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Home My WebLink About2025-09-17 Notice of Violation and Order Dated July 31, 2025 DeVera, Ashley From: Toren K. Yamamoto <tky@hawaiilawyer.com> Sent: Wednesday, September 17, 2025 1:41 PM To: Planning Board of Appeals Cc: Gregory W. Kugle; Arushini Sinnaduray Subject: RE: Defective Petition Letter and Petition submitted for Kona Plantation, LLC (PL- BOA-2025-000125). Attachments: Notice of Violation and Order (PL-PCV-2024-00797.pdf Thank you. I am attaching the NOVO here. Toren K. Yamamoto I Attorney Office: (808)531-8031 Fax: (808)533-2242 Mail: tky@hawaiilawyer.com Web: www.hawaiilawyer.com Addr: 1003 Bishop St,Ste 1600191 oi TV- Honolulu, HI 96813 ICI ME RITA5 LAW FIRMS WORLDWIDE DAMON KEY LE NG Kt. PCHAK HASTERT L !Iowa i ilawyer.com 1.1 R ATI UN Confidentiality Notice:This email message,including any attachments,is for the sole use of the intended recipient(s)and may contain confidential and privileged information. Any unauthorized review, use, disclosure, or distribution is prohibited.If you are not the intended recipient,please contact the sender by reply e-mail and destroy all copies of the original message.Thank you. FRAUD ALERT—PLEASE CALL YOUR DAMON KEY CONTACT TO VERIFY ANY EMAIL OR FAX REQUESTS FOR WIRE TRANSFER PAYMENTS,WIRING INSTRUCTIONS,OR CHANGES TO WIRING INSTRUCTIONS THAT APPEAR TO BE FROM OUR FIRM. From: Planning Board of Appeals<boardofappeals@hawaiicounty.gov> Sent: Wednesday, September 17, 2025 1:24 PM To:Toren K. Yamamoto<tky@hawaiilawyer.com>; Planning Board of Appeals<boardofappeals@hawaiicounty.gov> Cc: Gregory W. Kugle<gwk@hawaiilawyer.com>;Arushini Sinnaduray<arushini@hawaiilawyer.com> Subject: RE: Defective Petition Letter and Petition submitted for Kona Plantation, LLC (PL-BOA-2025-000125). Aloha Toren, You do not need to submit the entire petition again. You can submit the requested document through EPIC and if you are having issues you can email it to boardofappeals@hawaiicounty.gov. Inalnato,, Board of Appeals Staff Main Line: 808-961-8288 Email: boardofappeals@hawaiicounty.gov From:Toren K. Yamamoto<tky@hawaiilawyer.com> Sent: Wednesday, September 17, 2025 12:57 PM To: Planning Board of Appeals<boardofappeals@hawaiicounty.gov> Cc: Gregory W. Kugle<gwk@hawaiilawyer.com>;Arushini Sinnaduray<arushini@hawaiilawyer.com> Subject: Defective Petition Letter and Petition submitted for Kona Plantation, LLC (PL-BOA-2025-000125). Board of Appeals Staff, To correct the subject line petition filing, would you like us to resubmit the entire petition or can we simply email or submit(on epic)the NOVO? Thanks, Toren Toren K. Yamamoto I Attorney Office: (808)531-8031 Fax: (808)533-2242 Mail: tky@hawaiilawyer.com Web: www.hawaiilawyer.com Addr: 1003 Bishop St,Ste 1600 MERITAS® Honolulu, HI 96813 6J LAW FIRMS WORLDWIDE \:\ I( ) , KEY LI t )NCI I l IN-F-1/10( HASTERT or+r i lawy r.c mfl A I .\'w ' [ LJRPORATILIN Confidentiality Notice:This email message,including any attachments,is for the sole use of the intended recipient(s)and may contain confidential and privileged information. Any unauthorized review, use, disclosure, or distribution is prohibited.If you are not the intended recipient,please contact the sender by reply e-mail and destroy all copies of the original message.Thank you. FRAUD ALERT—PLEASE CALL YOUR DAMON KEY CONTACT TO VERIFY ANY EMAIL OR FAX REQUESTS FOR WIRE TRANSFER PAYMENTS,WIRING INSTRUCTIONS,OR CHANGES TO WIRING INSTRUCTIONS THAT APPEAR TO BE FROM OUR FIRM. 2 C.Kimo Alameda,Ph.D. ; Mayors " +�. . Jeffrey W. Darrow Director • William V.Brilhante,Jr. �'_. Managing Director _-'"r's _ Michelle S.Ahn •� Deputy Director West Hawai`i Office ..-- 74-5044 Ane Keohokalole Hwy East Hawaii Office Kailua-Kona,Hawaii 96740 County of Haw Hilo,Hawaii 96t aN 101 Pauahi Street,Suite3 Phone(808)323-4770 20 Phone(808)961-8288 Fax(808)327-3563 PLANNING DEPARTMENT Fax(808)96.1.