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April 13, 2021 Planning Commission Agenda Packet reducedCOUNTY OF KAUA'I PLANNING DEPARTMENT TO:Subdivision Committee,Planning Commission SUBJECT:Extension Request PURPOSE:^File Final Subdivision Maps Complete Subdivision Improvements Other: Subdivision Application No.Applicant(s) S-2019-4 Tim Beckman &Mira Hess Location:|Po ipu Tax Map Key:|(4)2-8-014:038,042 st ^ndExtensionRequestNo.(1st,2'"',etc.)Tentative Approval Granted On:Previous Ext.Expired On: 2nd March27,2019 March27,2021 Subdivision Bonded:Yes |v^|No Deadline to Complete Improvements:Not Applicable APPLICANT'S REASONS:Additional time is being requested to comply with the conditions/requirements oftentative approval.The Applicant is currently with the various reviewing agencies in resolving the required infrastructure improvements for the subdivision. EVALUATION:Please refer to nextpage... RECOMMENDATION:Please refer to next page.., VaffPlanner Date [<^]Approvedand Recommended to PIanning Commission [JDenied Comments: Date V:\2019 Master Files\Regulatory\Suhdivisions\S-2019-4\Extension\Extension Report -04.13.2021 KE S-2019-4 Tim Beckman &Mira Hess.docx 1.1.^1.1 ^l'APR 1 3 2021 COUNTY OF KAUA'I PLANNING DEPARTMENT Extension requests are primarily processed for the purpose of continuing a tentative approval for a subdivision application.An extension approval allows an applicant additional time to comply with the requirements in order to obtain final subdivision approval. In determining whether additional time should be granted,an evaluation is made ofthe project's progress as well as compliance with the requirements oftentative approval.The evaluation is primarily based on determining whether the applicant is progressively working towards obtaining final subdivision approval with the various reviewing agencies.The tentative approval conditions are then re-evaluated to determine whether the conditions/requirements are adequate to address the impacts ofthe proposed development in consideration ofthe time that haslapsed. Pending evaluation ofan extension request,one ofthe following can occur: 1.The extension is approved without changes to the tentative approval requirements; 2.The extension is approved with modified time frames but no modifications or additions to the tentative approval requirements; 3.The extension is approved with modifications and/or additions to the requirements; and 4.The extension is denied. FINDINGS/BACKGROUND: The proposed development involves a boundary adjustment that consolidates four (4)existing lots and resubdivides into three (3)lots within the Open (0)zoning district.This application was granted tentative approval by the Planning Commission on March 27,2019 and the Applicant's request is the second extension ofthe tentative approval. The subject property is located along the mauka side ofPo'ipu Road and adjacent to the Po ipu Beach Estates Residential Subdivision (refer to attached map).The total area involved is approximately 19.178 acres and the surrounding parcels are situated within the State Urban Land Use District that have been developed as residences or commercial/retail development. PROGRESS OF THE SUBDIVISION: In considering the extension request,it should be noted that the Applicant has shown some progress with the development.As represented,the Applicant has been trying to comply with the requirements oftentative approval. S-20l9-4;SubExtension(2nd) Beckman /Hess 04.13.2021 -2- The Applicant is still working to resolve the required infrastmcture improvements associated with this application and determining the applicable requirements ofthe County ofKaua'i, Department of Water (DOW)and Public Works (DPW).In addition,the Applicant is working with the County Housing Agency in resolving the workforce housing requirement.Since it is uncertain as to when the Applicant will be in compliance with the requirements oftentative approval,another time extension is being requested. Based on the foregoing circumstances,the Applicant's reasons are justifiable and no problems are foreseen in granting the extension request.The Departments ofPublic Works and Water have no objections to the request. Additionally,the Applicant should demonstrate further progress with the subdivision within one (1)year from the approval ofthis extension request.As such,the Applicant shall be made aware that in further considering extension requests involving the proposed development,the Applicant shall continue to submit to the Planning Department an updated status report on the subdivision with a detailed time chronology on the progress ofthe tentative approval requirements.The status report shall be submitted to the Planning Department no later than sixty (60)days prior to the expiration date in order to allow sufficient time to evaluate whether progress have been made and conditions satisfied. RECOMMENDATION: It is recommended that an extension until MARCH 27,2022 be granted to obtain final subdivision approval.However,the Applicant is made aware that an updated status reoort on the subdivision with a detailed time chronology on the progress ofthe tentative approval requirements shall be submitted to the Planning Department for review for further extensions requests.The status report shall be submitted to the Planning Department no later than sixty (60) days prior to the expiration date. S-2019-4;Sub Extension (2nd) Beckman /Hess 04,13.2021 -3- ESAKi SURVEYING &MAPPING 1610 HALEUKANA STREET -LIHUE,KAUAI,HAWAII 96766 (808)246-0625 FAX:(808)246-0229 esm@esakimap.Com February 26,2021 Mr.Ka'ainaHull DirectorofPlanning CountyofKauai 4444 Rice Street,Suite A473 Lihue,Hl96766 RE:S-2019-4,TIM BECKMAN &MIRA HESS 2nd SUBDIVISION EXTENSION REQUEST TMK (4)2-8-14:38,42 KOLOA,KAUA'I,HAWAI'I The subject subdivision was granted TENTATIVE APPROVAL by the Planning Commission at their meeting held on March 27,2019.It was also granted an extension until March 27,2021 by the Planning Commlssion at their meetlng held on July 14,2020. During the extension period that was granted,the applicant was able to resolve the following requirements: •Water meter plans have been approved and will be installed soon. •The following requirements have been added to the pre-final subdivision map: All existing and proposed easement have been identified 15'foot future road widening reserve has been established. No direct access onto Poipu Road from Proposed Lots A and C,denoted by semi- clrcles (except for the proposed vehicular access point for Lot C) Building setback line along the stream has been established Floodzone,FIRM panel no.and suffix,dateofFIRM,100-yearflood elevation and benchmark elevation and datum has been added 1610 HALEUKANA STREET -LIHUE,KAUAI,HAWAII 96766 (808)246-0625 FAX:(808)246-0229 esm@esakimap.Com The applicant continues to work on the list of conditions,including: •Resolving workforce Housing requirements with the Kauai County Housing Agency. •Establishing a vehicular access pojnt for Proposed Lot C.A request has been sent to Public Works for their review and comment. The applicant requires more time to complete the remaining conditions.We respectfully request an extension in time of one year to file the Final Subdivision Map. Thank you for your consideration, Verytrulyyours, Dennis M.Esaki cc:Tim Beckman V 3 o ••^A.'.^^ ^s'is^aa;il 3£.<_'y^^st/)-*-^.=^'^'0 sKs^S*Sg'c8^|Sg-;|Ttri^6^g^cPs^ll!;>^»S8->si SiS,t;z»-sSS':';Ss -?5'-i>5S-oS's-iBnt°B.S i!L^8§8T^ l:"gs§S° ,..—^Tm;;~~~~C°vl"^jifFK' ,<a9 »'"::,fS« s ^iS'^y^ Walta Reaervoir 'f^^'SiS^:^ BISS£Bfi%Shl:®^pt:^s"^^^•^^c.'^:,^ ^^^^'^^^^^'•v^^ ^^^y'^^^^^/^^''^'.•~•..~.•^'^^•^''l.'^.:^ "••-;^ ^^^E^p^^^^^^.iiy.''^^^^:^^^.::^F Y^^^^^^-;^is1 ^l^^l^'"''...•;;:11 '^^-^^..'^':^:^*^'''^"?i^%%S^jl^^;:/^i^isfli^; '^"'yi^""^' lais^^? VSSWK^^ •~':^SSS^:M^::::7"' iilNI».:'iliAj?lff^^l&i&^l^^ ysx^su^ssssssssss^^Sy--rsl<ljlgggl^igi!^gllii|£|^^ i.|ga11(||llt:':i.:||jg^^^::%"'!:::':::'::':'!~SSI'^^€ii81^Utt^ ..,;_^^^:''::fc^&seis;;^ ^^ff^.M^^ii^-'^^"^i: ::^3^^^^^%''&:&R'^!"^' "^'SiX^?^.^.'-^^-'"^:^ MAtlAULErU ;J^^2^^S]iSR^^SS ^^^. ••s-^„..;y<S a? 'm -®s-H.y m y^*-.''••IfiS 1»A K::"^?<yc£SSSW3S:SSSsK33ffsSSSSK- EK^'^?'1"-::'1 ay, b-WKWS aas,^ ^:" !IS;SSsI I-osatiii S-2019-^s^ ®II®SS?'Wi'^SSgF 'o.-^^^-'. Subdivision S-2019-4 Beckman /Hess 10/25/2020 COUNTY OF KAUA'I PLANNING DEPARTMENT TO:Subdivision Committee,Planning Commission SUBJECT:Extension Request PURPOSE:•/File Final Subdivision Maps Complete Subdivisioa Improvements Other: Subdivision Application No.Applicant(s) S-2020-9 Baird Family Limited Partaership Location:|Kapa'a Homesteads TaxMapKey:|(4)4-4-013:002 st ^ndExtensionRequestNo.(1st,2ncl,etc.)Tentative Approval Granted On:Previous Ext.Expired On: 1st January 28,2020 N/A Subdivision Bonded:No Deadline to Complete Improvements:Not Applicable APPLICANT'S REASONS:Additional time is being requested to comply with the conditions/requirements oftentative approval.The Applicant is currently with the various reviewing agencies in resolving the required infrastructure improvements for the subdivision. E'VALRATION:EleasereferAonextbase... RECOMMENDATION:Please lEfertonext page.. y6s^yo-s.1 ^taff'PIamier Date [v<]ApprovedandI{ecommended toPIanningCoinmission [jDenied Commehts: 'lanning Direefbr ^ll^WA Date V;\2020 Master Filei\Itegulatofy\Subdivii[ons^-Z020-9\ExtensionE\Extension Report -04.13.2021 K£S-2020-9 Baird Fomily Limted Partnership.docx J.l.b.l APR 1 3 2021 Yes •/ COUNTY OF KAUA'I PLANNING DEPARTMENT Extension requests are primarily processed for the purpose ofcontinuing a tentative approval for a subdivision application.An extension approval allows an applicant additional time to comply with fhe requirements in order to obtain final subdivision approval. In determining whether additional time should be granted,an evaluation is made ofthe project s progress as well as compliance with the requirements oftentative approval.The evaluation is primarily based on determining whether the applicant is progressively working towards obtaining final subdivision approval with the various reviewing agencies.The tentative approval conditions are then re-evaluated to determine whether the conditions/requirements are adequate to address the impacts ofthe proposed development in consideration ofthe time that has lapsed. Pending evaluation ofan extension request,one ofthe following can occur: 1.The extension is approved without changes to the tentative approval requirements; 2.The extension is approved with modified time frames but no modifications or additions to the tentative approval requirements; 3.The extension is approved with modifications and/or additions to the requirements; and 4.The extension is denied. FINDINGS/BACKGROUND: The proposed development involves a three (3)lot subdivision within the Kapa'a Homesteads area.This application was granted tentative approval by the Plaiming Commission on January 28,2020 and the Applicant's request is tbefirst extension ofthe tentative approval. The subject property is situated along Kawaihau Road,approximately 4.0 miles mauka ofKuhio Highway.The total area involved is approximately 3.38 acres within the County Agriculture District and within the State Land Use Agricultural District.The surrounding parcels are an assortment of County Agriculture and Open Districts and are also within the State Land Use Agricultural District. In further evaluation ofthe proposed subdivision,a Zoning Amendment was approved by the Planning Commission onNovember 13,2018 and the County Council on January 23,2019 through Zoning Amendment ZA-2018-1 that amended a portion ofthe property from the County zoned Open District to the Agriculture District.Prior to the Zoning Amendment,the subject S-2020-9;Sub Extension (1st) Baird Family Limited Partnership 04.13.2021 -2- property was split zoned;approximately 1.4 acres within the Agriculture District and 1.98 acres within the Open District. It is also noted that the subject parcel existed prior to the adoption ofthe Comprehecsive Zoning Ordinance (CZO)in 1972.Therefore,the project is subject to the requirements in Section 8- 8.3(b)(l)(A)which specify that "Parcels not more than ten (10)acres may be subdivided into parcels not less than one (1)acre in size."In addition,this project is subjected to the "one-time subdivision limitation for parcels within the Agriculture District,pursuant to Section 8-8.3(c)of the CZO,Kaua'i County Code (1987). PROGRESS OF THE SUBDIVISION: In considering the extension request,it should be noted that the Applicant has shown some progress with the development.As represented,the Applicant has been trying to comply with the requirements oftentative approval. The Applicant is currently working to resolve the Plamung Department's requirements, specifically the Agriculture Master Plan,Declaration ofConditions,Covenants and Restrictions, and the Agricultural Subdivision Agreement.Since it is uncertain as to when the Applicant will be in compliance with the requirements oftentative approval,another time extension is being requested. Based on the foregoing circumstances,the Applicant's reasons are justifiable and no problems are foreseen in granting the extension request.The Departments ofPublic Works and Water have no objections to the request. Additionally,the Applicant should demonstrate further progress with the subdivision within one (1)year from the approval ofthis extension request.As such,the Applicant shall be made aware that in farther considering extension requests involving the proposed development,the Applicant shall continue to submit to the Planmag Department an updated status report on the subdivision with a detailed time chronology on the progress ofthe tentative approval requirements.The status report shall be submitted to the Planning Department no later than sixty (60)days prior to the expiration date in order to allow sufficient time to evaluate whether progress have been made and conditions satisfied. RECOMMENDATION: It is recommended that an extension until JANUARY 28,2022 be granted to obtain final subdivision approval.However,the Applicant is made aware that an updated status report on the subdivision with a detailed time chronology on the progress ofthe tentative approval requirements shall be subinitted to the Planning Department for review for further extensions requests.The status report shall be submitted to the PIanning Department no later than sixty (60) days prior to the expiration date. S-2020-9;Sub Extension (1st) Baird Family Limited Partnership 04.13.2021 -3- 1610HALEUKANASTREET-LIHUE,KAUA'I,HAWAI'I 96766 (808)246-0625 ESM@ESAKIMAP.COM February 26,2021 Mr.Kaaina Hull,Director County of Kauai Planning Department 4444 Rice Street,Suite 473 Lihue,Kauai,Hawaii 96766 Attn:Mr.Hull RE:SUBDIVISION EXTENSION REQUEST S-2020-9 BAIRD FAMILY LIMITED PARTNERSHIP TMK (4)4-4-13:02 KAPAA,KAUAI,Hl.96746 Dear Mr.Hull, The subject subdivision received TENTATIVE APPROVAL by the Planning Commission at their meeting held on January 28,2020. The applicant is currently working on the Planning Department requirements,specifically the Agriculture Master Plan,Declaration of Conditions,Covenants,and Restrictions,and the Agricultural Subdivision Agreement and requests more time to complete the documents. We respectfully request an extension in time of 1 year to file the final subdivision map. Thank you forjitottrcopsiderati Dennis M.Esaki DME:vc rt '"\ r"W .Vi^'~\l'^T^^!B- -x<^'ifW s ^^x.^e.,^;'^'s .';~-L;^;~'tOT;§7^.e--^~-\'-;';:;^';;? ^-.'"'^-''^'''•^^&iec^.'"'":^-'';-''^---. (rW^U.^./~.u;^-.^~^-^_-^^^-^- LOT 874-B-3 ^"1.024 Acres .i^ ::;'-\. iigi^^1 '^i^i^w"" p"::\'''<^\«':^;';''^'''^''v../'-/' ' ^/ -V GRAPH1C SCALE SUSDIVISION OF LOT 87-BINTO.LOTS-87-.B--J,,87_-B-^-ANO'87-B-3ANDDESIGNATIONOFEASEMENTAU-1 &E^G POftlIO}!CF CKANT 7£S2 ta E.H.Un& K*PA»HtMESIEACS,2ND SEJilES,KkUAI.HAWIUI IUK;(4)<-1-1];as Daltr NonmbT 22,MIS SU!1 EURVCTNG S (WP; Subdivision S-2020-9 Baird Family Limited Partnership 12/06/2020 Ka'aina S.Hull Directof ot Pianning Jodi A.Higuchi Sayegusa Deputy Director ofPtanning I.SUMMARY Action Required by Planning Commission: COUNTY OF KAUA'I PLANNING DEPARTMENT DIRECTOR'S REPORT Consideration ofApplicant's request to AMEND Class IV Zoning Permit,Use Permit,and Special Permit to allow construction ofan office facility and two (2)storage buildings. Permit Application Nos.Class IV Zoning Permit Z-IV-2017-12 UsePermitU-2017-10 SpecialPermitSP-2017-5 Name ofApplicant(s)GREEN EARTH MATTERS INC.(GEM) lan K.Jung,Authorized Agent II.PERMIT INFORMATION F ^.^' PAPR 1 3 2021 PERMITS REQUIRED Use Permit A Use Permit was required as the proposed project was nol a permitted use within the Agriculture (A)zoning district. 1I Project Developmcnt Use Permit 11 Variancc Pcrmit Special Pcrmit A Special Permit was required as the proposed use was not a permissible use within the State Agricultural Land Use District. Zoning Permit Class IV III I'ursuant to Section 8-8.4(d)ofthe KCC,1987,as amended, a Class IV Zoning Permit was a procedural requirement for obtaining a Use Permit within the Agriculture zoning district. 1I Special Managcment Area Permit DUse Minor AMENDMENTS 1I Zoning Amendment 1I Gcncral Plan Amcndment Datc ofReceipt ofCompletcd February 26,2021 Application: Datc ofDirector's Report:March 23,2021 Date ofPublic Hearing:APRIL 13,2021 Deadline Date for PC to Take Action May 22,2021 (60T"Day): III.PROJECTDATA IV.LEGAL REQUIREMENTS Scction 8-3.1(f),KCC:This report is being transmitted to the Applicant and Planning Commission in order to satisfy the Z-IV-2017-12,U-2017-10,SP-2017-5;Oirector'sReport (Project Amendment) Green Earth Matters,Inc. 03.17.2021 2|P ag e D State Land Usc District Amendment PROJECT INFORAMTION Parcel Location:Moloa'a.The parcel involves Units 69 &70 ofthe Moloa'a Hui I Condominium,on a parcel situated along the makai side of Kuhio Highway in Moloa'a,approximately 1,000 feet east ofthe Ko'olau Road/Kuhio Highway intersection. Tax Map Key(s):4-9-009:012 (Portion)Area:Affecting approximately 10.5 acres ofa larger parcel containing 281+ acres ZONING &DEVELOPMENT STANDARDS Zoning:Agriculture State Land Use District:Agricultural Gencral Plan Designation:Agriculture Height Limit:N/A Max.Land Coverage:N/A Parking Requirement:1 parking space/200 SF net office space 1 parking space/three (3)employees,not les than four.Total required =Four (4) Front Setback:lOfeet Rear Sctback:5 feet OR 'A Wall Plate Height Side Setback:5 feet OR Vi Wall Plate Height Community PIan Arca:N/A Community Plan Land Use Designation: N/A Deviations or Variances Requcstcd:NA. V.PROJECT DESCRIPTION AND USE 1.BACKGROUND The subject permits involve operation ofa green waste recycling facility that provides another option for green waste produced by commercial and residential use.The green water recycling produces an end product that would be beneficial to local horticulture and agriculture operations.The pemiits were initially approved by the Planning Commission June 13,2017. The facility accepts residential &commercial green waste,and utilizes the "windrow composting procedure to recycle the material.The green waste accepted at the facility primarily consists oftree trimmings,grass or flower cuttings,and hedge cuttings. The facility will consist ofunprocessed material windrows,actively composting windrows,a finished material storage area,a gravel access road with turnaround,an access gate,and a thi'ee-foot high grassy berm.The entire site is surrounded by a hedge line and unpaved. The facility is operational seven (7)days a week,from 7 am to 5 pm.Approximately, one to two facility personnel will be on-site during normal business hours.Facility personnel vehicles will be parked on-site,along the gravel access road with turnaround. At the time the permits were initially considered,no structures were being proposed. VI.APPLICANT'S REASONS/JUSTIFICATION 1 Request The Applicant is seeking an amendment to the project to amend the overall Site Plan of the Project include the office facility and construction two (2)storage buildings.As represented in the Application,the Project would contain the following elements: Z-IV-2017-12,U-2017-10,SP-2017-5;Director'sReport (Project Amendment) Green Earth Matters,Inc. 03.17.2021 3|Page requirements ofSection 8-3.1 (f),relating to the provision ofthe Planning Director's report and recommendation on the subject proposal within sixty (60)days ofthe filing ofa completed application.The application was received on February 26,2021 and the Applicant,through its authorized agent,was notified accordingly of the Planning Department's intent to commence permit processing. Commission Meeting Date:APRIL 13,2021 BuiIding/Project Description Area (square footage) Equipment Shelter 4,121 SF Wood Shelter and Storeroom 4,000 SF The purpose the Equipment Shelter is to provide storage ofequipment that is used in conjunction with the operation ofthis facility and to protect from the weather elements. The Wood Shelter &Storeroom is intended to store finished slabs harvested fi'om trees that are delivered to the project site. Due to the weather elements in this area,construction of an office facility was necessary to shelter staffand for the management ofthe green recycling operations.As constructed,the office building encompasses approximately 3,240 SF and is accompanied by a concrete-paved parking lot. Thejustification for these improvements is contained on Page 5,Section IV.ofthe Application. VII.FINDINGS 1.Project Site &Surroundines The project site is situated within the Moloa'a Hui I Condominium in Moloa'a and the surrounding properties are zoned Agriculture District (A).The nearest residence is approximately 0.4 miles to the northwest ofthe site.There is a similar operating facility (green waste recycling),dba.Heart &Soul Organics,LLC.,situated to the northwest ofthe project site and it was approved in 1993 by the Planning Commission through under Class IV Zoning Permit Z-IV-94-34 and Use Permit U-94-29. It is further noted that the subject property is located in Flood Zone "X",which is outside ofthe 500-year flood plain. 2.Vehicular Access The primary access to the project site is through a unimproved driveway connecting into Ko'olau Road.Ko'olau Road is a County roadway with a 44 feet wide right-of- way that can accommodate two-way vehicular traffic.The project is located approximately 1,400 feet east ofthe K.o'olau Road/Kuhio Highway intersection. VIII.PRELIMINARY EVALUATION In evaluating the Applicant's development proposal,the following aspects are bein; considered: 1.General Plan Z-IV-2017-12,U-20)7-10,SP-2017-5;Director'sReport (Project Amendment] Green Eorth Matters,Inc. 03.17.2021 41 P ag e Office 3,240 SF Concrete Parking Arca 1.700SF TOTAL AREA:13,061 SF a.The County General Plan (2018)acts as an over-arching valucs statement and provides a policy framework for the Kauai Island Plan and Community Plans within a twenty-year timeframe.The County General Plan provides broad goals, objectives,policies,and implementing actions that portray the desired direction of the County's future. b.Section 3.0,Sector IV ofthe General Plan regarding Solid Waste discusses the need for new solid waste facilities as well as increased diversion.At the present time, there are no new County facilities and the Kekaha landfill is nearing maximum capacity.The plan identifies green waste as the 1 largest component ofthe residential waste.The County ofKaua'i Integrated Solid Waste Management Plan (SWMP)encourages entrepreneurial principles in managing solid waste and involvement ofprivate businesses to emphasize recycling and diversion ofmaterials from the island's Kekaha landfill. c.In evaluating the goals,objectives,and policies ofthe Kaua'i General Plan,the project remains consistent in complying with the applicable strategies in moving towards sustainability,development of a healthier community,and preservation ofthe island's beauty. 2.Native Hawaiian Traditional and Cultural Rights The site previously under intensive agricultural cultivation and a part ofthe original agricultural subdivision for the Moloa'a Cooperative.In the later 1990's,the site was acquired by the cun'ent Moloa'a Hui and have been primarily utilized for agriculture. During the subsequent development of the parcel,the Applicant was required to conduct an Archaeological Inventory Survey which was reviewed by the State DLNR Historic Preservation Division.It was determined that there were no known impacts to any Native Hawai'i Traditional and Cultural Practices on the subject property. However,the Applicant should inform the Planning Department if they receive any knowledge ofor discover any cultural/historical resources. 3.Use &Special Permil Criteria Since obtaining approval by the Planning Commission in 2017,the department has not received any complaints regarding the recycling operation.The Applicant has demonstrated to be compatible with the surrounding uses and continues to fulfill the agricultural objectives contained in Chapter 205 ofthe Hawai'i Revised Statutes (HRS). 4.KCC Development Standards &Applicable Requirements As proposed,the project complies with the building height and setback requirements for development,as specified in Sections 8-4.3,8-4.5,and 8-8.2 ofthe Comprehensive Zoning Ordinance (CZO).It is further noted that this project is subject to the conditions previously imposed with the permits and that they remain in effect. It is noted that the project site shall continue to be utilized for green waste recycling as Z-IV-2017-12,U-2017-10,SP-2017-5;Direclor's Report (Project Amendment) Green Eorth Malters,Inc. 03.17.2021 originally represented by the Applicant.Any expansion or deviation from the green waste recycling operation shall be evaluated by the Planning Department.Any changes to the subject buildings and/or operations shall be reviewed by the Director to determine whether Planning Commission review and action is warranted. a.EIA Fees The Applicant would be subject to the requirements ofSection 1 1A-2.2 ofthe Kauai County Code (KCC),relating to the payment ofthc Environmental Impact Assessment (EIA)Fee for each required off-street parking stall.As represented in the floor plan and in considering the standards in Section 8- 6.3(e)(3)ofthe CZO,the proposed development will require a total offour (4) off-street parking stalls. b.TrafficStudy Another subject matter that should be revisited is the traffic analysis ofthe project. At the time the permits were initially considered,Condition No.20 was imposed that required that Applicant to resolve any requirements from the State Department ofTransportation (DOT)-Highways Division.It would be suggested that the Applicant contact the State DOT Highways Division to determine whether an updated traffic assessment is necessary. IX.PRELMINARY ItECOMMENDATION It is recommended that the Commission APPROVE the proposed development involving the permit addition ofthe office facility and construction oftwo (2)storage buildings. Based on the foregoing,following conditions are in addition to the subject permits: 21.Ihe Applicant shall provide a minimum of four (4)off-street parking stalls.However,the Applicant is made aware that the Planning Director may increase vehicle requirements when particular uses or locations occur in areas where unusual traffic congestion or conditions exist or are projected. 22.At the time ofbuilding permit application,an Environmental Impact Assessment (EIA)Fee of $100 per required parking stall shall be paid pursuant to Section 1 1A ofthe Kauai County Code. Furthermore,the Applicant is advised that all applicable conditions ofapproval shall remain in effect. DALEA Planner Z-IV-2017.12,u-2017-10.SP-2017-S;Director's Reporl (Proiect Amendmenl] Green Earth Matters,Inc. 03.17.2021 6|P ag e Approved &Recommended to Commission: Date KA'AINA" Director ofPlanning :^/ I^U Z-IV-2017-12,U-2017-10.SP-2017-5;Director'sfieport (Project Amendment) Green Eorth Matters,Tnc. 03.17.2021 7|P a g e EXHIBIT"A" (Agency Comments) For reference 'W^w^ :36 COUNTYOFKAUA'I PLANN1NG DEPAJ 4444 RICE STREET,SUITE A^ Phone:(808)241-4050•21 HAR 15 TO:Kaaina S.Hull,Director (Dale)March2,2021 PJ_ANN1NGDEPISUBJECT:Class IVZoning Pennit Z-IV-2017-12,Uie Pennit U-2017-10,Special Permit SP-2017-5,Accessory Sti-ucture Tax Map Key:(4)4-9-009:012,Green Earth Matters Inc,Applicant PW 03.21.018 TO: D D a D Department ofTransportation -STP DOT-Highways,Kaua'i (info only) DOT-Airports,Kaua'i (info only) DOT-Harbors,Kaua'i (info only) State Department ofHealth State Department of Agriculture State Office ofPlanning State Dept.ofBus.Econ,Dev.Tourism State Land Use Commission State Historic Preservation Division DLNR -Land Management DLNR -Forestiy &Wildlife DLNR -Aquatic Resources DLNR -OCCL 13 DPW -Engineering DPW -Wastewater DPW -Building Q DPW -Solid Waste I1 Department of Parks &Recreation Fire Department 1I County Housing Agency County Economic Development KHPRC ^]Water Department Kaua'i Civil Defense U.S.Postal Department UH Sea Grant D^]County Transportation Agency D Other: March 12,2021FORYOURCOMMENTS(pertaining to your department): We have reviewed the subject application to construct an office building and two storage buildings at TMK:(4)4-9-009:012 (CPR Unit Numbers 0001 &0026)for Green Earth Matters Inc..We offer the following comments. 1.All existing drainage runoff volumes and flow pattems shall be maintained and subject to Best Management Practices (BMPs).BMPs shall be implemented at all times to the maximum extent practicable to prevent damage by sedimentation,erosion,or dust to streams,watercourses,natural areas,and the property ofothers. Sincerely, Michael Moule,P.E. Chief,Engineering Division MM/PT copy:Design and Pennitting COUNTYOFKAUAI "21 TO-9 P1 :'<2 RECEIVED MAR -22021 COUNTY OF KAUA'I PLANNING DEPARTMENT L ANttt(4tRD@6'3TREET,SUITE A473 LIHU'E,HAWAI'I 96766 (808)241-4050 CountyofKauai Traasportation Agency FROM:Kaaina S.Hull,Director (Dale)March2,2021 SUBJECT: TO: Class IV Zoning Permit Z-1V-2017-12,Use Permit U-2017-10,Special Permit SP-2017-5,Accessory Structure Tax Map Key:(4)4-9-009:012,Green Earth Matters Inc,Applicant D Department of Transportation -STP DPW-Engineering DOT-Highway,Kauai(info only)D DPW-Wastewater D DOT-Airports,Kauai (info only)DPW-BuiIding D DOT-Harbors,Kauai (info only)a DPW-SolidWaste State Depanment of Health Department of Parks &Recreation State Department of Agriculture Fire-Department State Office of Planning County Housing-Agency State Dept.ofBus.&Econ.Dev.Tourism a County Economic Development a State Land Use Commission KHPRC State Historic Preservation Division Water Department D DLNR-Land Management Kaua'i Civil Defense D DLNR-Foresty &Wildlife a U.S.Postal Department a DLNR-Aquatic Resources UK Sea Grant D DLNR-OCCL County Transportation Agency D Other: FOR YOUR COMMENTS (pertaining to your department): Z|<^(^1 C-Tl^tVft^t~^<3 ^(Z.T^c^Co<^<^?1^^ 'T^fr'J(^>, Oi-'TH^{-^o5~€~<-^~- This matter is scheduled for a public hearing before the County of Kauai Planning Commission on 4/13/2021 at the Lihue Civic Center,Moikeha Building,Meeting Room 2A-2B,4444 Rice Street, Lihue,Kauai,at 9:00 am or soon thereafter.If we do not receive your agency comments within one (1) month from the date of this request,we wil]assume that there are no objections to this permit request. Mahalo! ;1 -9 2021 ENVlrtu.'