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Home My WebLink AboutCOM 0494.009 2008-2010 ;: ~ ( Van PERNIS - VANCIL Attorneys at Law. A Law Corporation PER N I S [shervsv@hawaii.rr.com] - GAR Y W. V A N elL [vsv@hawaii.rr.com] 75-167F Hualalai Road, Suite B, Kailua-Kona, Hawaii 96740-1714 Phone (808) 329-3551 Fax (808) 329-6185 MARK Van September 4, 2009 o n_. C:' j ~_... <:::;;;;> = c;J;;".; ~:- Cf) r:-t -a j-4 1--1> } : .~--, ..::'j Hawaii County Council 333 Kilauea A venue Hilo, Hawaii 96720 :~ ,) :::D :3 13~ 131 ~ Re: Draft 9 of Bill No. 2Z4 / Please accept the following as my written testimony concerning the proposed revisions of AN ORDINANCE AMENDING SECTION 25-8-3 (NORTH KONA ZONE MAP), ARTICLE 8, CHAPTER 25 (ZONING CODE) OF THE HAW AI'I COUNTY CODE 1983 (2005 EDITION), BY CHANGING THE DISTRICT CLASSIFICATION FROM AGRICULTURAL (A-3a) AND OPEN TO PROJECT DISTRICT (PD) AT KAU, NORTH KONA, HAWAI'I, COVERED BY TAX MAP KEY 7-2-5: 1, in opposition to portions of it. C) ~ j i' '\ --C -..J 1. my family. I am an owner of Makalei Estates Lot 39, TMK(3)7-2-015:039, where I reside with 2. This is an exceptional and massive proposed development that was extensively debated and negotiated by the developer, the County, and the public over a long time. The resulting agreement was a pact well known and relied upon by the public and nearby landowners. Now, the developer intends to breach that pact by acquiring with County approval substantial changes, for its financial benefit, with no corresponding benefit for the public. Public loss, as well as severe detriment to Makalei lot owners, will result. The loss of the developer's credibility and the breach of the County's obligations to represent the public would also result. 3. A change in the economy and the developer's unsubstantiated claim that it must have a massively increased prospective profit margin to get the financing it wants is not adequate grounds for shedding the most important part of the public infrastructure contributions it promised in exchange for the approvals and permits from the County which increased the value of its property by tens of millions of dollars. The County has no opportunity for a prospective change in the agreement for increased public benefit should the prospective profit margin increased due to a the coming better economy. Why is the developer given benefits when there is no reciprocity for the County and public? It is the developer's predictions of economic benefits so blinding, like Holukia, that the County will sacrifice itself and its citizens for the developer's benefit? 4. The proposed ordinance gifts the developer with the opportunity and incentive to avoid the obligation to construct the critical connector road. This is a huge financial benefit for the developer, while providing nothing in exchange for the public. This now deleted road was critical for the acceptance of this massive project by the public and by the County. To void this obligation is a capitulation to the developer, a breach of trust and a massive sacrifice of the County's and tax payers' purses. The results of such capitulation, breach, and sacrifice, which is primarily changing the connector road from a reality to a likely unkept, contingent promise, is the making of Makalei Drive into a defacto primary connector road, even though it is totally substandard. It would also: 1) violate the agreement of the developer that Makalei Drive would not be a connector road under any circumstances; 2) expose the County to liability to Makalei lot owners for defacto condemnation of their road, as well as liability for the substandard condition of Makalei Drive as to public users; Comm. ~ Ref. To: . ,,; Ref. . Dote " I Hawaii County Council September 4, 2009 Page Two 3) make the prohibition of construction vehicles on Makalei Drive unenforceable; and 4) Support Makalei lot owners claims against sellers and developers for misrepresentation as to the future status of Makalei Drive. As confirmed by County Engineer Mr. Kubo's report, Makalei Drive has excessive grades of 15 to 20%, only a 50 feet right of way, and many, many individual lots taking direct access from it. In addition, the road is presently private and not dedicated, and might be gated in the future because of problems currently being incurred by the subdivision. The Developer's anticipated future abandonment of the connector road would make Makalei Drive the permanent defacto connector road, with all its liability issues. The developer will probably not build on a promise for one reason or another a connector road. The experience of the Hokulia's, Laaloa's, and other developers' unkept promises of public roads will likely be repeated. 