-8742 CERTIFIED MAIL • 9589 0710 5270 1147 4019 93 July 31, 2025 Kona Plantation LLC 7700 SW River Rd Hillsboro, OR 97123 Dear Kona Plantation LLC: Subject: Notice of Violation and Order Complaint: Short-Term Vacation Rental (STVR) / Events without Special Permits,Unpermitted Farm Dwellings Reference: Courtesy Letter dated October 14, 2024 Case#: PL-I'CV-2024-00797 TMK: 7-7-004:073,Holualoa 3t•d—Kaumalumalu—Beach Sec. A Courtesy Letter dated October 14,2024,was sent to you by Certified Mail informing you of the complaint we received, instructions on how to resolve the complaint, (if necessary)and the date of when you must contact our Planning Inspector to schedule a site inspection. Thank you for contacting our Planning Inspector Tiffany Clark to schedule a site inspection for your property. The site inspection was conducted on June 17, 2025. This Notice of Violation and Order(NOVO)is being sent to you to affirm and document that the following Hawai'i Revised Statutes(HRS), and Hawai'i County(Zoning) Code(HCC)violation has been identified during the site inspection. Our initial research based on the complaint has revealed the following: 1. Real Property Tax Office records list the addressee, and their mailing address listed above as the fee owner of the property,which is located at 77-360 Hoomaluhia Drive. . 2. Planning Department(PD)records indicate that the property is situated within the State Land Use Agricultural District and the County of Hawai'i Agricultural A-5a zoning district. 3. The parcel is located within the Special Management Area(SMA), and therefore subject to the provisions of Hawai`i Revised Statutes (HRS)Chapter 205A, Coastal Zone Management. www.plannina.hawaiicountv.gov Hawai`i County is an Equal Opportunity Provider and Employer planning(Fhawaiicountv.eov Kona Plantation LLC Notice of Violation and Order Case#: PL-PCV-2024-00797 July 31,2025 Page 2 4. An Additional Farm Dwelling Agreement was recorded with the Bureau of Conveyances on January 19,2000 (Doc. No 2000-007462). The agreement specifically states: • The additional farm dwelling shall be used to provide shelter to only person(s) involved in the agricultural or farm-related activity on the building site. 5. A Notice of Violation and Order dated January 30,2004,was issued for unpermitted additional farm dwellings and operation of vacation rentals/retreats without an SMA permit. 6. An appeal was filed(BOA 04-004)and the case was settled prior to the scheduled hearing date of September 14, 2004. The settlement between the County and Mr. Bergey dated September 8,2004 stated: • Mr. Bergey will promptly delete the website referenced in the Planning Director's January 30,2004 Notice of Violation and Order letter (www.konaplantati on.com) No similar website will be established. • Mr. Bergey will not use his dwellings as a"Vacation rental". • Mr. Bergey will not rent his premises to five or more unrelated persons. 7. A third farm dwelling application was submitted to the Planning Department on February 16,2000. The application was denied on May 12,2000, as the level of agricultural activity present on the property did not meet the minimum requirements necessary to support a third dwelling unit. 8. A review of multiple websites providing the following information: Ohana Retreat Overview (Ohanaretreat.com) • Number of Rentals/units:Not Explicitly listed,but the site described the property as a single,large home with multiple suites • Events: The website promotes hosting retreats,family reunions, and group gatherings, indicating event-based use. VRBO—Ohana Retreat (https://www.vrbo.com/187016ha?msockid=240ef2d20a666e4923dfe0e00b416f2bBedro oms/Bathrooms: 8 bedroom suites/8 baths) • Guest Capacity: Accommodates 16 guests • Kona Plantation LLC Notice of Violation and Order Case#: PL-PCV-2024-00797 July 31,2025 Page 3 • Rental Type: Entire property rental Airbnb Listing (https://www.airbnb.com/rooms/44453 31?source_impression_id=p3_17 5 3916773_P3 hp YMMxDfdbXYBe) • Bedrooms/Bathrooms: 8 bed/8 bath • Sleeps: 18 guests • Rental Type: Whole house, aligns with other listings Vacation Rental Aggregator(JUL 2025 Listing) • Description: Reaffirms the property as an 8-bedroom, 8-bath retreat home with amenities like wet bars,private decks,refrigerators, and expansive gathering areas. • Target Audience: Markets to large families, groups, and retreats with both communal and private-use features. SITE INSPECTION REPORT A site inspection was conducted on June 17, 2025, at approximately loam which revealed the following: 1. During the site inspection, the property owner stated that the Ohana Retreat website had been deactivated. However,a follow-up review by the Planning Inspector confirmed that the website remains active and accessible to the public. 