-MENTrHBCmroiTOES COUNTYOrKAUAI "21 HfiR 24 P 1 :45COUNTYOFKAUA'I PLANNING DEPARTMENT 4444 RICE STREET,SUITE A473 LIHU'E,HAWAl'A ,%7(S<'(808)241.4050'"~'"Tt-'CTWiRG-DEPT. FROM:Kaaina S.Hull,Director (Dale)March2,2021 SUBJECT:Class IV Zoning Permit Z-IV-2017-12,Use Permit U-2017-10,Special Permit SP-2017-5,Accessory Structure Tax Map Key:(4)4-9-009:012,Green Earth Matters Inc,Applicant TO: D D Daa D a Depanment of Transportation -STP DOT-Highway,Kauai(info only) DOT-Airports,Kauai (info only) DOT-Harbors,Kauai (info only) State Department of Health State Department of Agriculture State Office of Planning State Dept.ofBus.&Econ.Dev.Tourism State Land Use Commission State Historic Preservation Division DLNR-Land Management DLNR-Foresty &Wildlife DLNR-Aquatic Resources DLNR-OCCL 0a D D D D D D DPW-Engineering DPW-Wastewater DPW-Building DPW-SolidWaste Department of Parks &Recreation Fire-Department County Housing-Agency County Economic Development KHPRC Water Department Kaua'i Civil Defense U.S.Postal Department UH_Sea_Grant County Transportation Agency Other: FOR YOUR COMMENTS (pertaining to your department): See comments on attached sheet. Darren TaiAekazif/Acting Chief Kauai District ^>(a3nirife»iainM&uaeon March 16,2021 This matter is scheduled for a public hearing before the Coi 4/13/2021 at the Lihue Civic Center,Moikeha Building,Meeting Room 2A-2B,4444 Rice Street, Lihue,Kauai,at 9:00 am or soon thereafter.If we do not receive your agency comments within one (1 ) month from the date of this request,we will assume that there are no objections to this permit request. Mahalo! Class IV Zoning Permit Application:Z-IV-2017-12 Use Permit:U-2017-10 Special Permit:SP-2017-5 Applicant:Green Earth Matters Inc. Based on our review of the application,we offer the following environmental health concerns for your consideration. 1.Noise will be generated during the site preparation and construction phases ofthis project.The applicable maximum permissible sound levels as stated in Title 11,HAR,Chapter 11-46,"Community Noise Control" shall not be exceeded unless a noise permit is obtained from the State Department of Health (DOH). 2.Temporary fugitive dust emissions could be emitted when the project site is prepared for construction and when construction activities occur.In accordance with Title 11 ,HAR,Chapter 11-60.1,"Air Pollution Control", effective air pollution control measures shall be provided to minimize or prevent any fugitive dust emissions caused by the construction work from affecting the surrounding areas.This includes the off-site roadways used to enter/exit the project.The control measures include but are not limited to the use of water wagons,sprinkler systems,dust fences,etc. 3.In accordance with Title 11,HAR,Chapter 11-58.1,entitled "Solid Waste Management Control",the grubbed material and construction waste that is generated by the project shall be either recycled or disposed of at a solid waste disposal facility that complies with the DOH.The open burning of any of these wastes on or off site is prohibited. Due to the general nature ofthe application submitted,we reserve the right to implement future environmental health restrictions when more detailed information is submitted. VAN BUREN &SHIMIZU LLP GEORGE W.VAN BUREN #3496 JOHN B.SHIMIZU #2627 Hawaii Kai Corporate Plaza 6600 Kalanianaole Highway,Suite 212 Honolulu,Hawaii 96825 Tel.No.(808)599-3800 Fax No.(808)522-0530 Attomeys for Petitioners MOLOAA FARMS LLC AND JEFFREY LINDNER COUNTYncKAUAI •21 APR-6 A1022 PLAHHIHG DF.PT. COUNTY OF KAUAI PLANNING COMMISSION STATE OF HAWAII In the Matter ofthe Application for a Class FV Zoning Permit Z-IV-2017-12,Use Permit U- 2017-10 and Special Permit SP-2017-5 for real property located in Moloa'a,Kauai, Hawaii,further identified as Lot 185 as shown on Land Court Application 956,Tax Map Key (4)4-9-009-009. CASE N0. MOLOAA FARMS LLC AND JEFFREY S. LINDNER'S PETITION TO INTERVENE; MEMORANDUM IN SUPPORT OF PETmON TO INTERVENE;EXHIBIT 1; CERTIFICATE OF SERVICE HEARING DATE:AprU 13,2021 TIME:9:00 a.m. MOLOAA FARMS LLC AND JEFFREY S.LWDNER'S PETITION TO INTERVENE Petitioners-Intervenors MOLOAA FARMS LLC and JEFFREY S.LFNDNER (hereinafter "Petitioners"),by and through their attomeys,Van Buren &Shimizu LLP,hereby file this Petition to Intervene in the above-captioned matter (the "Petition").The Petition is filed pursuant to Chapters 3 and 4 of the Rules of Practice and Procedure ("Rules")of the Kauai Planning Commission ("Commission"),the attached Memorandum in Support ofthe Petition,and any evidence to be adduced at the hearing on the Petition. F.1.0.^ APR 1 3 2021 DATED:Honolulu,Hawaii,April 5,2021. GEORGE W.VAN BUREN JOHN B.SHD^IIZU Attomeys for Petitioners MOLOAA FARMS LLC and JEFFREY S.LINDNER COUNTY OF KAUAI PLANNING COMMISSION STATE OF HAWAII In the Matter ofthe Application for a Class FV Zoning Permit Z-IV-2017-12,Use Permit U- 2017-10 and Special Permit SP-2017-5 for real property located in Moloa'a,Kauai, Hawaii,further identified as Lot 185 as shown on Land Court Application 956,Tax Map Key (4)4-9-009-009. CASE N0. MEMORANDUM IN SUPPORT OF PETITION TO INTERVENE MEMQRANDUM IN SUPPORT_QF PETmON TO INTERVENE I.INTRODUCTION Petitioners file this Petition because they hold interests in the property that is the subject of the above-referenced hearing (the "Hearing")and will be directly affected by the Commission's action.According to the Hearing notice,the applicant seeks Class FV Zoning Pennit and Use Permit and Special Pennit (the "Permits")to construct an office building and two storage buildings located in Moloa'a,Kauai,Hawaii designated as Tax Map Key ("TMK")(4)4- 9-009:009 (the "Parcel").The applicant does not own the land outright and has no authority to construct the improvements.The land is a common element within the Moloaa Hui condominium and cannot be used as proposed without the approval of the owners of the land which include petitioner and many other owners.Moreover,the parcel size in the application is incorrect.Lot 1 is not subdivided to Petitioners'knowledge and therefore Lot 1 is 593.1 acres. Petitioners own interests in the land and have not approved of the improvements. Petitioners own Unit 34 and own an undivided interest in the land underiying the proposed improvements.Based on their ownership interests in the land and property that is the subject of the Hearing,Petitioners are entitled to intervene as ofright.Furthermore,the Hearing will have a direct and immediate effect on Petitioners that is clearly distinguishable from that of the general public.Accordingly,the Petition should be granted. II.BACKGROUND The subject property,Lot 1 was condominiumized into two condominium property regimes ("CPR"),Moloaa Hui I and II .The land is a common element owned in common by the owners of the units.Petitioner is unaware of any subdivision of tbe land owned by the two condominiums.See page 21 of Exhibit 1.A master Association was contemplated but to Petitioners'knowledge never created.See page 18 of Exhibit 1.The owners of Hui I have presiimably been conducting their affairs without creating a Master Association and without involving the owners of Hui II.Moreover,the condominiums require that buildings be used only for agricultural purposes and must comply with all rules,ordinances,etc.Under existing laws and ordinances tbe buildings are not allowed which presumably is why Applicant has filed its petition without getting the approval ofthe co owners. III.PETITIONERS HAVE STANDING AS A MATTER OF RIGHT fTHE NATURE OF PETITIONERS'STATUTORY OR OTHER RIGHTS AND INTERESTS IN THE AFFECTED PROPERTY} Petitioners have the mandatory right to intervene in these proceedings because they have a property interest in the land affected by the Hearing and will be directly and immediately affected by the Commission's determination.Moreover,the Petitioners'interests in the proceeding are clearly distinguishable from that ofthe general public. The Commission's Rules ofPractice and Procedure,1-4-1,states: Who Mav Intervene.All Persons who have hold interest in the land,who lawfully reside on the land,or who can demonstrate that they will be so directly and immediately affected by the Petitioners own a unit within Moloaa Hui II (Unit 34,C.P.R.No.15). proposed application that their interest in the Proceeding is clearly distinguishable from that ofthe general public shall be admitted as a Parties-Intervenors upon timely application for intervention. (emphasis added). Additionally,any proceedings or decisions of the Commission regarding the Permits will directly and immediately impact Petitioners given their ownership of the land.The proposed use is detrimental to Petitioners'property rights and interests. TV.PETITIONERS HAVE A RIGHT TO PERMISSIVE INTERVENTION Petitioners also have the right to permissive intervention under the Commission's Rules and Regulations ("Commission Rules").Leave to intervene may be granted where (1)the intervenor has a position different from the Party-Intervenor already admitted,(2)the admission ofthe intervenor won't render the proceedings inefficient or unmanageable and (3)the intervention will aid in the development ofa fiill record and will not overly broaden issues.Commission Rules 1-4-2.All ofthese tests are also met. V.THE PETITION TO INTERVENE HAS BEEN TIMELY FILED Commission Rule 1-4-3 states that petitions to intervene "...shall be filed with the Commission at least seven (7)days prior to the Agency Hearing for which notice to the public has been published pursuant to law."The scheduled hearing on this matter has been set for April 13, 2021 at 9:00 a.m.Therefore,any petition for intervention may be timely filed by April 6,2021 at 9:00 a.m.Thus,this Petition has been timely filed. VI.THE ISSUES TO BE RAISED BY PETITIONERS C<THE CONTESTED CASE HEARING A.Applicant Lacks Sole OwnershieOfThe Underlying Land As set forth above,the land has not been subdivided to Petitioners'knowledge and should not be allowed to change the uses. B.The Improvements Require Approval OfAll Condominium Unit Owners Pursuant to the Declaration and state CPR laws,the land is a common element in a CPR and the proposed use which is not consistent with the CPR requires all condominium unit owners'approval. VII.THE EFFECTS OF ANY DECISION ON PETITIQNERS'INTERESTS Permitting the construction of the buildings will directly impact Petitioners' interests in the property as the land is owned by Petitioners and others. VIII.PETITIONERS'PARTICIPATION WILL NOT UNDULY BROADEN THE ISSUES OR DELAY THE PROCEEDINGS BEFORE THE CQMMISSIQN AND WILL SERVE THE PUBLIC INTEREST Petitioners'participation will focus on the ownership ofthe land and the applicant's lack of authority to seek the Permits.Consideration of these issues is necessary to develop a full and complete record of the proceedings and to make an informed decision.Informed decision- making is in the public interest.Similarly,the public interest is served by the proper application of state and local laws meant to preserve and protect agricultural uses. IX.CONCLUSION. Based on the foregoing,Petitioners respectfully request that the Commission grant this Petition to Intervene and allow Moloaa Farms LLC and Jeffrey S.Lindner to participate in this matter. DATED:Honolulu,Hawaii,April 5,2021. A^(J-^ GEORGE W.VAN BUREN JOHN B.SHIMIZU Attomeys for Petitioners MOLOAA FARMS LLC and JEPFREY S.LINDNER t' ^^-R-149 ^ STATE OF HAWAIT BUREAU OF COWVByANCES RECOBDED MAY 05.1997 08:01.AM Doc No(»>97-057760 /0/CABL T.WATANABB ACTIHC RECISTBAIi OP CONVITyANCRS APTM!tUiCORDATION,RBTOIW BY MAII, STEVEN R.LEB,ESQ. 4473 Pahe'e Stt-eet,Suite L Lihue,Kauai,Hawaii 9676S TO; Tft i/olooc'^"•" "--'-•.-'„'*'-^';^:AiM' TITI,B 0V DOCO.HSHT! OECLARATION OP COKOOMINIUM PROPERTy RBOIMB OF MOLOAA HVI II AND^ CONtX3MINXUM MAP N0./• PARTIIB TO DOCDMlENTi Fae Owner:KOLOAA HUI LAND3,IttC..a Hawli sorporat-ion,T.G. EXCHANOE,IfTC.,A Hdwaii corporation,and T,G;.SUPER KXCfiANGE CORP.,d Hawaii corporatlon niOPBRTY DBSCRI.PTIOttl LOTS 1.2,3,7,8,9,10A&B, 13,14^16 and Roadway, MoJoaa and Papaa,Kawaihau , Kauai.r Hawai i TAX MAf KTX HOS.i(4)4-9-003:001, LiB«R/i>»gai Docmasr NO.i CBRTiriCATl Or TITLB N0.l 97-0327B3 009, 018, 010, 0.21, 011, 022, 015, 025. 016.017, 027 &037 DKCUUtATXOH OI»COMDOMIMtCTl PROPBRry S»ai><» or HOLOAA BOI rr KNOW ALL MEN BY TMESE PRESENTS; 3.Haw<aii cor'porstion,whoee Hawaii,96754,T.G.BXCfIANQE. SUPBR EXCHANOS CORP.,a Kawaii if 23^Queen Stroet,Honolulu^ ao tho "Feo ownT"^.are the rsal properhy (hereln reforred to ^tH the "ProFer't.y")de^cribed i n Exhibit incorporated ho-c-ein fcy rcfer^nee? HHEftEAS,HOLOAA HUI IANDS,INC addresis is P,O.Box 30,Kilaues. IMC.,a Hawaii corporatiion,and T.0. cofporat lon /bofch of ^nog'e addresa Kawali,96813 fherein referred EIO ohmei-s in fee sJ.mple o£ch<'''""ftaln "A<r ^ctached hereto and EXHIBIT 1 HHBRKAS,MOLOAA tfUI tANDS,INC.ia,by decj.alon of Fee Owner, acct.ng as Ehe "Develaper",as descrlbed .in ehe Hawail Condominium Proparcy Act,Chapter 514A,Hawaii RevlBed Stacytes (hsreln the"Condominiuin property Act"),co dovalop a condominlum on the p.t-oporty;MOLOAA KtJJ LANDS,INC.io somefifflcs hereinaCter referred to as tihe "Developer"- NOW,THERBFORE,in arder to create a condomini.um projactcpnsi.stj.n^o£land described in Exhit>it:"A",and i.niprovements thereon (herej.naft.ar referrsd to afi the "Froject"^.and to toe fcnown aa MOLOAA HUJ II,said Fee Owner and DQveloper herejby submit sald property anc3 all of theiT-inEieresb tiherein co the CondominlLim Property Regime eetabti.shed by tho C'ondciminium Pt-operty Act and.In fyrtherance fchereof,make "tihe followi.ng decl'ai-atione aa to dl.vi eiong ,Z imitat ic»ns and restricfcions upon which unJLts in t'ne Project ohall be held,conveyed,inortgaged/encumbered,leased, r'en^edl,usecl,occypled and improved,^u'bj'ect to thiy Declarati-on, which ehall constituce covenanto running with che land and shall be tiinciing on and for clie benc'fit af the owners and leoseee of all or any part o£the Projecfc and cho.Lz'respective suc^eseoro,hoirs, exescutora ,administ racors and gsaigna, r UUtD The land UPOn which ths bul.ldin^e ^nd J-mproYemsnEa of bhe Project are Xocat-ed ie descrlbed in Eithibit "A*'atfcached horeto. IX DIVIBXON OP PltOPKKTY Eigrhteen <18j freehold eafcafcee a-E-e hsreby cr«AE«"'fi an^ desi-gnated/and heteinafter raferr*<?^^?as "cc'ndomj.n.i.um uniCB"fslgo re£<err«d t-o hsrein •33 "unit:"or "uni,t:s"j .Speeiflca.lly,the el^ht<ten (1S)cstatee go created and deai^natied are referred to heroinafter ae Unj.t:er 20 through 37.Said unifcs consist of the undivided Intereet in the common elements of the project,the limited common elemcnt (o)appurtenant t,o the unit,aa sho^n on hhe Condominium Map for the p.r'oJGct and the apart.ment,i£any, conBtructGd or fco b<!conatructed on the Iifrtlted common element.The apartmaote are deeignated on plane i.ncoz'poraced hefein by z-cference and being fiied separately with the Bui-eau of Conveyanceo of tho Stdte of Ksiwaii alfttultan&ouely herewith aa parfc of ttie Condomin tum Map referonc'od on the firsL pa'ge hereof .The unxts are daecribed as follows: (a)Un±C 20 IH a nawly built single-otory ahad^eLjruc-tui-e, conetructaci of PVC pip<*and ohade c:l.oth,which ha^a roof but no sides and c-ontains <an area of 16 ecruarR feet.Tho efcrucrture ifl locatecl in the aoufchwesfcern portion ot a 24-463 acre limited cotnmon element. fb)r^nit 23 io a newly built a inglo-st-ory shade structure, conetruc'c.ed o£PVC pipe and ohade cloth,wrhich h.?s a roof but no sides =and cont^ins an area of 16 sqiiare feet .Tho etructure io located J.n the souchwegtern portion of d za.5B4 acre limi.ced commonelement. (c)Unit_22 is a n&wly builc sinsrle-scory ahride ^tructure,conatz-ucted of pvc pipe and "sliade clothT whlc-h 'hag a roof but nosidesandconeainaanareao£16 square feet.The Btructur?ialocatedinthesuutheagt.ern portion o£an 9.437 acre limifced commonelement. (d)Unit 23 is a newly built:aingle-scoi-y shdde strucrture, sonatrucced o£PVC pipe and oha^A clctth^whxcrh hiia a roof but.no gides and confcains an area of 16 squax'e feet .The etrucfcure isloc^ated in fche northeaetern port ion of a 10,000 acTC 1imlced commonelement^. (e)Unx t 24 ie a newjty built Qingle -scory ehade structure, conetructed of PVC pipe and s^ade cloch/which hao a roof but no oidee =*nd concalns an~area af 16 gcruare ffiet .The structure ie located in che oouthwest.ern por-ti.c?n of oi 30.ooo acre llmi.ted common elemftnt:. (f/Uni t_35 io a newly built single-fltory flh^de etructt.ire. conscructed of pvc pips and ghada r-loch'.which ~hae a roof but no sides and contains an area of 16 squ&re feet .The atructure is Ipcated in the southeastern portion 06 a 1G.481 acre limited commonelement. (g)Unifc.26 consigto of two sttuctures.Th<a first is a newly hui-lC aincfle-story tihade structure,construeted o£PVC pipe and shade cloth,which hae a roof but no sides and contains an area of 16 aquarc feet,The structure is located in the goufchwe^tern portion of a 16.481 acre lifTticed coinmon elemenfc.The aecond is a single-atory equipmenc storage bu-i-ldin^J.niti.qJ.ly conoLructed in 197$/but under'going remodcliny ac.fchiB"flm^,as 'set Corth in the floofplana and ^1^'<r9ti^ns recorcied simu.LtaneoueXy hcrewitJi.It is con 01-1-utft:ed wlth a wood framc and ^metal roof and aiding^and contair.s 900 s^uare fect o)e atorage area. <H)Unlfc 37 ie ni newly buijt otngle-sfcory ohade structure. conetrucfcGd of PVC pip&and ghade cloth,which -has a roof bufc no sides and confcains an area o£16 aqziare feet.The etrucbure io loeated xn the ^ovtheaetem portion of a 9.162 acx'e limJLted <?omhion element. fi?CJnit 28 ip a newl./bullt ein^le -sEory shad<2 ac-ructLtrc, c-onstructed of PVC plpe and ohade cloth,whlch hao a roof but no eldea and containe an area of 16 equare feet,The stfiicture i^ located in the oouthwesterr;portion o?a 14 .762 ^icre lifr.iKed common element. (-])Unit 29 Xs a newly bujtlt oingle'^tory ehade structure, conf?tructi<ed of PVC plpe an<l ghade c-loch,which hao a roof but:no oldca and containo an area of 16 equare feeC.The fltructure i3 locacedl in che oouthweetern portion of a JS.050 a£'re limlted cocnmon element . (k)Unit 30 is a newly bui1 E:s ingte -BtoirY shade Bt.rucrture, COnat.ructed o£PVC pipe and 'shade clothT which 'haa a roof but:no oidee and contains an area of 16 scp-iare feet .The structure ie located i ii the southaastern porfc.ion o£a 20.QOQ acre limited CQmmon el-ement.+ <1,)Unit 31 io a newly builL aingle-story shade sfcructure, conotructed of PVC pipe an<3 ghade cloth,which hae a roof but no sides ?"d containg an area of 1<*sqyare EaGt .The strucrture is locatod in the nori.hwestern poc-tion of a 19.946 acre limited crummon element, (nt)Uni t 32 xsa newly built oingle-sfcory ohade afcructure, constructed of PVC pipc and ~shade clot:h7 which'has a roof but no aides and confcains an area o£16 square feet.The gtructure io locatod in the southwestern portion of a 5 .S4S <icre limited common eiementi. (n)Unifc 33 is a water tank,constructed of concrcte and sfceel, and containg an area o£approximately 1,33o square feet.The fcank io located cent.rally in a X.883 acre limited common element. (o)Unit 34 is a newly bui.it single-story ahade etructure, constructied of PVC pi.pe and shade clofch^which 'hag a roof but no sidos and contalns an area o£l6 sq-uar^£eot .The structure i& located in the HOUtheastern portion oE a 19.216 acre limited copimon element. (p)Unit 35 id a newly built single-story shade etructure, constructed o£PVC pipe and ahade cloth,which haa a roo£but no sideg and containe an area of IG scfuare feet;*The structure is located in the northeaefcern portion of an 18 .396 acre limited common element. (q)Unit 36 contains bhree structures.The first is a newly built sxngle-etory ohade structure,consti-ucted of PVC pipe and shade cloth^which has a i-oof but no sides and contai-ns an area o£ 16 aquare f^«at.The structure is located in the northeastern portion o£an 18.396 acre limifced common elemenfc.Tha oecond 3trU7f:yr<3 wa&built in 1.97B,and ie a ainglB-story covered flhed, conetructed o£wood,which has a metal roof but no eides and containe an area o£2S5 aquaro feet.Thia ohed ia located in the east -centr'al portion o£the li,mited cQmmon element.The third etructure was builfc in 1979,an<3 is a s i,ngla 'ofcory equipment and storagfe ohed,constructed of p^-pe fr^mework with d matal x-oo£but no sidee"and containe an area o-£1031.sqn-iare feet.This shed LB located in the central portion of the limiteci common elem^nt . The second and thir-d sLriir-^uz-ea arc now being rcmodelod aa ect fprth in the rioorplana and elevatioris record^u simultaneoualy herawlth. (r)Unit 37 ia a neuly built singl.n -story shade Bttructure, cdnstructed o£PVC pipa and shade clot.h,which has a roo£but no aidee and containe ^n area of 16 scruare Ceet .The otructurc io Located in dhG Boutheastern portion o£a 15 .319 acre limited common clementi . Ther-a are no basementa jLn this Project. Th^conclominium limited common el<ement3 and apartmentp arelocated^in che manner shown on the said Condomlnium Mdp.The ^ollndsries af-e^ch apartment ehall be the outer gurf^ce o£each bulldin^on thc specific limited common elemcnt dfeas oet aaidG in the Project.Each unifc hafi dii-ect:acceas to a common acceas lilement or easement or co public right (o)-of-way.Unlega gpecifically provided to th^contrary herein,the reopective units ehall not be deemed to include any present:c?r future pipafl,wires or conduite or other utilifcy lineo running over,uiider or t-hrough any 1 imi ted common elemehti or-apartment which s^fQ utilizsd for or-aervc al 1 uni tg,the eame being deemeci common elemente as hereinaffci^r provided. II-C LXMITS Of APAJtTMENTS Each apartrtient ohall be deemect to include the buildlng comprising thc aparcment,including specifically,but not limited to: (a)all perimeter walls,floors^foundat-ione and roof of such buildin^,all fenc-ea,outbuildtngB,otrucEures and impr-ovefflente o£any Icind locabed wholly within the limitcd common elementfs)of the individual unito;and (b) lines in by fftore chan all pipeg,wiree,conduics or other ucility and servic^ or on euch unifc building f or i f the same are not utilized one aparfcment;and (c)each a<3dAti,Gn,repl.acemant and other improvemenfc of the apartment;a^permitted by law-The costs aod expenses incurred £or ouch acidi.t.ions,replacements and improvem^nte t;b the apartftient aa pemiitted uncter the lawg o£the State of Hawaii or the Countiy of Kauai shall be charged to fche ownerts)o£fche unit vfhich i.a altered, changed or imprraved. XVcotnioNar,Bttn<T8 Onc freehold estace ig hereby degignafctid of all the refflatning portiona o£t^e..Pro^ect /horein referred fco as "common elenFtents", inc'ludifig speci,fical ly,but nofc llmited to: (a)fc.ho land in fsc ftimple; fb)Ehe common roadway uhown on tho condominium map which ig shared in cotnmon with concioinj.ni.um proj ects known as "Moloaa Hul II/" (c)the portion o£the 1.740-^cre draina^e dlfcch ^hared wi.t-.h Moloaa Hui l which i@ located within thia Pro^'ect/ae ghot^n on the conciominittm map; td)the common water dlstribuLion sysfcem,including pipes, wxrcflf pumpo,"fcc.; (e)aZ^comfnonly uoftd preeont;or fufcure duc-Eis.eZcccri.calequipment.wirtng^and ojcher central and appurtenant installat i.ona(or common ser-i/lcea,if any,incliiding ~"power,light,sewage7i.rrig'ation and fcelephone;and (f)any and all ^othor (ucure elQmenCB and facilities in commonuseornecoeoarytotheProject. The common elemencai ahall rernain yndivided,and no right ehallexiattoparfcitionordivldeanypartthereof,except as provided InttieCondominlumpropertyAct./iny auch partition or divlsion shallbsautojecccoche"prlor consenc"t)ier"tb by chc holder(6)of allmorfcsra^e(g)of any c-ondominlum unit fs)wh-Lch'are filed of record. All or portions of che Mulfci-project Roadway and che drainagedit.ch may be ucillzed by ch°othor MoJ.oaa Hul condominlum projactspurnuanttowri.tten agrsemsnt(9>relating to conscruction.fflAintenance and rcpair ot'fchese common .elements on a fair andequltablcjb=>aie. The water distritiuti.on aygtem ia a common element to the extantitlanoclocatedwichinanyunitocherttianUnil:33 of MoJoaa HulIZ;The wacer tank ie che property o{Chc Oeveloper.but wlll beffiaintained>repalred and replaced by the Aaeociati.on of CondominiumOwners^indt may be trane£err"d to che Asoo<:iation by Developer. I.IHITKD COWtON BfcBOEWTa Cercain parts of fche comnnon elemento,hcrei-n referred to ^s the"limited common elemcnts'*,are hereby designateti and set apids foy the exclusive uss ot one or more unlcs,ancf such unjtt (s)ahall have appurtanant chersto excluoive Basamencs for the uae o£such limltedcoinff&n elemen^s ,The limited common elenienhg so set aside ,z-ftft^i'^/ed and doemed a Ijlmit&d coramon elemenc appurt<?n.snt to and for theaxclualveusepCeachraspeceiv'jnlt ia 'thgt certa-ln Jand arsa upon and around whl.ch Unito 20 fchrough 37 are located,ahown and desi^natcd on fche Condominlufn Map an^i the fcal&JLe below. Unit Kusfefix 20 31 22 23 24:2B*sa^l»a 3S39 11 3Z 33 34. Aresi of tttsitissl-Ssiasiaa—E^esE&nf.. 24 28 8 10 20 3.6 16 3 14 35 20 . 19.s. 1. 13. .463 .584 .437 .000 ,000 .461 481 162 762 050ooo 846 S45 sei 21.6 acrof? acreo acres acree a.cx-fss acres acreo acjreo acrea acreo acres acres acreo acreo acres t *• 35 36 S7. 18 .igfi 18 .396 15.319 acres dcree acres All coets of every Kind pertaining to the aforesaid 1imited common elementa,includinq,but not 1 imited to ^coati a of landaicaping f maincenance;repair,i-epiacemGnt and irr.pzTovement,shall be bome oolely b/thc owncr oC the unit to which said limifced common olement^are appuz'tenant . VT COKMOM rtTTERKST Each unit and its ownRr (s)-^h^l 1 h^ve appurtenant theroto a percentage of intereot (which is raferred co as the "c'ommon interess")in thc corr.mon Qle~.ents of fche Project,Cor all pafpoeefiincludingvoting.according tQ E.h$following"amuunts :(a)21-Units 32 and 33;(b)3V-Units 22^23 and 27;(c)5V-Unlt 28;(d)61-Uni.ta 24,25.26.30,J1,J4,35,-i G and 37;(e)8»-unit 20;(£1 9»-Unit 7.1;and (g>llt-unill 29. VII KABBMKNTS In addit ion to any exclusive easemenLs eatdbliehed in the common elements and the limited common element eaoement(s)shown on the Condominium M^p for thio Project,each unit shal 1 have appurtenant thereto reasonable non-exelusive reasonable eaQements and/or right.fa)-of-entry in the common olemQntB designed for such purpoeesasunpavcdingreasto,ogress fr'pm,ut.ilifcy servicres for,and support,mainfcenance and repair of ouch unit,and in the other crommon elements of the Project for USE accordtncf to their respective purpoaes.When applicabl".each unit shall algo have appurtenant thereto eaBemente in the other unit(e)for fche purppses o£ytility services Cor,and the ntaintenance and r-epair of said utility seiTvJLces including^but not 1 imited to,electric'iby'r gas,w^ater, sewage^telephane"and televioion cablo,if any.Such "eaaement: (g? ehall be bhe minimum aize,oxtont and durafcion required £or fche atat<sd purpofle and th«-bene-fitinq unit(s>ahall be»T'all c'osts and damagcs incur-red in th<s use fchereof.Except as othRrwise Bpocifi-cally scated herein^thers shall cilso be an encroachment saaement;it»'Cravor of any otherwiaet legally congt ructed improvement on the Proj ect at the date of recbrding hereof ,for any sctback or unit boundary violaLion othcrwiee existin^on fche projoct at recor'dation.individual unlt owners may gr'ant.eaeementa on or over tlieir 1 imited commort (^letnenta only oo long aa EhiEi doee not prcsent a dang»r to other urtifcs and doca not materially change tihe level o£ activlty on the projecfc aa a whole. Any iinit owner using a common element for utility installatione ehall do so with due regard o£uge by the ownere of oth<g3-units and shal 1 further restore the common element to its condit ion prior to use.At least Cifteen (1S)days advance not ice to the Fann Review Committee ahall be given prior tc exc^vation,trenching and similar improvemente shall be given ,t.o allow obher unit..owners .t^e oppor'tunity to prratect crope,join in the work where relevant,limit £utU£'e diat.urbance of the common eLemcnts dnd t-o save coata. ?3rmanent lmP^^VGtn®nt:a co comrnon elenients,such as paving of accesa ,shall not be done as a common expense without prior decia.i.on by anumericalmajorltyofthecommoninterestaoftheProjecTti.Thecrompletedimprciv<sment:s sh^l 1 becomG additional common elemenfcg a£ the Projoct,subject to repair and mainten^nce by the Asaociation ofCondominiufnOwnera,unleoa otherwise provided herein cr in another w^z-itten agreement t-o which the Associ.ation of Condominium Own<?r?is a party^Developcr or third-pdj-fcy holdex-s of <»aooment3 ot- rxgrhta-of-wdy inay be gx-^nted ~tt^.f right t-o improve cocrimoneJ.ementa al;cheir own expense or on suc-h tex'mH ae are 9ranted by Oeve .l.oper or the Associat ion of Condominiurn Ownere . VXIX Al,T«ttATIOH *ND TIUUISrBR or INTBRBST8 Except ae otherwj.se provlded in this Oeclaration^the common intereet snd easements appurtenanL to sacrh condominium unit^ohall have a permanont charactcr and ahall not be dltered without thc approyal of all o£t}is unit owner(sj affecfced,expreseed .--n a duly recrorded amendment to thia Dec?lara tion,which -amendment ahall contain the consent •;heraco b>the holdars of all mortgages of any affected unic which are filed of record.Tha common Interest and eastements ohall npt:bq separ^ted €rom the unit to which thsy appertain and ahall be d<°emed to fc>^convoyed,leaeted,or encumbere^ with such ynit;even fchou^h such intereaf.or fiaoomene may not.be menti.oned or described expi-cs^ly ln the inotrucnent:of traps^er'. <a) used IX POTtPOSBS Or BOILDINOS ANI>RESTRICriONS AS TO aflB P&ZTn-Lfc t.ec2 Us&s-Ffll': Ths unic^i ryf ^hd Pr^jc^t shall be occjupiod an'3 used only Cor ayjn.CLtl turaj.useo and/where permitted,ao piTivateFOsjLdentialdwellingobythereepe^t ive owriQfs thereof,- the ir fsmilJLes,employees,business invit.ee g^personal guests dnd tenanfcs,anct for nc other purposes,Only Unite '2S, 26,30 and 37 gh^ll be petimitted a single r&sidential faz-m dwelling.Unit?25 and 26 may t»e perTTtitted roeidcnces only if allowed by the County o£Kauai.Wb other reeidencefl may be cbnistructed unlegs apprcrved by the Parm Revie^Cotnmitfcee (created pursuant to the terms of the reBtz-ictive covenanfca affecfcinc^th&Projec-t)and t,hs Ueveloper,ag allowed by the Courtty of K^uai.The ri'ght to conQtruct a farm dw^elling may fcae transferred to another unit i f approyed by ths Farm Review Commit bee in its rcsasonable diacrot icn.Rea iden ti.al improvementB may not be constructed on any other units so long aa currenti zoning ^nd Pfoj ect documents roma^n unjainended.Reoideht i.al uoae cvrrointly rec£uirc executipn of a Farm Dwftlling Agreement wifch the County of'Kauai,as c'^ntemplaLed by Hawai i l^iw r-egardin^r use of agricultural,lands for reflidential purpoeeei.Kav/aii Taw re^uireo fchat the family occupylng a ^es idcnce on jagricrulLural Jt and deriv*;inc-oine from farming activitieo conducted on fche Project:. Kach unjLt.