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HomeMy WebLinkAboutCOM 0146.000 1998-2000 4o~NtY os Virginia Goldstein Shen K. Yamashiro ; \,6r,~•, Director hfuynr Russell Kokubun •J~rF os'M~'~~`• Deputy Director 7 ~IIUrt~~ II~ ~.2ItlYttit PLANNING DEPARTMENT 25 Aupuni Street, Room 109 • Hllo, Hawaii 96720-4252 (808) 961-8288 • Fax (808) 961-8742 January 10, 1999 Mr. Steven S.C. Lim Carlsmith Ball Wichman Case & Ichiki 121 Waianuenue Avenue Hilo, HI 96721-0686 Dear Mr, Lim: Fourth Annual Progess Report Change of Zone Ordinance No. 93 131 (REZ 752) Applicant: White Hat Development Corp. TMK: 7-3-3: 7 and 13 This is to acknowledge receipt of your fourth annual Progess report in compliance with Condition T of the above-referenced ordinance. Thank you for your timely and thorough submittal. By copy of this letter, we will forward your report to the County Council and Planning Commission for their information. As a reminder, your next annual Progess report will be due on or before December 29, 1999. Should you have any questions, please call Phyllis Fujimoto or Susan Gagorik of this department at 961-8288. Sincerely, ~RGINIA GOLDSTEIN o Planning Director / L,f Comm. No, PF:gp File No. Z N C~ /KN f:\wpwin60\phyllisUwhite03.pkf Fef. 'Cn: Ref. [~nto._~.~_j ~ Mr. Steven S. C. Lim Carlsmith Ball Wichman Case & Ichilci Page 2 February 10, 1999 c w/Itr: ~est Hawaii Office ounty Council Planning Commission CARLSMITH BALL ATTORNEYS AT LAW A PARTNERSHIP INCLUDING LAW CORPORATIONS 121 WAIANUENUE AVENUE POST OFFICE BOX 686 HILO, HAWAII 96721-0686 TELEPHONE (808)935-6644 DIRECT DIAL NO. FAX (800) 935-7575 OUR REFERENCE NO. (808)935-6644 037056-1 W W W.CARLSMITH.COM January 25, 1999 Virginia Goldstein Planning Director Planning Department ~1 County of Hawaii ' 25 Aupuni Street _ - Hilo, Hawaii 96720 Re: Fourth Annual Progress Report Change of Zone Ordinance No. 93-131/Change of Zone Application No. 93-1 Applicant: White Hat Development Corp./Project: University Heights West Tax Map Key: 7-3-03:07 and 17. Makaula. District of North Kona. Hawaii Dear Ms. Goldstein: Please accept the following as applicant White Hat Development Corp.'s (hereinafter the "Applicant" or "Petitioner") fourth annual progress report submitted in compliance with Condition T of Change of Zone Ordinance No. 93-131 for the above- referenced University Heights West Subdivision (hereinafter the "Project"). Status of Project A. State Land Use Reclassification. On January 7, 1993, in its Order Adopting Hearing Officer's Proposed Findings of Fact, Conclusions of Law, and Decision and Order, the State Land Use Commission reclassified the Project site, more particularly described as tax map key parcels (3) 7-3-3:007 and 017, from the State Land Use Agricultural District to the Urban District. T, Virginia Goldstein Planning Director January 25, 1999 Page 2 On July 15, 1996, the Land Use Commission approved an Order Granting Motion to Amend Conditions of Approval, amending Conditions 1, 4 and 5 as follows: 1) Petitioner shall provide affordable housing opportunities for low to moderate residents in the State of Hawaii to the satisfaction of the County of Hawaii. The location and distribution of the affordable housing or other provisions for affordable housing shall be under such terms as may be mutually agreeable between the Petitioner and the County of Hawaii. 4) Petitioner shall fund, design and construct necessary local and regional roadway improvements necessitated by the proposed project in designs, and schedules accepted by the State Department of Transportation and the County of Hawaii. 5) Prior to the occupancy of the first house in the subject project, the Petitioner shall provide afair-share contribution for school facilities as determined by the Department of Education. The contribution may be a combination of land, services and/or cash required to address the impact on school facilities. See, Exhibit A attached to Applicant's second annual report dated January 13, 1997 (hereinafter "Applicant's Second Annual Report"). B. County Rezoning On December 29, 1993, the Hawaii County Council approved Ordinance No. 93-131, rezoning the approximately 23.926-acre Project site from an Unplanned (U) to the Single-Family Residential (RS-7.5) designation. On December 16, 1994, the Hawaii County Planning Department approved White Hat Development Corp.'s Application for Planned Unit Development (hereinafter the "PUD") for the construction of a residential subdivision comprised