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Home My WebLink About2024-03-18 ACK LTR TO DAVID KIMO FRANKEL RE_AMENDED PETITION (PL-CCH-2024-000024, PL-SMA-2023-000046) Mitchell D.Roth Zendo Kern �;• L,..- •�� Mayor �- �J%gf Director Deanna.S. Sako Jeffrey W.Darrow Managing Director , �* Deputy Director r�os•µ�o 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 PLANNING DEPARTMENT Phone(808)961-8288 Fax(808)327-3563 Fax(808)961-8742 March 18, 2024 `Iewe Hanau o Ka `Aina c/o David Kimo Frankel 1638-A Mikahala Way Honolulu, HI 96816 VIA EMAIL: davidkimofrankel(cr�,gmail.com Dear Mr. Frankel: 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 AMENDED Petition for Standing in a Contested Case Hearing (PL-CCH-2024-000024) 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 on March 12, 2024, of your AMENDED Petition for Standing in a Contested Case Hearing which was filed using the Planning Department's form which was notarized. Your petition will be forwarded to the Windward Planning Commission for its consideration at its next scheduled meeting.You will be notified when the next scheduled meeting will occur. 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: https://www.planning.hawaiicountygov/about-us/boards- committees/planning-commission-applications. www.planning.hawaiicounty.eov Hawaii County is an Equal Opportunity Provider and Employer planning(d),,hawaiicounty.eov `Iewe Hdnau o Ka `Aina c/o David Kimo Frankel March 18, 2024 Page 2 If you have any questions, please feel free to contact Maija Jackson of this office via email at Maija.Jackson c@hawaiicoun ov or(808) 961-8159. Sincerely, Ma6la 7acksoii fo _ Maija Jackson for(Mar 18,202416:39 HST) ZENDO KERN Planning Director AJR:j as \\COHO1\planning\public\wpwin60\PC\letters\2024\LFrankel_SMA23-46-AckPetContestedCase Amended.docx Cc (w/copy of Amended Petition): Windward Planning Commission via e-mail Suzanna L. Tiapula, Esq., Deputy Corporation Counsel via e-mail Jean Campbell, Esq., Deputy Corporation Counsel via email Daryn Arai, Land Use Planning Consultant via e-mail FIR5T Prrewoc-o PETITION FOR STANDING IN A CONTESTED CASE HEARING (Page I of NAME: 'Iewe 145nau o Ka 'Aina i-?k .......... .................. ADDRESS: c/o its attorney, David Kimo Frankel 1638-A Mikahala Way Honolulu,1-1196816 PHONE NO.: (808) 345-5451 APPLICANT/ DOCKET NO.: Black Sand Beach LLC(PL-SMA-2023-000046) A. Is your interest in this matter clearly distinguishable from that of the general public? Yes No If the answer is "yes", please explain: Please see attached. If the answer is "no", please explain how the proposed.action will nevertheless cause you actual or threatened injum Please see attached. ..................................................... .......... .......... 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'sjurisdiction: C. Do you lawfully reside on or have some property interest in the land involved in the subject request? Yes No If the answer is "yes", please explain: Please see attached. ..........I.-..-..--..................................... ................... .............................. Appendix A Relying upon the posted agenda for the March 7,2024 meeting',and having difficulty finding an attorney, `lewe Hanau o Ka `Aina did not file its petition for a contested case hearing earlier. 'Iewe Hanau o Ka 'Aina is an'unincorporated hui of Ka'u residents who desire to protect the cultural practices,natural resources, and stunning beauty of Punalu'u. The protection of iwi and honu are of great importance. Members of'Iewe llanau o Ka `Aina walk along the Punalu'u coastline, swim at Punalu'u Beach,observe marine life,provide stewardship of the land,work to protect the honu that live in the area,gather marine life,participate in cultural protocol,and respect the burials in the area. 'tewe Hanau o Ka `Aina includes Native Hawaiians with deep cultural connections to Punalu'u. The interests of'lewe Hanau o Ka 'Aina and its members would be adversely affected by the proposed project in numerous ways. The phrase"clearly distinguishable from that of the general public"has been misinterpreted by generations of lawyers.No one needs to establish the uniqueness of their injury. Rather,all that needs to be shown is that'lewe Hanau o Ka'Aina and its members would be adversely affected by the proposed project. In 2006,the draft environmental impact statement for development of this land stated,"The onsite wastewater treatment plant is deteriorated and does not have sufficient capacity to serve the new load."(Page 1-15). "The Wastewater system is also old and obsolete. The technology is outdated.New development will require a significant upgrade or a replacement of the entire system and a requirement to meet newer,more stringent wastewater standards."(Page 3-2). Increasing the density in the area will tax the obsolete wastewater treatment plant and jeopardize the coastal water quality that members of'lewe Hanau o Ka 'Aina enjoy. Burials are still found through out the property. The restaurant was built on top of burials. On January 21, 1988 Sam Kaluna and Chris Bengay identified burials under existing structures at Sea Mountain(page XII-153 of the 1988 FEIS). The development threatens further desecration of burials. The threat to burials is a very real threat to members of 1ewe Ilanau o Ka 'Aina. Not only would 'lewe Hanau o Ka 'Aina and its members be adversely affected by the proposed project,but they enjoy a constitutional right to a contested case hearing.Their constitutionally- protected cultural practices would be jeopardized. Moreover,they have a right to a clean and healthful environment,as defined by HRS chapters 205A, 343 and 226.See Kahoina Ahupua`a Assn v. Maui Planning Comm n, 149 Hawaii 304,489 P.3d 408 (2021). These are property intereests. The agenda states"any person seeking to intervene as a party to a contested case hearing on Agenda Item No. 2 above is required to file a written request which must be received by the office of the Planning Department no later than seven(7)days prior to the Planning Commission's first public meeting on the matter."The agenda suggests that the deadline does not apply to Agenda Item No. 3. PETITION FOR STANDING IN A CONTESTED CASE HEARING (Page'ofj2 f 3 3 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 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 (above). Petitioner's Siunature STATE OF HAWAII ) SS. COUNTY OF HAWAII ) Y"' On this vl day of /t1.6H.G�6} 2C)�before me personally appeared _. _..— --- - ---- '��'� ^�'�� to me known to be the person described in and who executed the foregoing instrument,and acknowledged that he executed the same as his free act and deed. .._........--.... .......-._ NOTARY PUBLIC CERTIFI ATION Notary Public. , tate of Hawaii Richard W Hosoda r ircuit Description � P4 My commission expires: No "ges ��_Date of Doc. vo' ry Sictnature nate Appendix.A '�:' NOTARY '.4•. *? PUBLIC _ No. 92-213 OF N ,