^l^3ro.i.n,wh^ther now oj-o'jbgequenbiy entitl<sd to cons&rucK.a farm <^we'l 1 i.ng,m^y bfl requi rod tc?•engage fn agrlci.iltura.t ac-tiyity as a condltion 6£obtai.ning a bullding'pormit:.^The act.ual leval of agricultiural actiyity on the t;»ro-?ect -n'»*'4-"j ^•3 qualif^to cionnt:T-U--*;farm ^wfill^nQri .La A matter determined by fche 'County of Kauai .The requi raments ch^nge from t:imo fco fc ims ,dnd each owtitsr 'o actions on the ir units may have an impact on the ability oE other owners to build farm dwel i.i.r.gg ,T.ndependont.of every unit owner'o obLigat-ion to engage in l?ona ^ide farmi.ng activitiea,edch owner with a farm dwelFing aha\X hav<?the a££irmative duty to en'gage xn agricultural actiyi.t ies ,i.nc ludi.ng a requirement of a£ter-the -£act increases in the level o£a&tual agricultural activity on hia Qr her unifc^i.f such ia requir^-d as a pre-conciition t:o allowing other owners to obtain builciing pei-mito.Xn that regard,each unit wi.th a residence,or then desiri^g to conetruct a residence,shall have an equal byrden pf acfcivi.ty Ln proportion c-o the amount o£^andr'eaoondbly avatilabl'e for a^ricultural ugc on the rfispect ive unita^ Thege provioions shall apply unti.l al).unite with T-'SBlLciential conBt.ruction rights have c'onatructetl residences,and thereaftar so long ae agricultural uo^rnuet bc maintain&d ag a condit ion o£ keeping i-ssidential improv°tr,snto on the ProjeCt. (b)Chancr^in y^lc,a Should the requireTnents of the Farm Dwelling Agreement and/^r the underlying zonlng code or state atatutes mandating agriciiltural uae be"changed to ^liminac.e euch requirements,the agricultural requirement.a uf t.ha.a Project way be abandoned by a vote"of ^0 Xeos fchan aeventy-f ive perceht C75lf)o£ the common interests of tnis Pro^ect.,or euch greater percentage aa may be provided in the DecLax-afc.ion o£Covenaiiitg,Condit-iona and Reatri-ctione {horeinafte^the "ccScRs")£or fchig Project.Nothing, howcver,ahal-1 be constr-iJied to prohibit agricu^tural actxvxt-iea on the Project.Ltnlesa a ttit^ety percent (9'0<f)vote o£the '^oinmon intereste of the Proj ect so decidee. (c)Ufftit.^^^n^J^XL^JI&S^.No hobel or titnesh^re uae shall be allowed.The unTt owne?sshaXl have the right 110 rent.or leaae their untts aubject to tbs li.mjLtat.ions,restiT-ictiono.covenants,and conditi-ons contained in (law^ii State law,County o£Kauaj.ordin^nce, applicable goyernTnential r^gulat.iong,recorded r&strictiona orl__fc^e l^>t C?T'r.he aubd-tviaion j."whxch the Prolect is located,the CC&Ra, fchis Declaration or i-n ^he Sylaws •n?f »-;h'»AqyociLat.i.on *Such Isgal precedents are sutoject to amQndment and varying interpret-atiun. td)Wipd)3jreak&.'T^^s ba.Lng an agrtcuXtural Froject with aubst.anti.al on-^oin^agi;i0ult.ural activity,windbreaks _aro crit-ical EQ on-going dally farmi-n^opsrat.ions,Exist-ing windbreako will, ynlcas good farmincr pr-^Cticee cithetwi.se require and/or the Parm R.evi.ew Commit.fcee ao-E'Lrids,be ma infcalnsd excepc,where requirod EO conatfuct driveways,roadwaya ^etc.,whJLch ac'e conat-ructed conai-atent wii^h the tQfmg of all Froject documents .S^cept aa deptcted in plana previ<?ueLy approvsd by the Farm Review ^Commit^ee ^ wlndtoreake o>iall noc.b»g E'emoved without thc approval Cif the Farm Review Committe-e -Wi.r^^t>reakg Bhall algo be maintained in guch f^shion ae t&sub^ifcanL ially continue and perpetuaiie their efEectiveneay ,Mor,wi thiftgnd i.ng a windbrcak may bs located entir&lY wifc^iin a unic.,the 'oef\e€it.may extend beyond unit boundarteB,and removal may only occur *is oet for-th hex'ein,or l-n Curfcher Gnactmento o£tho Aosocl.at ion <!an<j/or the Farin Rcview Gomral.t.tee.Windbreaks shal1 be trimmed or oth^^wis^huabanded aonaist-ont with good far-ml.ng practi.cQS,This sha 11 includ^topping where there is a danger o£ their creati-ng damaqe fco adj olning"uniii <s).Disputea betwesn owners regarding E^r^iing pracc-icea sh-all bc reQol'/(sd by tho Parm Revxew Cofflmlt.tee .Appe-^1 S rotfl decigiong of th^Farm Review Comcnittee may be taken by way of!acbitratiion as set forth clsewhere hcx-^in. Windbreake deBtroy<i<3 by f lood ,f ire,t.aun^mi,hurricane or other nafc-ural or man made cfi-aaster shaLl be replacod unlego the Fann Review Committee detertriineB c.o c.he canteary".R^placeinenfc need not be by identical plantings,but shall b<i ' o£a ~ type designed fco reatore full ^f fec^fc J vencsa within a reaeonable number"of years.The individual UTlit owner (a)conotructing and/or replacing the windbreako ahall do so congiBtent with the t&t-Tns o£the project docyments .The natuz-c and compoeition of the windbroaka shall be ae r^aeonably ag det-ertnined by the unit owner(e)constructing and/or planti.ng eame,subject:to Fai-rn Review ComrnitEee appx'oval . (e)Liab.ULit.v Ear Damaaee Caused bv,violati.on.ot CC&Ra_.aa4 ^£.S.iey^-_^D<asuro?Q^g^Uni-ti oWTter(a)(direcfcly aa to thGmgelvea,^nd £ojc their lic'^nsiae^.invitees,cantrac-t-ors and gucota)acting in a manner incongiatent,d/ith thc proviril.ons of fch^Pro-l ect document.e sliall be l iable for damages occaoioned by violati-onoE this and or other provisions o£the CC&RS,this Declaration and the SyJ.awa o£ the Project.Dam^ges include ,bi.it.are not limitGd to,1itigat ion and/or arbifcration coats and attorney'e feea incurj-ed. SERVXCE QF FROCBSS MtCHAEL R.STRONG,whoae Btraet addreas ts 4139 Kilauna Road, Kilaue?,Kauai,Hawaii ,l.s hereby designated aa the peroon to recai.ve ci<TVice of procesg until auch time ag a president of the AsBociation of Condominrum Ownere is appointed.It i.9 intended thafc the Proj ecit wil X fc>e g&lf-manag^d. XIASSOCIATXONorcoHOOttiNiOt cminiRB Aclministrafcion of Lhe Project ahall be vesfc^d in i-ts Aagociatlon of Coridominium Owneca,herein called t;hc "Asaocxation",consiet-ing o£all unit pwnera oC the Pro^ect in accordance witl-i the Bylawg p£the Aoaociation being recorded concurrent.ly herewi-th*ae Quch may be fl>m«n<ifld from fcime to timfi.The owner o£any condoini.nium unit.,upon eicqruirin^title ^herefcs,g^^ll automaticaXly become a metnber o£the ,on,anci ©hall iTemain a meimber ch&r€to£Lintil su'sh t ITTI^aa ownerahip o£euch unifc ceaaeg for sny reason,at which ti.me Tnemberahlp in the Association a^4li automatically ceaee ;pt-ovided, however,that to the extant provided by leaee on any unit.,a copy o£ which leaae ie filed wj-th the Board c?£Direcfcora c'£the Association, the 1-eqBce o£auch unit inay exerc:1.8e votLing rightEi othex-wiae reservftd to be c.he owner thersof. The Dovelopcr,and aft.^r creatiLon of ths Aeaoctation,tho Presidcnt o£the A&soc'l.ation,to hereby gran^ed a power-o£-attorney to Esxecut-G al 1 building pcrTflits,g'overniflental ^pP^i-cations or similar matiterg Bo-vight by t-hg Aaoociat ion or any unit.o'rfner.Said Preaident ehoill pr<mptly exocute £ill ouch docum&nt-a which do npt violat-e law or ariy ProJQct documRntfl dnd have been ^pproved by the Farm Review CommiEtfte .Ao to buil.ding perwiite,thft Preeident.Tnay aLithorize any indi-vitiua l unit,owner t-o make appl i.cation,but only r?y giving wrJLtLtter^conscnt . 10 XIX ADMIMISTRATtON oy THB PROJXCT Adminiatration antl oparat.ton of ths Project,includ.i.ng ehe ciaincenancs.repair,repl.acement and rescoi-atlon o£t-he conimon elementQ,if any,and any add.i.tiona nnd alterationa t-hereto,ghall be in accor-dancft with the provisions of thes Condofninium Property Act:,tLhiff Declarat:ion and the &ylawH.Corist^ruct:ion snd cortain farming actiivities are govcrned ^?y the CC&R^,implementdtion of which ehal1 in some caseo bc reserved (^o the Parm Review ContmittGe, as defineci in the CCStRg .The owner of each aondoininium unifc ohall be aolely responsihl&£pr Lhe maintenAnce,repair,repldcement anci reg torafcion of h.Lo individual unxt an<3 1 te ^ppurfcertant jl imi ccct common elemenbs ^except as ot.iierwiee provided herein -Thc Assaciatio"°^condom.ihium Owners shall b'e j"aspc>nsible foi-all common elements of the Pro^ect and,op<c*cxfically but without 1imifcation,shall: (a)Rcpaj r^inaintain,amend and keep all conimon elemenE&of fche Projecc ,incluciing w^ithouE 1 imitafc ion fche common bui Zdlngs thereof, if any,in good order and condi t ion except df?nthervjLse provided herein,and r-epair an<3 make gooci aXI dcfecco in the comftion dQfnonte of the Prpjecfc herein reqp.iired to be repalred by ths Aeaociacion,of which notice may be given by any owner or hie~a9ent,wichin thirty f30?<J3ye ^fter Ehe criving of such notico; (b)Obsejrve and perforw ^ll laws,ordinances^rule^and regulaciong now or here^fter made by any gov^rnmontai authoricy £or the time bein^applicabl^to the Pz-o^ect or the u^e ther&of; (c)Sxcept as specif ical.ly provided or reeerved in chc CC&Rs or herein,nc>t erect or place on any common elements o£thc Pr-oject any building or sLructujre/inc.l.uding fenceg and wal1s/n6r make addit iono or efcyuctural alterati&n'ff to or exter'ior ehangeo o£any t^ommon elemente o£the Projec-b,nor placo or maintain t;hex-eon any slgns or bills vieible outside of che Project<except tho»<e firfit: approved by the Farm Review Comftitte'fr,- (ci)MaLntain in a reasonably neat and attractive condition all ent.ry improvcmenta,common signs,.common fcree^^shrubfl,graae ^ndt g.roundc^over,and repl^nfc ^he same as m^y be necesaar/on all parte of the common eleTnents which aro not limlted to-a par ticular apArtment r s uset / fe)Have tihie ri^ht,to be exej-cised by i.t a Board o£Direcfcors or Managi.ng Agent /co enfcer any unit and 1 imit^d common element,if any,during reasonable hourff ao may be neceoeary lEor making emer^cncy repai.rs therein requirod to prevent:damdge co any unit ov common elemento not:IJ.mltecJ so a particular unit s use,or for'Eho xnstdllation,r-epair or replacem'ent of any common elemente not lirni ted to a par-fc iciilar uni t 'B use/ (f)W"t tT>^)cR or suffer any ot.rip or waete,or unlawful, Impfoper or offffneive ue6 af ths Projecrt br any poi-tion thereof. 11, XIII COMMON SXPKNSSS (a)Exp^rises ^f Commor^E^errton^a^1'tiG owner of each unit flhall be iia£>le for and shall Pay a .et^a^"e 0^t'he comtnon expenses of the Pro^ect,if any,in proport ion to the common interesL appurtenant EO fche^owner's respective unit;.Where applicafcflc,flaid common exp^n&es shall include all chargeo,coste and ejcpeiiiyee whaLeoever incurred by the A^Qociat ion for or in c'onnect.ton with the adminj.stiration and operatlon of the ProjecL inc luiJj.ng,t>ut not limited to/fche fol lowing ;(i)maintenanc-e ,repair-,replac-ement:and reatnrat ion of the common el^menta not limi^ehd Lo •a parcicular unit:')?use;f2) prGfnlume for hazard and l iabi.lifcy ineu-rancre ae c'cqui red by thls Declardtion air by Id^;f3)atl available utility~Hervices and eaeiement.®,includingf electi.'ici.ty,water,common fcelcphone eKpenae. etc*^unleag rtepac'atcly meter^d or chargeci;(4}managemont fees/i£ any;(S)tihig Pro^ect:'»rat^ible shar-e c>£c'ootfl of maintenance of common elemento &haz-ed h/i th otiheir Mol<>aa Kui condominium projectfi or third paT-tlog,includJ.n^but:not llmifceci to .road inaintenance, insurance and water sy^fcem e^pensGs/and (6)all other expenses necesaary for the upkeep ^malntenancre ^management and oper-at ion (includih^f reaZ props'rLy fcnx on Unxt 33 with water tdnk and water ayetem improvemonte and taxea on other conimon elemente,if any) actually incurred on or Cor the cornmon eloments.All unit owaers shall be eeverally liablc for said common exp^neefl in propojft-ion co cheir respective common intereats.The fore^oing rtotwithot^nding, real property taxes and sp<°cial aagessments referred to in Sect ion 514A-6 /Hawaii Revised Stat.utes,as amended <shaX1 noc.be CGimnvon sxpenses o£t:he Condomlniuin Property Regifne hereby created,and no paymsnts thereof ahall be consldered paymento of coTnmon estpenaea. (b)ExcenBes of ^imir.ed Common^EJ.ementa^.All charges.coats and e?cpena<ee incurred by fche Associatlpn fbr or in connec-tj-on with the adminietration and upkeep of the l imi ted c'ominon elements including,but not limifced tLo,real prop<arf--y tia^etf^costs o£ mdint«nanc;«?,rnp^ir a.*]d i-csplacement fcherGof,and,^iddit:iona, atterati onc»^n<3 improvementa t-here to,ahal}.fc>c asee^^ed againot and born©ent irely by the respc^c,ivo uni c ts )to which any such 1imitcd coflimon elemente are appurfcenant , (c)^SBeBsmsnto forcammpn ExpensAe^.The Board o.E Direccors,o£ the Aasoc^iat.ion ^hall .aiosespi tho common exp^nees ag^inst all unitgr in their rospfict ive proport ion<!>te shafea as provlded for in Section XIV below,Any unpaid ^mount of such aseegements ag^ingt any uriJ.t shall congfcj.cute a "lien againot sych unit whicH may be Eoreclooed by the Board pf Directors or Managincj Agent ^o provided for in aaid Condominium Property Act.$Ut"h'J.Iens ah^ll t>ear intereat at the rafce o£15^annum'from tho date the amounts came duc to the Aeoociation.In the event that asseasmeiits rcceivc'd during sny ye^r are in exc^-os o£fche acfJal expendiLureH £or'euch ye^r by_t^1e Associat ion for cufnmon expenges of t^"Pfpj ect,the Board o£ Directoro may determinc^in ite aolc diecret i.dn,that aiich cxceas ahall be;(1)refunded to the unlh (swners in whole or in part;(2) applied in whole or i-n part fco reduce ^the ^s&essmenta £or the immediately gubeequent.year;(3)defla.gnated in whole or in part as a capital confcribu^'ion to fche ABSoc-iation tc?bo used for future capital improvements and replaceTrents;(4)e^gr^gat^cl and held in 12 whole _or in parfc as a "Custodial Fund"to b^expended solely fot specifically designated capitial impE-ovcmenta dnd replacementa;or f5)segreg^ted and added ln wholc or in part to the M^iAntenancre Reaerye Fund established hereunder.Mo unit owner may execnpt hiEnsol f from liability for his contribution toward the comftibn eKpenees by waiver o£the uee or enjoyment of any of fche common elcmsnts or by abandoninent.of hio unit. XIV MAINTBNANCE R1ESKRVB rWD <a)ffsneral ProvJLig.A.ons^The soard o£Directors,pursuant hereto,and wich specificregatd to Hawaii Revised Statutee Section 514A-83.G,wifcbi regpect to the timing of eBfcablJ-shingf and creat-ing reeervea^shaJLJ,establi.sh and maintain a Waintienance RegeT-ve Fund by fche ^flQeogment o£and payment by all fche unit owncrs,in equal monthly inatallments,o£their respective proport ionate ehares of such reasonable annuaL amounts as Ehe Board may eetiniate ag adequate to covex-each unit owner •s obligationa to provide C&r utilitieo, xnsurance,repair,maintenance and repair of the coTnmon elemertfcs , an<3 other c'ommon expensea of admlnistration of the Projecrc.,which shall t>e deemed concluoiyely Lo be a common expenae of t^ie Project . Such expenses may incXude roitabls port ion$of'expensea ohared - with other condofninium projecto and third partieo.The Board may include r'eaerves £oz-confcincTenclee in the assesoment,and the asBeosment may from timo to time be increased or reduced dt the discretion o£the Board *The proportionate int-ersst of each apartmcnt owner in aaid Mainfcenance Reserve JFund,oc in Lhe capital confcribufcions or Cufifcodial Fund prGvi-ded for in Section XIII above,cannot be withdrawn or sopat-ately assignod,ment.ioned or described in the conveyanco t-hereof .In CZIBC thc Condominium Property ftegime hereby crcated shall be terminat.ed or waived,said Mai-ntenan'ce Rsaerve Fund,capital contribut:iono or Cugtodial Fund remaining,af&cr full p^ynTn^of -al 1 C'^TTHTTOD *?>Fp<*n'3"g of th^*A3S'3'~lat:ioh,shgll b" distributed to all unlt:QWneT-s in their ragpect ive propox-t ionate shares. (b)Waiver &£Fyjid.Subject to tbe requir-emenEs of Section 53.4A-83 »6,Tnthe evQnt E}-iat the Project haa no coramon expenses that i-equire reguXar monthly assessmept ^nd payment,,fche Board of Directora m-ay elect not tci estdblieh and maintain a Maintenance Reaerve Fund and to insteaci levy epecial aseesom^nts anly when common expenses ariae from t ime EO fcirflQ .whenevRr such opecial assessmentia <are levieci,the Qoarci fihalL asBeoo the ownere accbirdtng to fcheir respect ive pruportionate common intcrests. XV IKBORANCE (a)The Aogociation shall atCasualtvandLiflbiliLy_^Insijrance.Ths Anaociat: a 11 timee keep a 11 common impTovements of the Project insurad against tosfff or d^image by fir^^in an <imount:eufficient to providef6rr^pair or replacemenfc thereoE in the event of such loga or damage,and bo the full extent t'oquired by law,whethsr undcr Chapter 514A-Q6 or any oucceasor or addifcional proviaion pf law. Flobd ineurance ohall also b<b provid^d uiider the Fedisral Flood Dioaster Protcct ion Act i £fc he prbperty is l.ocafced in an identif iod n 1 flooc.3 hcaziard area ao deoignated by the fecieral Department of Housing and Urban Development.To the cxtont:roquircd by law or the votie o? a major'ity of th&Board,in addicion -to thc"£oregoin^cr.aaualty coverage,the Asaociation shall purchaee and at all 'times maintain genar^al conimercial Xiability inourance and,if so elected by the Board^directors'and offic^rs'liability insuT-ance.Al 1 in&urance ohall t>e in euch amounts as shatl bo deterfttined by the Board of Dir'ectoro,and in full compl iance with the .law.Ali inaurance prefttiume incurred pursuant to this subsection shall be common expene^s. tb)Genefal Insj4ran<?e Pfovigj.ons,All insurance r-equired under thifl i^ec-tlon ohall be written on the px'optifty in the naffle of the Aseociation of Condominium Owners and shsil 1 be pvz-chased Erom ^n insurance company authorized to do buainesa in thc"State o£1-Iawaii . All ^^rov^e^on8 ^or _/?-"°u^^nce contained herein ^re wi chout pr'e^udicetotherightofeachunit.owner to ineure hio own uni t for his own b—n»£it. XVI DAMAOB OR DKSTXUCTIOH OT TMPROVaKSWTS (a),AadJLSiJ.dual UnitB .If any part ot the improvements o£an individual unTt,induding'any limited conimon element appur-tenant exclusively to said unit ,sh^ll be darrtaged or destroyed oy an ingured or uninsured casu^lty,fche detei-mination of whetfiez~or not to reconstruct or repair fche aame shall be made by the owner of aa id unit.Specifically/unleas ^he owner of the damaged or descro^ed unit,wlfch the approval of the holder(e)of any morfcga^fifB) affecting said unili,decide againat auch raconstruct ion and/or repair;or unless this Declaracion 10 terminated by vofce of all fche unit ownaro purauant:to the proviaione of Section 514A-21 of the CondonrtJ.ni.uffi Property Acfc^said owner ahall proceed promptLly and dJLligently wifch reconsfcruct ion and/or repaiz-o£the unxt;provided,however,that said owner sh^ill be provided a reasonable timo periodfpr"the ad^ustiing of any inourance looa,prepardtlon of ksu.llding plans,hiring o£contractors,ar<tohitecta ,and 'ofcher pi"ofessionalo7anciarrcingingoffinanctng-All such reconetryction"and/or-repair shall be mad<?in accordance wj.th plans con^ormlng to thie Dedac-aition and to a 11 law^s and ordinancrefl fchen i.n effect.Xf the owner of a damaged or deatroyed unif.electa not to rapair or reconatruct tHe unit pursuanc hereto,said owner shall be retsponal.ble at his own cosc and expense to remove all remains of ths unit oo dainagcd or destroyed and t6 reatore the eito thereof to goodordcrlyconditionandgracie-Any insurance proceeda payable with re^pec:t t:Q tt.be unit in connection wich a c^eualty J.oee sha'll be paidtotheunifcownerandhLsmortgagH'e1 (B),ao their interests may appear, Paniaqe—s.a-j.anmsu—Eifffnsnfg.(b> which fisetendB to any Itmifced As0oci.at ior. Jimprovements pr-ovig iong of th^consent..o£ comwon elemento n th<3 event o£lc>og oi~damage to any part of the commcin ^lemento of tho Pfoj ect,or cartimon e lements benefiting t.he Association ,fchfi shail pi-omptily reconstruct ^nd/or repair such unlees thff D^dar^t ion is tsrminated purauant to the Sract i,on 514A-21 o£the Condominium Property Act ,with •al 1 mort^agys fo)of any unitfo).Restoration o£t:he shall be compleErid di1igently by the Asaocla E ion a^ 14 ita common expense,according to the original plans and elevationa ther^of,or such modi-£ied plans conformil^g fco lawg ^nd ordinances then in cffect.UnXess restorabion i-a undertc»k;en within a reaeonable r.ime after such casualfcy ,thc Aseociat ion,at its common expense,shall r-emove all remains of improvementB go damaged ot' dastroyad and rcotore the siLe ther-eof to good orderly condit ion and grade. XVII JU.TXRATION OF INDIVIDOAI-CONDOMINXUM UNITB (a)CieTiej'al},Y_,_6xc;spE:as LO the limi-tation or prsclugion of residential conetruction seto Eorth abovg and in the CCfitRe • i-ndividual unit owners inay remodet ,expand or othcrwiee alter their unit,providcd game is permi tLed by and done in complete accordance with a 11 applicablfe ordinances,codes ,rules,z-egulatxona or other rec^uirements in force afc the t i.me c?f sAid constructipn .Such coriotruction ehall be Curthe^subject.to the requirement:that it not violate this Declarat ion,the Bylawa and the CCScRs of record for the Projecfc or otherwiae enacted by the Association.Except as provided fco the contraE-y elsewhere herein,eaid alterat^lons shall not~require the consent or perniisaion o£other unit owner-@ or the Asa&ciation. Newly congtr'ucted 4'x 4 'sh^de structures designed to satJLefy State of Hawai i condominiufn law and pi'acfcicco may be constiri^cc.ed anywhere aXlowed fc>y law;provided,however^that:any cther newly-conot-ructed i.mprovements ahaXl m'iintair.a minimum oetback oC the cfroater of the distance requirod by subdivision or Project CC&Rg,^?r fifty (50) £eet fz-om a 11 propert:y liriRS (ineluding al 1 individual 1imited common @ lement l-an<3 area psrifneter boundairiee);and proyided,^urthGr,that 3-31-4 nqwly 'conet-ructod improv^inenfca shall noti unreagonably i-nterfere with any other unit.owner's enjoyTment-o£ th&ir unJLt.Pre -exi.stiing legal or rehabilitated etructureg shall be perfflittedl to remain on the Projeci^.Al 1 alterat-ions shall be made at thc expense o£the unit owne r making oaid alterationB,and ehall be expeditioualy madc and in a manner that will not unreaeonably inter-fer-e wi-th f.he other unit ownera'uoe of their limi-tect common element land areafl.f\ny alterations o£a unit subject to a murtgage or agreement.o£gale may require the consenu of the lender and/or Ee^owner-.as their intei-esta may appeaz-, (b)Owisx to ^.[ifiend Declaratisirir Thc owner o£any a.t.t-ered unit ahall have the T-JLgHt and duty,and shall bti re<^ui-red to amend thia Dedarat ion and the Conciom ini.um Map to re£lect any 3uc:h alterationa. If required by ths crondomLrtium Property Act,promptly (currently 30 daya)afc.er completion o£such alterat-iona,th<s pwher oC the altsrcd unit ahal 1 record an amendmont:to thia Oeclarat ion in the Bureau of Conveyancea,St-ato o£Hawai i.,togefcher with a complete eet of £loor plans and elevationo o£the port-i.una of t-he "Project altered, cer'tiEJLed as -built by a r^gi st'arcd archite^'t or pr-ofcaflional engineer .As long as al 1 l^gal requi rementB c*T-"met as required herein ^All ofc-hcr uni-t owners ,by acq\i i-ring an intemst:in any other Linit^ohall be d"cm<ad to have be*?n qrantsd a power-of-attorney £rom all c3ther uni-t owners t.o exeCLitQ at\amsndmGnt EO this Decl-^r^LjLon £tol"ly <or f.hft purpoce o£dcscnblng the alfcerations to hio reepective unit.-This power-o^-ac-tomey Hh^li be deefflad couple'3 with each ow^ner 'a int^rest in his unit and ahall be irrevocable. 15 TVIII COKPLZANCE WITS DKCLARATION,BYIAW8 AND DtECISIONS A 11 unit ownere,their tenants,earnilieHi servants,contractorg and g^iesta and any other perootis who may in any manner uae thc Project,or any part therebf,on^ll bc bbund by and ahall comply sfcrictly with the proviEa ions o£ttie Condomxnium property Act , Ch^pter"514A o£fchc Hawaii Revi.aed StatLitea,thl-o Decl.dration,the Bylaws of the Asaoci.at.lon o£Condomi ni.um Owncrs ,the CC&Rs and a11 agrCRfflents r d^ciaiona,and determinat^i.ona oC the Associafcion ,as lawfully cnade or amcnded £rom time to t-ime.The £ailurs t-.o complY with any of the same Bhall be ^roundo for an action,with costo and £ees c:+hargeable to ths losing prirty,to r<scover sutna due,for- damagea or injunct.i.ve relisf,or both,maintainabXe by the Managi.ng Agenfc or-tihe Board on behalf o£the Aasociat ion , case,by an aggrieved unit owner.The aforeaaid Acieoci-at ion ,be in9 recordeci concvrrent]y or JLR a proper Sylaws of the herewi tih,^c'e incox'p0fated herexn fc?y referRnce,aa are the CCScRft cor the Project XTX ItXISBTS OP KORTOAOK BOU3BIIB.isamtxs.s OB OUJUUUCTOIIB <a)tisjiiss Reauirai^.The Asoocinc i-on,where ie hag previousl.y rciceived writteni-equeet chRrcEor^ahall pr-ovide the holder (g), insurer(Bl,or guar^ntior (a)of the mortgage(s).on any unit in the Proj ect,with written not ice of any of^the followingr ^,tl)any condemnation QTC casualfcy IOSB that a^fects either a mater'ial portioh o£the common eLement-a of t^ie Projecti or the unlb securi-ng it-s mortgage;(2)any ninety-day detincru^ncy in fche paymsnt of aB8<ssEmenfce or charges owed by ths owner of any unl-t on which it holtle the mortgagc;(3)a lapoe,cancellation or materi.al inodificati.on of cTny insur-^nce policy or fideli.Ly bond maintained by the Agsoci-ation;an<l (4)any propoeed action fchat requireB the coneent o£a specific percent-age of eligible mortgage holders. tb^pr^fiijrit^'•?^^s^'3arT^Holcli$^-a .^,Not.wit.hetainding anything i-n t-his 0<3clar^t:Toniirthe Sylaws o^the AsaeciaLlon o€CorKlorT'lnl-'jm Owiiers to the contrary,no unxt own<?r-oir any other parfcy ahal 1-have priority over any righ^s of the mort.gageeg o£units purauant to theix-tnbrtgage {s)~in fche caee o£a distribufc ion to unit owners af insurance prdceeds or condemnation awarda . (c)&a£Bdment of Declaraclon or_a^.lAItSL>..Mo ^maCori.al ,amsndmsnt of thie>Dedarati^in or o£the Bylawa o£hhe Aosociation o£ Condomintum Ownor-s aEfecting the sec:urity o£&lender shalX a££ect the prior righto of any moftgayee of any unit.ILR the Pro^ect.whooe mox't-g^gc ia recorded prior to the record&t:ion of such amehdment and whicFi doee not conoBnt to sai-d amendment:.PurfchcT-^and not in limitsit-ion o£the foregoing,any nmanclmenta o£a material nature fco oifcher th»?Declaration or Bylaws shall require the congent o£ mo.rtgage holders repreaenting ah l»naot sevftnf.y'f ive psrcont <7SV)of the 'votes of unita that ar«:>oubject to mort.gages held by such holdera. 16 XX AiaaiUKENT TO DECLARATION Except as otherwise provided herdn,in fche CC&Rs or in the Condominiym Property Act.this Declarabion may be amerided upon the vote .or _writ ten consent of sevenc.y-five percent (75l()of the undivided inter'ests of all unit owners,or sach cjreator percentagea.s the ownerg may reqtil fe by amendtiient hGrsof,auch amendment shal1 be effective only upon the recording o£an instrum^nt setting for-th the amttit<3ment.duly executed by said o'^mers or by thn propsr officsrp of the Associat ion of Condotnihium Ownera . XXX ARBITRATION At the request o£any parfcy,any dispute concei-ni ng or involving ona or more unit owners and tihe Ao'oociat lon of Condominium Owner-s, its Board oC Dijcoctors,Managing Agant or one or more other unJLt owners relating to the intcrpretation ,applicat ion or enfoi-cerfient of the Condominium Property Act (chapfcer 514A,Hawaii Revieed Statutes, £IQ amended),thifi DecrLaration.~ the Bylawg,ur any Houee Rulea adopfced in accordance wifch said Bylawa,shall be submi Lted to arbitration.Any arbitrat ion ohal 1 be conductted,unleeB otherwlae agreed by the parties,befoz-e a aingle arbitrator in accordance with the provisione of Chapt.er 514A,Part Vtl (Sections 514A-121,ct aeq.),o£the H^waii Revised Statuteei.The recordod Project documcnts and Mawaii law ghall govern resolution of all disputesr XXII ACTION3 OP DBVELOPER With the excepti.on r—strlctiona on renalee, gr'anted herern,as long units of Lhe Froject, remaining provifiions o£ of provioions regarding initicil aalee, unit pi-ices and opecific addit.iondl righta an the Developer owna one or more of the said Develop'3!'shall b&subject to this Daclarat ion and the Bylawo of tha tha ofAssociationofCondominiumOwners'.Prior to the first mceting fche Aasoci.ation,which meet ing shal I be hffld as provided by the Bylawe,said Developer ohall:- (a)represent.all.of the owners of th®units and all of the mcmtoQrs o£the Asaociation ;(b)appoint t-he officere and directiors of tho Aeaociation and Board;and Cc)act on behalf of the Aseoci^t.ion arici all Euturo unifc ownere o£the Profject . XXXII STATtJS OF PROJZCT The Projec^t i-a a convoroion ojE certain fully construcfced and exisfcing buildingo,which are being remod^led,to crondominium gtat.ua,as well ae oubmiggion of,certain shade otructureB construc-ted or to be conotiructed to condominiijm ^tatus.Said buildi-nga az-o ot'wil J be ,on completion,in compl i<ance with a11 ordinanceo ,cod.es ,rules ,regulat ioht?or oLtier"r-^qui.remanta i.n for'ce afc the time of fcheir construction.tlo vaz'iance has been granted frtom any ordlnance,code ,ryle,rcgulati-on or other requi-rement:in force afc the bime o£Lhe-i r ccnotruct ion or from any ofcher ordinance/ code,rule,reguLaLion or ot-.he-r requlr-ement .Within 30 d-ayo o£ complet-ion o£any work in proceos,an ae-built cerfcl-f i.cate of a 1.7 registered archi tecfc Conveyances. or °ngineftr shall ba flled with c.he Sureau o£ xxiv CONCBltNATION In the evsnt o£condemn^t ion/as botween member's of Ehe AaaocJLation only,sach unit shall be d^emed a separ-ite £cte gimpl^ property.Ariy arbitir^t;ion Award or court;judgmc-nfc ghall be apportioned accqardingly.No consenaual salo under bhreab of CQnde*innat.ion ehall occur without the conocnt of each unit owner whoee uni-t:haa loat oz"wil].lose usable land arca as a rosult o£the fcaking- XXV MASTBR AaSOCIATTON/rARM RJBVIBN COMMXTTBB Thio Project is one o£three pz'ojecc.s fherein*ajEtor "fche Three Projccte")c^urrently contemplated"fur thc iinmediate aiz-ea bftin^ daveloped.The Threa Project..-s are known as Moloaa Huj.I,Moloaa Kui II andT Moloaa Hui.III.Moloaa Hul.IV ifl the tejiLafcive name for a remnant parcel conoisting of approximately 122.81^acres of ^and which laibuts Ehree sides bf the-Thr»se Projects.Each pi-oject ^ill bave its c*wn Aggociafcion and Board of Directora ./\furtiher "Magt.er Aooociation"may be creafced a&the election o£the Developor or a majority of thc Aseiocidt ions.The Master Asap^iat ion will be creaced"to deal with maEtars of joint concern^including the r-epair, maintenance ^nd up^rrading o£sharcd roadway,cirainage,water, electric and ofcher utilit.iee,A Parm fteview Committee hag been created pureuant to the fcerme of the CC&Rs aEfscfcing the Thr'ee Projecte.The Parm Reviev Committee ohall have Ehe powcrs and authority set forth in the CC&Rs .Wherever poafli.ble/f^ull effect shall be given to all project doc'umenta.independenc o.C each other- Whffr**tth<sr—ifl ?i ep^s/-1 J?lr"righr:g'T-3ntrt':t tc ihs Farm R^view Commi t.