HomeMy WebLinkAboutApplicantʻs Statement on AOAO Colony 1 At Sea Mountain Petition From: Daren Arai
To: Plannina Internet Mail
Cc: Jackson. Maiia; Roy.Alex;Eva Liu;Yoga Yana;Zack Hou; Norman Ouon;Candice Fracas; Newell Arnerich;
Ashida,Lincoln S.; Maesato,Jonathan K.
Date: Wednesday,May 1,2024 3:40:05 PM
Attachments: 3303495 1 2024.05.01 Applicant MIO to Iewe Hanau"s Petition for Standina-cornOete.pdf
3303492 1 2024.05.01 Applicant Position Statement on Colony 1"s Petition for Standina-complete.odf
3303459 1 2024.05.01 Applicant MIO to Center for Bioloaical Diversity"s Petition for Standina-complete.pdf
Aloha Chairperson Dennis Lin and members of the Windward Planning Commission.
Regarding the above-described matter, please find attached to this email the Applicant's
responses to the three petitions for standing in a contested case hearing that are pending
before the Windward Planning Commission.
We were not able to upload these documents into EPIC, and request your assistance to ensure
that these documents are made available to the Commission members, the Planning Director
and appropriate staff members in advance of the upcoming May 6, 2024 meeting. We will
serve the relevant response upon each petitioner.
Thank you for your assistance.
Daryn
Daryn Arai
Land Use Planning Consultant
Mobile: (808) 895-3218
TORKILDSON KATZ
A LAW CORPORATION
120 PAUAHI STREET,SUITE 312
HILO,HAWAII 96720-3048
TELEPHONE(808)961-0406.FACSIMILE(808)961-3815
LINCOLN S.T.ASHIDA
DIRECT DIAL: (808)747-8317
E-MAIL:LSA(�TORKILDSON.COM
May 1, 2024
Filed via EPIC
Honorable Dennis Lin
Chair, Windward Planning Commission
Aupum Center
101 Pauahi St., Ste. 3
Hilo, HI 96720
RE: 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
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,Hawai i
Case No. PL-CCH-2024-000023
Dear Chairman Lin and Commission Members:
Pursuant to Rule 4 of the County of Hawaii Planning Commission Rules of Practice and
Procedure,please accept the enclosed Applicant Black Sand Beach LLC's Position Statement on the
Association of Apartment Owners at Colony 1 At Sea Mountain's Petition for Standing in a Contested
Case Hearing.
We will be available at the Commission's meeting on May 6, 2024,to address any questions the
Commission may have.
Thank you for your kind attention to this matter.
Very truly yours,
TORKILDSON KATZ
A Law Corporation
pw--�I
Lincoln S. T. Ashida
Encl.
HONOLULU OFFICE•700 BISHOP STREET,15TH FLOOR HONOLULU•HAWAI'196813-4187•TELEPHONE(808)523-6000•FACSIMILE(808)523-6001
3303393v1
TORKILDSON KATZ
A Law Corporation
LINCOLN S. T. ASHIDA 4478-0
120 Pauahi Street, Suite 312
Hilo, HI 96720
Telephone: (808) 961-0406
Facsimile: (808) 961-3815
Attorneys for Applicant
BLACK SAND BEACH LLC
BEFORE THE WINDWARD PLANNING COMMISSION
COUNTY OF HAWAI'I
STATE OF HAWAI'I
In the Matter of: PL-CCH-2024-000023
Development of a Residential and APPLICANT BLACK SAND BEACH
Commercial Community Consisting of LLC'S POSITION STATEMENT ON THE
Approximately 225 Residential and Short ASSOCIATION OF APARTMENT
Stay Units,Village and Wellness Center, OWNERS OF COLONY 1 AT SEA
Retail Uses, Rehabilitation of Golf Courses, MOUNTAIN'S PETITION FOR
and Dedication of a Portion of Coastline as a STANDING IN A CONTESTED CASE
Conservation Area HEARING; CERTIFICATE OF SERVICE
Hearing Date: May 6, 2024
Hearing Time: 9:00 a.m.
