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Home My WebLink About2024-03-04 Letter Center for Biological Diversity Maxx Phillips (PL-CCH-2024-023) Ack Petition Mitchell D. Roth eSrtYJOF H,�* Zendo Kern Mayorhw. Director Deanna S. Sako Jeffrey W. Darrow Managing Director n ; +f Deputy Director �TE•OF.Hre� West Hawaii Office East Hawaii Office 74-5044 Ane Keohokalole Hwy • • 101 Pauahi Street,Suite 3 Kailua-Kona,Hawaii 96740 County of Hawaii Hilo,Hawaii 96720 Phone(808)323-4770 Phone(808)961-8288 Fax(808)327-3563 PLANNING DEPARTMENT Fax(808)961-8742 March 04, 2024 Center for Biological Diversity c/o Maxx Phillips 1188 Bishop St., Ste. 2001 Honolulu, HI 96813 VIA EMAIL Dear Ms. Phillips: Special Management Area Use Permit Application (PL-SMA-2023-000046) Applicant: Black Sand Beach LLC Request: Development of a Residential and Commercial Community Consisting of Approximately 225 Residential and Short Stay Units,Village and Wellness Center, Retail Uses,Rehabilitation of Golf Courses, and Dedication of a Portion of Coastline as a Conservation Area Subject: Acknowledge Receipt of Petition for Standing in a Contested Case Hearing (PL-CCH-2024-000023) TMKs: (3) 9-5-019:011, 015, 024, 026, 030, 031, 033, 035; 9-6-001:001-003, 006, 011-013; 9-6-002:008, 037, 038, 041, and 053,Ka`u, Hawaii This is to acknowledge receipt of your Petition for Standing in a Contested Case Hearing filed in the EPIC system on Thursday, February 29, 2024, with the petition fee paid on that date. Your petition will be forwarded to the Windward Planning Commission for its consideration at its meeting scheduled for Thursday,March 7,2024,at the Hawaii County Council Chambers at 25 Aupuni Street,Hilo,HI 96720, starting at 9:00 a.m. Your presence will be required at this hearing to respond to questions that the Planning Commission may have regarding the Petition for Standing. Please refer to Planning Commission Rules of Practice and Procedure, Rule 4 (Contested Case Hearing Procedure) for information about the contested case process. The rules can be found on the Planning Department website at: hgps://www.planning.hawaiicounty_gov/about-us/boards-committees/planning- commission-applications www.cohplanningdept.com Hawaii County is an Equal Opportunity Provider and Employer plannin co.hawaii.hi.us Center for Biological Diversity c/o Maxx Phillips March 04, 2024 Page 2 If you have any questions, please feel free to contact Maija Jackson of this office via email at maija.iacksonghawaiicoun ov or(808) 961-8159. Sincerely, Mai a,7ackfo;r foY Maija Jackson for(Marc,2024 15:43 HST) ZENDO KERN Planning Director AJR:mads \\COHOl\planning\publicAwpwin60\PC\letters\2024\LCBD SMA23-46-AckPetContestedCase.docx cc via email w/copy of petition: Windward Planning Commission Suzanna L. Tiapula, Esq., Deputy Corporation Counsel Jean Campbell, Esq., Deputy Corporation Counsel Daryn Arai, Land Use Planning Consultant PETITION FOR STANDING IN A CONTESTED CASE HEARING (Page 1 of 2) NAME: Center for Biological Diversity ADDRESS: 1188 Bishop Street, Suite 2001 Honolulu, Hawai'i 96813 PHONE NO.: (808)284-0007 APPLICANT/ DOCKET NO.: BLACK SAND BEACH LLC(PL-SMA-2023-000046) A. Is vour interest in this matter clearly distinguishable from that of the general public? Yes x No If the answer is "yes", }Tease explain: Please see attached Appendix B. If the answer is "no", please explain how the proposed action will nevertheless cause you actual or threatened injury: B. Are you a government agency whose jurisdiction includes the land involved in the subject request? Yes No X If the answer is "yes", please explain the nature of the agency's jurisdiction: C. Do you lawfully reside on or have some property interest in the laird involved in the subject request? Yes X No If the answer is "yes", please explain.: Please see attached Appendix B. Appendix A PETITION FOR STANDING IN A CONTESTED CASE HEARING (Page 2 of 2) D. Are you a person or persons descended from native Hawaiians who inhabited the Hawaiian Islands prior to 1778, who practiced those rights which were customarily and traditionally exercised for subsistence, cultural, or religious purposes? Yes x No If the answer is "yes", please submit any genealogical evidence and historical evidence showing the exercise of those rights to support your statement: Please see attached Appendix B. Petitioner's Signature Maxx Phillips Hawaii Director,Staff Attorney STATE OF HAWAII } Center for Biological Diversity } SS. COUNTY OF HAWAII ) On this �1 day of 2 before me personally appeared t � w UZ ,to me knowii to be the person described in and who executed the foregoing instrument, and aclalowledged that he executed the same as his free act and deed. `gKtyttlt it l l t M dt tsddgtgf it� . �GY C Notary ublic tate of Hawaii .