-tee and/or fche Oeveloper,gaid right ohal1 fc»e maxntained. notwic-hetandJLng provxsiono of tho DecLaration and Bylawa to the cancrary*Thc CC&Rs ohall control over c?hhsr Project documsnts,as they are d^eignpd bci inaure the long-fcerm euccess of che Three Pro3<sct0,ao v/ell as to InsuJ-ate againsc claimQ by the fuc.ure owners of "Moloaa Hui IV,by way o£giving notice of"£ut.ur-e activitiea pez-initted on the Three Projscto."Koloaa Hui.IV and ad^oining^landa may ov may not be witihin the Md^ter Asaocigtion,ag the Devel^per, the Farm "Review ComniA fctee or a ma'^arity of c^ommon int^T-eoto may el-ect:. XXVI ANTI -S F ECOLAT XOM Thc CCArRo and other documents aCEectifig this Project are designed in part:to IjLtriltL e^ecul^t.lon and prof iBs or x-eaail oof Llnits and encourage reasonat»ly priced farnio.F'oi-the firat ten <10)yeara of ownership after tihe dste of cloaing of the sale of the £i.rot uniti by a thi r<3-party pur'chaser (not aCfil iated wijth or relatied to Oeveloper),Froject i.nterEsstg arc subject c-o a buy-bac}*:proyinlon which w.lll ^llow repurchase by tihe Developer for tfie JLower of;ta) f.he original pz-ic^e plufl "the mur.uAlly-agri-ect value of ^n/ improvemenes;or fb)t,he ori.ginA)price of tHe land plufl fche lower 18 &.-. o£the actuai cos*".or fc-iie apprai-sed valuc of improvements placed on c.he property in campliancR v/ith3.1X Project ducufnent,s .Xn the eyent o£dti@agreemf»nt &s t-o value of i.mprovemento ,dppra i.ffal shal.l be by a eingle mutually selected dxsi.nteresCod a'ppraiaer,_°?'.^V n disint-erested appraiser selected by the AmerLcan Arbitration Aosoci^ttJLon uncter appl tcable current rulea tor resolucion of dieputea on.valua.tion.Costs will be shared equ&lly by the parti.eeunlessarbifcrationactuallyoccursandthearbi-t.rai.or/apprai.ser f indg that one si.de actied unreaoonably,in whi-c^caae coots ah<d feaB may be awardad to the prevailing party.Complcte buy back provieione ttfill toe cantatned in the deed to •each ititer^st. X f the Develop-sr or tts ^ycceeaor-in-interes^dotsa not elect to repurchaae propsrty under t'ti-e buy back.the immiediateJly adjacent (phyeically abutt.ing}ownerfs}may cho&Qe ^o do QO .^A randorn drawing will be he1.d i£more thdn one ad3<ac^;nt owrter wlehes to pux-chaBe.If ttiercs io no tnter^et i.n purchase by ths Developer prabutt-ing owners,sal-e will be aLlowed.'Frofits on reaale will be li.mi.tGd to £ive percent t5\l per year ipro-ratcd on a 3^0-day yea^),and any proceecTs over that amount wi.il be uoed fc'o Sunct worthy non -profit or civic or a^ricultural induetry entJLties or prografnsthatoupportagri.cul.ture which are eelectsd by t.lT.c DecLarant-or l.t.a succeeeor i.n jLnterest. XXVII I.XMITtiO LIABILITY T.0.EXCHANOE.INC.,iiod T.G.SUPER EXCUANGE CORP.(hereinatter the "ExchdrLge Accommci^atora")hold t it.le to undivided i-nteres^s in the property upon which this Projact i^located.Such title ie held by tha 'Exchange Accommodatora pending complGtion of a tranaact.ion cont.emplat.ed under Secti&n 1031 of fche tnt.ernal Revcnue Code o£ 198€.aa amen<3ed.The Exchan^e Accommodatora are acting hcreunder only aa an accoTnmodation to perwlt proceesin^o£an applicati-on £or an -effectiv^dace for a Final Public Rcport ^or the Project,an<3 no recoursc sihall be obtained a^ainst -the Exchange Accommodatora personaLly tor any m^^E®r related to the execution hereof. Subjectxon of the-£ee inc.eresc in ^h"pr'opez'ty to the Project cpndominiutn ciocument.at i.on is requircd by law,and such ^ufc^^^cti-on i-fl fc.he aole pur^iose o£t-.he Exchange Accowmodators 'executi-on hereof . There shall be no cloain^OT'deedi.n'^oC any uni.t by Deiveloper to icself or fco thvrdt partieo exctipt xn conveyance of the ^?cchangeAcciomtnod&tore'ci,t.l<5 to tho units tn queet.i.on,whereby £ull tee tLifcle to the uni-ta in quc;stion p^saes "fco Deyelop&r,a-pennittedassigneeinbyl)<aftcr prior written approva X o£Fee 0<*/ner,or to t..hird~party purchaH*;ra , It is expressly agreed and underatood,by and between the >arcxes hereto,that ti'tese provisi.one shatl bind all thoae who claim >y.through or"under the particg hereto/anything herein to tbe conLrary notwit.hetancling.Each and a3.L o£the warrantiea, indemrixtJLes ,repre-sentat ions ,covenants ,undertakJLnge and agreementa here in made on th<s part ft£ths Exchangs Accommodators .whi.ie xn Eorw purport Lnc(to bs ~r.he war'rantiaa,ind^mni^ies,repyeoentat i-one. covenant.a /undertal*;ings and agre^ments o£s&id &xchange Accoinmodat.org,ac<n nevertheteB&.eac:h and every onc of them,made and jLnfcended nat as person.al warrantiie^,indefnnicieo» 19 *'ir- irepresenfcat ione,covenanta,undercakinys ^ni.1 AgreeTier.ls by •:hA &xchange Accommodatiors,or for the purpogs or wi-cl:i t--he intention ofbindingaaxdExchangeAcco^trnodat.org p(araondlly,but are madc and infcended for the purpose o£binding t-.he Duveloper and its interesta in the property gpcci £ically descr-ibed herein -~Thia instrument i.a executed and delivered by said Exchange Accommodators solely ag a reflection o£the legal requirement.that che rec:ord title holder joi.r.in any conveyance,lien oc other inst.rument:required to areate or paee fcitle to int^rests in this Condominium PrOperty Regime.No per-sonal li-^bility or pBroona]resppnsi.bil ifcy ia agsufned ^V •"or ahaJ.1 at any time be aaeerted or onforceablc againat.,the Exchange AccoTTimodtacoT-B on account of t.hi@ inafcrument or on account of any warranty.indemnity,rRpresenc-ation,<^ovenant /undsrtaklng or agreement of fche eaid Exchange Accommodatora in this inatrunient contained,either expreesed or i.mpligd,all auch pereonal liability, 1.£any,bea-ng expresgly waived and releaaed. XXVIII DOKBSTIC/POTABt.B WATBR BUPPLY This project--io currently aerved only by agricultural water sex^/ice which haa been suppl ied for over 20 yearo by either privatewellsorfromwellaoperstedunderaStateofHawaiiXicense,which wello are locrated in the vicinifcy of th^Project.No potable water IB currently available to the Project,and none is promised.Any party deoiiTing to provide domeBtic or potable water to a unit or project shall do ao by on-site treatment,del ivery Crom third-party aources^catchment or sifnilar off-site oourc:e,inclLuding the unilateral obtaining o£water meter (s)from fche County oE Kauai afc.er jsayment of eech,every and at.1 applicafole Ceee Cor service extenBiQns ,met.er 9,ebc .,by t-he party or parfcieo deairiny county of Kaval water eervice,No wella are permittied on the Proj ect without thc prior written appi-oval,in writing,of the Farm Reviow committee and the appropriate action c?f the St^tte of Hawaii,Counfcy of Kauai and/or Biinilar agency wifch jurisdiction thereof.No auch approval le anticipated fco be 9ivr.gs of t;h<*d-5it»hereof . XXIX AORICtn.TlDUU,PAJUC.COHSOLIDATIOH AND RaSUBDIViaZOtt DEVELOPER'S SIKSSS.VTCD RIOHTS The three projects of which t-hio Projec-t ii?a part were previously subject to special t^xation and la'nd-uee c-tiatr.LctJLono no an "agricultural park"under the provisions of the Kauai County Comprehengive ^oning Ordinance tthc "CZO">.Under th^CZO provieions soparaEe T^x M<ip Key ("TMK")numbero were given t-o thc various subparcels in ths pT-ojoct.ThoBe numbere eKiat -only so long ao the agricult.ural park exiote under the CZO pi-ovieions.Currentl.y pending is a coneolldation and resubdJLviBiori procesa by which tho agricultural park wi.il be terminated,and oeveral individual eCtbdivided parcela wiil be credted .The Uni.t.s created heroin compriae portions of t-he preexi-sting 'fMK parcels of the ^griculturaX park,but aro conCigured to coincide wit^i areao o£the anfcicipatod hew aubdivided lofca.Moloaa Hui 1 and XI wl.il eacti be part o?onc large subdivided lot,sharing an undlvided i.nterest in th<?whoXe parcei ,with exduoivK riqhts c.o Liee of che gr-e^io of the Unite cind the common elementa o£^ach Pro^ect.Woloa-^Hul.III wi 11 be a 20 separate parcc-l or parcele,and wi 11 share only che water digtLribution syBtiem and benefl te of the drainage improvemenc.s of the three projecty The conditiona of congolidafcion and resubdivieion ^hall be -as reaflonably approved by Develciper,^nd shall be incorporated into the condomiriium documentff of recofd at:the time of final approval.The Developer lo authoz-ized to record a final aubdivision map disclosing and eatAbllwhing new subdivigion 1 ineo and take SL*ch furth&r action as JLR re^uired to separate poirtioni?of the prior TMK parcelg not includeci in this Project or~thcs other Moloaa Hui projectg Eor nale to third parties or development,os Developer shall slscc .if^w TMK numbers will bc given tp tlie oubdivided lote,and TMK nuiml?erH currently appl lcab-le t-o tihie Prvyect,will likely change, It;ie ant i.c'ipatsd that approximsitely 125 acros of t^ie pripragriculcuralparkwillbo8Lit>cfivided off froni the bal^nce of the propeyty and developf*d ae c»T'eoident:ial ^ubdxvision or condominium propert^regime -Yhe lntencie<3 parcel borders Moloaa Hui I anci I r, an<3 ia genet-at ly on the pcedn of bay sides of the various pro^octs,and concains sLtbstancial ac:reage lee.si desirable fof agricultur'al uae,plus additional areas for ro^dway eind homeeite "placement. Developer reserve^i the rigtit.to subdivido,condofniniumi ZG and develop the*portione of the agricultural park nofc included in the three projects/and to do so by way of tho pending eubdivision or by aeparacicrn o£the dcreage fram one or more of the three projecto b^ wa/of creation of ^new condominiumi zed parcrel .The fina configuration of fche three Moloaa Kul projects shall toe as set £orE.h in t.he Fin^il or Siupplementary Public'ReporL (0}for the Project. Deveioper regervog the fucure right;to subdivide a11 or part <?f Moloaa Hul I,II and II l on the fol lowing condic iono ;Develqper Qhall pay all coets of fche aubd.i.vi.aion procegs;any aubdj.yicleci parcel <a)tliafc utilize c'ommon or limited comnion elemenfcs of t.he reniaining Prpjecfc<;e)irfill continy*t'->,pa/,ratably for ropair. maintendnce and other expense^associated with such uge;except aa may be voced by t/he apprbpriate percentacfee o£Moloaa Hui X ,II or- 111 Aa&ociationo,Developex'wi,ll pay al1 infrastructure coste aigoociated wich thc eubdivi^ion;costs ajstsociat-ed with upgradin^of water eyBfcem,electrical,telephone^cable televxei.on or eimilar ufcility lnet.al lationfl may toe crhargecJ bacfr:ratably only to ouch Unit(a)oz-Projoct(a)aa may ^ccesa,make connection to OJT"otherwiee uge <any Lipgradeci infraot:ructure placed in,on or ccrving any Unj.t(s) of Moloaa Hul I,IT and/or 111 .Addi fc ionally .ind soparately,the Aa^oci.ation of CondorttJ-nium owners may elect bo subdivide by a 7SV vofcfl of the common infceFests,costg o£whicrh will be eommon expenoc- xxa COtfNT«aPAJlTS The particfl her'atp agrce th^c tihia i nst z-ument:may be executed in countei'parto,each "f whic-h shall be deemed an originAl,and s^id counterparte shall togftthor constj-tijcc on^cind th"o-ame inat.rument, binding ali o£the parfci^s hsT-eCo,nofcwi chsEianding sll of ths ^rtieo are not gi^natory ti?t^ie ongina I.or tbe a^rne counfcer^arts.^or all purposeo,incrludin^,without.1 imitati.on,rccordation^filin< iind delivery of thia j-nsc.rLimont,dupl ic-rat'"'unexecuced an< 21 unacknowledged pages of the counterparts may bQ discarded an<i the renwining pages ae>cemfoled ae one documenfc. IN WITNESS WHEREOP,Foe Ownei-and Developer have executed thig Declaration of Condominium Property Aegime of MOLOAA KUI IX t-hioj'^^' day of ..Ap2-i_•'.931. 22 Pee Owner and Develop&r MOIX3AA HUI IANDS,INC. By. Jto Pr^^ident STATE OP HAWAII COUNTY OF KAUAI > >ss ) On chis <33~day e>f [AEL R-sTftdfIG,to me p^r^ona',<3-^Zj^before me appeai-odWICHAELR-STROtIG,to me pferSbhaTlY Known,~who,belng by in^dulygworndldsaythatheiathePresldantofMOLOAAHUI-IA DS,INC.^thap the infit-z-ument was olgned in bohalf of bhe corporation/byauthorltyofIteboat-d 6£dii-ectors,and che s'aid offlcei- acknowledged tha .ingtrument to be the free act and de&d of the corporat.i on. ^' ^ S<L/(^/^L^^C^U NOTAK?'PtJBLlT;State o£Hawgll My cofflmxaeion e^pires; 23 ree Owner and Developer: MOLOAA HUI UUTDS,INC. Sy:O'^^-JB-^^-^^-^FKaC~e~wsES- Its vi.ee Presicient STATE OF HAWAII COUNTY OF KAUAI'cg^-l )SS- ) On l:hlo(:7E~''aay of C.HUBER,to-~me pensona' aay that he xe tho Vice before ffle appeared ^AUL who,^o^'i.ny by me duly eworn did o£MOt-OAA HUt fcANDS,INC.,thatyxnown, President the instrument was slgned in behalf of che cprporation,by authority of Ate board of dire^ctiore,and fche said off'icer ac?cnowledged fche instrumsnt to be the fr^e act:and decd of the coi-por-ation. TO3TXRY PUBLt'(?—'Stafcc—ST~HawaTT My commiaoion expxree ;<^"; 24 Fee Owner- T.G.EXCHANGB,INC. Sy c? I?B6 (l-*INEi»HIIC*W» ASSISTAhTT TBEASUfren JSImTJUlWAHin-KKaSfV lcs;&5<;1<?TANT TREASUREft STATS OF HAWAII ) )SS; CITY AND COUNTy OP HONOl.ULU ) On th^.__day o(/PR.2^M.19-_/b^for"rric*^ppeared t^A»«EMIj[IKAWA.^7a"d^Ul.iE^y93%USai;.T.~7~^c'.®o-1Perso".a.l_ly_!s.no.>'2".»^.wh°'. "HffEy me3uly gwSTT;aid—oayiHiat ehey are AtaiSTANTTREASURCT and ASSISTAf^TTnEASUREIt rsspecc Ively,0£T.G.EXCtlANOE,ItlCT,that-Phe"n'j&E'rumen^WSLB signed i-n behalf o^,th<?corporafclon,by auchorlty of ita board of direcfcort?,and the Naid oftEicez'e,ac')cnowledcred the intitrument EO be fche free a<-t and decd o^the corporatlon. ROT'AST'-FO^CTTT'S^reniit 1 HawaTT My comrn t'aeion GJtplroe .'Q/ff ^ 25 Fee Owner: T.G.3UPER EXCHANGE CORP. ."7^By 1^_}'^-C-^'' Name :MAE ^*ti'/.'~A'?7r^ It-9 ;A^-.-.T^'if -r:C.r --Ir£^'0?WT ^^a'^S^^^t' i n**<FTFFTi ^.^•/•Tt^P^nKT Its ;ATI"T ^?/'<<t'rA STATE OF HAWAII )ss; CITY AND COUNTY OF HONOLULU ) APR 3 O f997Onthiodayof before m<s appeared MAE HAKASA'/y.s."and lKt''TT7c ^'/'ATOsin ;Eo ma "peraqnAl^ ,Jlpai^n^..>ho, J>e4"3-A£.7m8 3uly sw5?n3135S7ETiat they are ^fi?'*"'"<-«'•"tMucni gr,^ ,1SST.StCR(T«XT ,reopBCti.valy,oE T'G.S'JPER "BXCHANCE CORP.,thal;the li-rsti-ument:was gigned in bshalf o£Lhe cor-poration <by authority of ita board of dirac-toi-s,and the said of"fxcers,acknowledged "che inetrument to be tha fi-ee act and deed o£fche coz-poration . NOTAR'/PUpU My commloexon GXpires: [Hawa'I zliifis <4 26 EXHIBIT -A" -POllTIOlt OF FAKCKL rlSST:-<Tt(K 4-9-009-001 (4» All o-£that cert.ain parcel o£land (bein^f portions of the Koloaa Hul Lands &nd the'Kaapuna Hui Landa,be3.ng portion of the Jtand deecribed in and covered by Royal Patent No.5 3 5 to Jamae W.Smith)situate ^lying and being at Moloaa and Fapaa, Kawaihau,leiland and County of Kau^i,Sfcate of Hawai i.being portions o£Loto 24-A and M-1,bearing fcax key deeignation 4-9-009-001 (4),and containlng an area o£122.812 acres,more or leae. -PORTION oy puicaL SBCONDI-(I.OT l.'rMK <-9-009-OOS (4)) All o£fchat certain parcel of land (being portion o£the Moloaa Hu-L Lands )aitudte ,lying ^nd being approximately 2,500 feet north o£fche Kuh:La Highway and Koolau Road intez-Bection ati Moloaa,Kaw^JLhau,IsLand and County o£Kauai/State of Hawaii, being LOT 1 ^game being a port i.on of ttOt 24 -A,and thuo boundcd and deBcr'ibed; Qeginning at a point at the souLh corner of thio parcel o£ land,also being the east corner of Lob $and fche west fooundary o£the Roadway (SG feet wide),the coordinates of which referred t:o Government Survey Triangulation Sfcation "MOLOAA",being 130.14 feet south and 3,007.52 feet weat and running by azimutha Tnesaeured clockwlae from true South : 1.141 17 1,1.11^94 feer;along t-he norc-h boundary of L>ot Q; Thence following olong t-he meandering boundary £01-tihe next: Eour couraea,Lhe direc-t azimuths anci diotancea betwGen said.poinfcs beiiig: 3 . 4 . 5 . 6 . 7 . 201° 365° 2S3° 322" Sos so° 30' 30 ' 30' 30' 24 ' 26 ' 220.00 Eset, 56S.OO feot; S58.48 Eeet; 636.94 Eaat; 418.^8 feet /along thei w^st, boundary o£Lot 2; 692.l"?feefc along the west: bou (.'dla ry o f t hc Roadway (56 Eeet wide); 8 .2T 51 99.09 £eet aXoncr aame.to the poi.nt o£beginning and Containing an area of 24.609 acres,trore or lCiBS . -PJUlctt.THXRS!-(LOT 2,THK 4-9-009-010 «)) All of that cer-tain parcel of landl tbeing portion of t--he Moloaa Hyl.Lands)situatQ,lyi-n^and iaeing approximately €,000 feet northcaet o£ths Kuhio Highway and Anuenue Road i.nt.eraection at Moloaa,Kawaihau ,Iglanct and County o£Kauai, State o£Havaii,being LOT 2 ,same being a poirtion of Lot 24 -A, axid thus boundod and described : Seginning at a point ar.the wesfc c'orner o£this parcel o£ land,aXso bsing thc east boundary o£L*ot 1,the coordxnates of which reforred fco Governritcnt Survey Ti-iangulaEion Stafcion"MOLOAA,''^being 372.9&Eeet north and 2»4S8.49 feet west and running by azi-muths meaeursdl clockwiae from true South: J..230 24 41B-68 feet along the ^ast boi^ndary o£Lot i; Thence Eol.lowing along th"meandf^ring taoundar-y ,the ui-i ect azimuth and distance betwecn sa.i.d poxnta being; 2 .2S2'1 3 .S2' 4 .140 41'2,016.03 feet; 35'30"1.35B.30 EaeE .ilong the weat boundary o£Lot 3; ^9*X,'?3^.SB Eeot-along the north boundary of the Roadway (56 Ceec uide),to the point o£beginning and containi-iig an area o£ 30.522 a.cres^more or laas , -PA»Cat,POtniTBs-(LOT 3,TKK 4-9-009-011 (4)) All of thdt cert-ain parcal of l a,n<3 (b'sing portion of the Moloa^Hui t^anda)oituatK^lying ^nd oci.ng 3pp<-oKi,ftatLely 3,000 feflt northoast of fche Kuhio HI.=;<;''//ayt in<^Koolau Road int^rsecfcion at Mol-oaa,K-awajLhau,"Esland and Counc.y of K.auai,St<,ats uf Haw-ai L ,bel-ng LOT 3 ,samc b^i,n<j a poT-t ion c£L,ot.21-A^^nd thus bounded and described: Begi-nning at.a potnt at t he sout-hwest CQrrier o£^his parcalofland/alpo bf»ing t.l-ic nort^corner ^f Lot 10,ths coordinatQa of whi.ch rcfomad'to Govemmei^t Survcy Triangiilat i-on Station "MOLOAA",being 1.40S.39 £eec aouch and 1,931.94 f?et weoE and runni.ng by ^zimuths m^aeured cloc <wise from true South; 1.23Z 7.. 3 . 4 . 35 30"X,414.34 feet along che aaot boundaries of LOt 2.L><5t. 7 and Roadway (5(5 feet w^de); Thence following along fche mcandcTJ-ng boundary,the direct azirnuth and difltance between aaid poincs being: 307° 43° 89° S.119 40 05 08 43 50 30 1S 850.65 feet; 1,669.00 feet along the west boitndary 6f Lot 4; 449.41 fei?t along the north boundary of thfi Drairtage Dltch; 712,.14 feet along the north boundar-y 6£Lot 10,to the poiht of beginntng and containin^an drea o£ 39,759 acres,more or lees . -PARClt,FT»TSs-(t.OT 7.T»OC 4-9-009-015 (41) A]1 of that cerfcain parcel of land (being portion qf the Mol 039 Kul Lgn'-lsT g l';*^^'';"/lyln^snd b**i ng gppr'')xlms(tsly 5,000 feet northeast of ths Kuhio Kighway and Ahuehuc Road l,ntersection at Moloaa,Kawaihau,Island and County of Kauai, State of Hawaii,being LOT 7,sam^,boing a por-tion o£Lot 24-A^ and thua bounded and described : Seginning at a point ^n the oouttifasfc <;orner of thia parcel o£lanct,alBo being cho souc.hwsBC croz-nGr of Lot 3;the co&rdinafces of ttfhich reforred to Oovernrnant Survey Triangulation Station "MOLOAA".belng l.405.39 £eet souch and l.S31.9'l feet west,and running by azimutha rn^^our'ccl clockwi^e from true Southi 1.119 2.140 3.ZO'7' 42 13 51 15 27,58 feet along the north boundary o£LoL 9; l,S82.22 £aet.along tho north boundat'y of Lot 9; 1.10.01 £eet.along the east boundary o£the Roadway (56 iseet widc); ExhibiE "A"P^ge 3 oC 12 pages <.230 5.320 6.52 16 29 35 30" 594.94 feet olong the easfc boundary o£the Roadway f56 (eet wida); 1,675.47 feet along th^gouch boundary o£the ftoadway (56 feet wide)/ 669.78 feet along tihe wcefc boundary of Lot 3,co the point o£beginning and containing ars area of 2$,ozo acre^,more or lesa . -POJITION 0V PJUICBL SIXTHi-(LOT B,TMK 4-9-009-016 (•«}) Atl of Lhat certain parcel o£land (bein^portion o£thc Moloaa HUJL Lands)aifcudt^,lylng and being approximat.ely 2,500 feet noarth of the Kuhio Highway~anc3 Koolau Rbad intersection at Moloaa,K^waihau/laland and County of.Kauai,State o£Hawsii/ tseing JLOT 8,artme belng a portion of Lot.24-A,and chua bounded and deocribed; Beginning at a poinfc ac the south K(?rncr pf thie parcel of land^also bcing the east:c-orncr of Lot 13 /the coordinateo of which 2-&ferred to C?ovornmenC Survay Triangulation Station"KOLOAA";being 996.31 feet eouth anci 3,903.16 feet west and runnlng by <aainiufchs measured cJLockwioe from fcrue South i 14S«37'S07.u feet along bhe north boundary of Lot:13; Thenc*$fol lowing along the mednderXng boundary,the direet: azimuch and diflfcanc^ batwedn said poi.ntabeing; 2 .211 3 .321 4 .27 8.51 34 17 51 02' 1,2S3.ae tcet; 1,111,94 feet,along tijne eouth boundary of L»ot 1; 2^9.97 feet aJ.ong the west boundary of the Roadway (S6 teet wide); 983.71 feec along the west boundary of the Roadway/ to thc point o£bsg;Lnnin< and contain ing an area o 26.743 acreo,more or IfiflB . Rxhfbf "A Pag'12 payey -PAXCfl.SSVSSTB:-(LOT 9,TMK 4-9-009-017 (4)) All of that certain parce^o£land tbeing'portion of the Moloaa Hui Lan<3o)oi tuate,lyingf ^nd bei.ng on the east side of Kuhlo Highway,approximateiy'2,000 feee norttieasc of the Kuhio Hlghway and koolau Road interaectjion at Moloaa,Kawaihau,leland and Count^of Kaual,Sfcgte o£Hawaii,being LOT 9,s^me bei.n9 a portion of Lot 24-A,and chua bounded and 3escrlbed.' fisginning cit-.d p&int at th&most;oaat corner of this parcelofland,aileo being the southw^esti corner of Lot 3,the coordinatiee of which ref^rred to Government Sujrvey Triangu lation Scaclon "MOLOAA",baingr 1,')05.39 feet;south and 1;931.94-fect we^t and running by azimuths m&aaur&d clockwise from true South ; 1.S2°35'30"1,044,96 feet along the west boundary^of Lot 10; 1,473.35 feot along the nori^h boundary o£Loe 147 751.10 feet along the east boundary of t^ie ftoadway {S6 Eeet wlde); 4.2070 51'269.3$feel-aldng the samaj 5.320°li'1.SB2.22 fsst along the eoufch boundary of Lot 7; 6.299°42'.IS"27.SS fect aiong r.he same,co the poi,nt-of bnfjtnning and containlng an a;rea o£ 35.050 a<:res,more or less * 2.141°33• 3.231°02 • -PARCB.t.BIOBTSt-(I.OT 10-A,THX •t-9-OOg-OlB (4)) All of.that certain parcel of land fbcing portion of th^ Moloaa Hui Lando)oituato,lying and being oh the northea^c side of Kuhi-o Highwgy at Moloaa ,Kawaihau,Island and c;ciunt;y of Kauai,Sfcatie of Mawaii,being LOT IO-A^aame being a portion of l;;ot 24 -A»and thu^houndQd and clescribed ^is per eurve/of Masao Fu^i shi,ge i Land Surveyor ,datcd November 21,1980; Beglnnl.ng ^t a pipft dt the ejfff-.crarnQr o?thio lot,^nd at fche eoufch cox-ner o£Lot 10-B,the coordirtattfe of thi-s said polnt of beginning refex-red to Government Survey Triangulation Statio^"MOLOAA",belng 2,702.07 teet eauch and 3,053.15 fget west,and rynning by azimuE-ho meaeurcd c'loc^wioe from Krue 5ouch; 1 .O 2 .114 • OS 02 30"927.90 Ceah a lon^Lob 11 -A f-o a plpe; 429.^6 f.€:et aJLong Kuhiu Highw^fl/ Lo d pipe; Ex^italt:"A"-pAge 5 off 13 p^goo 3 . 4 . s. s . 7 . a. 125" 127» 232° 319' 236» 316" 57 11 35 14 ' sa' 09 • 30' 30" 30" 30" 3G^.G6 feec along Koolau Road to a pipe; 329.40 feet along Koo2.au fload to *a p l pe; 66S.81 fefit:along Lot 10-B to a pipc, 654.39 feet along Loc 10-B co a pipe; 578.3S fcat alona the Lot IO-B to a pipc; 335.73 feet along oame to fche pc3J.nt o£6<sginning and confcaining an aroat of 17,850 acreo,mor@ or less . -PORTION Of PA1ICBI,NIMTHi-(I.OT 13,TMX 4-3-009-021 (•*)) Al 1 of that c-erta in parcel of land fbexng porcion of the Moloaa HuJL Landg)situate;lying and being approximately 2/000 feet northweet;pf the Kuhio HigAway and Koolau Road infcairsection at Moloaa,Kawaihau,Island and Covnty of Kauai^State of Haitfali,b^ing LOT 13,same being a portion o£Lot-24~A,and chuo bounded and described; Beg'inn.tng 411 *a polrtt ^t*t:hG east cojrnejT of c.^le pArcel of land,atso being the eouth comer of Lot 8 and fche west boundary o£thc Roadway i56 £eet wide),T:h^coo^di.natee of which referred to Gfovernment Sur^/oy Trxan^uldtlon Sfcat lon "MOLOAA"<be in^ 996.31 feet.south and 3,903.16 £e<$t weat and running by aaimutho meaourt.*^clockwiss Crom true South ; )..51 140 02 • S6 73G .02 feet,a long the wesc boundary 6£the Roadway /56 feet wide)/ 735.70 f^fit.along tho norbh boundary o£Lot 16; Thence following along the ni<°<»nderins'boLindary,the direcc. az .'muth ati<^rllatan<:e bethfeert said poinfcebein^; 226"0-1 •30'ao'i ,15 Eest ,• ExhibiC."A"-Pagft ^of 12 p^geo 4.323 37 607.13 feec a1.ong the ^outh boundary of Lofc 9^to thfi point;oC be^inning and containing an area of 15.130 dcrc^,morc or leos . -PAXCXI.TSVTSi-(LOT 11,THK <-9-009-032 «)) All of that certa in p^rcel o£land (being port:ions of the MoJloaa Hul.Lande and the K^apuna Hui L,ands,being portion of fche land dcgcribed in and covcred by Royal Patent Number 535 to t7amtfs w.$mit:h)^iEiuate,lyin^and being on tihe north eide o£ Koolau Road^aj^proximafcel y 1,000 feet norch of fche Kyhio Highwciy andt Koolau Roact intcrsect ion at Koloaa,Kawaihau,laland ani County of Kavai,Stiate of Hawa i i ^being LC>T 14 ,same beifig portions of Lot 24-A and Lot:M"l,and thus bounded and deocribed: Be^inning ati a point at the eouth cornet'of thla pax-cel of 1.3tnd,aleio belnq the southwest corner of Lo&10 and the north boundairy of Koolau Road,the coordinabef?of which ro^erred to Governmenfc Survey Triangulat ion Statton "MOIX>AA",being 2,781,37 ^eet eouth ^nd 3,731,09 feet weet and running by a-zimuths meaflured clockwige from true South: 1. 2. 3 . 4 . s - 127 123 • iia' 116' 231 ' 6.321 7.S2° 11 40 os 30 02 33 ' 30 30 977.28 feet along fche north boundary of Koolau Road; 113-33 feet along £he safne/ ^.*^.7ft £a&t a lofig the aame; 305,89 feet along tihe e^m^; 1;6'/l,89 feet *=ilong the eaet boundary 6f the Roadway f56 feet widej/ 1,4^3.35 £eet along the soufch boundary of Lot 9; 1,.250,05 fect along the we^ft bounddry of Lot 10,fco the point o£b^ginning and confcaining an area of 4 7 .274 acresr,more or less. -PORTION 0»PAJtCBI,BLKVSNTH;-(LOT 16,TMK 4-9-009-025 (4)) All &f that certain parcel of land fbffing poi-tlono of th'° Woloaa Hul Landa -snd th-*Kaapuna Hui L^ndo,being porfcion of fchc lanci dGffc-ribeci in <snd cov^rod k>y Roy^l PgLs>nE Numbar 535 to Jamee w,Smi-Lh)aitUAte,lyi nfj ^nFi bcing on the north sicle o£ Exhi.fc'it."A"P^g<i '/'-?f.3 2 p^geg Kool<iu Road,approximately 1,000 fcet northeast of the Koolau Road and Anuenue Roaci intersection at Moloaa,Kawaihau,Island and CounLy ut.Kdudi,Stdtc of Hawai i ,bfti.ng I^OT 16,same be ing portionfl of Lot 24-A and Lot M-1,and thus bounded and descrlbed: Beginning at ct point afc the south corner of this parcfl of land,alao being che weat boundLiry of the RQaelway f 5€~feet wide) and fchft north boundai-y oE Koolau Road,the coordinafcee of whxch referred to Govcrnment Survfiy Triangulat ion Station "MOLOA.^"^ being 1,310.27 feet aouth and 5,033.16 feet wesfc and running by azlmuths Tn<?agureci clo<-k;wTOR from true South: 116 30 1,007.36 feet along the nor'th boundary of Koolau Roaxd; Thence following along h.he north bc^undary o£Koplau Road on a curve to the le£t with a raclius o£190.00 feet the chord azimuth and distance being; 110° 235° ~i~r 40' 30 "40,00 fec*:; 8.88 feet along the remainder of Lot M<1 fa portion of Ka^pyna Hu i l^anda ; ThenCfi following along the tneandering boundai-y,the direcfc azimuth £»nd diotance between gaid poinfca be i ncf t 241° 320» 51° 38 56 02 1,1^5.72 Eeet; 7AS .70 ileeL along t,he sout.l^i boundary of Lot 13 ; 7X7.34 feet alon9 the west boundar-y o£the Roadway (SS fcet wide),eo tho pQJLnt df beginning and containing an area of 20.827 acres/more or'• IQOB , -PAKCBL TWZLrTH;-(ROAOWAY LOT,WX 4-9-009-027 (4)) All of that certain parccl of land fbc-ing portions of che Koloaa Hui Ldndo and Kaapuna Hui Lande,being portion of the tand deBcribed in and crovered foy Royal Patent Number 53S to Jameg w.Smith)sltuate,lying and belng at noloaa,Kawaihau, loland and CounCy ot'Kauai.State o£Hawall,being a SS-foot roadway,Bame being poz-tionfl of Lots 24-A and M-t,bearing tax key designation 4-9-b0?-02'?,and c'antaining an jrea of 6.592 acirca,mor'e or less . Sxhlbiv.-A-Pagc 3 of 12 pages -PARCXt,TBIKTBXtmi •-(LOT 10-B,THK 1-9-009-037 «)) All of that cert.ain parccl of land (b&ing portion of th^wt?^oaa.Hui .Lan<^s?situate,lying and bein'y on the northoast eildeofXuhioHighuayacMoloaa,kaualhau.Island and County ofXaua^,SEatc o£Hawaii,being rAT 10-B,same bolng a portion o£Lot,24~A'and thy8 bounded and described as per eurvey of MaoaoFujishlgs,Land Surveyor,datsd Hovembe.r 21,'1980: Be9inning at a pipa at.the gouth corngr of this parcel oElandandatcheeastcarnBrotLot10-A,the coordinatea o£thxsgaidpointo£beginn.i.ng referred tn Ooverjnment SurveyTr.i'anffylation Star5,on "MOLOAA"being 2,•782.07 feot Bouth anda,OS3.1S feet weet,and running by azimuthe measured clockwlsefromcrueSouth; 2. 3 . 4 . 5. 9. 136" 46 139" 52 127° 6.333» 299" 8 .375 49 03'39S.73 faet along L,ot 10-A to a P.1pe; Sa'30"57B.38 teac along Lot 10-A co a pipe; 14'6S-1.39 feet along LoE 10-A to a Pipe; 3S'30"6S5.Sl £eec along Lot 10-A to a pipc; 11'30"31.12 feec.along Koolau Road to a pi.pe, 3S'30"2.26S.01 £eat slong Lote 14 and 9 to a pipe; 42'1S"712.34 fBRt 9ling t he Lot 3 to a pipe; SQ 'i.5"396.09 feet along Oraina^e Ditch t:o a p\pe ; OS'30"1,300.33 feeE along l^ota 11-8 and 31-A ^o tfte poj.nt of ^beginning an<3 cont;ainir'ig an arsa of 36.434 acreo, more or less, Exhibit r'A"-Pa^e 9 oC 12 pAqea COUNTY OF KAUAI PLANNING COMMISSION STATE OF HAWAII In the Matter ofthe Application for a Class FV Zoning Permit Z-IV-2017-12,Use Permit U- 2017-10 and Special Permit SP-2017-5 for real property located in Moloa'a,Kauai, Hawaii,further identified as Lot 185 as shown on Land Court Application 956,Tax Map Key (4)4-9-009-009. CASE N0. CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE I hereby certity that a true and correct copy of the foregoing document was duly served upon the following party by the United States Postal Service,electronic mail,and/or via hand delivery on April 5,2021. MAX WJ GRAHAM,JR.,ESQ. Belles Graham LLP Watumull Plaza 4334 Rice Street,Suite 202 Lihue,Kauai,Hawaii 96766-1388 DATED:Honolulu,Hawaii,April 5,2021. Av-u^ GEORGE W.VAN BUREN JOHNB.SHIMIZU Attomeys for Petitioners MOLOAA FARMS LLC and JEFFREY S.LINDNER County of Kauai Planning Commission 4444 Rice Street Ste A473 Lihue,Kauai,Hawaii 96755 RE:Green Earth Matters Inc. Class IV Zoning Permit Z-IV-2017-12 Use Permit U-2017-10 Class Special PermitSP-2017-5 Lot 185 Land Court Application No.956 To Whom this Concerns, I am writing in response to being notified ofthe above request being heard on April 13,2021.1 would not be supportive ofthis application.1 believe that this parcel has office space that should support a green waste operation.1 think office space should be located in zoning that is already set aside for such purpose of office space and any further business offices should be located in those areas.Large storage facilities may serve multiple needs and 1 am concerned about this request as 1 have seen some parcels become equipment,and machinery storage and 1 believe that is what will happen to this parcel.1 see it currently operating with minimal need for large storage.My concern is the morphing of a green waste facility into something that really does not fit the idea nor the zoning the farmers in Moloa'a Hui have bought in to. 1 therefore can not voice support for this application. Mahalo, Linda Neuman Unit#23 Moloa'a Hui f^.