APPLICANT BLACK SAND BEACH LLC'S POSITION STATEMENT ON THE
ASSOCIATION OF APARTMENT OWNERS OF COLONY 1 AT SEA MOUNTAIN'S
PETITION FOR STANDING IN CONTESTED CASE HEARING
Applicant BLACK SAND BEACH LLC ("Applicant") by and through their undersigned
counsel, hereby submits the following Position Statement on the ASSOCIATION OF
APARTMENT OWNERS OF COLONY 1 AT SEA MOUNTAIN'S ("COLONY 1") Petition
for Standing in a Contested Case Hearing.
L BACKGROUND
"Black Sand Beach LLC has done tremendous things for our community. Giving a local
nonprofit 3 acres of land and 2 greenhouses to garden through the pandemic...donated
cattle to help feed the community. They have donated to the hospital as well as Naalehu
Elementary School.
"I say if not Black Sand Beach LLC, then who? No other company that has come to
Ka`u ever thought about the community and their needs. They want to help preserve the
cultural sites,they want to preserve the shoreline and leave it available to the local
community but lessen the impact of the tourists.
"For over 30 years Punalu`u has been neglected. No one grumbled when the previous
owners didn't do anything. Black Sand Beach LLC wants good development,not bad
development. It will bring jobs for our community and keep them close to home,without
having to drive for 4 hours every day to go to and from work. It will give opportunities
for our up and coming generations. And it will teach not only locals but tourists who
don't know about the diverse culture we have in Ka`u, and help them understand the need
for sustainability of our lands and shorelines
Candice Fragas
Born and raised on Hawai`i Island
23 year Ka`u resident
Via his report and recommendation to the Windward Planning Commission dated
February 27, 2024, Planning Director Zendo Kern concluded that all four prongs of project
development found in Section 205A-26(2), Hawaii Revised Statutes, as amended("HRS") and
Rule 9-11(e) of the Planning Commission Rules of Practice and Procedure for the approval of
Applicant's SMA permit application were met.
In sum, the Planning Director found that:
1. The proposed development will not have any substantial adverse environmental or
ecological effect, except as such adverse effect is minimized to the extent practicable and
clearly outweighed by public health, safety, or compelling public interest.
2. The proposed development is consistent with the objectives and policies as provided by
HRS Chapter 205A, and Special Management Area guidelines contained in Rule No. 9 of
the Planning Commission Rules of Practice and Procedure.
3. The proposed development is consistent with the County General Plan, Ka`u Community
Development Plan (KCDP),Zoning Code, and other applicable ordinances.
4. The development will,to the extent feasible, reasonably protect native Hawaiian rights if
they are found to exist.
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From 1968 to 1975, C. Brewer Properties, Ltd. developed Sea Mountain at Punalu`u, an
18-hole golf course community that included the Colony I condominium project, the Kalana I
single-family residential subdivision,Aspen Institute Center for Humanistic Studies, Black
Sands Restaurant, and the Ka`u Center for History and Culture.
Unfortunately, ownership of the project site changed hands a number of times over the
years, spurred by the effects of a tsunami in the 1970's, an appeal of an SMA Permit in the early
1990's for a much larger project concept, and a 2006 revised project concept that never
materialized, which then stalled any significant attempt by the previous landowners to maintain
the project site and its existing facilities and infrastructural systems. The unsightly and
dilapidated project currently creates not only an eyesore,but public health and safety concerns
such as wildfire.
What Black Sand Beach LLC is NOT is a large, exclusive, and luxury-laden resort that
may be found in some areas of West Hawaii.