� • G A My commission expires: 1 cr>� AEG L I •...... ✓J.d 7dd}dd4 iFt It Ett4Y;6 Appendix A CENTER FOR BIOLOGICAL DIVERSITY'S PETITION FOR STANDING IN A CONTESTED CASE HEARING Appendix B A. The Center interests in this matter are clearly distinguishable from that of the general public. The Center for Biological Diversity (the "Center") is a nonprofit corporation dedicated to the preservation of biodiversity, native species, and ecosystems. The Hawai'i Program focuses specifically on conserving ecosystems and seeks to ensure that imperiled species are properly protected from destructive practices across our pae 'aina. Through science, policy, and environmental law, the Center is actively involved in species and habitat protection issues throughout Hawai'i, including efforts related to Hawai'i's imperiled plant and animal species, such as the endangered hawksbill and threatened green sea turtles, and effective implementation of Federal, State, and County laws. The Center's members have legally protected interests in the survival and recovery of endangered and threatened species and the habitats they depend on. The Center's members derive scientific, recreational, cultural, religious, conservation, spiritual, subsistence, educational, and aesthetic benefits from the myriad of native plants' and animals' existence in the wild of Punalu'u. The Center has members with direct interests in the species, habitat, and environment at Punalu'u that will be injured by the proposed development. Article XI, Section 9 of the Hawaii Constitution (1978), states: "Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings . . " The Supreme Court has interpreted this constitutional provision in In re Application of Maui Elec. Co., 141 Hawaii 249, 408 P.3d 1 (2017): "This substantive right is a legitimate entitlement stemming from and shaped by independent sources of state law, and is thus a property interest protected by due process. Although a person's right to a clean and healthful environment is vested pursuant to article XI, section 9, the right is defined by existing law relating to environmental quality." C. Center members have property interest in the land involved in the subject request. Additionally, Center members also have property interests in the proposed development area. For example, Center member Elsa KalaniKauleleiaiwi Dedman, has Kuleana land at Punalu'u (TMK 3-9-6001-007-0000-004). Her 'ohana have resided there for at least eight generations. Ms. Dedman's Kuleana land is on the coast of Punalu'u beach and is fully surrounded by the proposed development. D. Center members are descended from native Hawaiians who inhabited the Hawaiian Islands prior to 1778, and have practiced those rights which were customarily and traditionally exercised for subsistence, cultural, or religious purposes at Punalu'u. The Center has members who are native Hawaiian and who continue to practice their customary and traditional rights at Punalu'u. For example, Ms. Dedman is a direct lineal decedent to Mahoe which holds the Palapala Sila Nui, Helu 7585 property. She is the current property owner to this Kuleana land on the beach of Punalu'u. Ms. Dedman and her 'ohana have resided on this property and practiced their cultural and religious lifestyle on this 'aina prior to 1892, continuing to this day. 2 CENTER FOR BIOLOGICAL DIVERSITY'S PETITION FOR STANDING IN A CONTESTED CASE HEARING Appendix B Ms. Dedman and her 'Ohana's cultural practices and resources will be harmed by the proposed development at Punalu'u. For instance,the Dedman 'ohana's `aumakua (personal or family god that originated as a deified ancestor) is the honu (turtle). Endangered hawksbill and threatened green sea turtles can be found eating and basking in the sun at Punalu'u. These protected honu nest in Ms. Dedman's front yard under the naupaka and all along the Punalu'u beach. Ms. Dedman has noted that there has already been a huge decline in turtle nesting. The proposed increased development will impact turtle hatchlings at Punalu'u. The adverse effects of