^Lfl.^ 2021 Shanlee Jimenez From: Sent: To: Subject: Attachments: Planning Department Tuesday,April 06,2021 2:10 PM Shanlee Jimenez FW:4-13-2021 Public Hearing Testimony RE2-IV-2017-12 County of Kauai Planning Commission.docx From:Linda Neuman <neumanahui@gmail.com> Sent:Tuesday,April 6,2021 2:02 PM To:Planning Department <planningdepartment@kauai.gov> Subject:4-13-2021 Public HearingTestimony RE:Z-IV-2017-12 CAUTION;This email originated from outsidethe CountyofKauai.Do notclicklinksoropen attachments even ifthe sender is known to you unless it is something you were expecting. Please see attached testimony.Ifthis is the incorrect place to send please advise. Linda Neuman MCCORRISTON MILLER MUKAI MACKINNON LAUREL LOO 4806 4357 Rice Street, Suite 102 Lihue, Kauai, Hawaii 96766 Telephone No.: (808) 632-2267 Facsimile No.: (808) 440-0399 Attorney for Applicant MICHAEL KAPLAN, Trustee of the Michael A. Kaplan Revocable Trust, dated August 12, 1992 as amended and restated by instrument dated July 16, 2017 BEFORE THE PLANNING COMMISSION OF THE COUNTY OF KAUAI In The Matter Of The Application Of MICHAEL KAPLAN, Trustee of the Michael A. Kaplan Revocable Trust, date August 12, 1992 as amended and restated by instrument dated July 16, 2017, affecting real property located at Kahili Ahupua’a, Hanalei, Island and County of Kauai, State of Hawaii, more particularly identified as Tax Key No. (4) 5-2- 012:019, and containing an area of 32,034 sq. ft., more or less. _____________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) USE PERMIT NO. U- __________________________ CLASS IV ZONING PERMIT NO. Z- IV________________ APPLICATION FOR USE PERMIT AND CLASS IV ZONING PERMIT; EXHIBITS "A" – "M" APPLICATION FOR USE PERMIT AND CLASS IV ZONING PERMIT -2- I. APPLICANT AND PROPERTY INFORMATION The Applicant in this matter is MICHAEL KAPLAN, Trustee of the Michael A. Kaplan Revocable Trust, date August 12, 1992 as amended and restated by instrument dated July 16, 2017, by and through his undersigned attorney. Legal title to the real property is held by MICHAEL KAPLAN, Trustee of the Michael A. Kaplan Revocable Trust, date August 12, 1992 as amended and restated by instrument dated July 16, 2017. Attached as Exhibit "A" is the current deed to the Subject Property. II. LOCATION MAP IDENTIFYING THE SITE, ADJACENT ROADWAYS AND IDENTIFYING LANDMARKS The property subject of this application is located at Kilauea, Hanalei District, Island and County of Kauai, State of Hawaii, is identified as Tax Key No.: (4) 5-2-012-019, and contains 32,034 square feet, more or less ("Subject Property"). Attached as Exhibit "B" is a location map depicting the Subject Property, adjoining properties and roadways. Access to the parcel, highlighted in blue, is from Kuhio Highway, to Pili Road, to Kolo Road, and then over various recorded easements to the parcel. III. COUNTY ZONING AND GENERAL PLAN DESIGNATION AREAS OF THE PROPERTY The property's classifications are as follows: - entirely Agricultural by the State Land Use Commission; - entirely Open designation by the Kauai General Plan; and - entirely within the Open (O) zone by the County of Kauai. It is designated Open/Special Treatment-Resources (O/ST-R). -3- - Although the property is within the Special Management Area (“SMA”), the first single-family residence is exempt from a SMA permit. IV. FLOOD ZONES AND REQUIRED ELEVATIONS The property is not within any flood zone. It is located in Zone X, which is an area determined by the Federal Emergency Management Agency to have a moderate to minimal risk of flooding, and is determined to be outside the 0.2% annual chance floodplain. Attached as Exhibit “C” is a Flood Hazard Assessment Report for the parcel. V. PRIOR PERMITTING OF THIS PARCEL Applicant purchased this kuleana lot from the Hendrikus Group, Inc. (“Hendrikus”) in 2018. At the time Hendrikus had already received permits for various structures on this kuleana parcel and an additional parcel, 5-2-21:04-0001, which Applicant also purchased from Hendrikus but is not the subject of this application. Prior to the Hendrikus ownership, a former single-family residence was located on the kuleana but was destroyed by Hurricane Iniki. In 2010, the Hendrikus Group received permits to build a single-family residence on the kuleana parcel under SMA Use Permit (SMA (U) 2011-1; Class IV Zoning Permit Z-IV-2011-1 and Use Permit U-2011-1, but had not yet built the single-family residence on the kuleana parcel. The reason Hendrikus applied for a SMA permit then was Hendrikus was also applying for other development on this kuleana lot as well as a separate lot; this Application is solely for the first – and only – single-family residence on the kuleana lot. After the Applicant bought the parcel from Hendrikus, Applicant requested an extension of two years within which to build a slightly smaller single-family residence than approved for Hendrikus. On April 23, 2019, the Planning Commission unanimously approved Applicant’s request to build the smaller residence within two years. On May 21, 2019, a neighboring landowner submitted a petition for revocation of the Planning Commission’s April 23, -4- 2019 approval; the Planning Commission denied the petition. That denial was appealed to Circuit Court and the Court subsequently ordered the prior permits had lapsed and no further construction could proceed. That judicial determination is on appeal. VI. LOCATION, SIZE AND DIMENSIONS OF EXISTING AND PROPOSED STRUCTURES AND USES After the April 23, 2019 approval by the Planning Commission, Applicant began to construct the single-family dwelling, but a few months later when the Circuit Court ruled the prior permits had lapsed, construction stopped. As a result, Applicant’s dwelling is partially constructed. The foundation has been installed and it is partially framed. Attached as Exhibit “D” is a photo taken on January 8, 2020 which depicts the current status of the construction. This kuleana parcel is situated on relatively flat tableland overlooking a small, steep pali above the southeastern edge of Kilauea Stream. It is characterized by a series of terraced agricultural fields which step down, and are believed to previously have been used to cultivate rice during the late nineteenth and early twentieth centuries.i The site plan depicting the proposed dwelling is attached as Exhibit “E”. The elevations for the dwelling are attached as Exhibits “F1 and F2”. The total lot coverage resulting from the improvements, which is approximately 8.7%, is set forth on Exhibit “G”. The interior area of the proposed dwelling is 2,373 square feet; the Floor Plan is attached as Exhibit “H”. Along with the walkways, lanai and carport (and all other hardened surfaces), total lot coverage is 2,791 square feet. 1 Clark, Matthew R., B.A. and Rechtman, B., Ph.D., 2010 Rechtman Consulting, LLC, An Archaeological Inventory Survey of TMK: 4-5-2-12:019. This survey was previously completed for this parcel and submitted to the County Planning Department along with the SMA Area Permit Assessment Application & Class IV Zoning Permit Application for the Proposed Hendrikus Group, Inc. Single-Family Residence, Accessory Ag. Structures & Archaeological Restoration Project for this parcel and another parcel for a previous project -5- The total lot area is 32,034 square feet, or .735 acres. The total lot coverage for all improvements would thus total 8.7%, within the allowed lot coverage of 10%. The landscape plan is depicted on Exhibit “I”. VII. OFFSTREET PARKING FOR EXISTING AND PROPOSED USES Parking for two cars will be provided under the porte cochere, as depicted in Exhibit “H”. All parking is provided for on-site; there is no off-street parking. VIII. TOPOGRAPHIC INFORMATION, WITH EXISTING FEATURES, CONDITIONS AND DRAINAGE PATTERNS Exhibit "J" is a topographical map of the property, showing the contours. The drainage pattern will be maintained. The rock walls on the kuleana site, believed to be to aid the cultivation of rice, are depicted several times in an Archaeological Inventory Survey conducted in 2010 for Hendrikus (“AIS”). The archaeologist working on the site, Matthew Clark, is monitoring the rock walls during the construction, and has allowed removal of some of the walls during construction. Walls will be replaced under the archaeologist’s supervision after construction of the dwelling is completed. An Archaeological Inventory Survey that was submitted with the Hendrikus permit in 2010 and which covers two parcels is attached as Exhibit “K”. Mr. Clark, the current archaeologist, prepared the AIS in conjunction with an environmental assessment prepared for DLNR by Hendrikus. A letter from Matt Clark is attached as Exhibit “L” and states he is monitoring the removal and replacing of the rock walls for the project and no further historic preservation work is required. -6- IX. TOPOGRAPHIC INFORMATION, WITH PROPOSED GRADING AND FINISHED GRADE ELEVATIONS AND GRADING PATTERNS Applicants’ designer incorporated a design which would limit grading to the greatest extent possible. The selection of the site for the dwelling and the floor plans allow for the improvements to incorporate the natural slopes of the site. X. LOCATION OF ENVIRONMENTALLY SENSITIVE AREAS, HABITAT AND BOTANICAL FEATURES There are no environmentally sensitive areas on the property, which is surrounded by heavily wooded areas. In the "neighborhood", however, are the Kilauea Point National Wildlife Refuge and the Kilauea River, although these properties do not abut the kuleana lot. The surrounding parcels are heavily wooded. Exhibit “B” is an accurate depiction of the parcel and surrounding areas. XI. EXISTING AND PROPOSED ROADWAYS AND ACCESSES TO THE PROJECT Access to the property is from Kuhio Highway, Kahili Makai Street, and then Kolo Road, onto various easements. No roadways are proposed by Applicant. XII. CERTIFIED SHORELINE, SHORELINE SETBACK LINES, STREAM AND OTHER SETBACK LINES The property does not abut any shoreline or stream. XIII. IDENTIFICATION OF ARCHAEOLOGY, ENVIRONMENTALLY SENSITIVE AREAS, HABITAT AND BOTANICAL FEATURES Aspects of the property are accurately described in Exhibit “K,” which summarizes at page 40 that the parcel contains former terraced fields and a concrete slab with no further need to mitigate any potential impacts from the construction of a single-family dwelling at this time. As for -7- habitat and botanical features, the property was heavily wooded with invasive brush and trees, is not inhabited by any animals, and no threatened or endangered plants grow on it. XIV. BUILDING HEIGHTS All of the buildings (only one building is proposed) are in conformity with the North Shore Development Plan (Section 10-2.4(4)(1) limits building heights to 25'). Exhibit “F” shows the maximum building heights from grade at 19‘ 3”. The home is designed as a one-story dwelling, with one bedroom on either end and separated by a living room and kitchen area. The dwelling is designed with a low profile, and is designed to be situated within low existing rock walls. It will be earth-toned with natural cedar siding and a cedar shake roof and is designed to blend into the natural environment. The trees and shrubs that will be planted as part of the landscaping and agricultural use have been chosen to blend in with the natural features of the area. XV. FLOOR PLANS OF DWELLING Exhibit "H” is the floor plans for the dwelling. XVI. SUMMARY OF PERMITS The permits sought in this application are a Use Permit and Class IV Zoning Permit. Pursuant to Chapter 8-11.3 of the Comprehensive Zoning Ordinance (“CZO”), all uses, structures, or developments require a Use Permit within the Special Treatment District. Pursuant to Chapter 8- 3.2 of the CZO, a Class IV Zoning Permit is a procedural requirement when a Use Permit is required for development in the Special Treatment District. Pursuant to Section 8-3.2 of the CZO: The purpose of the “Use Permit: procedure is to assure the proper -8- integration into the community of uses which may be suitable only in specific locations in a district, or only under certain conditions, or only if the uses are designed, arranged or conducted in a particular manner, and to prohibit such uses if the proper integration cannot be assured. The first single-family dwelling in the Special Management Area (“SMA”) is exempt from having to apply for a SMA permit, and Applicant has received a “Departmental Determination DD-2021-13) this proposed dwelling is NOT considered a development as defined by the County, and hence a Use Permit and not an SMA Permit is required. DD-2021-13 is attached as Exhibit “M”. XVII. POLICIES AND OBJECTIVES OF THE KAUAI COUNTY GENERAL PLAN A. Kauai County General Plan. The property is located in the Open designation under the General Plan ("GP"). “Natural” replaced the “Open” designation in the 2018 GP. The proposal of the Applicants, to construct a dwelling with aggregate lot coverage of approximately 8.7%, on a lot containing 32,034 square feet, meets the policy of having the land remain predominantly free of "development involving buildings, paving and other construction". Within the Open zone, permissible maximum lot coverage is 10%. Applicant's proposed development will not have a significant impact on the surrounding environment, and the proposed dwelling sits within stone walls that are part of the surrounding environment. This proposal complies with the GP policy in that it will, while allowing a reasonable use of the property by the owner, help preserve, maintain and improve the natural characteristics of the area, will allow the area to remain predominantly free of development, and will be incidental to the use and open -9- character of the surrounding lands. Many neighboring parcels are similar to this development – heavily wooded parcels featuring one home site. B. North Shore Development Plan. The property is located in the North Shore Development Plan area. The goals and objectives of the North Shore Update, as adopted by the North Shore Development Plan Ordinance, include the following: Goal A: To preserve the unique natural beauty of the North Shore Planning Area. Goal B: To preserve the special rural charm of the North Shore Planning Area. Goal C: To provide for the safety and welfare of the people of their property of the North Shore Planning Area. Goal D: To provide for economic development of the North Shore Planning Area. Goal E: To preserve the wildlife and flora and the North Shore, recognizing man's dependence upon this preservation for his own health and welfare. Goal F: To insure the preservation of historic-archaeological sites in the North Shore Planning Area. Goal G: To create a development for evolutionary growth that depends upon a planning process whereby conflicts can be resolved through the establishment of priorities and community participation. Goal H: To provide for recreational opportunities that are compatible with unique qualities and natural features of the North Shore. The Applicant’s proposed use of his property will not conflict with any of the Goals contained in the North Shore Development Plan Ordinance. The design, layout and visible appearance of the dwelling will be compatible with the natural beauty of the area. Although attention was given to architectural design and the ability of the materials to withstand the elements, the design also sought to reduce intrusion into view planes through appropriate siting and color selection. -10- As such, the proposed use will not conflict with Goals A or B. The proposed use will provide economic opportunity for Kauai residents and as such will promote Goal D. The proposed use will have no negative impact on the public safety or welfare, on any endangered species of plants or animals, on archaeological or historic sites, or on recreational opportunities on or around the property. As such, it will not conflict with Goals C, E, F or H. The process of filing this Application is consistent with the purposes of Goal G. C. Open District. The entire property is zoned Open. The purpose of the Open District are set forth in Section 8-9.1 of the Kauai County Code ("KCC"), which is the "Purpose" section, and which provides in pertinent part as follows: "(a) To preserve, maintain or improve the essential characteristics of land and water areas that are: (1) Of significant value to the public as scenic or recreational sources; (2) Important to the overall structure and organization of urban areas and which provide accessible and usable open areas for recreational and aesthetic purposes; (3) Necessary to insulate or buffer the public and places of residence from undesirable environmental factors caused by, or related to, particular uses such as noise, dust, and visually offensive elements. (b) To preserve, maintain or improve the essential functions of physical and ecological systems, forms or forces which significantly affect the general health, safety and welfare. (c) To define and regulate use and development within areas which may be potentially hazardous. (d) To include areas indicated on the County General Plan as open or as parks. (e) To include areas clearly indicated on the County General Plan or on Zoning maps as "Special Treatment – Open Space" if an applicant represents to government authorities that any properties or areas within a development proposal or subdivision application will remain in either permanent open space or private park areas, or if the Council in the exercise of its zoning power requires as a condition of rezoning that an area be designated for -11- permanent open space or private park. This does not preclude the Council from exercising its zoning authority as provided in Sec. 46-4, Hawai'i Revised Statutes. Within areas so designated, no uses, structures, or development inconsistent with such designation shall be generally permitted or permitted by use permit without express provision to the contrary. The Council is hereby authorized to make such factual determinations as necessary incident to this Section. (f) To provide for other areas which because of more detailed analysis, or because of changing settlement characteristics, are determined to be of significant value to the public. (citation omitted) While allowing the Applicants a reasonable use of their property by permitting the construction of one modest dwelling, this proposal provides for minimal development (approximately 8.7% lot coverage). Additionally, it mimics the surrounding parcels, of which many feature a single dwelling with a large “natural” or green area on the remainder of the parcel. Because of the design of the dwelling, the Applicants seek to minimize the extent of grading necessary to provide proper grounding for their dwelling, which will help to preserve and maintain the existing topography. A substantial part of the property will, because of the limited size of the improvements, landscaping and agricultural activities, remain in "open" space. XIII. DETAILED LAND USE HISTORY OF THE PARCEL, INCLUDING FORMER AND EXISTING STATE AND COUNTY LAND USE DESIGNATIONS, VIOLATIONS AND USES. A. Land Use Designations. The respective State Land Use Commission ("SLUC"), Kauai General Plan, County of Kauai Zoning and other relevant land use designations for the Subject Property are as follows: 1. SLUC. The property is entirely in the SLUC Agricultural District. It has been located in the SLUC Agricultural District since the inception of the SLUC Districts. -12- 2. Kauai General Plan. The property is entirely in the Kauai General Plan Open Land Use Designation, and has always been designated Open under prior General Plans. As stated previously, the 2018 General Plan updates “Open” to “Natural.” 3. Zoning. The property is entirely in the Open District and Special Treatment District (Scenic/Ecologic Resources). It has been located in the Open District since the adoption of the County's Comprehensive Zoning Ordinance in 1972. It was placed in the Special Treatment District as part of the North Shore Development Plan Update (Ordinance No. 476, adopted June 27, 1985). B. Development Plan Area. The property is located in the North Shore Development Plan Area, and has been so located since the original adoption of the North Shore Development Plan (December 27, 1974). C. Special Management Area. The property is entirely located within the Special Management Area ("SMA") of the County of Kauai, and has been so located since the adoption of the SMA Rules (December 17, 1979). D. Special Treatment District. The property is within the ST/R District (Special Treatment, Scenic/Ecologic Resources) as described in Section 8-9.2(a)(3), KCC. Sections 8-9.3 and 8-9.4(a) and (b), KCC, contain the provisions to which the property is subject. The uses which are proposed are consistent with the uses permitted within the County's Open zone (agricultural activities and accessory uses). Development in such Special Treatment Areas are not supposed to "substantially change the exterior form or appearance of such three (3) dimensional structures or land". Because the -13- Applicants have done only such grading as is essential to properly provide stable support of a dwelling, there is no substantial change to the land itself. The landscaping additions will not change the contours of the land. The relatively modest building footprint of the dwelling results in limited lot coverage and further ensures that the least amount of change occurs to the form or appearance of the Subject Property, and to its three-dimensional character. Because the parcel and surrounding areas are so heavily wooded, the only view into this parcel is via an aerial view. See Exhibit “B”. E. Violations. There are no existing violations of any land use laws or regulations affecting the property. There recently, however, have been a Circuit Court and an Intermediate Court of Appeals case involving the permits that were received from the Planning Commission on April 23, 2019. Those matters are on appeal and also involve development on a neighboring parcel. The Applicant wishes to isolate the Use and Class IV permits for this single- family dwelling so he can complete the dwelling that is partially constructed. F. Prior Uses. According to the Hendrikus application for a Class IV Zoning Permit in 2010, a building permit application was awarded to Gregory Taylor for the construction of a single-family dwelling. That dwelling was completed but later destroyed by Hurricane Iniki in 1992. There were other, small structures that have since been demolished. Applicant’s dwelling is the first dwelling to be constructed since the Taylor house was destroyed. G. PASH Rights. Applicant and its contractors have been working on the Property for at least two years, and have communicated frequently with Hendrikus. -14- Applicant is unaware of any customary and traditional practices on the parcel performed by native Hawaiians. XIX CONCLUSION For all of the foregoing reasons, the Applicant respectfully requests the Planning Commission grant the Use and Class IV permits that are sought herein, and allow the Applicant to build a farm dwelling as represented. DATED: Lihue, Kauai, Hawaii, February 08, 2021. Respectfully submitted, LAUREL LOO Attorney for Applicant MICHAEL KAPLAN, Trustee of the Michael A. Kaplan Revocable Trust, dated August 12, 1992 as amended and restated by instrument dated July 16, 2017 EXHIBIT A Developed by Parcel ID 520120190000 Acreage 0.735 Class RESIDENTIAL Situs/Physical Address Mailing Address KAPLAN,MICHAEL A REVOCABLE TRUST 2695 E DOMINGUEZ ST CARSON CA 90895 Total Market Value $1,210,400 Total Assessed Value $1,210,400 Total Exemptions $0 Total Net Taxable Value $1,210,400 Last 2 Sales Date Price Reason 7/21/2009 $300000 VALID SALE 2/19/2004 $995000 VALID SALE Brief Tax Description RP 3370 LC AW 10333 .735 AC DES TOG/ESMT (Note: Not to be used on legal documents) The Geographic Information Systems (GIS) maps and data are made available solely for informational purposes. The GIS data is not the official representation of any of the information included, and do not replace a site survey or legal document descriptions. The County of Kauai (County) makes or extends no claims, representations or warranties of any kind, either express or implied, inluding, without limitation, the implied warranties of merchantability and fitness for a particular purpose, as to the quality, content, accuracy, currency, or completeness of the information, text, maps, graphics, links and other items contained in any of the GIS data. In no event shall the County become liable for any errors or omissions in the GIS, and will not under any circumstances be liable for any direct, indirect, special, incidental, consequential, or other loss, injury or damage caused by its use or otherwise arising in connection with its use, even if specifically advised of the possibility of such loss, injury or damage. The data and or functionality on this site may change periodically and without notice. In using the GIS data, users agree to indemnify, defend, and hold harmless the County for any and all liability of any nature arising out of or resulting from the lack of accuracy or correctness of the data, or the use of the data. Date created: 1/13/2021 Last Data Uploaded: 1/13/2021 9:11:45 AM 1,180 ft Overview Legend Parcels Roads Kuhio Hwy Kahili Makai St. EXHIBIT B Flood Hazard Assessment Report Disclaimer: The Hawaii Department of Land and Natural Resources (DLNR) assumes no responsibility arising from the use, accuracy, completeness, and Ɵmeliness of any informaƟon contained in this report. Viewers/Users are responsible for verifying the accuracy of the informaƟon and agree to indemnify the DLNR, its oĸcers, and employ- ees from any liability which may arise from its use of its data or informaƟon. If this map has been idenƟĮed as 'PRELIMINARY', please note that it is being provided for informaƟonal purposes and is not to be used for Ňood insurance raƟng. Contact your county Ňoodplain manager for Ňood zone determina- Ɵons to be used for compliance with local Ňoodplain management regulaƟons. Property InformaƟon COUNTY: FIRM INDEX DATE: THIS PROPERTY IS WITHIN A TSUNAMI EVACUTION ZONE: FOR MORE INFO, VISIT: hƩp://www.scd.hawaii.gov/ THIS PROPERTY IS WITHIN A DAM EVACUATION ZONE: FOR MORE INFO, VISIT: http://dlnreng.hawaii.gov/dam/ Flood Hazard InformaƟon SPECIAL FLOOD HAZARD AREAS (SFHAs) SUBJECT TO INUNDATION BY THE 1% ANNUAL CHANCE FLOOD - The 1% annual chance Ňood (100- year), also know as the base Ňood, is the Ňood that has a 1% chance of being equaled or exceeded in any given year. SFHAs include Zone A, AE, AH, AO, V, and VE. The Base Flood ElevaƟon (BFE) is the water surface elevaƟon of the 1% annual chance Ňood. Mandatory Ňood insurance purchase applies in these zones: Zone A: No BFE determined. Zone AE: BFE determined. Zone AH: Flood depths of 1 to 3 feet (usually areas of ponding); BFE determined. Zone AO: Flood depths of 1 to 3 feet (usually sheet Ňow on sloping terrain); average depths determined. Zone V: Coastal Ňood zone with velocity hazard (wave acƟon); no BFE determined. Zone VE: Coastal Ňood zone with velocity hazard (wave acƟon); BFE determined. Zone AEF: Floodway areas in Zone AE. The Ňoodway is the channel of stream plus any adjacent Ňoodplain areas that must be kept free of encroachment so that the 1% annual chance Ňood can be carried without increasing the BFE. NON-SPECIAL FLOOD HAZARD AREA - An area in a low-to-moderate risk Ňood zone. No mandatory Ňood insurance purchase requirements apply, but coverage is available in parƟcipaƟng communiƟes. Zone XS (X shaded): Areas of 0.2% annual chance Ňood; areas of 1% annual chance Ňood with average depths of less than 1 foot or with drainage areas less than 1 square mile; and areas protected by levees from 1% annual chance Ňood. Zone X: Areas determined to be outside the 0.2% annual chance Ňoodplain. OTHER FLOOD AREAS Zone D: Unstudied areas where Ňood hazards are undeter- mined, but Ňooding is possible. No mandatory Ňood insurance purchase apply, but coverage is available in parƟcipaƟng commu- niƟes. FLOOD HAZARD ASSESSMENT TOOL LAYER LEGEND (Note: legend does not correspond with NFHL) www.hawaiinfip.org Notes: BASEMAP: FIRM BASEMAP 0 100 200 ft KAUAI TMK NO: (4) 5-2-012:019 WATERSHED: KILAUEA PARCEL ADDRESS: ADDRESS NOT DETERMINED KILAUEA, HI 96754 NOVEMBER 26, 2010 LETTER OF MAP CHANGE(S):NONE FEMA FIRM PANEL:1500020060E PANEL EFFECTIVE DATE:SEPTEMBER 16, 2005 YES YES ( ) EXHIBIT C EXHIBIT D EXHIBIT E DESIGN CONCEPTS 2484 KENEKE ST. #102 KILAUEA HI 96754 (808) 828-0160 DCHAWAII.COMKILAUEA, KAUAI, HAWAII 967544230 WAIPUA STREETCLAN ARCHITECTURE LLCKAPLAN RESIDENCEA03 Issue Date: 02/13/20 BP19-00001089 EXHIBIT F DESIGN CONCEPTS 2484 KENEKE ST. #102 KILAUEA HI 96754 (808) 828-0160 DCHAWAII.COMKILAUEA, KAUAI, HAWAII 967544230 WAIPUA STREETCLAN ARCHITECTURE LLCKAPLAN RESIDENCEA04 Issue Date: 02/13/20 BP19-00001089 9/17/19 Issue Date: 02/13/20 BP19-00001089 EXHIBIT J D E S IG N C O N C E P T S 2 4 8 4 K E N E K E S T . # 1 0 2 K IL A U E A H I 9 6 7 5 4 (8 0 8 ) 8 2 8 -0 1 6 0 D C H A W A II.C O MK IL A U E A , K A U A I, H A W A II 9 6 7 5 442 3 0 W A IP U A S T R E E TC L A N A R C H IT E C T U R E L L CK A P L A N R E S I D E N C EA01 Issue Date: 02/13/20 BP19-00001089 EXHIBIT H EXHIBIT J         Archaeological Inventory  Survey of TMK (4) 5212: 019 Submitted as Appendix 2 to Hendrikus Permit on July 15, 2010   Exhibit K RC-0670 An Archaeological Inventory Survey of TMK:4-5-2-12:019 Kāhili Ahupua‘a Ko‘olau District Island of Kaua‘i FINAL VERSION PREPARED BY: Matthew R. Clark, B.A. and Robert B. Rechtman, Ph.D. PREPARED FOR: Tina Peterson The Hendrikus Group, Inc. P.O. Box 1289 Issaquah, WA 98207 February 2010 (revised April 2010) An Archaeological Inventory Survey of TMK:4-5-2-12:019 Kāhili Ahupua‘a Ko‘olau District Island of Kaua‘i RC-0670 EXECUTIVE SUMMARY At the request of Tina Peterson of The Hendrikus Group, Inc., Rechtman Consulting, LLC conducted an archaeological inventory survey of a 0.735 acre parcel (TMK:4-5-2-12:019) located near the town of Kīlauea in Kāhili Ahupua‘a, Ko‘olau District, Island of Kaua‘i. The parcel is situated on tableland at the top of a steep pali along the southeastern edge of Kīlauea Stream approximately 1.6 kilometers inland of the coast, and is a former kuleana that was awarded to Naiamaneo during the Māhele of 1848 as Land Commission Award (LCAw.) 10333. The current land owners intend to develop a single-family residence on the property. Fieldwork for the inventory survey was conducted by Robert B. Rechtman, Ph.D., Matthew R. Clark, B.A., and Olivier