The practical reality is Black Sand Beach LLC will rehabilitate the area, remedy public
health and safety concerns, dedicate 30 acres of shoreline for conservation purposes, focus all
development activities far away from coastal areas, and develop only 147 of the entire 434-acre
project site. Only 225 units for residences and short-term stays will be built as opposed to the
nearly 3,000 units earlier proposed by the C. Brewer project. In sum, this project will seek to
restore this beautiful area of our Hawai`i Island and protect our most precious natural resources.
What is clear about the Black Sand Beach LLC project is this:
• They do what is pono.
• They listen and work to nurture, steward and manage these lands in a manner that reflects
the vision of the community.
-3-
• They protect the Federally protected honu and honu`ea.
• They will rehabilitate Kawaihuokauila Pond and restore Native Hawaiian vegetation.
• They will protect Native Hawaiian gathering and fishing rights.
• They will establish a Shoreline Conservation Management Area to ensure preservation
for future generations.
• They will create a community-led and community-driven Foundation to manage and
steward the conservation areas and wahi pana.
Ironically,the very concerns raised by Colony 1 in their petition are exactly what the
proposed project will provide, which is the creation of a robust infrastructure system that
supports both the existing units at Colony 1 as well as the proposed project.
IL STANDARD OF REVIEW
Rule 4, Part I, Section 4-6, subsection (a) of the Rules of the Planning Commissions of
the County of Hawai'i ("PC Rules")provides in pertinent part as follows (emphasis supplied):
In all proceedings where the Commission's action is directly appealable to Third Circuit
Court, the applicant and the Planning Director will be designated parties to the action.
Any other person seeking to intervene as a party shall file a written request on a form
approved by the Planning Director and accompanied by a filing fee of$200 no later than
seven calendar days,prior to the Commission's first meeting on the matter.
PC Rule 4, Part I, Section 4-6, subsection (a)provides as follows:
Upon receipt of a written request to intervene,the Commission, at the first meeting on the
matter, shall hold a hearing on the written request. The petitioner shall be admitted as a
party if it can demonstrate that:
(1) His or her interest is clearly distinguishable from that of the general public; or
(2) Government agencies whose jurisdiction includes the land involved in the subject
request; or
(3) That they have some property interest in the land of lawfully reside on the land; or
(4) That even though they do not have an interest different than the public generally,that
the proposed action will cause them actual or threatened injury in fact; or
(5) Persons who are descendants of native Hawaiians who inhabited the Hawaiian Islands
prior to 1778,who practice those rights which are customarily and traditionally
exercised for subsistence, cultural or religious purposes.
-4-
III. ARGUMENT
A. The Colony 1 petition fails to comply with Planning Commission rules since
it is not signed by a representative of the Board of Directors of the AOAO,
and there is no evidence the Board sanctioned or approved the filing of the
petition.
As a threshold matter, and for purposes of preserving the record on appeal, Applicant
Black Sand Beach LLC submits that Colony 1 has failed to comply with PC Rule 4-6(a), since
the real party in interest(here the AOAO Board) did not sign the petition, but instead had a
member of Pacifica Realty Management Inc. of Kailua-Kona sign the request for intervention.
Further, the record is barren of any affirmative representation that the AOAO Board has
approved, sanctioned, or otherwise consented to the filing of the petition.
These flaws are not simply clerical oversights,but material omissions that do not provide
the Windward Planning Commission sufficient evidence and legal basis to sustain the entry of an
interested parry who has standing to participate in a contested case hearing.
For these reasons alone, the Colony 1 petition should be dismissed.
B. In the event the Commission finds that Colony 1 has standing,Applicant is
prepared to defend the proiect on the wealth of evidence that contradicts the
claims made by Colony 1.
The gravamen of Colony 1's reason for petitioning the Commission to intervene is "the
dilapidated state of the Public Water System, Fire Suppression System, and Wastewater
System." Ironically, Colony 1's objections to the project can best be described as "cutting off
one's nose to spite one's face." Black Sand Beach LLC's project will create a robust
infrastructure system that supports not only the project but will serve and benefit Colony 1
residents and owners as well.
