significant victory for the civilized Dractice of law if the judge denies the filing of that document." The original case, filed in September, claimed that Desert Mourtain had broken an agreement in which Carefree would not oppose Desert xountain's request for a well permit in return for which Desert Mountain would complete a pipeline for delivery of Central Arizona Project ;dater _D -ts property by Jan. 1, 1990. The 8,000-acre development in cost:: Scottsdale is adjacent to Ca_efree's east town limit and shares the same underground water basin as Carefree and Cave Creek to the west. The town claims that 1.5 million gallcns of water are used daily to i..-igate golf courses at the development. Carefree officials were concerned as early as 1985 that =he dev=_iopme. of three golf courses would adversely affect the local water table in the foothills area where many residents own their own wells. After a series of meetings with Anderson and Johnson, the town :says was assured in writing that if no objection to Desert Mountain's well permit were raised, the developer would have a CAP pipeline in plac, by January 1990. By September nine months after the agreed-to pipeline was to lave been completed the developer had not applied for permits to begii construction of a pipeline, and the town filed its lawsuit . According to the amended lawsuit , the town learned in a previous hearing that Desert Mountain never intended to build a pipeline, ev>n though money was available and it had agreed to do so. The new lawsuit also claims that Desert Mountain, after reachiig its agreement with Carefree, went to state water officials for a different kind of water-use permit that allowed them virtually unlimited use if ground water. Such a permit, called "special provider status" is not written into the state's ground-water law but is allowed to be issued administrativ.ly by the state director of water resources without a public hearing. Based on those provisions of the law, Carefree argues that because no public hearing was conducted, Desert Mountain's "special provider status" should be declared void. In asking for a second permit, Desert Mountain "knew and appreciated the falsity of their representations and . . . their secret lack of intention" to meet the terms of the original agreement with Carefree to build the CAP pipeline, the lawsuit says. Because the newly amended case alleges fraud instead of breach 3f contract, state law allows the town to ask for punitive damages. Monetary damages cannot be readily assessed, the lawsuit says, out sufficient damages should be levied against Desert Mountain to punish the ..Jdocument?docKey=4-492-6172044&docFormat=full&formTitle=Arizona&docLocation=brow 10/1/00 DialogWeb Output Page 3 of 3 company and to make an example of it to deter others "from committing the same or similar fraudulent acts." In asking for a permanent injunction against Desert Mountain's piunping water onto its golf courses, Carefree also is asking the court to r<aquire Desert Mountain to do what it can to recharge the dwindling aquifer Caption: PHOTO Color Photo by Chuck Hawley / Community Copyright (c) 1991, Phoenix Newspapers Inc. Descriptors: LAWSUIT , CAREFREE; WATER; GOLF; DEVELOPMENT, BUSINESS ?.rizom RcpubPbo ix G~ (Dialog* Fik 492): (c) 2000 Pha®ix vcwi apm..all right re d- b 1997-2000'Fhc Dialog Carpontion - .../document?docKey=4-492-6172044&docFormat=full&formTitle=Arizona&docLocation=brow 10/1/00 DialogWeb Output Page I of 2 Dynamic Search: Armm ® Records for. lyle anderson and lawsuit = Outten 44 Fom at: Full Record owwt as: Browser Modffy Records 3 of 12 In foil Format r- 3 4/9/3 06177026 CAREFREE CLAIMING DEVELOPER COMMUTED FRAUD I1N WATER DEAL Arizona Republic/Phoenix Gazette ( AZ ) - WEDNESDAY June 26, 1991 Edition: FINAL Section: Community Northwest Page: IN6 Word Count: 161 Teat: CAREFREE - Officers and lawyers of Desert Mountain Development Corp. committed fraud when they convinced Carefree officials in 1986 to drop objections to a use permit for ground-water irLigation of golf courses, the town claims in an amended lawsuit . A new version of the lawsuit claims that a written agreement between the town and the company was a sham perpetrated by Lyle Anderson , president of Desert Mountain, and one of the company's lawyers, James Johnson. Stephen Myers, the attorney who represents Carefree in the case, said a motion for permission to amend its case has been filed in hopes that it would be heard in the near future:. James Powers, the Phoenix lawyer who represents Desert Mountain, was indignant about the allegations. "Those complaints are defamatory, preposterous and can only be based on deliberate ignorance of the facts," he said. "We would consider it a significant victory for the civilized practice of law if the judge denies the filing of that document." Copyright (c) 1991, Phoenix Newspapers Inc. Descriptors: LAWSUIT ; WATER; GOLF; FRAUD /document?docKey=3-492-6177026&doeFormat=fA&formTitle=Arizona&docLocation=b row.