M. Bautista, B.A on December 16 and 17, 2009. As a result of the current study two sites were recorded; a series of terraced fields (Site 2011) and a concrete slab (Site 2012). Based on archival documents and subsurface testing, the fields appear to reflect use of the property for rice cultivation during the late nineteenth and early twentieth centuries. That these fields were built upon a prior kula and lo‘i agricultural system is documented in Māhele records, although the archaeological record within the current study parcel was silent with respect to the earlier land use. Mapping and testing of the portions of Site 2011 that extend beyond the current study parcel (Figure 26) may shed light on the earlier land use. The terraces in those areas are heavily vegetated and would require substantial clearing prior to their recordation. Those areas are on a parcel that is also owned by the same entity that owns the current study parcel, and discussions with DLNR-SHPD are underway with respect to an appropriate methodology for clearing and documenting the continuation of Site 2011. The concrete slab (Site 2012) is located on the surface of Field 9 of Site 2011 along the southeastern boundary of the study parcel. This Historic Period feature appears to date from the first half of the twentieth century or the late nineteenth century, and was likely associated with other residential/industrial features and the processing of rice and other cultivated produce. Site 2011 is considered significant under Criterion D for information it has yielded, relative to the Precontact and Historic use of the general project area. The fields within the current study parcel (Fields 1-9) have been subject to detailed mapping and subsurface testing. It is argued that the work conducted at Fields 1-9 of Site 2011 is adequate to mitigate any potential impacts that may result from the construction of a single family dwelling on the parcel. Therefore, no further work is the recommended treatment for those specific fields. Site 2012, the concrete slab, is also considered significant under Criterion D for information it has yielded relative to the Historic use of the general project area; and likewise it is argued that the information collected during the current inventory survey is adequate to mitigate any potential impacts to this site that may result from the construction of a single family dwelling on the parcel. No further work is the recommended treatment for Site 2012. Despite the recommendation of no further work for the two recorded sites; the potential, however remote, still remains to encounter buried cultural deposits within the study parcel. Specifically, subsurface deposits or features associated with the agricultural terracing might be revealed, potentially producing further information relative to the temporal development of the terracing. For this reason it is recommended that an archaeological monitor be present during ground disturbance activities associated with the construction of the single-family dwelling. ii RC-0670 Contents INTRODUCTION.....................................................................................................................1 Scope of Work...........................................................................................................................1 Project Area Description ...........................................................................................................4 BACKGROUND.......................................................................................................................6 Previous Archaeological Research............................................................................................6 Culture-Historical Context........................................................................................................9 PROJECT EXPECTATIONS .................................................................................................23 FIELDWORK .........................................................................................................................23 Methods...................................................................................................................................23 Findings...................................................................................................................................24 Summary .................................................................................................................................38 SIGNIFICANCE EVALUATIONS AND TREATMENT RECOMENDATIONS................40 REFERENCES CITED...........................................................................................................41 APPENDIX A .........................................................................................................................44 Figures 1. Project area location..............................................................................................................2 2. Tax Map Key (TMK):4-5-2-12 showing the current study parcel (019). .............................3 3. Aerial view (from Google earth) showing the current project area.......................................4 4. Recent surveyor’s map of the study parcel............................................................................5 5. Current project area vegetation, view to south......................................................................6 6. Previous archaeological studies conducted within Kāhili Ahupua‘a. ...................................7 7. Distribution of Land Commission Award Claims within Kāhili Ahupua‘a........................15 8. Reproduction of a portion of a January 1925 “Map of Kahili Kuliana’s and Rice Plantation” prepared by the Kīlauea Sugar Plantation Company................................21 9. Portion of a 1948 “Map of Kilauea Sugar Plantation Company” prepared by T. Okomoto. ........................................................................................................................22 10. Project area plan view. ......................................................................................................24 11. SIHP Site 2011, view to east towards Field 2 (back) across Field 6 (front) and Field 3 (middle)..........................................................................................................26 12. SIHP Site 2011 Field 3 surface and retaining wall (left) with Field 6 to the right, view to north......................................................................................................................27 13. SIHP Site 2011 Field 3 retaining wall, view to southwest................................................27 iii RC-0670 iv 14. SIHP Site 2011 break for driveway in Field 3 retaining wall (Field 6 in foreground), view to southwest..............................................................................................................28 15. SIHP Site 2011 Field 5, view to north from Field 4 with Fields 6 and 7 in background..29 16. SIHP Site 2011, overview to east of the junction of the Field 5 and Field 6 retaining walls (location of Trench 3)...............................................................................................29 17. SIHP Site 2011 Field 6 (left) and Field 8 (right) with Kilauea Stream in background, view to northeast. ..............................................................................................................30 18. SIHP Site 2011 Field 7 (foreground), view to south from Field 6 with Field 5 in background....................................................................................................................31 19. SIHP Site 2011 Field 9, retaining wall (foreground), view to east. ..................................32 20. SIHP Site 2011 Trench-1 south wall profile and view to the west....................................33 21. SIHP Site 2011 Trench-2 south wall profile and view to the east.....................................34 22. SIHP Site 2011 Trench-3 south wall profile and view to the southeast............................35 23. SIHP Site 2012, concrete slab, view to east......................................................................36 24. SIHP Site 2012 plan view. ................................................................................................37 25. Construction detail along the eastern edge of Site 2012, view to northeast......................38 26. Map showing the current study parcel and the projected extent of Site 2011...................39 Tables 1. Land Commission Award claims (LCAw.) in Kāhili Ahupua‘a.........................................14 RC-0670 INTRODUCTION At the request of Tina Peterson of The Hendrikus Group, Inc., Rechtman Consulting, LLC conducted an archaeological inventory survey of a 0.735 acre parcel (TMK:4-5-2-12:019) located in Kāhili Ahupua‘a, Ko‘olau District, Island of Kaua‘i (Figures 1 and 2). The study parcel is a former kuleana that was awarded to Naiamaneo during the Māhele of 1848 as Land Commission Award (LCAw.) 10333. The current land owners plan to develop a single-family residence on the property. The proposed house will be of post and pier construction and the associated infrastructure will include a below grade septic system and buried utilities (water and electric). This report is intended to accompany an environmental assessment being prepared in compliance with HRS Chapter 343, as well as fulfill the requirements of the County of Kaua‘i Planning Department and the Department of Land and Natural Resources-State Historic Preservation Division (DLNR- SHPD) with respect to permit approvals for land-altering and development activities. The current project was undertaken in compliance with the historic preservation review process requirements of the Department of Land and Natural Resources-State Historic Preservation Division (DLNR-SHPD) as specified in Hawai‘i Administrative Rules 13§13–284. This report details the project objectives, scope of work, field methods and procedures, and survey findings. A brief archaeological and historical background is provided, which forms the basis for a set of project expectations. Recommendations addressing future historic preservation concerns are also offered. Scope of Work Given the nature of known archaeological resources in the general vicinity of the current project area and in accordance with the historic preservation review requirements of DLNR-SHPD, the following tasks were determined adequate to constitute an appropriate scope of work: (1) Conduct an archival search of the available archaeological and historical literature, historic documents and records, and cartographic sources relevant to the immediate project area; (2) Perform an intensive surface survey of the subject parcel, locating and documenting all archaeological sites and features; (3) Excavate a series of backhoe trenches to sufficiently sample subsurface deposits within the project area in an effort to identify buried archaeological material; and (4) Analyze the researched and recovered information and prepare a report of the findings that includes significance evaluations and recommendations for any subsequent historic preservation work that may be required. Project Area Description The current project area consists of a 0.735 acre parcel (TMK:4-5-2-12:019) located near the town of Kīlauea in Kāhili Ahupua‘a, Ko‘olau District, Island of Kaua‘i (see Figures 1 and 2). The parcel is situated on tableland at the top of a steep pali along the southeastern edge of Kīlauea Stream approximately 1.6 kilometers inland of the coast (Figure 3). Elevation within the project area ranges from roughly 60 to 80 feet (18-24 meters) above sea level. This area receives an average rainfall of 70 inches of per year and temperatures range from lows in the mid 60s (degrees Fahrenheit) to highs in the upper 80s throughout the year. Soils within the project area are classified as Puhi silty clay loam (PnE) (Foote et al. 1972). Access to the property is gained by following a partially paved road that runs north from Kolo Road to the parcel’s western boundary. The parcel itself is nicely landscaped, and has been previously developed. The prior landowner erected three separate, eight-sided, one room, living structures, and a smaller bath structure on the property, but two of the structures were mistakenly placed outside of the parcel’s boundaries (Figure 4). The structures are contained within a manicured lawn area that is bisected by several stone terraces (Figure 5). The lawn and terrace walls continue to the southeast beyond the boundaries of the study parcel. A wide variety of fruit trees and ornamentals have been planted within the lawn area. 1 Project area RC-0670 2 Figure 1. Project area location. Portion of U.S.G.S. 7.5 minute series quadrangle Anahola, HI Study parcel RC-0670 3 Figure 2. Tax Map Key (TMK): 4-5-2-12 showing the current study parcel (019). Project area RC-0670 4 Figure 3. Aerial view (from Google earth) showing the current project area. RC-0670 Figure 4. Recent surveyor’s map of the study parcel. 5 RC-0670 Figure 5. Current project area vegetation, view to south. BACKGROUND To generate a set of expectations regarding the nature of archaeological resources that might be encountered on the study parcel, and to establish an environment within which to assess the significance of any such resources, previous archaeological studies relative to the project area and a general historical context for the broader region are presented. Previous Archaeological Research Archaeological studies in the vicinity of the current project area began with Bennett’s 1928-29 survey of sites on the island of Kaua‘i conducted for the B. P. Bishop Museum. Bennett (1931) passed along the coast of Kāhili Ahupua‘a in search of Kipapa Heiau (Site 132), which was supposed to be situated “on the end of the first bluff east of Kīlauea River in the Kāhili section”. The presence of the heiau was first noted in T. G. Thrum’s Hawaiian Almanac and Annual for 1907. It was described by Thrum (1907) as “a large heiau of some 300 feet by over 100 feet in size, paved, walls five feet high, standing in a cane field in partial ruins.” Bennett (1931) found that in the twenty years between the publication of Thrum’s 1907 almanac and his visit the stones had been removed from the cane field, and no evidence of the heiau remained. To the east of Kāhili Ahupua’a in the neighboring ahupua‘a of Waikalua, Bennett (1931) noted the presence of taro terraces and house sites (Site 131) in two narrow gulches with permanent flowing streams. In more recent times archaeological surveys and excavations have been conducted makai of the current project area along the eastern bank of the Kīlauea Stream by Hammatt and Folk (1996), McGerty et al. (1997), Burgett et al. (2000), and McGerty and Spear (2001); at the coast by Elmore and Kennedy (2001, 2002, and 2004); and mauka of the current project area in Kāhili Ahupua‘a by Ida and Hammatt (1997). The findings of each of these studies are discussed below and their locations relative to one another and the current project area are shown in Figure 6. 6 Figure 6. Previous archaeological studies conducted within Kahili Ahupua‘a. 7 RC-0670 H mma t a d Fo k 199 )a t n l ( 6 . 0Burgett et al (20 0) n 1Ida a d Hammatt ( 997) urre t Pro ec A aC n j t re M G rty and Sp ar (2 01)c e e 0 Elmore and Kennedy (2002, 2004) El re n ned 2 0mo a d Ken y ( 0 1) Bennett (1931) aKip pa Heiau 2(SIHP Site 13 ) l eKi au a Stream i au BK l ea ay aKaluamakua StremS rWailapa t eam Ku Hig wahio h y ihTo L ue To Hanalei Nhii hup aKa l A ua McGerty et al. (1997) RC-0670 Hammatt and Folk (1996) conducted an archaeological inventory survey of a five acre portion of TMK:4- 5-2-21:005 located northeast of the current project area, along the southeastern bank of Kīlauea Stream (see Figure 6). During the survey three sites were recorded including a field system (Site 625), a charcoal kiln (Site 998), and a free-standing wall (Site 999). The field system consisted of leveled terrace plots that were located 40 to 60 feet above the flood plain of Kīlauea Stream on steep to moderate slopes. The terraces were thought to be irrigated by Kaluamakua Stream, a tributary of Kīlauea Stream. A single radiocarbon date was obtained from a scattered charcoal sample recovered within a trench excavated across one of the terraces. The sample, thought to originate from early land clearing activities associated with the creation of the field system, dated to the Precontact Period between A.D. 1400 and 1650. The charcoal kiln and wall were interpreted as having been built during the Historic Period use of the parcel. As a result of the study Site 625 was recommended for preservation through avoidance, and Site 998 and 999 were recommended for no further work. McGerty et al. (1997) conducted an archaeological inventory survey of a portion of TMK:4-5-2-21:007 located northeast of the current project area, and slightly southeast of Kīlauea Stream (see Figure 6). The project area was adjacent to several former LCAw. parcels, but it did not include any of the kuleana within its boundaries. As a result of the survey four sites containing a total of 47 features were recorded on the property. A total of seven stratigraphic trenches and nine test units were also excavated throughout the site areas. The recorded sites included a Precontact/early Historic habitation complex (Site 974) with twenty-six component features consisting of alignments, faced terraces, a wall, an enclosure, two pit features, a hearth, and an imu; a possible burial area (Site 975) with nine component features consisting of enclosures, alignments, terraces, and a wall; a Precontact/early Historic habitation complex (Site 976) with seven component features consisting of enclosures, terraces, and a post hole; and a late Precontact/early Historic Period agricultural complex (Site 977) consisting of an alignment and two terraces. All of the recorded sites had been impacted by modern land clearing activities. A charcoal sample recovered from the post hole at Site 976, offered evidence for the earliest occupation of the area, placing it between A.D. 1400 and 1520. As a result of the survey Sites 974 and a portion of 975 were recommended for data recovery, the remainder of Site 975 and Site 976 were recommended for preservation, and Site 977 was recommended for no further work. Ida and Hammatt (1997) conducted an archaeological inventory survey of an 89 acre parcel (TMK:4-5-1- 05:052) located mauka of Kūhio Highway to the southeast of the current project area along the eastern boundary of Kāhili Ahupua‘a (see Figure 6). The project area consisted primarily of gently sloping pasture that was once cultivated in sugarcane. Two gulches, containing Wailapa and Kulihā‘ili Streams, also crossed the parcel. These gulches were not used for sugarcane cultivation. They were fully explored, but no evidence of traditional Hawaiian use was observed. As a result of the survey four sites related to the Historic Period use of the property for commercial sugarcane cultivation were recorded. These sites included a metal irrigation flume (Site 640), an irrigation tunnel and connecting ditch (Site 641), a mortared stone culvert in a natural swale (Site 642), and a tunnel that served as a culvert under an old railroad grade (Site 643). These sites were fully documented during the inventory survey, and all four were recommended for no further work. Burgett et al. (2000) conducted an archaeological inventory survey of a 27.56 acre parcel (TMK:4-5-2- 21:006) located northeast of the current project area, also along the southeastern bank of Kīlauea Stream (see Figure 6). The parcel contained three former kuleana within its boundaries; LCAw. 10015 in its entirety, and small portions of LCAws. 9067 and 10083. Three sites were identified on the parcel as a result of the survey work including two Precontact/early Historic agricultural complexes (Sites 632 and 1993) and a possible Historic burial area (Site 633). Site 632 consisted of 56 features including modified outcrops, stone alignments, cobble filled cracks, terraces, boulder alignments, walls, upright stones, cupboards, and cleared overhangs that were recorded on a moderate to steep slope above the floodplain of the stream. Site 1933 consisted of remnants of a pondfield system recorded within the floodplain area of Kīlauea Stream. No surface features were recorded at this site, but four trenches excavated within the pondfields exhibited stratigraphic deposits associated with the construction of berms and indicative of different crop growing sequences. Site 633 was the location of an unmarked grave on LCAw. 10015. The area was identified by Mr. Kaipo Chandler as the final resting place of his uncle Thomas Goodman who died in 1929. The grave was located in a flat area near a house that Mr. Chandler had helped build in the 1960s from pieces of pre-existing structures at the same location. As a result of the survey Sites 632 was recommended for no further work, and Sites 633 and 1933 were recommended for preservation. 8 RC-0670 McGerty and Spear (2001) conducted an archaeological inventory survey of a roughly six acre parcel (TMK:4-5-2-21:004) located northeast of the current project area, along the southeastern bank of Kīlauea Stream (see Figure 6). Three archaeological sites were recorded on the property as a result of the inventory survey. The site numbers previously assigned by Hammatt and Folk (1996) to sites recorded on TMK: 4-5-2- 21:005 immediately north of the project area were also assigned to these three sites. Site 625 consisted of fifty- one agricultural features including a number of terraces, lo‘i terraces, an ‘auwai section, a wall, and a pavement, that were a continuation of the agricultural features recorded by Hammatt and Folk (1996) on the adjoining parcel along Kīlauea Stream. Site 998 was assigned to a charcoal kiln [distinct from the one recorded by Hammatt and Folk (1996)] that had been partially destroyed by bulldozing. Site 999 was assigned to a pavement, that like the wall recorded by Hammatt and Folk (1996), also dated to the Historic Period. Twelve shovel probes were excavated throughout the project area, and a charcoal sample recovered from one probe yielded a conventional radiocarbon age of 290±70, confirming that the agricultural fields were created during Precontact times. Artifacts identified within the project area included a possible basalt flake, a basalt adze, and a number of Historic artifacts including ceramic fragments and bottle glass that were indicative of domestic use of the area during the late nineteenth and early twentieth centuries. As a result of the inventory survey Site 625 was recommended for preservation and Sites 998 and 999 were recommended for no further work. Elmore and Kennedy (2002) conducted an archaeological inventory survey of a portion of a roughly 44 acre parcel (TMK:4-5-1-5:016) located at the coast along the eastern bank of the Kīlauea Stream within Kāhili Ahupua‘a (see Figure 6). The project area surrounded a single kuleana parcel (LCAw. 10082; TMK:4-5-1- 5:005 that was previously surveyed by Elmore and Kennedy (2001). The project area was also very near the former location of Kipapa Heiau (Site 132). As a result of the survey three sites including an agricultural/habitation complex with twenty-seven features (Site 515), a habitation site at the coast with a subsurface deposit and a terrace (Site 1035), and a rock wall (Site 1036) were recorded. Site 515, originally recorded by Elmore and Kennedy (2001), extended from the southern boundary of the Elmore and Kennedy (2002) project area along both sides of Wailapa Stream into the kuleana parcel along Kīlauea Stream. A two sigma calibrated radiocarbon date of A.D. 1262-1523 was obtained from charcoal recovered at Site 1035 during the inventory fieldwork. As a result of the inventory survey Sites 515 and 1035 were recommended for further data recovery, and Site 1036 was recommended for no further work. Data recovery of Sites 515 and 1035 was conducted by Elmore and Kennedy (2004). Excavations at Site 515 revealed two phases of construction, with the initial construction of terraces occurring around A.D. 1500 and subsequent construction occurring around A.D. 1700. Work at Site 1035 revealed that the date of A.D. 1262- 1523 obtained during the inventory survey was perhaps too early for the initial occupation of the site, as more recent dates were obtained from a deeper context. Elmore and Kennedy (2004) suggest that the initial occupation of Site 1035 may have actually occurred during the 1500s, and that use of the site may have continued into the 1700s. an abundance of marine shells, fishhooks, and tools used for fishhook manufacture were recovered from the excavations suggesting that residents of Site 1035 were primarily engaged in fishing related activities and the gathering of shellfish. A shell button recovered from the site indicates that it was utilized into early Historic times. The terrace recorded at Site 1035 was found to be of questionable integrity during the data recovery investigations. Modern additions were noted at the feature, and subsurface excavations revealed only a very small amount of cultural debris, suggesting that the feature may have been constructed for camping purposes during modern times. Culture-Historical Context In Hawaiian society, natural and cultural resources are one and the same. Native traditions describe the formation (the literal birth) of the Hawaiian Islands and the presence of life on and around them in the context of genealogical accounts. All forms in the natural environment, from the skies and mountain peaks, to the watered valleys and lava plains, and to the shoreline and ocean depths were believed to be embodiments of Hawaiian deities. One Hawaiian genealogical account, records that Wākea (the expanse of the sky–father) and Papa-hānau-moku (Papa—Earth-mother who gave birth to the islands)—also called Haumea-nui-hānau-wā-wā (Great Haumea—Woman-earth born time and time again)—and various gods and creative forces of nature, gave birth to the islands. As the Hawaiian genealogical account continues, we find that these same god-beings, 9 RC-0670 or creative forces of nature who gave birth to the islands, were also the parents of the first man (Hāloa), and from this ancestor, all Hawaiian people are descended (cf. Beckwith 1970; Malo 1951:3; Pukui and Korn 1973). It was in this context of kinship, that the ancient Hawaiians addressed their environment and it is the basis of the Hawaiian system of land use. Archaeologists and historians describe the inhabiting of the Hawaiian Islands in the context of settlement that resulted from voyages taken across the open ocean. For many years, researchers have proposed that early Polynesian settlement voyages between Kahiki (the ancestral homelands of the Hawaiian gods and people) and Hawai‘i were underway by A.D. 300, with long distance voyages occurring fairly regularly through at least the thirteenth century. It has been generally reported that the sources of the early Hawaiian population—the Hawaiian Kahiki—were the Marquesas and Society Islands (Emory in Tatar 1982:16-18). For generations following initial settlement, communities were clustered along the watered, windward (ko‘olau) shores of the Hawaiian Islands. Along the ko‘olau shores, streams flowed and rainfall was abundant, and agricultural production became established. The ko‘olau region also offered sheltered bays from which deep sea fisheries could be easily accessed, and near shore fisheries, enriched by nutrients carried in the fresh water, could be maintained in fishponds and coastal waters. It was around these bays that clusters of houses were first established. The communities shared extended familial relations, and there was an occupational focus on subsistence level agriculture and fishing (Handy and Handy 1972). Over a period of several centuries areas with the richest natural resources became populated and perhaps even crowded, and by about A.D. 900 to 1100, the population began expanding to the kona (leeward) sides and more remote regions of all the major islands (Cordy 2000). Initially, agricultural plots were clustered along streams and rivers in the deep well-watered valleys, but by the fourteenth century, inland elevations were being turned into dryland agricultural fields. By the fifteenth century, residency in the uplands was also becoming permanent, and there was an increasing separation of the chiefly class from the common people. During the sixteenth century the population stabilized and the ahupua‘a land management system was established as a socioeconomic unit (see Handy and Handy 1972; Kamakau 1992 [1961]; Kirch 1985). Entire ahupua‘a, or portions of the land were generally under the jurisdiction of appointed konohiki or lesser chief-landlords, who answered to an ali‘i-‘ai-ahupua‘a (chief who controlled the ahupua‘a resources). The ali‘i-‘ai-ahupua‘a in turn answered to an ali‘i ‘ai moku (chief who claimed the abundance of the entire district). Thus, ahupua‘a resources supported not only the maka‘āinana and ‘ohana who lived on the land, but also contributed to the support of the royal community of regional and/or island kingdoms. This form of district subdividing was integral to Hawaiian life and was the product of strictly adhered to resources management planning. In this system, the land provided fruits and vegetables and some meat for the diet, and the ocean provided a wealth of protein resources. Also, in communities with long-term royal residents, divisions of labor (with specialists in various occupations on land and in procurement of marine resources) came to be strictly adhered to. Early twentieth century works such as Handy and Handy (1972) give a general view of traditional land use throughout Hawai‘i that illustrates the complexity and ingenuity of ancient Hawaiians. Hawaiian homes at the time of European contact were “typically…scattered through the areas cultivated from forest to sea” (Handy and Handy 1972:vii). The land was named and the names had specific reference to use. Common terms used for various areas or regions that comprised the Hawaii planter’s environment were ko kaha kai—land along the shore where the Polynesian migrants first settled in the Hawaiian Islands; kula—plains or sloping lands between the mountains and sea where there were no trees, but where there was often great stretches of pili grass and sweet potatoes grew well (the lands seaward were ko kula kai, and the lands toward the mountain were ko kula uka); and kahawai—the area beyond or intersecting the kula lands (literally “the place [having] fresh water”), in other words, the fertile valleys carved out by flowing streams that descended from the forested uplands to the sea where Hawaiian planters diverted stream