of a maximum of 108 single-family units on the Project site, with a final unit count pending final action on subdivision design drawings under review by the agency. Subsequently, in light of the Virginia Goldstein Planning Director January 25, 1999 Page 3 downturn in the real estate market experienced across the State and in the Kailua-Kona area, Applicant downsized its original subdivision plans and was granted tentative approval fora 50-lot residential subdivision on October 11, 1996. See, Exhibit B attached to Applicant's Second Annual Report. Applicant also consulted with the County Office of Housing and Community Development (hereinafter "OHCD") and the County Housing Agency to determine whether certain zoning preemptions could be utilized for the Project, pursuant to Hawaii Revised Statutes Sections 201E-201 and 201E-210. As a result, the County authorized exemption of the Project from specific zoning, subdivision and roadway codes and requirements, as set forth in Resolution No. 34-97 (Draft 2) adopted by the County Council effective February 7, 1997, thereby exempting the project from further PUD review. See, Exhibit A attached to Applicant's third annual report dated December 26, 1997 (hereinafter "Applicant's Third Annual Report"). The County Council also adopted Resolution No. 38-97 effective February 7, 1997, which certified Applicant as an "Affordable Housing Developer", pursuant to Hawaii County Code Chapter 2, Article 19, Section 2-110(a)(5). See, Exhibit B attached to Applicant's Third Annual Report. On March 21, 1997, Applicant and the County entered into an Agreement, which required that all 50 house-and-lot units in the Project be offered for sale to affordable housing target group purchasers within the County, pursuant to the requirements of OHCD. In its September 4, 1997 letter, OHCD determined that Applicant could offer units for sale "without regard to income, ownership of property, owner- occupancy and price restrictions, and reduced the required owner-occupant period for said units from ten to three years. Subsequently, on September 17, 1997, the County executed a Release of the aforementioned March 21, 1997 affordable housing agreement. See, Exhibits C to E attached to Applicant's Third Annual Report. Lastly, on May 28, 1998, Applicant was granted final subdivision approval for its 50-lot residential subdivision, and recorded its final revised plat map for the subdivision at the State Bureau of Conveyances as File Plan 2232. Conditions of Rezoning Approval/Status of Compliance Condition A: The applicant, successors, or assigns shall be responsible for complying with all of the stated conditions of approval. Virginia Goldstein Planning Director January 25, 1999 Page 4 Status: Applicant, its successors or assigns will comply with all of the applicable conditions of rezoning approval for the Project, as amended by County Council Resolution Nos. 34-97 (Draft 2) and 38-97 effective February 7, 1997. See, Exhibits A and B attached to Applicant's Third Annual Report. Condition B: The applicant shall submit the required water commitment payment to the Department of Water Supply in accordance with its "Water Commitment Guidelines Policy" within two (2) years from the date of adoption of this Change of Zone ordinance, provided that a maximum one-year extension may be granted by the Planning Director with reasonable and sufficient justification. The effective date of the Change of Zone shall be upon the formal issuance of all necessary water commitments for the proposed development by the Department of Water Supply. Status: On November 8, 1996, the Department of Water Supply (hereinafter "DWS") acknowledged receipt of the required $7,500.00 water commitment deposit for the Project. See, Exhibit C attached to Applicant's Second Annual Report. On December 11, 1998, DWS acknowledged receipt of the required $68,184.00 facilities charge for the current phase of the Project, and that Applicant had completed water system improvements in accordance with approved plans. See, Exhibit A attached hereto. Condition C: Final Subdivision Approval for the proposed development shall be secured within five (5) years from the effective date of the Change of Zone ordinance. Status: Applicant secured final subdivision approval for the Project on May 28, 1998. Condition D: The project site's access intersection with the Mamalahoa Highway shall be constructed and fully channelized in a manner meeting with the approval of the State