- 10/ 1100 DialogWeb Output Page 2 of Arizona RcpuNPlwmix Gaz (Dialoo Lila 192): (c) 2000 Phoenix `dcwepapm. All cighb n od. c'1997-2000 The Dialog Crnponlion - .../document?docKey=3-492-6177026&docFormat=full&formTitle=Anzona&docLocation=brow 10/1/00 Phoenix New Times Online - phr iixnewtimes.com News & Features V -..LFARE FO.. Page 1 of 14 0813195 . WELFARE FOR GOLFTHE r This t,ono ty GOVERNMENT IS SUBSIDIZING MORE AND MORE WATER- SLURPING, PESTICIDE- LACED GOLF COURSES- EVEN THOUGH THE More :reams & Features from VALLEY ALREADY HAS August 31, 1995 130 OF THEM ± JV_E .EM HAIL. By Dave Plank HURRY! FOR THE ARIZONA THUNDERSTORM The Troon North golf course CHASERS, THE SKY'S on the far north edge of THE LIMIT. AND Scottsdale is a sight to behold. An emerald grass carpet, THEREIN LIES THE smooth, even and weedless, snakes its way along saguaros, Rub. By Marc Ramirez next to mesquite bushes and paloverde trees. The grass rises and falls, from tee to green, enveloping manmade _ - _ - - _ _ _ _ - - lakes, skirting golf-cart paths, cresting ridges and falling back into washes. Every so often, a cottontail or lizard A TRIM FOR darts out of the underbrush and scampers from one side of WELLTQP - the fairway to the other. MOMAWKIN A VIUT9RY FOR Troon North is one of the tougher courses in the state--a 9C0LOGIST51 good example of the "target" style of golf course that FEDS DENY became popular in the 1980s. It is also considered one of FUNDS FOR RRIGATION the most beautiful courses around, with spectacular DISTRI DRICTS GILA mountain views and breathtaking desert scenery from just RIVER CHANNEL about every tee and green. Except for the manicured turf By John Dougherty and the whir of passing golf carts, it could be a desert park. One of the reasons for golfs appeal is the "back to nature" http://www.phoeni)mewtimes.comfissues/1995-08-31/feature2.html/pagel.html 10/2/00 Phoenix New Times Online phr-tixnewtimes.com j News & Features V"MFARE FO.. Page 2 of i4 overtone the game carries. There are hills to climb, streams FEDS PROBE to cross, ponds, marshes, maybe even the ocean to skirt ALLEGED ABUSE and woods to comb in search of hooks and slices. The wind IN COUNTY and the sun are factors; the lay of the land, especially on the JA L1 E greens, is crucial. ARPATO~$ FAMOUS ]AIL IS NOW THE Small wonder, then, that golf is such an Arizona institution. WSIEOF A As soon as wealthy easterners looking for a vacation spot JUSTIN saw the scenic charms of the state, and the rugged, scrub- DEPARTMENT brush beauty of the desert in particular, they wanted to INVESTIGATION carpet it with tees and greens. Arizona quickly became a IHTOPMM E place where golf lovers could feed their jones in the winter, CIVIL MAH"M when manv of their home courses were closed. What other VIOLATIONS By Amy Silverman place in the country offers Arizona's combination of fantastic weather and unusual, striking, even mind-blowing scenery? With well over 200 courses (about 130 in Maricopa County alone), Arizona has more golf holes per THE DOWNBEAT capita than any state besides Florida. GENERATI0N By Retirees move here to play golf and take it easy. Yuppies save their pennies so one day they can own stately adobe - - - - - - - - - - - homes along the rims of spectacular Scottsdale golf clubs. Golf has become a part of the Arizona dream, a fixture of FLa1S1•lE5 the local lifestyle so ubiquitous that to think of the state without it is tantamount to thinking of the state without the - - - - - - - - - - - Grand Canyon. STRIP SEARCH By Peter G119trap Golf is also big money. It brings the state economy as much as $1 billion a year, by some estimates. Golf courses are used by developers as amenities to entice buyers and drive up the prices of new homes. Recently in News & Features There is, however, some reason to wonder whether the continued development of golf courses in Phoenix-- especially in sensitive desert areas-is a good idea, economically or environmentally. The Legislature has granted Maricopa County golf-course owners a $10 million annual tax subsidy. More than two billion gallons of precious groundwater are poured on Valley golf courses every year, dropping water tables. Cocktails of pest- and weed-killing chemicals, spread to maintain vast expanses of emerald-green turf, are washed into the sensitive desert abutting golf courses. It may be time to ask whether Arizona's love affair with golf courses still