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HomeMy WebLinkAboutApplicantʻs Memorandum in Opposition to First Amended Petition 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 'Iewe Hanau o Ka 'Aina'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 3303394v1 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 'IEWE HANAU O KA 'AINA'S FIRST Stay Units,Village and Wellness Center, AMENDED PETITION FOR STANDING Retail Uses, Rehabilitation of Golf Courses, IN A CONTESTED CASE HEARING; and Dedication of a Portion of Coastline as a 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 'IEWE HANAU O KA'AINA'S FIRST AMENDED 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 'IEWE NANAU O KA 'AINA'S ("Petitioner") First Amended Petition for Standing in a Contested Case Hearing. As a threshold matter, Applicant does NOT object to the untimely filing of Petitioner's petition, inasmuch as there was an unintentional error on the March 7, 2024,meeting agenda that 3302522x2 may have misled a reasonable person into believing the present application was not subject to the 7-day filing requirement. 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. -2- 3302522x2 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. 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. -3- 3302522x2 • 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. • 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. 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: 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- 3302522x2 III. ARGUMENT A. By Petitioner's very own admission,their concerns are NOT clearly distinguishable from that of the general public. At the very beginning of Petitioner's appended narrative attached to their petition, Petitioner states, "'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." No doubt these values of the protection of cultural practices,natural resources, and beauty of the 'aina are shared with the general public who call Hawaii their home. In fact,the State of Hawaii has legislated laws which reflect these values, including the protection of iwi and the honu. Recognizing their positions may not be distinguishable from the general public and that they will lack standing, Petitioner then argue that the term "clearly distinguishable from that of the general public"has been misinterpreted by lawyers and suggest to this Commission that"all that needs to be shown is that 'Iewe Hanau o Ka 'Aina and its members would be adversely affected by the proposed project." This is a fatal admission by Petitioner. Petitioner's activities in "walk(ing) along the Punalu'u coastline, swim(ming) at Punalu'u Beach, observ(ing)marine life,provid(ing) stewardship of the land, work(ing)to protect the honu that live in the area, gather(ing)marine life, and participat(ing)in cultural protocol"will in fact be enhanced by this project, as it dedicates 30 acres of shoreline to conservation and will manage the entire shoreline frontage of the project site to ensure that these special coastal resources can continue to be shared by all without undue degradation. In sum, the approval of the proposed SMA essentially guarantees -5- 3302522x2 Petitioner's and those similarly situated may continue to enjoy Punalu'u Beach without fear of obstructive development. B. Petitioner's concerns about the wastewater system, increasing density, and ieopardizing water quality are unfounded. Petitioner relies upon the 2006 draft environmental impact statement which stated the then current and onsite wastewater plant was deteriorated and did not have sufficient capacity to serve the then proposed load of over 3,000 new units. Petitioner then goes on to make unsupported and speculative conclusions about the increase in density in the area that will jeopardize the coastal water quality. Presently, the existing water system complies with Federal and State regulations and confirmed via consumer confidence reports,which are prepared under State of Hawaii Department of Health ("DOH") guidelines. 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. Ironically, Petitioner's allegations actually demonstrate exactly why the project is necessary. Black Sand Beach LLC has already expended much effort 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 all of the concerns raised by Petitioner. The failure to -6- 3302522x2 approve the requested SMA permit will in fact jeopardize the very water systems that Petitioner is concerned about. IV. CONCLUSION Based on the foregoing reasons and authorities, Applicant Black Sand Beach LLC respectfully requests the Windward Planning Commission not grant Petitioner 'Iewe Hanau o Ka 'Aina standing based upon their failure to distinguish their interests from that of the general public. 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- 3302522x2 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 'IEWE HANAU O KA AINA'S FIRST and Dedication of a Portion of Coastline as a AMENDED PETITION FOR STANDING IN Conservation Area A 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 'Iewe Hanau o Ka 'Aina ❑ c/o David Kimo Frankel 1638-A Mikahala Way Honolulu, HI 96816 Email: davidkimofrankel@gmail.com 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 3302522x2