2 The property has been modified to establish multiple dwelling units.Each of the eight bedrooms in both structures—totaling sixteen rooms—were equipped with independent heating elements at the time of inspection,suggesting use as individual dwelling units. 3. The host currently resides in the additional farm dwelling,which,according to the recorded agreement, must be occupied solely by individuals actively engaged in agricultural operations on the property. NOTICE OF VIOLATION The Planning Director has determined that you are in violation of the following Statutes, Codes and relevant Sections based on the investigation conducted and site inspection report provided by Planning Inspector Tiffany Clark: Kona Plantation LLC Notice of Violation and Order Case#: PL-PCV-2024-00797 July 31,2025 Page 4 HCC Section 25-2-30.Violations. Any approval or permit issued pursuant to the provisions of this chapter shall comply with all applicable requirements of this chapter. Failure to comply with any provision of this chapter,any rule adopted pursuant to this chapter, or with conditions imposed as part of any approval,permit, or variance from the provisions of this chapter, shall constitute a violation of this chapter. 1. Violation of Settlement Agreement dated September 8,2004 The following conditions were agreed upon as part of the September 8,2004, settlement between the County of Hawai`i and Mr. Bergey: • "Mr.Bergey will promptly delete the website referenced in the Planning Director's January 30,2004,Notice of Violation and Order letter(www.konaplantation.com). No similar website will be established." You are in violation of this condition. The Ohana Retreat website remains active and promotes the property for accommodations. • "Mr.Bergey will not use his dwellings as a 'Vacation Rental." The Ohana Retreat website advertises the property for short-term accommodations, indicating use as a vacation rental. • "Mr.Bergey will not rent his premises to five or more unrelated persons." The Ohana Retreat is advertised as offering multiple units. The number of rental accommodations suggests occupancy by more than,five unrelated individuals. 2.Violation of the Additional Farm Dwelling Agreement(Recorded January 19, 2000) • The recorded agreement restricts the additional farm dwelling to use only by individuals actively engaged in agricultural or farm-related activity on the building site. The host currently resides in the additional farm dwelling but does not actively participate in farming operations on the property, violating this condition. HCC Section 25-5-77 Other regulations. (C)Additional farm dwellings may be permitted in the A district only upon the following conditions: Kona Plantation LLC Notice of Violation and Order Case#: PL-PCV-2024-00797 July 31, 2025 Page 5 (1) A farm dwelling agreement for each additional farm dwelling, on a form prepared by the director,shall be executed between the owner of the building site, any lessee having a lease on the building site with a term exceeding one year from the date of the farm dwelling agreement,and the County. The agreement shall require the dwelling to be used for farm-related purposes. (2) The applicant shall submit an agricultural development and use program, farm plan or other evidence of the applicant's continual agricultural productivity or farming operation within the County to the director. Such plan shall also show how the farm dwelling will be utilized for farm-related purposes. You have established 16 additional dwelling units without executing the required farm dwelling agreements or providing the necessary supporting documentation for agricultural activity, in violation of these provisions. HCC Section 25-5-72 Permitted Uses. Event venue is not listed as a permitted use in the A district. You are advertising that the property can be used for events. HRS §205A-28 Permit required for development. No development shall be allowed in any county within the special management area without obtaining a permit in accordance with this part. The alterations to create 16 dwelling units were made without the required Special Management Area permit. ORDER You are hereby ORDERED to complete the following corrective action(s) at your own expense by the"Deadline Date"which is 30 days after USPS Postmaster Date Stamp on Certified Mail Receipt. 