makes sense. When he began forming a group to buy the Phoenix Suns in http://www.phoenixnewtimes.com/issues/1995-08-31/feature2.htntl/pagel.html 10/Z/00 Phoenix New Times Online phr-tixnewtimes.com I News & Features I V I~LFARE FO.. Page 3 of 14 1987, Jerry Colangelo met Dial Corporation Chairman John Teets on the links at the Phoenix Country Club. After he traded for Charles Barkley in 1992, Colangelo and his new franchise player shot a round while they discussed signing then-Portland free agent Danny Ainge. And nobody knows the icebreaking value of a good golf game better than Governor J. Fife Symington III. A few years ago, he and an aide were playing golf with two Japanese businessmen in an effort to expand trade between Japan and Arizona. The mood among the foursome was somber and reserved until Symington, a notorious slicer, teed up the ball. It went high. then took a sharp right turn into a transformer box atop a telephone pole. There was an explosion. The transformer was blown completely off its perch. When the governor turned around, his Asian guests were rolling in the grass, laughing hysterically. Besides being good places to conduct business, golf courses are good businesses themselves. Although they are expensive to build and maintain--higher-quality courses can cost upward of $10 million--much of the initial outlay often is recouped quickly. Nowadays, developers use golf courses as centerpieces for subdivisions whose homes carry premium price tags. Local golf boosters, including the Arizona Golf Association, are quick to point out that the game also provides broader economic benefits. In the last few years, the AGA has tossed around the figure $ I billion as golf s overall annual contribution to the Arizona economy. While $1 billion is a nice, round, big number, ascertaining whether it is an accurate one is not a simple task. A 1989 study by two analysts at the University of Arizona in Tucson revealed that the average large Arizona golf course provides the equivalent of 36 full-time jobs per year to staff its pro shop, maintenance crew and food and beverage operation. Those jobs were not of the high-paying variety; the study said such employment paid an average of around $5 per hour. Clearly, golf courses are not one of the state's big providers of upper-middle-class jobs. Nor is there a sizable golf-equipment-manufacturing presence in the state. It is because of its perceived importance to the tourist industry that golf has become a serious player in state economic circles. The same UofA survey reported that http://www.phoenixnewtimes.com/issues/1995-08-31/feature2.htm1/pagel.html 10/2/00 Phoenix New Times Online phe ixnewtimes.com I News & Features VILFARE FO.. Page 4 of l4 tourists are responsible for about half the play at Arizona courses during the winter months, and about a third of play during the spring and fall. Nonresidents play less than one- sixth of the state's golf in the summer. The University of Arizona study examined only the immediate, local impact of golf-course operations; no attempt was made to gauge the amount of money visitors spent away from courses. In fact, no scientific study seems to have been done to determine how much monev golf brings into the state that would not have come anyway--or where that money goes once it leaves tourists' pockets. The Arizona study found about 5225 trillion in expenditures directly related to golf. Whether that money turns over more than four times-so it has the $1 billion impact the golf association claims--is entirely an open question. Arizona's civic and political leaders seem to harbor few doubts about the value of golf, however, and they have roiled out the red carpet for course developers. In one especially hospitable move, the 1994 Arizona Legislature handed golf-course owners a break worth tens of millions of dollars per year--straight out of the tar coffers of local governments. For years, Arizona golf courses were assessed property taxes in the same manner as other businesses. An appraiser from the county valued the land the course was built upon and any improvements made to it (such as a clubhouse or a lake). The course owner paid a tax based on that value. After the law was changed last year, however, that process is no longer used. Now, land used on a golf course is valued at a hard-and-fast $500 an acre--regardless of its market worth. The value of any improvement is determined by calculating what the Legislature calls its level of "obsolescence." The spectacular Grayhawk Golf Club, on Pima Road north of Frank Lloyd Wright Boulevard, is a good example of how much less good land can be worth-after it has been moved around and improved upon. What was once