resort lighting, increased foot traffic from visitors, and increased runoff from construction and resort use of the property will have negative impacts to turtle hatchlings at Punalu'u. In fact,Jason Turner, UH Marine Biologist has stated, "Punalu'u coastline meets the strict criteria needed for the turtles to lay eggs; 1 in 10,000 make it back to their nest again. Minimal environmental practices and development will affect and change the life of the sea turtles and all of the species. The need to look at the areas of Kau coastline should be put on a priority list for protection! Additionally, freshwater streams, coastal anchialine ponds, and other marine environments are cultural resource that will also be impacted by the proposed development. The Punalu'u shoreline is filled with freshwater springs, 50 to 60 million gallons of water flow per day to Punalu'u. See Pele Hanoa, Punalu'u Experience. Traditionally, Ms. Dedman notes that the cold springs at Punalu'u use to grow a variety of limu which her'ohana and the honu consumed daily. However, after development of the Punalu'u coastline, the limu started to disappear. Ms. 3 CENTER FOR BIOLOGICAL DIVERSITY'S PETITION FOR STANDING IN A CONTESTED CASE HEARING Appendix B Dedman's traditional practice of gathering limu continues to this day and will be impacted by the increased development proposed by the project. Limu, integral to the cultural heritage and ecological balance of native Hawaiians, holds profound significance as a traditional food source, a vital component of coastal ecosystems, and a repository of unparalleled native biodiversity. Wai, or freshwater, is intricately linked to limu, forming a symbiotic relationship between these invaluable cultural and ecological resources. Without freshwater limu cannot flourish. Limu, often thriving in brackish conditions near groundwater discharge from subterranean springs, benefit from the additional nutrients and reduced salinity provided by freshwater. The diminution of freshwater due to the proposed development at Punalu'u poses a direct threat to limu. If the current proposed development is built as planned, the number of cars and visitors coming into Punalu'u will increase dramatically. Ms. Dedman's notes that the parking lot is already crowded on any given weekday and that there are times that she cannot drive into her own property because visitor's cars are blocking the road. With the proposed increased development, Ms. Dedman and the people of Ka'u and Punalu'u, will likely not be able to access the ocean and resources. It is already difficult for Ms. Dedman to perform her cultural practices and gather traditional resources "with thousands of people stopping and staring at us." The ocean at Punalu'u is utilized daily by Ms. Dedman's 'ohana and the people of Ka'u for subsistence gathering and cultural purposes. Ms. Dedman's 'ohana and local families of the area depend on the resources of the ocean at Punalu'u for sustenance. New generations are taught 4 CENTER FOR BIOLOGICAL DIVERSITY'S PETITION FOR STANDING IN A CONTESTED CASE HEARING Appendix B the traditional fishing practices at Punalu'u by their elders and other people of the community. Fishing areas and the types of fish they hold, knowledge of specific areas of the coast and how to utilize them for different types of fishing, gathering of certain plants for medicinal purposes and other site-specific practices that have been passed down from generations are specific to only Punalu'u. For example, fishing ko'a offshore of Punalu'u that have been used for hundreds of years can only sustain themselves if the coastal land is properly managed and preserved. Without a valid updated environmental impact statement, water quality and marine life monitoring plan, pond management plan, cultural resources management plan, and shoreline and preservation area management plan it is impossible for this commission, let alone the community, to know the true extent of impacts to Punalu'u's natural environment, cultural resources, and threatened, endangered, and native species. 5 CENTER FOR BIOLOGICAL DIVERSITY'S PETITION FOR STANDING IN A CONTESTED CASE HEARING Appendix B Doc Date: t ' . e-L # of Pages Notary Name: Lucy Clark-Fong Third Judicial Court Doc Description: , (YY V�v Ow n a5f- W"-"A,—Oj Notary Signature: Date: Commission expires: 10.25.27 tt ii i9 PtF'{r SStggt Jtp'ts; `Jff'ff'=ff 6tl it.{[1ik`it4SSSS