1. Would need to remove all website advertisements. 2. Remove all the heating appliances that were present in each of the 16 bedrooms on the property. 3. The host is required to live in the first farm dwelling, since he does not engage in farming on the property. HRS PENALTY 1. You are being assessed an initial civil fine of$5,000.00 for violating provision under Section 205-A-28. HCC PENALTY Kona Plantation LLC Notice of Violation and Order Case#: PL-PCV-2024-00797 July 31, 2025 Page 6 1. You are being assessed an initial civil fine of$500.00 each of 6 (six)Hawaii County Zoning Code Violation for a total of$3,000.00. 2. If the above stated Order for the HCC Violations are not resolved by the"Deadline Date", a daily civil fine starting at$100.00 per day shall be imposed beginning the day after the deadline date, unless otherwise noted until all the above corrective actions have been completed. TOTAL CIVIL FINES ASSESSED: $8,000.00 • -- Daily fines-will-increase according-to the Department's daily fine schedule-until the violation is corrected. Resolution of this NOVO requires completion of all Corrective Actions and payment in full of all civil fines. See Fines in General Information. 3. Resolution of the violations includes correction of the violation and payment of all civil fines. This Order shall become final 30 days after USPS Postmaster Date Stamp on Certified Mail Receipt. 1. On or before the final date, any person(s)subject to this Order may appeal against the Order. The provision of the order issued by the Director under this section shall become final thirty days after receipt of the order unless the director's action is appealed to the board of appeals as provided in this section. 1. Contact our Planning Inspector by letter or e-mail to arrange a date and time on or before the deadline date to have the property inspected to verify compliance with FIRS and Chapter 25 Zoning Code. 2. Should the site inspection reveal no HRS or HCC violations and after our satisfactory review of the evidence provided, the Planning Director shall CLOSE the complaint file with no further action taken. 3. Should you fail to contact our planning inspector by the deadline date listed in the Order, the civil fines that were assessed shall be imposed on the day after the deadline date. APPEAL Within thirty days after the person's receipt of the NOVO, any person adversely affected by the NOVO may appeal the NOVO to the Board of Appeals as provided by Section 6-9.2 of the County Charter and Sections 25-2-20 thru 25, Division 2,Article 2 of Chapter 25,Hawai`i County Code 1983 (2016 Edition, as amended).An appeal to the Board of Appeals shall not stay Kona Plantation LLC Notice of Violation and Order Case#: PL-PCV-2024-00797 July 31, 2025 Page 7 the provisions of the order pending the fmal decision of the Board of Appeals. See Appeal in General Information. TIME EXTENSION A time extension may be granted pending what actions you have taken to resolve the violation (s)on the property. See General Information. You are further notified that this Notice of Violation and Order is being forwarded to other Governmental Agencies for their review and actions. This matter may be referred to the Office of Corporation Counsel-for-civil-remedy-and/or the Prosecuting Attorney'-s Office for criminal prosecution. Should you acquire the services of an attorney/counsel representation then you are required to also submit a letter of consent with your response letter authorizing the County to correspond and respond to the attorney/counsel representation. Should you have questions regarding this matter please contact Tiffany Clark at our office at tiffanyh.clark@hawaiicounty.gov or at(808) 323-4772. Sincerely, (7e1)-ey W ,L tow Jeffrey Darrow(Aug 1,2025 16:53:03 HST) JEFFREY W.DARROW Planning Director THC:thc \\coh141v\Planning\Staff\Tiffany1Enforcement\Short Term Vacation Rental&Renting\7-7-004-073 PL-PCV-2024-00797 Kona Plantation LLC\PL-PCV-2024-00797 Kona Plantation NOVO.docx The following have been electronically copied. No hard copy to follow. Enclosure: General Information Cc: Ms. Lisa Miura, Real Property Tax Office lisa.miura@hawaiicounty.gov Mr. Derek Fondy,Real Property Tax Office derek.fondy(&,hawaiicounty.gov Mr. Dwayne Inouye, Building Division dwayne.inouye@hawaiicounty.gov