Department of Transportation, prior to the final inspection and occupancy of the first house(s) within the proposed development. Mitigation measures to improve the operation of Mamalahoa Highway north and south of the project access shall be submitted to the State Department of Virginia Goldstein Planning Director January 25, 1999 Page 5 Transportation in conjunction with the submittal of plans for Tentative Subdivision Approval review and/or with the issuance of a Planned Unit Development (PUD) should such a permit be submitted and approved or whichever occurs first. Status: As stated above, on July 15, 1996, the Land Use Commission amended Condition 4 of its approval for State land use reclassification of the Project site as follows: 4) Petitioner shall fund, design and construct necessary local and regional roadway improvements necessitated by the proposed project in designs and schedules accepted by the State Department of Transportation and the County of Hawaii. See, Exhibit A to Applicant's Second Annual Report. Subsequently, Applicant has coordinated with State and County agencies on the design and construction of required roadway improvements, as set forth in Resolution No. 34-97. See, Exhibit A attached to Applicant's Third Annual Report. Condition E: Access to the subject property from Mamalahoa Highway intersection shall meet with the approval of the Department of Public Works prior to the issuance of Tentative Subdivision Approval for the proposed development. Status: See, response to Condition D above. Condition F: All interior subdivision roadways 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 proposed development. The applicant, as may be required by the Department of Public Works, shall provide dedicated roadway stubouts within the proposed subdivision which would eventually provide access to adjoining properties located to the north, south and west of the project site. Virginia Goldstein Planning Director January 25, 1999 Page 6 Status: Exemption No. 7 under Resolution No. 34-97 provides for "dedication to and acceptance by the County of Hawaii of all project roadways (Roads `A', `B', `C', and road stubouts to the north and south properties)." Exemption No. 9 provides that the County may "vary and allow street grades of up to and including 20%, and 50-foot right- of-way, with paved swales for public roadway". See, Exhibit A attached to Applicant's Third Annual Report. Condition G: Prior to the final inspection and occupancy of the first house(s) within the subdivision, the applicant shall bond and/or construct that portion of the Kauwila Street extension fronting the subject property which runs from the north and south boundaries of the subject property on lands owned by the State of Hawaii, and shall be constructed to county-dedicable standards with a sixty (60) foot right-of-way meeting with the approval of the Department of Public Works. Status: Exemption No. 2 under Resolution No. 34-97 allows the County to "delete the paving requirements and require only rough grading of the Kauwila Street extension within the north and south boundaries of the subdivision to its designed `subgrade' in accordance with the plans and specifications approved by the Department of Public Works." ee, Exhibit A attached to Applicant's Third Annual Report. Condition H: Drainage improvements shall be provided in a manner meeting with the approval of the Department of Public Works. Status: Exemption No. 5 under Resolution No. 34-97 provides as follows: "Modify requirement for concrete curbs, gutters and sidewalks (Detail R-52) to allow paved swales constructed pursuant to Department of Public Works Detail R-34. Allow use of design speed of 25 miles per hour within University Heights Subdivision." Exemption No. 6 provides as follows: "Vary Detail R-40 (Note 4) which requires 20-foot minimum drywell depth to increase the total number of drywells proposed with 8-foot depths. Delete requirement for obtaining Department of Health Underground Injection Control (UIC) permit for modified drywells. See Exhibit `C' hereto for proposed drywell detail." See, Exhibit A attached to Applicant's Third Annual Report. Virginia Goldstein Planning Director January 25, 1999 Page 7 Condition I: The applicant shall provide all on- and off-site water system improvements as may be required by, and constructed in a manner meeting with the approval of the Department of Water Supply. Status: See, response to Condition B above. Condition J: In lieu