a more-or-less flat piece of parched land has been transformed into a Disney desert masterpiece. Acre after acre of lush green grass stretches out from the first tee, bobbing and weaving its way through cactuses, http://www.phoenixnewtimes.com/issues/1995-08-3 l/feature2.htmllpagel.html 10/2100 Phoenix New Times Online phc--ixnewtimes.com I News & Features V -LFARE FO.. Page 5 of 14 ocotillo bushes and mesquite trees, rushing up to the edges of yawning bunkers and shimmering water hazards. Typically, 750,000 cubic yards of earth must be moved to build an 18-hole golf course. The dirt is used to create bunkers, elevated tees and greens and other geographic features of the links. At Grayhawk, however, workers moved two million cubic yards of dirt--enough to fill America West Arena to the top, three times--and used it to spectacular effect. They created a canyon, hollowed out space for an artificial lake and the island green that appears to float in its center, and built the steeply graded banks and ridges that make the courses so challenging. The 173-acre expanse of north Scottsdale desert that Grayhawk occupies was originally valued by the county at $4.3 million. or about 525,000 per acre. As soon as the land became part of a golf course, however, its assessed value dropped, by law, to 5500 per acre--a 98 percent reduction. The county tax rolls instantly lost 54.2 million in taxable property, or nearly $50,000 in annual tax collections. The county also lost taxable value when the course was built. The usual improvements--cart paths, bridges, the clubhouse-were made. In years past, all of this construction would have increased the golf club's assessed value and, therefore, the property-tax bill its owners would have paid. Now, though, the Arizona Department of Revenue instructs county assessors to evaluate each course relative to other courses in the state, and assign a "per-hole" value to it-the key number in a complicated formula that determines a golf course's final tax bill. Grayhawk, as a high-value course, is assessed at a maximum of $58,000 per hole. By that standard, the total value would add up to a little over S 1 million--less than a fourth of what the raw land was worth before it became a golf course. But there's still one more accounting trick the law allows golf courses. Each course is allowed an "obsolescence" rate, based on the difference between how many people play there during busy and slow months. In the case of Grayhawk, which through the year is only played at 70 percent of its optimum capacity, the automatic tax write-off was 30 percent of its total assessed value. http://www.phoenbmewtimes.com/issues/1995-08-31/feature2.html/pagel.html 10/2/00 Phoenix New Times Online phc,^nixnewtimes.com News & Features V` ;LFARE FO.. Page 6 of 14 In other words, the course's owners began with a piece of land that was worth $4.3 million. By turning it into a golf course, they immediately reduced the taxable value of the land to about S 1 million. Putting millions of dollars' worth of improvements on it--moving literally a mountain of dirt, building lakes, roads, bridges and a clubhouse--did not do much to increase the value on which the owners pay taxes; after the per-hole assessment is factored in. the improvements were judged to be worth only about $1 million. Then, the 30 percent obsolescence :`actor was subtracted from the overall assessment. In the end, the $4.3 million in land and an estimated S 10 million in improvements now have a taxable value of about $1.3 million. At current tax rates, the S13 million value reduction saves Gravhawk's owners nearly S100,000 in county property taxes each year. These tax breaks apply to all courses, new or old. Even allowing for differences in the level of development and amenities at each course, it is not difficult to see that huge amounts of property value are taken off local tax rolls by the rule. Maricopa County assessor and treasurer records show that the county loses nearly $10 million in revenue per year as a result of the new golf-course valuation law. County Assessor Pete Corpstein says the golf property-tax giveaway is indicative of legislative efforts to shift tax burdens off developers, utilities and industries and onto the general public. "With all the [budget] trouble the county has had in the last few years, the Legislature still shrinks the tax base," Corpstein says. "We're talking about a lot of money." It may be worth remembering that a $238 million subsidy for a baseball stadium caused outrage in the Valley. Because the golf subsidy is less visible, however, there have been few protests against it--even though it will cost taxpayers a lot more than Bank One Ballpark over