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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. -2- 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