of the actual construction of improvements as required in Conditions D, E, F, G, H and I, the applicant may enter into an agreement with the Planning Department to assure the County that the infrastructural improvements will be constructed by way of a development agreement, surety bond, certified check or other security acceptable to Corporation Counsel and the Planning Department. Upon final execution of such agreement and/or filing of the security with the County, Final Subdivision Approval for the proposed development shall be granted prior to the actual construction of required infrastructural improvements. Status: As discussed above, Final Subdivision Approval was granted on May 28, 1998. Condition K: The applicant shall install a wastewater treatment system meeting with the requirements of the Department of Health. Status: Tentative and Final Subdivision approvals were granted based on Applicant's downsized plans fora 50-lot residential subdivision, subject to construction of individual wastewater treatment systems on each lot in compliance with State Department of Health regulations. Condition L: To ensure that the Goals and Policies of the Housing Element of the General Plan are implemented, the applicant shall work with the Office of Housing and Cotnmunity Development and the Planning Department to implement the housing plan for the development approved by Resolution No. 505-92 and the December 3, 1992 Agreement between the County of Hawaii and White Hat Development Corp., which shall be consistent with the housing policy of the Hawaii County Housing Agency. The applicant shall notify the County Virginia Goldstein Planning Director January 25, 1999 Page 8 Housing Agency of any intent to sell, lease, assign, place in trust, or otherwise voluntarily alter the ownership interest in the property prior to the visible commencement of construction on the property provided further that the applicant may transfer ownership in the property to an affiliate or in a manner consistent with prior representations to the County. Housing Agency. Status: As stated above, on July 15, 1996, the Land Use Commission amended Condition 1 of its approval for State land use reclassification of the Project site as follows: 1) Petitioner shall provide affordable housing opportunities for low to moderate residents in the State of Hawaii to the satisfaction of the County of Hawaii. The location and distribution of the affordable housing or other provisions for affordable housing shall be under such terms as may be mutually agreeable between the Petitioner and the County of Hawaii. See, Exhibit A to Applicant's Second Annual Report. As discussed above, on February 7, 1997, the County Council adopted Resolution No. 34-97, which exempted the Project from certain zoning, subdivision and roadway codes and requirements, and Resolution No. 38-97, which certified Applicant as an "Affordable Housing Developer", pursuant to Hawaii County Code Chapter 2, Article 19, Section 2-110(a)(5). On March 21, 1997, Applicant and the County entered into an Agreement, which required that all 50 house-and-lot units in the Project be offered for sale to affordable housing target group purchasers within the County. In its September 4, 1997 letter, OHCD determined that Applicant could offer "units for sale without regard to income, ownership of property, owner-occupancy and price restrictions", and also reduced the owner-occupancy requirement for said units from ten to three years. Lastly, on September 17, 1997, the County executed a Release of the aforementioned affordable housing Agreement dated March 21, 1997. See, Exhibits A to E attached to Applicant's Third Annual Report. Virginia Goldstein Planning Director January 25, 1999 Page 9 Condition M: To ensure that the Goals and Policies of the Recreation Element of the General Plan are implemented, the applicant shall construct three recreational areas totaling a minimum of 3.5 acres for active and passive recreational uses within the subject property which shall be dedicated and accepted by the County of Hawaii upon its request. The configuration and improvements of the park, including and not limited to grading, grassing, irrigation, fencing, one basketball court, a combination volleyball/biddy basketball court, a mini soccer field, and a "tot lot", shall meet with the approval of the Planning Department in consultation with the Department of Parks and Recreation, prior to final subdivision approval. A park maintenance