5. Allowing for the avoidance of construction of the road infrastructure requirements is a serious breach of good faith. Without the developer building that road, there is a great likelihood that it will never be built, except at County/tax payer expense. Where will the developer be if and when called upon to build the promised connector road? What assurance is there that the developer will exist or have preserved adequate funds for such future obligations? The Hokulia promised road is precedent. Fifteen yours ago some knowledgeable people suspected that the County had been gullible and misled, i.e. the promised road would never be built by Hokulia, and the bond just a de~ice to later shift the burden to the County. That suspicion now is fact. All the litigation masked the fact that Hokulia did not intend to and never would construct the whole road. 6. A bond or other security for the static amount of $10,000,000, to "secure" the eventual construction of Road A, may not currently be sufficient. The developer's Mr. Lam so stated at the Planning Commission hearings. Thus a bond or other security in that amount will become insufficient, and certainly so with the passage of time. Other projects with "bonded" to-be-built public infrastructure (e.g. Hokulia, Laaloa) resulted in the infrastructure not being built by the developer after long delays, and the bond not being enough to then pay for the infrastructure, and the County not having money to pay the difference. The result: the developer profiting by getting valuable benefits from the County immediately, and being able to escape (whether in good faith or bad faith) providing the infrastructure it agreed to in exchange for the benefits, for the price of the bond; but the public doesn't get its much-needed infrastructure, the County can't pay for it and must pay with tax dollars if it is to be provided at all, and the County and its citizens are made fools of again. This problem can be easily resolved by the County being as akamai as other lenders, by the way it is dealt with in private business involving financial security and bonds. The obligation is periodically (e.g. yearly) adjusted, such as with a Consumer Price Index, so that the bond or security will keep pace with cost over time, and the County remains adequately secured. Also, a final date for completion of the obligation is necessary and usual. After the Planning Commission hearings and favorable recommendation, I asked the developer's representative director if he could provide assurance the connector road would likely be build. He declined to provide any such assurance. 7. Here. the developer wants to exchange real benefits and infrastructure for indefinite promises it may never keep. The exchange is for a vague "bond or other security" that does not provide for increased security as costs increase with time. And lengthy delay is likely to be '. I. ii. nt, Hawaii County Council September 4, 2009 Page Three involved. Lengthy deferral, with the developer's assets and worth being dissipated, results, as with Hokulia, with no road and the bond inadequate for the County to do it. 8. This project is massive and of overwhelming significance to the County and West Hawaii. It is far too important to, in the future, be modified and postponed in the dark by a single person (the Planning Director in Hilo), who may be subject to political pressure and subjective economic arguments, while being totally outmanned and overwhelmed by the developer and its representatives. This massive and exceptional project should not be treated like a minor development with this usual provision. The provision should be eliminated in this exceptional case, and the Planning Commission and/or the County Council designated as the authority for deciding important delays and modifications. Anything less would be an abdication of responsibility. The overall impression given by the ordinance is that it is intended to postpone and provide opportunity for avoidance of the developer's infrastructure obligations for its massive project, which itself generates the need for the infrastructure, despite past negotiation and agreement. Thus the public loss of infrastructure benefits and shifting to the County/tax payers of the burden of that infrastructure is much more likely. Past agreements are being abandoned, which serves the developers' interests at the expense of the public and the County. The Planning Commission, and now the County Counsel, appear to be gullible (overwhelmed by the "feel good university" concept while expensing the public as a whole) and willing to be stampeded into insuring increased prospective profits for the developer while giving up public benefits that wont materialize except at public expense. Who do you represent? Thank you for your consideration of this written testimony. Please do the right thing now for all of those you represent. Sincerely, VAN PERNIS - VANCIL By MARK V AN PERNIS MVP/sam