time. The Arizona Golf Association lobbied hard for this change in the law, and it's easy to see why. As more courses were built in Arizona over the past few years, overall attendance numbers have not gone up. New, flashier courses may pull in more tourists during the winter, but the total number of annual rounds played in the state has remained basically flat. With more and more courses http://www.phoenixnewtimes.com/issues/1995-08-31/feature2.html/pagel.html 10/2/00 Phoenix New Times Online phc `xnewtimes.com News & Features VIUARE FO.. Page 7 of 14 vying for the attention of golfers, business at all of them has suffered somewhat. Removing virtuaIly all of their property-tax burden--that is, giving golf courses an indirect but huge public subsidy-is one way to keep profitability high. Curiously, Arizona is the only state in which golf-course owners enjoy such protection. In the other big golfing states--Califomia, Texas and Florida--no such appraisal law exists. And despite the annual boost the income gives the courses, average year-round greens fees are higher in Arizona than in any other state. Local preservationists say that Reach 11 is one of the Valley's most significant desert areas not yet overrun by rapacious growth. A "reach" is an area along a canal that is unbroken by roads, bridges or the like. Reach 11 runs on the north side of the Central Arizona Project (CAP) between Cave Creek and Scottsdale roads. Tate city of Phoenix, with Scottsdale's help, plans to turn much of this rich habitat area into developed land--complete with two golf courses. Five years ago, there was one fully operational golf course in the area loosely defined as "Carefree-Cave Creek." Now, there are 11. At least ten more, including the two in Reach 11, are on the drawing boards. Besides the increased traffic, noise and pollution that longtime residents bemoan, there is a less obvious but more serious problem: water. Golf courses in Arizona use at least 1.5 million gallons of water per acre each year. They need much more water, per acre, than do courses almost anywhere else in the world. Course superintendents can truthfully say that golf courses have drastically reduced their water use in the last decade, through the use of special sprinkler heads and closer supervision of their watering regimens. But those claims are little consolation to the planners who must contemplate the unslakable thirsts of desert golf meccas such as Palm Springs, Las Vegas and Phoenix. At the hot, windy Palm Springs Country Club, for example, about 430 million gallons of water--enough to meet the daily needs of almost 11,000 people--are pumped from an aquifer each year to maintain the golf course. So alarmed were town citizens when they realized how much of their water was being used to irrigate the course that they drastically changed the club's water-use rules. So far, no one has done that in Cave Creek. http://www.phoenixnewtimes.conVissues/1995-08-3 l/feature2.html/pagel.html 10/2/00 Phoenix New Times Online - phi ixnewtimes.com News & Features V"'LFARE FO.. Page 8 of 14 Look at a map of the Cave Creek area and you'll see a more-or-less straight Gne of golf courses and clubs stretching from Tatum Ranch, near the intersection of the Carefree Highway and Tatum Boulevard, to the north and east. Other courses in the chain include the Boulders, at the Carefree Highway and Scottsdale Road; Desert Forest, at Pima Road and Cave Creek Road; and Desert Mountain, near the Carefree Airport. These courses form a part of the hodgepodge of courses which depend, to one extent or another, on groundwater from the Cave Creek Basin. The basin is an underground aquifer about eight miles long and two miles wide. It was formed around 13 million years ago after volcanic rock in the area cooled and cracked, and water began leaking in from surface and underground sources. It is one of the smaller aquifers in the state and has provided well water for residents of Carefree and Cave Creek ever since they began moving there more than 100 years ago. In the last few years, however, locals have noticed something disturbing. Their water table has fallen at the rate of nearly 20 feet per year in some areas. Longtime area water watchers like Joe Bernier claim the dramatic drop in subterranean water levels can be traced to one major cause: water use by local golf courses. "We started seeing big drops about the time those courses started pumping," Bernier says. "Things had been more or less stable before that. The drop just accelerated immensely." Demand for groundwater by golf courses in the area is staggering. In 1992, the last year for which groundwater numbers are readily available, courses used 700 million