and operational plan shall be submitted for review and approval by the Planning Department in consultation with the Department of Parks and Recreation in conjunction with final subdivision approval. Until such time that the park is dedicated to and accepted by the County, there shall be adequate assurance, as determined by the Corporation Counsel, for the maintenance of the private park by recorded covenant running with the land which shall include the following: 1) obligate the subdividers, purchasers, occupants, or association in the subdivision to maintain the park in perpetuity; and 2) empower the County, through the Department of Parks and Recreation, to enforce covenants to maintain the park, authorizing the performance of maintenance work by the County in the event of failure by the subdividers, purchasers, occupants, or association in the subdivision to perform such work and permit the subjecting of land and properties in the subdivision to a lien until the cost of the work performed by the County has been reimbursed. The parks and its improvements shall be completed prior to the final inspection and occupancy of the first house(s) within the proposed development. Status: Exemption No. 3 under Resolution No. 34-97 deleted the foregoing requirement, based on Applicant's agreement to "contribute $62,500 toward costs of related recreational facilities for the immediate area before the first house is occupied", or to provide land and construct park facilities valued at a minimum of $62,500 for dedication to and acceptance by the County of Hawaii. Plans for the park site to be dedicated by Applicant to the County are pending final approval by the Department of Parks and Recreation and the Planning Department. See, Exhibit A attached to Applicant's Third Annual Report. Virginia Goldstein Planning Director January 25, 1999 Page 10 Condition N: The applicant shall work with the State Department of Education and the Planning Department to provide its pro rata share for school facilities. The pro rata share determination and its implementation shall be approved by the Planning Department, in consultation with the Department of Education, in conjunction with Final Subdivision Approval of the proposed development. Status: As stated above, on July 15, 1996, the Land Use Commission amended Condition 5 of its approval for State land use reclassification of the Project site as follows: 5) Prior to the occupancy of the first house in the subject project, the Petitioner shall provide afair-share contribution for school facilities as determined by the Department of Education. The contribution may be a combination of land, services and/or cash required to address the impact on school facilities. See, Exhibit A attached to Applicant's Second Annual Report. Subsequently, Exemption No. 1 under Hawaii County Resolution No. 34-97 deleted the requirement that Applicant provide a pro rata share for school facilities "in light of the commitment to offer for sale 100% of the lots to qualified affordable housing target group purchasers". See, Exhibit A attached to Applicant's Third Annual Report. Condition O: That a Solid Waste Management Plan meeting with the approval of the Department of Public Works shall be submitted prior to final subdivision approval of the proposed development. Status: Applicant will coordinate with applicable State and County agencies to conform to its Project to the program goals and objectives of the Integrated Solid Waste Management Act, Chapter 342G, HRS, and any applicable County of Hawaii Solid Waste Management Plan developed by the Department of Public Works. Virginia Goldstein Planning Director January 25, 1999 Page 11 Condition P: Should any unidentified sites or remains, such as artifacts, shell, bone or charcoal deposits, human burials, rock or coral alignments, pavings or wall be encountered, work in the affected area shall cease and the Planning Department immediately notified. Subsequent work shall proceed upon an archaeological clearance from the Planning Department when it finds that sufficient mitigative measures have been taken. Status: The State Historic Preservation Division has reviewed the archaeological survey submitted by Applicant for the Project, and has determined that the proposed development will have "no effect" on significant historic sites and that no further archaeological work is necessary. (See, the Planning Department's Background Report for the subject Change of Zone Application No. 93-1.) However, should any unidentified sites or remains be encountered on the Property, Applicant will comply with the provisions contained in Condition P above. Condition O: As represented by the applicant, restrictive covenants in the deeds of all the proposed lots shall prohibit the construction of a second dwelling unit on each lot. 