Presently,the existing water system complies with Federal and State regulations and
confirmed via consumer confidence reports,which are prepared under State of Hawaii
-5-
Department of Health ("DOH") guidelines. These reports are provided annually to all Colony 1
residents as required by DOH.
Wastewater sampling from the existing wastewater system is conducted monthly and
submitted semi-annually to the DOH Wastewater Branch for review. These semi-annual reports
to the DOH show the samples are in compliance and well below the maximum standard
allowance.
Finally, the current fire suppression systems at Colony 1 are operational.
This is exactly why the project is necessary. The very documentation provided to the
Commission by Colony I demonstrates Black Sand Beach LLC's efforts to properly maintain
and support the existing sewer and water systems. A fire hydrant and fire break plan has been
approved by the Fire Prevention Bureau of the County of Hawaii Fire Department, and Black
Sand Beach LLC is currently working to implement the recommendations of this approved plan.
In sum,the proposed project, if approved,will provide a robust water, sewer, and fire
suppression systems that will resolve the very concerns presently raised by Colony 1. The
failure to approve the requested SMA permit will in fact jeopardize the very infrastructural
systems that Colony 1 is concerned about.
If the Commission is inclined to grant Colony I standing, Applicant Black Sand Beach
LLC looks forward to developing the above facts for the benefit of this Commission in
concluding that the project is in the best interests of the community,which includes Colony 1
residents as well.
-6-
IV. CONCLUSION
Based on the foregoing reasons and authorities,Applicant Black Sand Beach LLC
respectfully requests the Windward Planning Commission not grant Petitioner the Association of
Apartment Owners of Colony 1 at Sea Mountain standing based upon their failure to properly
certify the real party in interest(here the AOAO).
In the event the Commission finds Colony 1 has standing,Applicant Black Sand Beach
LLC will be prepared to defend and support the granting of the SMA for this very worthwhile
and needed project.
DATED: Hilo, Hawaii,May 1, 2024.
TORKILDSON KATZ
A Law Corporation
Al Lincoln S. T. Ashida
LINCOLN S. T. ASHIDA
Attorneys for Applicant
BLACK SAND BEACH LLC
-7-
BEFORE THE WINDWARD PLANNING COMMISSION
COUNTY OF HAWAI'I
STATE OF HAWAI'I
In the Matter of: PL-CCH-2024-000023
Development of a Residential and CERTIFICATE OF SERVICE
Commercial Community Consisting of
Approximately 225 Residential and Short RE:APPLICANT BLACK SAND BEACH
Stay Units,Village and Wellness Center, LLC'S POSITION STATEMENT ON THE
Retail Uses, Rehabilitation of Golf Courses, ASSOCIATION OF APARTMENT OWNERS
and Dedication of a Portion of Coastline as a OF COLONY I AT SEA MOUNTAIN'S
Conservation Area PETITION FOR STANDING INA
CONTESTED CASE HEARING
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date, a true and correct copy of the above-
described document was duly served upon the following as indicated below:
Hand-Delivery Email US Mail
ANTHONY GAND ❑
Pacifica Realty Management, Inc.
75-1029 Henry St., Ste. 202
Kailua-Kona, HI 96740-1666
Email: Anthony@pacifica-hawaii.com
ASSOCIATION OF APARTMENT ❑ ❑x ❑x
OWNERS OF COLONY 1 AT SEA
MOUNTAIN
95-788 Ninole Loop Rd.
Naalehu, HI 96771
Email: rvi@viresorts.com
3302706x2
DATED: Hilo, Hawaii,May 1, 2024.
TORKILDSON KATZ
A Law Corporation
/s/Lincoln S. T. Ashida
LINCOLN S. T. ASHIDA
Attorneys for Applicant
BLACK SAND BEACH LLC
-2-
3302706x2