gallons of water from the basin. That's more than seven times the amount of water taken from the next largest source, the Central Arizona Project. And Bernier says golf- course pumping is a big part of the reason residents and newcomers are being forced to dig deeper and deeper wells under their homes. In fact, Bernier says the courses' demands for water have been so overwhelming that a "cone" has started to develop in the basin. Resembling an inverted traffic pylon hundreds of feet deep, the cone is a spot inside the sediment basin where water has been withdrawn so rapidly that no more has had time to seep in its place. Residents of this area are especially worried that one day soon they'll turn on their taps and nothing will happen. http://www.phoenixnewtimes.comrssues/1995-08-31/feature2.html/pagel.html 10/2/00 Phoenix New Times Online phi ixnewtimes.com News & Features V"-LFARE FO.. Page 9 of 14 Local courses have worked with the City of Scottsdale and the Arizona Department of Water Resources to find new sources of water and stop the rapid depletion of the basin-- with some progress. One step has been to gradually increase the use of CAP water as pipes and hookups to the canal have become available. Unfortunately, even as some area courses have hooked into the CAP, the dramatic water drop in the basin has continued. No one knows whether the area groundwater will last long enough to get all the nearby eolf courses onto CAP water. Vallev golf courses have also begun to use effluent- wastewater taken from city sewer lines and treated to the standards necessary for agricultural or industrial use--for irrigation. Municipalities all over Arizona support the use of effluent on golf courses, and many golf-course developers claim that effluent from homes surrounding their courses will eventually be sufficient to keep their golf grass green. Unfortunately, some basic math shows that effluent is unlikely to be the silver bullet that can kill the Carefree- Cave Creek water problem. The foothills surrounding the two towns are expected to have 20 golf courses at the turn of the century. Each one will use, according to state water guidelines, about 450,000 gallons of water per day. In order to support all those courses, it will be necessary to collect nine million gallons of effluent per day, all year round. The population necessary to keep the courses watered would, therefore, be somewhere in the neighborhood of 300,000. That is more than twice the number of people the cities' own long-range plans show living there once they are fully built out-in 30 years. Those people would all need to live in the area east of Cave Creek Road and north of the CAP canal. Such population density is not likely to be achieved, according to local planners. For a good reason. Too much land in that area has already been set aside for golf courses. Planners say there won't be enough room to put all the houses needed to shelter all the people whose effluent would be needed, just to water golf courses already on the planning books. The antigolf lobby would contain fewer environmentalists if http://www.phoenixnewtimes.comfrssues/1995-08-3I/feature2.htmUpagel.btml 10/2/00 Phoenix New Times Online ph- vxnewtimes.com I News & FeaturesLF.ARE FO.. Page 10 of 14 all golf-course architects were as sensitive as those in Scotland. In the ancestral home of golf, the aim has always been to design courses that use the existing contours of the land, rather than move thousands of tons of earth, as American designers do. Currently, America's golf-course architects, who set the standard for course design around the world, are divided generally into two camps. On one side are traditional, "lay of the land" architects, who like gentle contours and designs that offer players strategic choices. At the other end are the modernists, or "constructionists," who sculpt the earth dramatically to create courses that exact harsh penalties for missing the target. Led by Pete Dye and Jack Nicklaus, the modernists reigned during the 1980s, when more golf courses were built in .America than in any decade since the 1920s Armed with modem construction techniques, they turned out one stunning creation after another--courses that seem chiseled out of the land. They moved earth on a massive scale, creating artificial lakes, enormous hazards and conical mounds. Many of these courses were built to have an immediate visual impact, so they could be used to sell real estate. That may explain why such striking yet artificial course layouts became so common in Arizona, where courses seem to be built less to be played upon than to be lived near. Incidentally, the new wave of design not only altered the landscape, it