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. Status: Applicant recorded its "Declaration of Protective Covenants, Conditions and Restrictions for University Heights West" at the State Bureau of Conveyances on February 5, 1997, as Document No. 97-016852, which provides at Section 2.1, "Use Limitations", as follows: "Use Limitations. Every Lot (other than any Roadway Lot) within UNIVERSITY HEIGHTS WEST shall be used only for single family residential purposes and accessory uses, including access and utility purposes. No Lot (other than a Roadway Lot) shall be improved except with one residence structure or complex designed to accommodate no more than one single family and occasional guests, plus such guests' Virginia Goldstein Planning Director January 25, 1999 Page 12 quarters or other Improvements as are necessary or customarily incidental to a single family residence." See, Exhibit A attached hereto. Condition R: Comply with the conditions of the State Land Use Commission's Decision and Order dated January 7, 1993. Status: Applicant will comply with the conditions of the State Land Use Commission's Decision and Order filed January 7, 1993, which reclassified the Property from the State Land Use Agricultural District to the Urban District, as amended by the Commission's Order Granting Motion to Amend Conditions of Approval filed July 15, 1996, as further amended by Resolution No. 34-97 adopted by the Hawaii County Council on February 7, 1997. See, Exhibit A attached to Applicant's Third Annual Report. Condition S: Comply with all applicable laws, rules, regulations and requirements of the affected agencies. Status: Applicant will comply with all applicable laws, rules, regulations and requirements of the affected agencies. Condition T: An annual progress report shall be submitted to the Planning Director prior to the anniversary date of the effective date of this ordinance. The report shall include, but not be limited to, the status of the development and to what extent the conditions of approval are being complied with. 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. Status: In compliance with the foregoing condition, Applicant submits herein its fourth annual progress report. Virginia Goldstein Planning Director January 25, 1999 Page 13 Condition U: 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. Status: Applicant will comply with the foregoing condition, if implemented for this Project. Condition V: An initial extension of time for the performance of conditions within the ordinance may be granted by the Planning Director upon the following circumstances: a) the non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicants, successors or assigns, and that are not the result of their fault or negligence; b) granting of the time extension would not be contrary to the general plan or zoning code; c) granting of the time extension would not be contrary to the original reasons for the granting of the change of zone; d) 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 e) if the applicant should require an additional extension of time, the Planning Director shall submit the applicant's request to the County Council for appropriate action. 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. Status: Applicant will comply with the provisions for extension set forth above. Condition W: The applicant shall complete the proposed project in substantial compliance with the representations made before the County Council. Status: Applicant will comply with the foregoing condition. Virginia Goldstein Planning Director January 25, 1999 Page 14 Applicant White Hat Development Corp. respectfully requests that the Planning Department accept its fourth annual report in satisfaction of Condition T above. Please contact me at 935-6644, should you have any questions concerning the foregoing discussion. Thank you for your consideration in this matter. Very truly yours, CARLSMTfH BALL STEVEN S.C. I SSL:JEC Attachments cc: William Boyle Thomas Whittans Scott Leithead, Esq. c~ a rrr fy~~ DEPARTMENT OF WATER SUPPLY COUNTY OF HAWAII i f ~ ~ 25 AUPUNI STFEET HILO, HAWAII 96720 yf, C/ NJ N~~~'~ ' TELEPHONE (608) 9fi1-8660 FAX (808) 961.6657 December 11. 