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HomeMy WebLinkAboutApplicantʻs Memorandum in Opposition to The Center of Biological Diversity 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 Memorandum in Opposition to the Center for Biological Diversity'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--�7 Lincoln S. T. Ashida Encl. HONOLULU OFFICE•700 BISHOP STREET,15TH FLOOR HONOLULU•HAWAI'196813-4187•TELEPHONE(808)523-6000•FACSIMILE(808)523-6001 3303384v1 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 MEMORANDUM IN OPPOSITION Approximately 225 Residential and Short TO THE CENTER FOR BIOLOGICAL Stay Units,Village and Wellness Center, DIVERSITY'S PETITION FOR Retail Uses, Rehabilitation of Golf Courses, STANDING IN A CONTESTED CASE and Dedication of a Portion of Coastline as a HEARING; CERTIFICATE OF SERVICE Conservation Area Hearing Date: May 6, 2024 Hearing Time: 9:00 a.m. APPLICANT BLACK SAND BEACH LLC'S MEMORANDUM IN OPPOSITION TO THE CENTER FOR BIOLGICAL DIVERSITY'S PETITION FOR STANDING IN CONTESTED CASE HEARING Applicant BLACK SAND BEACH LLC ("Applicant") by and through their undersigned counsel, hereby submits the following Memorandum in Opposition to the CENTER FOR BIOLOGICAL DIVERSITY'S ("CBD") 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. 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. -2- 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. • 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. -3- • 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 paha. IL STANDARD OF REVIEW Rule 4, Part I, Section 4-6, subsection (b) of the Rules of the Planning Commissions of the County of Hawai'i ("PC Rules")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. III. ARGUMENT A. The Center for Biological Diversity cannot establish standing solely on the assertion that one of its members has kuleana land in the proiect area. Petitioner Center for Biological Diversity ("CBD") is a California-based non-profit organization with an office in Honolulu. CBD does not reside on, nor do they have any interest in the subject properties, contrary to their erroneous representation in their petition. CBD claims they have standing since a member, Elsa Dedman,has kuleana land in Punalu`u (TMK: 9-6-001:007-0004) and her `ohana have lived in the area for at least eight generations. Although Ms. Dedman may assert standing, there is absolutely no evidence or documentation that Ms. Dedman has authorized CBD to pursue their petition on her behalf, and -4- to defend her specific and personal concerns. In fact,the petition was not signed by Ms. Dedman, but instead by Maxx Phillips,the Hawai`i Director and Staff Attorney for the CBD. Thus, CBD does not qualify as having standing solely on the basis of asserting that one of their members have property interests in the proposed development area and are Native Hawaiians who practice customary and traditional rights in Punalu`u. This is especially true since the petition begins by stating "The Center interests in this matter are clearly distinguishable from that of the general public" (emphasis supplied). This disclosure clearly demonstrates and confirms that CBD is primarily pursuing their own interests as opposed to Ms. Dedman's interests. B. Where the petition is defective on its face,the Planning Commission must dismiss the petition. CBD's failure to properly articulate and demonstrate why it has standing is fatal, and the Commission must dismiss the petition. The five-page Appendix B that CBD appends to their petition is nothing more than a summary of the purpose of their organization. CBD's representations about what Ms. Dedman has said may very well be true,but the inescapable conclusion is Ms. Dedman has not signed nor filed this petition, but a foreign entity that has not affirmatively stated that they have been authorized to petition the Commission on her behalf. For this reason and based upon CBD's failure to adhere and follow the Planning Commission rules, the petition must be dismissed. IV. CONCLUSION Based on the foregoing reasons and authorities,Applicant Black Sand Beach LLC respectfully requests the Windward Planning Commission not grant Petitioner Center for Biological Diversity standing since they, as a foreign organization, have not demonstrated that their interests are distinguishable from that of the general public. -5- 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 -6- 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 MEMORANDUMIN OPPOSITION Retail Uses, Rehabilitation of Golf Courses, TO THE CENTER FOR BIOLOGICAL and Dedication of a Portion of Coastline as a DIVERSITY'S PETITION FOR STANDING Conservation Area 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 CENTER FOR BIOLOGICAL ❑ 17 DIVERSITY Maxx Phillips 1188 Bishop St., Ste. 2001 Honolulu, HI 96813 Email mphillips@biologicaldiversity.org Petitioner DATED: Hilo, Hawai'i,May 1, 2024. TORKILDSON KATZ A Law Corporation Al Lincoln S. T. Ashida LINCOLN S. T. ASHIDA Attorneys for Applicant BLACK SAND BEACH LLC 3302648x2