altered the game. Many of the strategic decisions that came into play on older courses--choices between direct but risky routes to the green or safer, more conservative approaches--went by the wayside. Strategy golf was replaced by target golf, plaved to greens ringed by sand and water, as exemplified by the "stadium" courses on the PGA Tour. This trend clearly influenced Jack Nicklaus, whose courses show the yawning hazards and sharp edges that demand aerial accuracy from the golfer--the strength of Nicklaus' own game. His hyper-pricey, perfectly manicured courses have also proved expensive to maintain because of their steep grades. One of Nicklaus' most recognized designs from the '80s is Desert Highlands Golf Club in Scottsdale, which was described at its opening as "the first in-your-face desert course." What's in the face of today's golf-course architects is http://www.phoenixnewtimes.com/issues/1995-08-31/feature2.htmUpagel.html 10/2/00 Phoenix New Times Online phi lixnewtimes.com I News & Features J V-LFARE FO.. Page 1 I of 14 environmental activism. People in some of the most beautiful areas of the country are criticizing golf courses not just for depleting water tables, but also for destroying natural habitats, tampering with animal populations and leaching pesticides and fertilizers into groundwater. Todd Wilkinson, a spokesman for The Nature Conservancy, says golf courses can be especially dangerous because of the areas in which people want to play. "We're seeing a lot of development in sensitive areas, because that's where a tot of the most spectacular scenery is," he says. Golfers, and so golf-course developers, covet splendid natural backdrops for their playgrounds; in response, some developers are pushing their own unnatural creations closer to wetlands, streams and other riparian areas to provide more "natural" settings. Golf-course superintendents can claim some progress on the environmental front. Computerized sprinkler systems with thousands of heads use far less water and are less obtrusive than older systems; at the start of construction. native trees are carefully uprooted and boxed for replanting; miles of concrete golf-cart paths are "color- coordinated to match the indigenous soil"-which means they're brown instead of black or white. Also, many golf clubs claim to be making environmental amends by pointing out their affiliations to the Audubon Cooperative Sanctuary Program, which is, unfortunately, not all it seems (see sidebar). Some of these environmental innovations--even the legitimate ones--sound a bit silly. But golf courses possessing such features are at least more friendly to the environment than marry other sorts of development. A tree- lined fairway certainly nurtures more birds and insects than a parking lot or a strip mall. And a golf course is arguably just as no-friendly as a farmer's field that also is soaked with herbicides, fungicides and pesticides. In Arizona, there are rules about golf-course habitat destruction, but not many. Cactuses that need to be uprooted during construction must be transplanted facing the same direction. Attention must be paid to the natural washes and gullies that provide drainage during downpours. http://www.phoenixnewtimes.com/issues/1995-08-31/feature2.htmVpagel .html 10/2/00 Phoenix New Times Online pho,ixnewtimes.com I News & Features W'-LFARE FO.. Page 12 of 14 In climates such as Arizona's, pesticide use follows water use as the critical issue. A 1982 EPA survey showed that the average course was sprayed and spread with more than nine pounds of herbicides, fungicides and insecticides per acre each year, about three times the amount of chemicals applied by the most intensive agribusiness operations to an acre of corn or soybeans. Among the estimated 126 pesticides currently in use on golf courses, three of the most popular--chlorothatoni ; 2,4- D; and trifluralin--have caused cancer in laboratory animals, according to the Eugene, Oregon-based Northwest Coalition for Alternatives to Pesticides (NCAP). Golfers rarely know what chemicals have been applied to their favorite courses. Only about 20 states (Arizona is not one) require clubs to post chemical notices, and few elsewhere voluntarily inform the public. Even the United States Golf Association says it is not uncommon for golfers and golf- course workers to have adverse reactions to the array of chemicals used to maintain turf grass. To understand why golf courses are awash in chemicals, think about the most chemical-dependent area of the course--the putting green. There, grass is mowed as short as one-tenth of an inch, so putts will roll evenly toward the hole. Because greens are shaved to such smoothness, says