1998 T0: - Planning Department FROM: Milton D. Pavao. Manager SUBJECT: SUBDIVISION APP!ICATION NO. 96-66 UNIVERSITY HEIGHTS SUBDIVISION PHASE 1 APPLICANT - WHITE HAT DEVELOPMENT CORPORATION TAX MAP KEY 7-3-003:PORTIONS OF 007 AND 017 Please be informed that the water system improvements have been completed in accordance with approved plans. For your added information, this includes the remittance or" the $68.184.00 r"acilities charge. Therefore, we have no objections to final subdivision approval being granted. Milton D. Pavao. P.E. Manager dA:gms :opy - White Hat Development Corporation Steven S.C. Lim, Esq. ? Mr. Leo Fleming R-3Fi7 STATE nF HAWATT ~ RTIRRATI OF CONVF;VANC:RS RRC'c~RnFD FT•',R O5; 1497 01.:15 PM 1)n r, Nn(cl 97-f17FiA57. /s/C:ART~ T. WATANARF Ac~TTNt; RF(:T$TRAR OF CbNVRYANi.:`RS t LAND COURT SYSTEM RFr TT.AR SYSTEM RETURN BY: MAII, (X) PICKUP.( ) TO: STEVEN S. C. LIM Carlsmith Ball Wichman Case & Ichiki 121 Waianuenue Avenue Hilo, Hawaii 96720 Telephone: (808) 935-6644 lorctl ~,~um~,Y o F~~~h~% wiute hat.cc&rs/1-22-97 DFCT ARATION OF PROTECTIVE COVENANTS CONDITIONS AND RESTRICTIONS E4g UNIVERSITY HEIGHTS WEST DECLARANT: WHITE HAT DEVELOPMENT CORP., a Hawaii corporation PROPERTY: UNIVERSITY HEIGHTS WEST Makaula, District of North Kona Island, County and State of Hawaii AFFECTS TAX MAP KEY: (3) 7-3-03:portions of 07 and 17 ARTICLE II. USE RIGHTS AND RESTRICTIONS 2.1 i Tse Limitations, Every Lot (other than any Roadway Lot) within UNIVERSITY HEIGHTS WEST shall be used only for single family residential purposes and accessory uses, including access and utility purposes. No Lot (other than a Roadway Lot) shall be improved except with one residence structure or complex designed to accommodate no more than one single family and occasional guests, plus such guests' quarters or other Improvements as are necessary or customarily incidental to a single family residence. 2.2 Subdivision of Lots. No Lot (other than a Roadway Lot) may be further subdivided. Notwithstanding the foregoing, adjoining Owners may, in compliance with all applicable laws or ordinances, consolidate and resubdivide adjoining property within UNIVERSITY HEIGHTS WEST to accomplish relocation of the boundary lines between such Lots only if such consolidation and resubdivision shall not result in any Lot of less than 7,500 squaze feet in size nor cause or result in any violation of any restriction contained herein or in any such laws or ordinances. In cases of such consolidation and resubdivision, the new boundazy lines thus established shall be deemed the new boundary lines between the respective Lots, but no restrictions or easements established for such Lots with respect to the former boundary lines or otherwise shall be changed or shifted by reason of the change of boundary lines. 2.3 Flooding and Erosion. No Improvement which will create a problem of flooding, erosion, interference with natural water flow or runoff damaging to any Lot or adjacent properties shall be constructed on any Lot. All Owners shall act reasonably so as to minimize runoff damage or interference with the natural flow of storm waters. 2.4 No Hazardous Activities. No activity shall be conducted on any Lot, and no Improvement shall be constructed on any Lot, which is or might be unsafe or hazardous to any person or property. Without limiting the generality of the foregoing, no firearms shall be dischazged and no hunting shall be allowed on any Lot, nor shall any toxic or hazardous materials or chemicals, or explosives of any type, be stored or kept on any Lot. 2.5 No n i;j~lin No unsightliness shall be permitted on any Lot. Without limiting the generality of the foregoing: (a) no Lot shall be used or maintained as a dumping ground for discarded or old vehicles, rubbish or trash; (b) no metals, bulk materials, scrap, refuse or trash shall be kept, stored or allowed to accumulate on any Lot; (c) all refuse, garbage and trash shall be kept at all times in covered, sanitary containers out of sight, provided that gazbage disposal cans may be put out immediately prior to collection if removed and stored immediately after collection; and (d) all yards and landscaping shall be maintained in a reasonably clean, attractive and trimmed condition. If any Owner neglects to maintain a Lot as provided above, the Declazant or the Association may clean said premises and charge said Owner for all expenses incurred as a 4