Steve Jones, a botanist who lives in Cave Creek, they constantly exist on the edge of life and death. "Shaved grasses have less mature root and shoot systems," Jones says. "And they're usually less tolerant of heat, cold, drought or excess moisture, and more subject to disease, than higher grass." Superintendents must fight moisture, wind, heat extremes, molds and fungus to keep their greens green. If they don't, golfers and club owners whine. Too much whining, and the supers may be out of a job. Such rigid standards exist because a golf ball will not roll consistently across patches of dead or dying turf. And after the chemicals are put on the grass to keep it alive, there's more bad environmental news. Putting greens are more susceptible to chemical leaching than fairways or roughs because beneath that thin, smooth layer of turf is a base of 70 to 90 percent sand. Chemicals routinely leach through sand, especially after heavy rainfalls, and can migrate into streams or rivers. Recently, http://www.phoenixnewtimes.com/issues/1995-08-31/feature2.html/pagel.html 10/2/00 Phoenix New Times Online phi 'ixnewtimes.com I News & Features s -LFARE FO.. Page 13 of 14 high concentrations of the herbicide Surflan, which is used to kill rough desert grasses and small bushes, were found in a wash at a golf course in north Scottsdale. Surflan is considered dangerous to humans and animals in high concentrations. A couple, whose child developed a rash after playing in the wash, called the Arizona Department of Environmental Quality; the couple was astonished when the department said it had no jurisdiction over this level of contamination on the golf course. Besides weed- and insect-killing chemicals, golf course run-off also can carry fertilizers that can play havoc with local habitats. When plants in the desert receive more water and nutrients than they naturally would, they grow too quickly and become dependent on artificial help. When the extra water and food are cut off, the plants die and are more likely to pose a fire hazard. In the desert, where plants and animals are in some ways tougher but in other ways more vulnerable than they are in other habitats, the effects of chemicals can be far-reaching. One accidental run-off of pesticides in Palm Springs several years ago killed most of the fish in an artificial lake. When several hundred birds came along to eat the fish, they died, too. The United States Golf Association hopes to arrive at more definite conclusions about chemical use on golf courses by spending 53.2 million on 21 different studies now under way in ten states. Some superintendents are trying to educate golfers so they understand that it is unreasonable and unhealthy to expect a wall-to-wall carpet of green grass at their favorite courses. One north Scottsdale course superintendent, who asked not to be identified, says, "Golfers shouldn't worry so much about color, especially [in Arizona]. Brown is okay. That nice green appearance is not really that important." His point, though valid, may be a bit difficult to sell to golf- course neighbors. Having shelled out a minimum of several hundred thousand dollars for their palatial courseside homes, plus the yearly $10,000 or $15,000 membership fee many clubs require, well-heeled golf lovers may be less than thrilled with the prospect of hosting cocktail parties on decks overlooking brown grass, tumbleweed-dotted fairways and dried-up artificial lakes. True environmental reform of the golf-course industry will have to deal with the demands of the people it caters to. http://www.phoenixnewtimes.cornrissues/1995-08-' 1/feature2.htmI/pagel.html 10/2/00 Phoenix New Times Online ph- )ixnewtimes.com I News & Features `LFARE FO.. Page 14 of 14 For the time being, then, the best advice for those who live with and around golf-course chemicals may be found on leaflets like one passed out recently at Troon North, which reads, in part: "Is it safe to walk on the course after it has been sprayed? "Yes, with common sense. Clean golf balls with a towel, not your hands. Don't use your mouth to clean balls. Don't chew on tees. Avoid animals and insects which may have been sprayed. Clean your clubs and shoes immediately after your round and take a shower--especially if you've been wearing shorts." Or cocktail dresses. Discuss this story l Send a Letter to the Editor Get a printable version l E-nail this story to a fiend phoenixnewtimes.com I News & Features Columnists I Arts & Music I Cafe Film I Special Projects I Calendar I Classified Romance I Letters to the Editor I Discussions I Archives I About ( Best of Phoenix 02000 New Times, Inc. All rights reserved. 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