water through ditches (‘auwai) into leveled garden terraces (lo‘i) for the cultivation of taro (Handy and Handy 1972:54-55). The current project area is located along the northeastern shore of the Island of Kaua‘i within the District of Ko‘olau along the western boundary of Kāhili Ahupua‘a next to Kīlauea Stream (see Figure 1). This relatively small ahupua‘a (ca. 1,396 acres) is bounded to the west by the larger ahupua‘a of Kīlauea, and to the 10 RC-0670 east by the smaller ahupua‘a of Waiakalua and the larger ahupua‘a of Pīla‘a. It extends inland from the coast to Pu‘u Leleiwi at an elevation of roughly 2,400 feet above sea level where it is cut off by Moloa‘a Ahupua‘a. At the coast Kāhili Ahupua‘a includes Kīlauea Bay and Makalea Point with their narrow but continuous coral reef and near shore fisheries. Much of the land between the mountains and sea is dissected by alternating ridges and short, irregular valleys, but the middle portion of the ahupua‘a encompasses a fairly level tract of land that is well suited for kula agriculture (Ida and Hammatt 1997). The major fresh waterway of the region, Kīlauea Stream, forms a portion of the western boundary of Kāhili Ahupua‘a near the coast. Two smaller streams, Wailapa and Kaluamakua, course through the middle of the ahupua‘a from south to north emptying into Kīlauea Stream. It was in these stream valleys (the kahawai) that pondfield agriculture was practiced. Handy and Handy note that “on the island of Kaua‘i there were five areas where development of food resources produced concentration of population . . . the southward [of Napali] were localities where irrigated taro was cultivated extensively in terraces, termed lo‘i: at Ha‘ena, Hanalei, and Kīlauea, the latter having a noteworthy development of aqueducts for irrigation” (1972:269). They go on to describe the traditional Hawaiian use of land within the Ko‘olau District of Kaua‘i, and provide the following notes on the ahupua‘a of Kāhili (and the neighboring ahupua‘a of Kīlauea): Kilauea is watered by a small river whose headwaters take the flow of streams above Kalihiwai as well as those coming down sloping kula lands above Kilauea. This is a peculiar terrain, with terraces along the north side of the river toward its seaward end belonging to Kilauea and those on the south side to the small ahupua'a named Kahili. A mile upstream is a small terraced area, but beyond this there were no terraces, for the main stream flows in a narrow gulch, and so do other side streams which flow into the Kilauea River. Hawaiians evidently never developed lo‘i here because the neighboring kula land is too high above the streams for irrigation. This kula would have been excellent sweet-potato land. On the whole, Kilauea, despite a sizable river flowing through it, was a relatively small producer of taro because of the nature of its hinterland. Kahili is, as indicated above, part of the complex that includes Kalihiwai, Kalihikai and Kilauea. The three streams empty into the Kilauea River, which forms the boundary between Kilauea and Kahili below the falls of the river. There are terraces on the south side of Kilauea River watered by two of Kahili's streams. This is doubtless why this area was part of Kahili rather than of Kilauea. Only one stream had terraces back from the river. Here too the kula land was good for sweet-potato planting. (Handy and Handy 1972:421) There are limited legendary and ethnohistorical references to the general study area, which is located along the boundary between Kīlauea and Kāhili ahupua‘a. Within “The Story of Lonoikamakahiki” in the collections of Fornander (1916-1917), there are several chapters about Hawai‘i Island’s ali‘inui Lonoikamakahiki and his travels abroad, including his travel to Kaua‘i with his friend Kapaihiahilina. In one passage in this mo‘olelo, some bad news has reached Kapaihiahilina who is on Kaua‘i for a visit. Apparently, a couple of jealous chiefs created stories saying that Kapaihiahilina was not loyal to Lono and that he had been dishonoring him. As a result, Lono separates himself from his former friend. So Kapaihiahilina sets out to go back to Hawai‘i Island, to find Lono and explain to him that there has been a misunderstanding. On the way he composes an oli or chant praising Lono and reminding him about their travels together and their long friendship. In one stanza of the chant, Kapaihiahilina reminisces about his and Lono’s travel through Kīlauea and Kāhili and the pandanus trees (hala) that provided them shelter from the rain and sustenance appeasing their hunger (Fornander 1916- 1917:356-358). Kīlauea is also mentioned by Kamakau in The Works of the People of Old: Na Hana a Ka Po‘e Kahiko [written as newspaper articles from October 1869 to November 1870 and later translated by Mary Kawena Pukui]. This is in reference to volcanic fire in ancient Hawai‘i, which was first seen at Kīlauea on the island of Kaua‘i: 11 RC-0670 Volcanic fire is more recent, say the traditions of ka po‘e kahiko. It was not seen in the time of Wakea, nor in the time of Maui-a-Kalana, Heleipawa, Punaimua, nor La‘amakahiki. It was after that that the first volcanic fire was seen – at Kilauea, Kalihi, Kauai. After that it was seen at ‘Alia, in Moanalua, O‘ahu, and afterward at Haleakala on Maui, and then at Kilauea on Hawaii. (Kamakau 1976:117) Ancient legends concerning the exploits and achievements of the early Kaua‘i chiefs are largely incomplete. According to Fornander (1996) the line of mō‘ī (sovereigns) of Kaua‘i seems to have been kept in the branch of the Laamaikahiki family that descended from his second son, Ahukini a Loa, who is said to have migrated to the islands from Samoa. Fornander regales this line of rulers with praise stating that the “ruling families of Kauai were the highest tabu chiefs”, and that “they were always considered the purest of the . . . Hawaiian aristocracy” (1996:291). From Ahukini a Loa the reign of the island kingdom passed along the male line to Kamahano, then to Luanuu, and on to Kukona. It was during Kukona’s reign near the end of the fifteenth century that Kalaunuiohua, the chief of Hawai‘i Island, invaded Kaua‘i, only to be defeated (Fornander 1996). Kalaunuiohua, attacked the island with the captured chiefs of O‘ahu, Moloka‘i, and Maui in tow. Kukona, after defeating Kalaunuiohua, set the captive chiefs free and held the chief of Hawaii Island prisoner for many years. Fornander notes that only the royal genealogies of the early Kaua‘i leaders remain, and that the legends have perished, but that “the war with the Hawaii chief, and the terrible defeat and capture of the latter, as well as Kukona’s generous conduct towards the Oahu, Molokai, and Maui who fell into his hands after the battle, brought Kaua‘i back into the family circle of the other islands, and with an eclat and superiority which it maintained to the last of its independence” (1996:93). After Kukona, the rule of the island passed to his son Manokalanipo, who was known for his energy and wisdom, encouragement of agriculture and industry, and works of irrigation and cultivation that that brought fields to the wilderness. His rule was remembered in legend as the golden age of the island, and his name was affixed as a sobriquet to island that he ruled, which in epical and diplomatic language was forever after known as “Kauai-a-Manokalanipo” (Fornander 1996:93). The reign of Kaua‘i then followed the male line from Manokalanipo, to Kaumakaamano, to Kahakuakane, to Kuwalupaukamoku, and on to Kahukumakapaweo. No legends remain of the first three heirs to follow Manokalanipo, but Kahukumakapaweo was remembered with renown as a good, wise, and liberal ruler. Following the rule of Kahukumakapaweo, because of later historic events, the legends of the Kaua‘i chiefs are once again disconnected and the genealogies are few. It appears the reign passed along the male line from Kahukumakapaweo, to Kalanikukuma, to Kahakumakalina, to Kamakapu, to Kawelomahamahaia, and on to Kawelomakualua. About this time the Ilihiwalani branch of the Kaua‘i royal family became the ali‘i ‘ai moku of Waimea and the southwestern side of the island, but Kawelomakualua remained the titular mō‘ī of Kaua‘i. Kawelomahamahaia and his son Kawelomakualua are remembered in chants and legends as two of the great rulers of Kaua‘i who presided over a time of peace when the population and wealth of the island kingdom increased (Fonander 1996). The next ruler of Kaua‘i was Kaweloaikanaka, the son of Kawelomakualua. For reasons unknown Kaweloaikanaka banished his cousin Kawelo a Maihunalii to O‘ahu. Kawelo a Maihunalii was given land in O’ahu, but he eventually returned to Kaua‘i where he overthrew his cousin. With the death of Kaweloaikanaka, Kawelo a Maihunalii became the mō‘ī of Kaua‘i. It is said that when Kawelo a Maihunalii became old he was thrown over a cliff by rebellious subjects, thus ending his reign (Fornander 1996). Upon the death of Kawelo a Maihunalii the island of Kaua‘i became divided amongst two chiefs. Kualii of O‘ahu, the great grandson of Kawelomahamahaia, inherited rule over the windward side of the island, and Kauakahilau, of the Ilihiwalani branch of the Kaua‘i royal family, retained control of the Kona side of the island (Fornander 1996). Although often referred to as mō‘ī of Kaua‘i, Kualii did not reside there, but chose to remain in O‘ahu, visiting only occasionally. Eventually, when he grew old he did move to Kaua‘i, and he placed his son, Peleioholani, as viceroy over the island. The son of Kaukahilau, Lonoikahaupu, inherited control of the west side of the island. From this time forward, until the arrival of the first European explorers in the islands, the succession of rulers on the island of Kaua‘i is uncertain (Fornander 1996). What is known is that Lonoikahaupu had a son, Kaumeheiwa, who married Kaapuwai, and they had a daughter named Kamakahelei. According to Fornander (1996) Kamakahelei was the mō‘ī of Kaua‘i when British explorer Captain James Cook became the first 12 RC-0670 European to visit the island in January of 1778. According to Kuykendall (1938), Kaneoneo was actually the chief of Kaua‘i in 1778, but by 1779 when the explorers returned to the island he was in the process of being deposed by Queen Kamakahele and her new second husband Kaeokulani, the younger brother of Kahekili, the mō‘ī of Maui (Fornander 1996). Kamakahele and Kaeokulani had a son named Kaumuali‘i, who upon the death of his mother became the ruler of Kaua‘i. When Captain George Vancouver visited the Hawaiian Islands in 1792 he met Kaumuali‘i, whom he described as being about fourteen years old and of whom he gave a very favorable account. Historical records describe how during the conquest of the Hawaiian Islands by Kamehameha I, Kaumuali‘i avoided personal defeat through a peaceable transfer of power. He established a will that left Kaua‘i to Kamehameha upon Kaumuali‘i’s death. Although subject to Kamehameha during the remainder of his life, Kaumuali‘i retained leadership over the island. Kamehameha died five years before Kaumuali‘i. Upon Kaumuali‘i’s death in 1824 his agreement to Kamehameha was honored, rather than the traditional reassignment of lands to local chiefs, the O‘ahu powers selected and installed Kaumuali‘i’s nephew (Kahalaia) as the new chief of Kaua‘i. The O‘ahu chief Kalanimoku was sent to Kaua‘i to inform the local chiefs. The local chiefs rebelled, and a bloody one-sided battle ensued. Well-armed and well-trained warriors were sent to Kaua‘i from O‘ahu and Maui to support Kalanimoku. The ill-prepared farmers of Kaua‘i were easily defeated. Kaikiohewa was appointed governor and the lands were re-divided with the best tracts going to the “loafers and hangers-on (palaualelo) of O‘ahu and Maui” (Kamakau 1992:269). “Thus, the old order of political power on Kaua‘i is dissolved and displaced by a new society of konohiki (land managers) who descend from O‘ahu and Maui lines” (Silva 1995:4). Liholiho (Kamehameha II) also died in 1824, and Kaua‘i came under the leadership of Kauikeaouli (Kamehameha III), until his death in 1854, when control of the island transferred to Kamehameha IV. The first historic documentation of the Kīlauea/Kāhili area comes from journals, diaries, and newspaper articles from the middle to late 1800s. In 1835, the newspaper Ke Kumu reported 80 adults and 11 children living in Kāhili. By 1847 the population of the Kāhili-Kīlauea area was reported as 240 individuals (Schmitt 1969). William Alexander (1991) provides a description of the eastern side of Kaua‘i as seen in 1849 on horseback during a tour of the island. At that time Kīlauea Stream was known as Kāhili Stream. . . . But the beauty of the country was the abundance of water. Every valley, large or small had its stream. About five miles from Anahola we crossed Molowa [Moloaa] valley a most beautiful spot. There is a village here . . . The country near this place has been lately burnt over, but the vegetation is springing up anew. A ride of five miles from this valley over hill and dale, brought us to a grove of venerable kukui trees . . . A little farther on we entered groves of hala, through which we continued to ride during the rest of our journey. We turned from the road to see the falls of Kahili river. Though not large they are beautiful. Here the river falls in a jet of foam over a precipice of about 40 feet into a broad clear basin below. (Alexander 1991 in McGerty et al. 1997:9) Dole (1892) described the agricultural resources of Kaua‘i and mentioned Kīlauea Gulch by saying “great engineering enterprises were undertaken, such as the irrigation systems of Wahiawa, Kapaa and Kilauea on the island of Kauai.” He continued, “the antiquity of some of these is so great that even tradition fails to account for their origin, as in the case of the parallel irrigation ditches at Kilauea, the digging of which is attributed by the Hawaiians to the fabled mo‘o or dragon.” Indeed, the ditches in the Kīlauea area are of note, but most were constructed during the Historic Period and are associated with sugarcane cultivation. The socioeconomic and demographic changes that took place in the period between 1790 and the 1840s, promoted the establishment of a Euroamerican style of land ownership, and the Māhele was the vehicle for determining ownership of the native land. During the Māhele the land interests of the King (Kamehameha III), the high-ranking chiefs, and the low-ranking chiefs (the konohiki) were defined. The chiefs and konohiki were required to present their claims to the Land Commission to receive awards for lands provided to them by Kamehameha III. They were also required to provide commutations to the government in order to receive royal 13 RC-0670 patents on their awards. The lands were identified by name only, with the understanding that the ancient boundaries would prevail until the land could be surveyed. This process expedited the work of the Land Commission and speeded the transfers (Chinen 1961:13). During the Māhele all lands were placed in one of three categories: Crown Lands (for the occupant of the throne), Government Lands, and Konohiki Lands. All three types of land were subject to the rights of the native tenants therein. All three types of land were subject to the rights of the native tenants therein; those individuals who lived on the land and worked it for their subsistence and the welfare of the chiefs. Native tenants could claim, and acquire title to, kuleana parcels that they actively lived on or farmed at the time of the Māhele. The Kuleana Act of December 21, 1849 provided the framework by which native tenants could apply for and receive fee- simple interest in their kuleana lands from the Land Commission. The Board of Commissioners over saw the program and administered the lands as Land Commission Awards (LCAw.). Not all lands that were claimed were awarded. As a result of the Māhele Kāhili Ahupua‘a was awarded in its entirety to William Lunalilo (LCAw. 8559B), who later became the Hawaiian Monarch reigning between 1873-1874. Nine claims for kuleana were made in Kāhili Ahupua‘a, but only eight were awarded (Table 1 and Figure 7). The current project area was awarded in 1848 to Naiamaneo as LCAw. 10333. Naiamaneo was the widow of O‘opu who died in 1847. Her husband was given this land by the konohiki in the days of Kamuali‘i (prior to 1824). Naiamaneo claimed that her house was elsewhere and that the kuleana consisted of several small irrigated taro fields (lo‘i) and adjacent kula (flat) land in the ‘ili (section of land smaller than an ahupua‘a) of Kupa (Appendix A). The Māhele records indicate that the lower reaches of Kīlauea Gulch (primarily in Kāhili Ahupua‘a) supported more than twenty-five lo‘i, house sites, and kula land where noni (Morinda citrifolia), wauke (Broussonetia papyrifera) and oranges were cultivated (McGerty and Spear 2001). Table 1. Land Commission Award claims (LCAw.) in Kāhili Ahupua‘a. LCAw. # Awardee ‘Āpan a ‘Ili Land use 8559B Kanaina for 1 Lunalilo Entire ahupua‘a - 9067 Keo 3 1.Kilauea Ahupua‘a 2.Kanaele 3.Uleulehu House lot 5 lo‘i and kula (2 mala of wauke) 2 lo‘i 10013 Leimanu 3 1.Kaukahiwai 2.Kaukahiwai 3.Manohala House lot, 3 lo‘i, and kula (pasture) 2 lo‘i Kula (pasture) 10013B Mokuhalii 2 1.Kapunahoe 2.Hoopala House lot and kula (pasture/orange tree) 5 lo‘i 10015 Luakini 2 1.Kilauea Ahupua‘a 2.- House lot 2 lo‘i and kula (2 orange trees) 10082 Mamao 1 1.Makaihuwaa House lot and (6?) lo‘i 10083 Mamuakalono 1 1.- 1 lo‘i (noni, wauke, and house lot also mentioned) 10333 Naiamaneo 1 1.Kupa 1 field of kalo (a number of small lo‘i and adjacent kula) 10564* D. Oleloa - - 4 taro lo‘i *claim not awarded. 14 igure 7. Por ion of TM :5-2-04 showing Land Commission A ards in Kahili A upua‘a (adapted from Hammatt and Fol 19 6).F t Kwh k 9 15 RC-0670 Project Area RC-0670 The neighboring ahupua‘a of Kīlauea was retained as Government Land during the Māhele. Eight kuleana claims were made in this ahupua‘a, but only one was awarded. In 1863 Charles Titcomb purchased the entire ahupua‘a of Kīlauea as Grant No. 2896. With the land Charles Titcomb later founded the Kilauea Sugar Plantation. The nineteenth century was a time of rapid change in Hawai‘i. With the shift to a Western style economy and the introduction of new industries, many of the kuleana claimants struggled to hold onto their lands. The ultimate fate of many of the Māhele claims was perhaps not unlike the fate of the claim described below: Between Kamo‘okoa and the sea, the Kilauea River flows across a fertile plain. At the time of the Mahele in 1848 a man named Kealawa‘a made a claim for land he had once cultivated with sweet potatoes. Within two years, Kealawa‘a abandoned his claim, saying, “The land is being filled with cattle and I have no desire to combat them.” Cattle had been brought to Kauai by Captain George Vancouver in 1791. They were set ashore with a strict taboo on them to insure their safety. The cattle went wild, and as they multiplied they caused a great deal of destruction to plants and land. The last of the wild cattle were shot in 1939. (Wichman 1998:103) In 1862, the Commission of Boundaries (Boundary Commission) was established in the Kingdom of Hawai‘i to legally set the boundaries of all the ahupua‘a that had been awarded as a part of the Māhele. Subsequently, in 1874, the Commissioners of Boundaries was authorized to certify the boundaries for lands brought before them. The primary informants for the boundary descriptions were old native residents of the lands, many of which had also been claimants for kuleana during the Māhele. The information was collected primarily between A.D. 1873 and 1885. The testimonies were generally given in Hawaiian and simultaneously transcribed in English. On August 20, 1873 Duncan McBryde, Commissioner of Boundaries, Island of Kaua‘i received petition from Charles R. Bishop, agent for his majesty, King Lunalilo, requesting that the boundary of Kāhili Ahupua‘a, belonging to his Majesty King Lunalilo be defined and settled (Boundary Commission, Kaua‘i, Vol. 1: 90-93). The boundary hearing was set for May 26, 1874. Kalama and Kapule, both native residents of the area, testified concerning the boundaries of Kāhili. Kalama had lived in Kāhili since the time of the last battle on Kaua‘i [ca. 1824], and he had learned the boundaries from his father Uaa and his grandfather Naluahi. Kapule resided in Waiakalua at the time of his testimony, but he was born in Kāhili and he learned the boundaries of the ahupua‘a from his parents. The official boundary decision was arrived at based on the testimony of these two men. The current project area may have been part of the taro land (“aina Kalo”) named Makuaokoohi. The description of the boundaries of Kāhili Ahupua‘a is as follows: Commences on the sea shore at a place called Manohoniu ledge of rocks and Thence to top of ridge called Puukuahiki. Thence down side or face of hill to a Rock in the river near the edge, and called Koaula. Thence up along side of right bank of river to Aihoe. Thence up same side of river to a large Kalo patch called Kaluawai. Thence following up same side of river to a ala tree called Poako. Thence up river to Kala patch called Kamalohale. Thence up same side to Kala patch and hala tree Kukuilalani. Thence up same side to stones near aina Kala called Hoolohinui, continuing up same side to aina Kalo called Makuaokoohi. Thence up below (stoney) ledge to first rapids of river Pohakiki. Thence across river to stones close to bank called Kaneauaheo. Thence runs up hill through stoney and rocky ground to Puhala grove called Pohakupu. Thence up to edge of stoney brow Kukuinui. Thence up ridge through puhala trees to a short distance above small bridge on Government Road, Punanana. Thence up ridge and across gulch to Kapukaele. Thence through a small stream called by the same, to a broad kula land called Wailalaau. Thence up through forest to a stone called Kamaluaionohi thence up ridge to Kalaupala. The boundary then turns in a southerly direction to Puauaka & Thence down Easterly Boundary to Waterfall, Waihipololei. Thence to stones Pohakuwaawaa. Thence- to large Kukui trees Pohakueleele. Thence to small stream Pukohikii. Thence to hau trees gulch and stream below ridge Kaluamakua. Thence to old 16 RC-0670 residing place Pahulimu. Thence to ridge above small stream near Government road to Puuanui. Thence through western side of large Kalo patch Kulihaile. Thence to near a mound where there was formerly a school house and called Kaula. Thence down ridge to Kaiwa and thence to a place where offerings used to be made called Oaakeahi (this place is in Kaiwa) thence to Koia rocks on sea shore and thence out and round reef to place of commencement. (Boundary Commission, Kaua‘i, Vol. 1: 90-93in Ida and Hammatt 1997:Appendix C) The more recent history of the Kīlauea/Kāhili area is entwined in the nearly 100-year long presence of the sugarcane industry in the region and a myriad of personalities. One of the early foreigners to settle in Kaua‘i was a Yankee whaler named Charles Titcomb who came to the island in 1836. He was originally hired by William Hooper of the Koloa Sugar Plantation as an overseer, and later started his own ventures. As Takaki (1982) writes: In Koloa . . . the Hawaiian natives noticed in 1835 the arrival of William Hooper of Boston, Massachusetts . . . Hooper . . . represented the beginning of a new era in the history of Hawaii. Sent to Koloa by Ladd and Company of Honolulu to establish the first plantation in the Sandwich Islands and to cultivate sugar cane as a cash crop, he was there to remake Hawaii in his own image: to advance American capitalism and civilization to a new Pacific frontier, undermining in the process the feudal society of Hawaii and the people's traditional relationship with their land. (Takaki 1982:32-33). To help him supervise his native workers, Hooper employed white overseers, but he discovered that sometimes the overseers themselves needed to be broken in, to be introduced to the system of stern plantation discipline. On one occasion, a recently hired overseer named Titcomb had overheard a conversation among the workers expressing dissatisfaction with their wages . . . ‘I [Hooper] very calmly told him [Titcomb] that if he would take a whip and undertake to drive off the natives from his land, he would in my opinion have experiences enough to last him a month’ (Takaki 1982:42) Charles Titcomb was involved in several ventures on Kaua‘i starting in Koloa, and then in Hanalei, and winding up in Kīlauea. According to Joesting (1984) the lease for the first sugar plantation on Kaua‘i at Koloa was signed on July 29, 1835 between Kamehameha III, Kaikioewa, governor of Kaua‘i, and the three partners of Ladd and Company: William Ladd, Peter Brinsmade and William Hooper. After its establishment several “outsiders” flocked to Koloa. “They seemed to be an independent breed of men, most of them were former sailors who decided to come ashore” two of which were “Charles Titcomb and Sherman Peck who raised mulberry trees to feed silkworms” (Joesting 1984:131, 139, 147). Titcomb and Peck leased land from Ladd and Company on which they planted thousands of mulberry slips so that silkworms could feed on them. However, a severe drought diminished hopes of success and by 1841, with no capital left in their Koloa partnership, Titcomb and Peck went their separate ways. Titcomb replaced his mulberry plants in his Hanalei holdings with coffee, which he also planted in Kīlauea. In the middle 1800s a labor shortage saw the arrival of Chinese to work the various plantations in Hawai‘i. Titcomb “took on some Chinese at his coffee plantation at Hanalei,” but drought and competition with the California market eventually led to its downfall (Joesting 1984:147-149). In 1863 Titcomb sold 750 acres of his Hanalei lands for $29,000 to Robert C. Wyllie, a Scotsman, foreign minister of the Kingdom, and an already established sugar plantation owner in Hanalei. Titcomb had already converted the Hanalei lands from coffee to sugar (Joesting 1984:180- 182). With his new funds, Titcomb was able to purchase the ahupua‘a of Kīlauea from Kamehameha IV (OSP 1992:11). By 1872 Titcomb had an established sugar and ranching operation on his Kīlauea lands. Titcomb had one of four sugar mills on the island of Kaua‘i. “The mill at Kilauea was certainly small and improvised, built by the industrious Charles Titcomb, who was ranching and growing sugarcane at that time” (Joesting 1984:218-219). Condé and Best note “It was one of the smallest plantations in the Hawaiian Islands operating its own sugar mill” (1974:159). By 1876, when the Reciprocity Treaty was signed, “never before had Kaua‘i seen such activity—so many new people and amazing machinery” (Joesting 1984:215). 17 RC-0670 An article in the Honolulu Star-Bulletin on May 5, 1935 recalls a bit of history regarding the sugar plantation in 1881 and a few years after: A visitor on Kauai in August 1881 marveled at the change that had taken place at Kilauea plantation. “What was once a vast unfenced pasture land is now a forest of sugar cane with a little town beside it . . . 600 acres of standing cane. There is a well-attended native school on the estate.” Paul Isenberg, who was financially interested in Kilauea plantation, disposed of his holdings in 1884, glad to be freed of additional responsibility. In 1877 Titcomb sold most of his Kīlauea lands to Captain John Ross and Edward P. Adams. Joesting (1984) theorizes that the continuous battle of nationalities in the various industries of Hawai‘i led to the sale of Titcomb’s plantation. “Kilauea was another example of the battle between Americans and British for plantation control” (Joesting 1984:220-221). Adams and Ross purchased 3,000 acres and 6,000 head of cattle. Sugar operations began the same year and the first harvest was three years later with a reported yield of four to five tons per acre (SSBA 1971:A-4; see also SB 1971:A-5). The Kīlauea Sugar Plantation Company was chartered on April 5, 1879, for 50 years. Originally, it consisted of 40,000 shares at $50 a share, making up a capital of $2,000,000 (HSB 1935:5). In 1883 it was reported the Kīlauea mill was owned half by British and half by American interest (Joesting 1984:220-221). The Kilauea Sugar Plantation Company and the sugar industry in Kīlauea continued in spite of ownership and management changes over time. Robert A. Macfie, Jr., whose father was a sugar refiner from England and already the major owner of the plantation, bought out John Ross’ interest in the newly chartered plantation. Young Macfie managed the plantation until 1890 when his father caused his removal due to extravagance (Joesting 1984:220). In addition to sugarcane, rice was also grown on the Kīlauea Plantation lands along Kīlauea Stream. Rice was first grown in the Hawaiian Islands during the 1850s, and rice production reached its peak during the 1890s (Char 1975). Taro fields were the most desirable for rice production because the taro could be uprooted easily, and the fields usually carried water rights with them (Joesting 1984). By the late 1800s many of the taro fields in Kaua‘i had been converted to rice fields, which eventually lead to a shortage of poi. By 1892 fifty-five acres of rice were under cultivation in Kīlauea and vicinity (Joesting 1984), and the plantation eventually included its own rice mill located to the northeast of the current project area. The Chinese, although not the first to cultivate rice in the Hawaiian Islands, played a large role in the rice industry and soon became the owners, employers, and the principle source of labor for rice production (Char 1975). Much of the money to promote rice farming was advanced to private growers by companies, such as the Kīlauea Sugar Plantation Company, who played the part of entrepreneurs, organizers, and financiers. The Chinese in each rice district formed a tight community with a social life that often centered around a small village store (Char 1975). During the early history of the plantation there were often problems with the different nationalities working and living on the plantation. During Macfie’s tenure as manager there were several troublesome incidents, some involving the Chinese laborers. Police and plantation managers were often feuding. Opium possession was a reason for police searches and since this was principally a Chinese problem, the barracks of Chinese workers were the targets. The plantation management was not informed of such raids in advance and was greatly annoyed by the troubles the invasions caused. Some managers encouraged workers to resist searches and the violence that followed was another source of anger. In late December 1889 police raided the barracks of Chinese workers at Kilauea. They arrested two men for possession of opium and were leaving with their prisoners when they were attacked by a mob of Chinese who had gathered outside. The Chinese threw rocks and 18 RC-0670 bottles, badly injuring one of the policemen in the face. The police fired their pistols in the air, the Chinese retreated, and the two prisoners were taken away. Manager Macfie was upset enough by the incident to write to John Soper, who was the Marshall of the kingdom. He complained about the police coming at night, firing pistols, and causing panic among the workers. Macfie thought the invasion was inexcusable. Sheriff Wilcox defended the actions of his police. He wrote that the police only fired their pistols after they were attacked. He went on to say Kilauea was a center of opium traffic and claimed that Robert Macfie encouraged his workers to resist the police. The two prisoners were convicted. Three months later Kilauea was again raided. There was more violence, and this time a Chinese was shot in the shoulder by a policeman. (Joesting 1984:246) The Kīlauea Sugar Company was incorporated January 30, 1880 [however, according to the company annual reports of 1905-1955 it was called the Kīlauea Sugar Plantation Company (KSPC)]. The little plantation was considered to be “marginal” yet made history with its many innovations. The 1880 harvest was reported at between four and five tons of sugar an acre—a level not again reached for 25 years, which is why Kīlauea was always considered a marginal sugar plantation (SB 1971:A-5). Many innovations were adopted to increase production and lower operating costs. Kīlauea installed the first railroad on Kaua‘i for hauling cane in 1881; the first gasoline tractor replaced the steam plough in 1910, and the first cane cleaner was installed in 1937 (SB 1971:A-5). The corporation was authorized to initially offer 300 shares of stock at $1,000 per share. The money allowed the plantation to do the things necessary for success. On Kamehameha Day 1881 Kīlauea held a celebration when a large stone reservoir (Stone Dam), a flume, and a ditch were completed. The people of the village, led by a band, marched along the flume and ditch, which had been built across Kīlauea Stream. A hymn was sung and the national anthems of Great Britain, the United States, Germany and Sweden were played. The Chinese shot off firecrackers. A prayer was said and the sluice gates of the reservoir were opened (Joesting 1984:217). Another significant ‘first’ was a railroad to relieve the tedious ox-cart hauling of sugar cane. A surprise guest of honor drove the first spike. An article on May 5, 1935 in the Honolulu Star-Bulletin recalls the event: Kilauea plantation claims to have built the first railroad on the island of Kauai, and it was a great occasion back in 1881 when Liliuokalani, the princess regent, honored the event by driving the first spike . . . The princess was making a royal visit to Kauai when the plantation inveigled her into officiating at the important ceremony. It was in October 1881 when Manager R. A. Macfie, Jr. and a number of natives and employees met her at the Chinese store and made an address of welcome . . . The party proceeded to the plantation road, ‘tastefully decorated with evergreen boughs and an arch across the plantation gates surmounted by two Hawaiian flags on each side.’ Beyond the mill C.W. Housman, engineer of the new railroad, was presented to the princess regent. He explained the details to her royal highness, and talks were made by officials and Gov. P. Kanoa of Kauai. Macfie regretted that owing to the shortness of time a silver hammer ‘more fitted to the occasion’ had not been procured. The princess hit the spike twice squarely on the head while the multitude cheered. The natives advanced and kissed her hands, the native girls sang, and Hawaiian, English and American flags were hoisted on the mill. The Chinese flag was raised in ‘Chinatown.’ After young Macfie left the plantation in 1890, his father became more involved: At Kilauea Macfie [Sr.] had surrounded himself with Scotsmen and Englishmen in an attempt to keep the plantation British. He brought Alexander Lindsay, together with his wife and seven children, from Scotland. Robert Purvis had come from England. In 1890 the manager and the two engineers were British subjects . . . Much of the investment at Kilauea remained British for many years. (Joesting 1987:220-221) 19 RC-0670 The Kīlauea Sugar Plantation Company’s annual reports from 1905 to 1965 give a more business view of the history of the sugar industry in Kīlauea (Rechtman et al. 2001). Because of their diligent reporting of environmental concerns relating to sugar production, a broad perspective of changes on the landscape, such as crop fields, types of vegetation, fertilizers and pesticides used, types of pests, machinery, as well as the use of water in the form of reservoirs, ditches, tunnels and flumes, can be gleaned (see Rechtman et al. 2001 pages 9- 20 for details). A January 1925 “Map of Kahili Kuliana’s and Rice Plantation” prepared by the Kīlauea Sugar Plantation Company (on file at the Kaua‘i Historical Society; Figure 8) shows that by that date the current project area had rice fields bounding it to the east (1.6 acres) and west (0.18 acres), and by association, it too was probably cultivated in rice (0.82 acres). Two structures are shown on the map to the north of the parcel, and the area to the north of the structures is depicted as a vegetable garden (0.37 acres). A “Map of Kilauea Sugar Plantation Company” prepared by T. Okomoto in 1948 (Figure 9) shows that by that date the current project area was no longer part of the plantation’s cultivated lands. The Kīlauea Sugar Plantation ceased operations on November 9, 1971 after 94 years of existence. As illustrated in the passages below the closing of the plantation was difficult for the 225 employees, and it marked another significant change in the life ways and land tenure of the Kīlauea/Kāhili area: Nine long and four short blasts of Kilauea sugar mill whistle Tuesday afternoon signaled the passing of the era of sugar at Kilauea. It was the conclusion of 94 years of sugar operations. Kilauea ended the season with 19,600 tons of sugar, yield of 6.8 tons of sugar per acre. Its record was 20,850 tons harvested in 1970 [...liquidation since July 1, 1970]. Metcalf Farm has leased 4,400 acres for planting . . . grain sorghum. The company already has 3,800 acres in sorghum. (Star-Bulletin, November 13, 1971) After 94 years of sugar cane production, Kilauea Sugar Co. ceased operations Tuesday. The shutdown had been anticipated for more than a year, ever since Kilauea President James Stopford made the announcement on August 21, 1970. Kilauea with an estimated 11,500 acres, is the smallest of C. Brewer & Co.'s sugar plantation subsidiaries . . . About one-third of the cane land has been leased to Metcalf Farms for planting in grain sorghum. Some 3,800 acres already are planted. (Sunday Star-Bulletin & Advertiser, November 14, 1971) Kilauea Plantations has started marketing some of the Kilauea lands on which sugar production ended last week. The joint venture partnership a subsidiary of C. Brewer was formed to develop more than 8,600 acres of Kilauea Sugar Co., fee simple lands for market. It has decided to begin marketing the raw land in bulk, after the County twice turned down its proposed development plans. Two interested groups viewed the beautiful landscape of northeast Kauai by helicopter and on the ground. Local sources feel there should be no difficulty finding individuals and groups eager to invest in this section of Kauai. The existing parcel making up the Kilauea Plantation lands vary in size from three to almost 2,000 acres according to tax office records. Kilauea Sugar Co. finished harvesting and milling Tuesday, then went out of cane production after 94 years in the sugar business. (Ching 1971) It will be a gloomy holiday for Kilauea Sugar Co. workers, most of whom were thrown out of their jobs yesterday when the 94-year-old plantation went out of business. The company had 225 employees when it announced more than a year ago that it would close down its operations. There were about half that number on hand when the last load of cane was processed. . . . Most of them will be unemployed…some relief might come from Metcalf Farms and Eagle County Development Corp., which have operations nearby . . . Some of Kilauea's fertile acreage has been leased to Metcalf Farms to grow sorghum, a feed grain. But the main chunk of land—some 3,000 acres—will lie unused until the County Planning Commission takes action on the company’s requests for approval of development plans. (TenBruggencate 1971) 20 .60a1 c in t P e r e e Coconut .18ac N a aaim n e o .82ac .37ac 10333 Nt ur e Kilauea Stream Photograph of a portion of the original map LEGEND Rice plantation Kuleana Vegetable garden Stream Steep slope Ahupua‘a boundary RC-0670 Figure 8. Reproduction of a portion of a January 1925 “Map of Kahili Kuliana's and Rice Plantation” prepared by the Kīlauea Sugar Plantation Company (on file at the Kaua'i Historical Society). 21 Figure 9. showing the current project area. Portion of a 1948 “Map of Kilauea Sugar Plantation Company” prepared by T. Okomoto (in Ida and Hammatt 1997) 22 RC-0670 Project area RC-0670 By early 1972 it was being reported that several fee simple land holdings of the former Kīlauea Sugar Company, now Kīlauea Plantations, had been sold to individuals and developers (Rechtman et al. 2001). This would once again change both the landscape and the rural nature of the Kīlauea area, as new roads and homes were being built on what were once fields of sugarcane. The current study parcel, although originally a kuleana lot, had been acquired by the plantation and sold to Mike Dyer. Consultation with Mr. Dyer was conducted and he confirmed that the terracing was in place prior to his ownership and that there were the foundation remains of an old structure and what he referred to as a small rice mill. Merri Lee Chandler, a kupuna of the Kīlauea area, was also consulted about any personal knowledge she might have concerning the study parcel. She had no information about this parcel and its former use. Mrs. Chandler also checked with other kūpuna on our behalf and could not find anybody who had historical knowledge of the study parcel PROJECT EXPECTATIONS The current study parcel was a native tenant kuleana awarded to Naiamaneo in 1848 (LCAw. 10333; see Appendix A). She was the widow of O‘opu (died in 1847); her husband was given this land by the konohiki, in the days of Kamuali‘i (prior to 1824). Naiamaneo claimed that her house was elsewhere and that the kuleana consisted of several small irrigated taro fields (lo‘i) and adjacent kula (flat) land. A 1925 map of kuleana in Kāhili Ahupua‘a prepared for the Kīlauea Sugar Plantation Company shows that by the early twentieth century the taro lo‘i in the vicinity of the study parcel had been converted to the cultivation of rice and vegetables, and that two structures were present next to the property (see Figure 8). Given the above information it is expected that the archaeological features representative of pondfield agriculture will be present within the current project area. Previous archaeological studies conducted in the vicinity of the current project area (Burgett et al. 2000; Elmore and Kennedy 2001, 2002, 2004; Hammatt and Folk 1996; McGerty et al. 1997; and McGerty and Spear 2001) have shown that irrigated fields (lo‘i) on the slopes above Kīlauea Stream generally take the form of artificially leveled terraces with rock retaining walls along their down slope edges. Common features recorded within these fields include terraces, terrace walls, ‘auwai, alignments, and modified outcrops. Radiocarbon dates obtained through subsurface excavation within the fields have shown that initial construction of terraces typically occurred during the Precontact Period. Although Precontact habitation features and possible burial areas have been recorded in the vicinity of the lo‘i (McGerty et al. 1997), no such features are expected within the current project area as the LCAw. awardee claimed to live elsewhere. As indicated by Māhele records and the results of previous archaeological studies within Kāhili Ahupua‘a, the use of the irrigated fields often continued into the Historic Period. The lo‘i within the current study parcel are known to have been converted to rice cultivation by the early twentieth century, and a 1925 map indicates that two Historic structures were present nearby the parcel at that time. It is expected, given the history of the study parcel, that cultural debris and perhaps features indicative of Historic Period use will be encountered. Historic walls, habitation features (enclosures, house foundations, pavements, etc.), trash (metal, bottles, ceramics, etc.), charcoal kilns, and an unmarked Historic burial area (Burgett et al. 2000) have been previously documented on other parcels in the vicinity of the project area. FIELDWORK Fieldwork for the current inventory survey was conducted by Robert B. Rechtman, Ph.D., Matthew R. Clark, B.A., and Olivier M. Bautista, B.A on December 16 and 17, 2009. Methods The survey strategy included a visual inspection of the entire surface area of the parcel and mapping of all observed surface features using a tape and compass. The recorded features were described using standardized feature record forms and photographed. Based on observations made during these activities, three locations for subsurface testing were selected. A small excavator was used to excavate the three trenches, one bucket-width (1 meter) wide. The soil removed during excavation was visually examined for cultural material and the stratigraphy visible in the walls of the trenches was metrically recorded, described, and photographed. Upon completion of the recording each trench was backfilled with the excavated soil. The locations of the recorded surface features and the excavated trenches relative to one another and the project area boundaries are depicted in Figure 10. 23 Stone stairs Stone stairs (60) (80) (30) (75) (70) (90) (50)(50) (100) (80) (20) (10) (45) (45) (30) (40) (35) (55) (55) (55) (80) (10) (20) (10) (40) (40) (35) (40) (50) (45) (110) (80) (60) (40) (20) (30) Trench-1 Trench-2 Trench-3 Edge of thick brush Stone terrace Steep slope Tree Earthen bank ‘Auwai channel Boulder Boulder pile Cottage Cottage Cottage RC-0670 Parking Construction materials 0 4 8 Scale in meters (heights in centimeters) N true (65) Bathroom M o r l a m de n t r a i t o s t r e Terraces continue to stream riveway D Field 2 Field 1 Field 3 Field 6 Field 4 Field 5 Field 7 Field 8 Field 9 Electrical box Solar panels Site 2012 Parcel boundary Historic feature with a concrete basin and a stone lined trench Figure 10. Project area plan view. 24 *Field #s refer to SIHP Site 2011 RC-0670 Findings As a result of the current inventory survey fieldwork two sites were recorded within the former kuleana parcel. The sites include a series of terraced fields (Site 2011) and a concrete slab (Site 2012) (see Figure 10). The current project area only encompasses a small portion of Site 2011, corresponding to nine individual fields (Fields 1-9). The fields of Site 2011 continue to the south and east well beyond the boundaries of the study parcel. Only the nine fields within (or partially within) the current project area were recorded in detail for the purposes of this study. The three trenches discussed above (Trenches 1, 2, and 3) were all excavated within the fields of Site 2011. The concrete slab (Site 2012) is located on the surface of Field 9 of Site 2011 along the southeastern boundary of the study parcel. This Historic Period slab, which may date to the first half of the twentieth century or the late nineteenth century, is only partially intact. Detailed descriptions of each of the sites recorded during the current inventory survey are presented below. SIHP Site 50-30-04-2011 Site 2011 consists of a series of nine terraced fields (Fields 1-9) that cover the entire study parcel (see Figure 10). These fields are part of a larger irrigated field system that continues beyond the boundaries of the study parcel to the south and east (see Figure 8). The system occupies an area of slight to moderate slope between the northwestern bank of a small stream and the base of a long northeast facing slope that was too steep for the construction of terraced fields. The system was once irrigated by an ‘auwai that ran across this steep slope from a point above a waterfall along the stream (well south of the current project area) to the southwestern corner of the study parcel. At fairly regular intervals perpendicular ‘auwai channels ran off this main ‘auwai carrying water to the system. Each field consists of an artificially leveled garden bed with a stone retaining (terrace) wall along its down slope edge. Stratigraphy revealed during the excavation of the three trenches indicates that the examined fields contain roughly 1.5 vertical meters of soil on bedrock, and that the terrace walls are only present at the surface (they do not extend into the soil deposit). The artificially leveled surface of each field is flush with the top of the retaining wall. The shape and size of a given field varies widely from one to another, and is largely a reflection of the natural topography. The terrace walls generally run cross-slope (northwest/southeast) and are constructed of stacked or piled cobbles. At a few locations field dividing walls are present that run perpendicular to the retaining walls. In several locations large boulders (naturally deposited) have been incorporated into the construction of the terrace walls. The walls exhibit very little collapse, and they appear to have been maintained through modern landscaping activities. Some of the walls may have been shifted or dismantled to accommodate the eight-sided residential structures that were added to the parcel by the previous land owner. The surfaces of most of the artificially leveled fields within the current project area are covered in neatly mowed grass. A description of each of the fields recorded in detail at Site 2011 (Fields 1-9) is presented below followed by a discussion of the stratigraphy recorded within Trenches 1-3. Fields 1-9 Field 1 is located in the southwestern corner of the study parcel (see Figure 10). This field is the upper most of the terraces contained within the parcel, and the main ‘auwai that feeds the fields empties into its southern end. Field 1 measures 14 meters long by 4 meters wide. To the west it abuts a steep natural slope that defines the southwestern extent of Site 2011. The southern and western edges of Field 1 are marked by naturally deposited large boulders. The northern and eastern edges are retained by a terrace wall of stacked cobbles that stands up to 50 centimeters tall. The surface of Field 1 is covered in thick brush, and a large tree has fallen across its surface. 25 RC-0670 Field 2 is long narrow terrace located to the northeast of Field 1 (see Figure 10). Field 2 measures 68 meters long by 4 to 10 meters wide. It stretches from a line of cobbles that may mark the former route of a filled in ‘auwai at its southeastern end to the pali edge along Kīleauea Stream at its northwestern end. The western edge of Field 2 follows the steep unmodified slope that marks the southwestern extent of the terraces, while its eastern edge is retained by a stacked cobble terrace wall that stands 40 to 80 centimeters tall. Several large trees are growing out of this wall and a few areas of collapse are present where the cobbles used in the wall’s construction are missing. The bulldozed driveway that accesses the parcel runs across Field 2 and bisects the terrace wall 15 meters from its northwestern end. A four meter section of the wall is missing at this location. The surface of Field 2 is covered by brush at its southeastern end, but it otherwise consists of exposed soil with very little vegetation present, except a few tall mango and java plum trees. The small eight-sided bath structure is situated on the surface of Field 2 near its center, and at the time of the inventory survey construction materials were stockpiled on either side of driveway at the northwestern end of the terrace where there is also a parking area (Figure 11). Figure 11. SIHP Site 2011, view to east towards Field 2 (back) across Field 6 (front) and Field 3 (middle). Field 3 is located down slope (east) of Field 2 (see Figure 10). It measures 84 meters long by 8 to 12 meters wide. The western edge of the terrace is defined by the Field 2 retaining wall. The southeastern end of Field 3 (beyond the boundaries of the study parcel) is marked by a low-lying alignment of cobbles, and the northwestern end terminates at the steep pali above Kīlauea Stream. The eastern edge of the terrace is defined by a stacked cobble retaining wall that stands 30 to 80 centimeters tall (Figure 12). The wall is mostly intact, but its route appears to have been shifted near the southwestern parcel boundary to accommodate the construction of one of the eight-sided structures on the property (Figure 13). Also, near the middle of the wall a four meter gap is present where the cobbles are missing, and where the driveway bisects the terrace wall a 6.5 meter gap is present (Figure 14). Trench-1 was excavated across the wall at the northern end of this gap (see below). At its northern end the wall terminates at another eight-sided structure that overlooks Kīlauea Stream. The southwestern end of Field 3 is covered in brush, but most of the terrace surface consists of mowed grass. 26 RC-0670 Figure 12. SIHP Site 2011 Field 3 surface and retaining wall (left) with Field 6 to the right, view to north. Figure 13. SIHP Site 2011 Field 3 retaining wall, view to southwest. 27 RC-0670 Figure 14. SIHP Site 2011 break for driveway in Field 3 retaining wall (Field 6 in foreground), view to southwest. Field 4 is located to the northeast (down slope) of Field 3 at its southwestern end (see Figure 10). Field 4 measures 8 to 10 meters wide and is in excess of 48 meters long. The actual length of Field 4 was not determined as most of the terrace is located outside of the current study parcel to southeast. The southwestern and northwestern edges of Field 4 are defined by the Field 3 terrace wall. The northeastern edge is marked by a discontinuous terrace wall of stacked and piled cobbles that stands 20 to 40 centimeters tall. Within the project area the wall is completely absent, but its route is marked by an elevation change in the earthen ground surface. The cobbles at this location may have been removed to accommodate the construction of the eight-sided structure that sits on the surface of Field 4 at its northwestern end. Thirty-two meters southeast of Field 4’s northwestern end an old ‘auwai channel crosses the terrace. The surface of the terrace, up to the ‘auwai, consists of mowed grass, but thick brush is present beyond (southwest of) the ‘auwai. Field 5 is located northeast (down slope) of Field 4 (see Figure 10), and like that field most of the terrace is located outside of the current study parcel to southeast. Field 5 measures 6 to 16 meters wide by more than 44 meters long. The southwestern edge of the field abuts the discontinuous Field 4 retaining wall (Figure 15). The northwestern edge of Field 5 is defined by a low terrace wall (field dividing wall) that separates it from Field 6. The field dividing wall runs northeast for 16 meters from the junction of the Field 3 and Field 4 retaining walls to the junction of the Field 5 and Field 6 retaining walls (Figure 16) where Trench-3 was excavated (see below). The wall consists of a single course of cobbles that stand 10 to 20 centimeters above the surface of Field 5, retaining the elevated surface of Field 6. The northeastern edge of Field 5 is retained by a stacked cobble terrace wall that stands 30 to 60 centimeters tall. Thirty-four meters southeast of Field 5’s northwestern end the old ‘auwai channel continues from Field 4 across this terrace. The surface of the terrace consists of mowed grass. A garden shed and large boulder are present on the surface of Field 5 next to the ‘auwai. 28 RC-0670 Figure 15. SIHP Site 2011 Field 5, view to north from Field 4 with Fields 6 and 7 in background. Figure 16. SIHP Site 2011, overview to east of the junction of the Field 5 and Field 6 retaining walls (location of Trench 3). 29 RC-0670 Field 6 is located to the east (down slope) of Field 3 and to the north (up slope) of Field 5 (see Figure 10). Field 6 measures 40 meters long by 8 to 12 meters wide. The terrace stretches northwest from the dividing wall it shares with Field 5 to the edge of the steep pali above Kīlauea Stream (Figure 17). The eastern edge of Field 6 is marked partially by a stacked cobble terrace wall that stands 35 to 45 centimeters tall, and partially by a soil bank where the wall once ran. The bank consists of a roughly 40 centimeter tall by 18 meter long incline in the mowed grass near the southeastern end of Field 6 that connects the intact sections of the terrace wall. The soil bank appears to represent an area where the rocks were removed from the wall, perhaps to allow for vehicular access to either Site 2012 (a Historic concrete slab), or the modern eight-sided structure near the eastern corner of the parcel. Another eight meter gap in the wall is present four meters from its northwestern end. To the northwest the wall terminates at a large boulder imbedded in the soil ground surface along the edge of the pali. The surface of Field 6 consists of mowed grass. A pile of large boulders is present near the central portion of Field 6 close to the Field 3 retaining wall. The boulders exhibit signs (mechanical scaring) of having been removed from one location and deposited at their current location by heavy equipment. Trench-2 was excavated in the center of Field 6 near this boulder pile (see below). Figure 17. SIHP Site 2011 Field 6 (left) and Field 8 (right) with Kilauea Stream in background, view to northeast. Field 7 is located to the east (down slope) of Field 6 near its southwestern end (see Figure 10). Field 7 measures 26 meters long by 8 meters wide (Figure 18). The western edge of the terrace abuts the soil bank that rises 40 centimeters to the surface of Field 6. The eastern edge is marked by a single course cobble retaining wall that stands 20 centimeters above the surface of Field 9. A large mango tree is growing out of the wall, and its roots have displaced some of the cobbles. A slight incline in the mowed grass that runs between the eastern terrace wall and the Field 5 retaining wall marks the southeastern edge of Field 7. The incline drops off roughly 10 to 20 centimeters to the southeast to the surface of a lower terrace that is beyond the boundary of the current project area. A single course cobble retaining wall (field dividing wall) that rises 10 centimeters above the surface of the terrace marks the northwestern edge of Field 7. This wall retains the southeastern edge of Field 8. The northeastern corner of Field 7 is obscured by a thick growth of wedelia (Wedelia paludosa), but most of the terrace’s surface is covered by mowed grass. 30 RC-0670 Field 8 is located to the northeast (down slope) of Field 6 and to the northwest (up slope) of Field 7 (see Figure 10). The terrace stretches northwest from the field dividing wall it shares with Field 7 to the edge of the steep pali above Kīlauea Stream. Only the southeastern portion of the terrace is within the current project area. Field 8 measures approximately 30 meters long by 12 meters wide, but the exact dimensions are difficult to discern because the eastern terrace edge is obscured by a thick growth of wedelia (Wedelia paludosa). Vegetation across the western portion of the terrace consists of mowed grass. A stacked wood pile is present in the southwestern corner of Field 8 along the Field 6 retaining wall. Field 9 is located to the east (down slope) of Field 7 at the eastern end of the project area (see Figure 10). Most of the field is located beyond the boundaries of the study parcel. Field 9 measures 10 meters wide for much of its length, but narrows to 4 meters wide at its northwestern end. It is more than 32 meters long as it stretches to the northwest and southeast beyond the boundaries of the project area. The field becomes obscured by thick vegetation in both directions, but within the project area its surface consists of mowed grass. Site 2012 (a concrete slab) is present on the surface of Field 9 near its northwestern end along the southeastern property boundary. Within the study parcel the western edge of Field 9 is defined by the Field 7 retaining wall. To the east the field has a discontinuous stacked cobble and boulder retaining wall (Figure 19) that stands up to 80 centimeters tall. A four meter wide gap in the wall at the eastern corner of the parcel appears to have been created to accommodate the construction of one of the eight-sided structures that sits at that location. Figure 18. SIHP Site 2011 Field 7 (foreground), view to south from Field 6 with Field 5 in background. 31 RC-0670 Figure 19. SIHP Site 2011 Field 9, retaining wall (foreground), view to east. Trenches 1-3 A small excavator was used to excavate the three trenches within the Site 2011 fields (see Figure 10) in order to test for buried cultural deposits, and to examine the subsurface stratigraphy of the fields and the relationship between the terrace walls and the underlying soil deposit. Excavation of the trenches revealed that the examined fields all contained soil deposit to a depth of roughly 1.5 meters below surface that terminated at bedrock, and that the terrace walls are only present at the surface (they do not extend into the soil deposit). Trench 1 was excavated across the Field 3 retaining wall from Field 3 into Field 6; Trench 2 (was excavated in the central portion of Field 6; and Trench 3 extended from Field 6 across the junction of the Field 5 and 6 retaining walls into Field 7. The general stratigraphy recorded was consistent in all three trenches (Figures 20, 21, and 22). Two soil layers were identified (Layer I and Layer II). Layer I, the surface layer, consisted of a fairly uniform 25 centimeters of dark yellowish brown (10YR 3/4) clay loam that was primarily grass sod and rootlets. Layer II, present beneath Layer I, consisted of 125 to 135 centimeters of dusky red (2.5YR 3/4) clay loam with some cobbles present (especially in Trench-1). Layer II terminated at decomposing bedrock 150 to 175 centimeters beneath the ground surface. No cultural material or buried cultural deposits were discovered during the excavation of the trenches. No evidence of the Field 3 terrace wall was noted in the Trench-1 profile (only a slight soil bank), as it appears that the stones were removed to allow for passage of the driveway across the wall. In Trench-3 both the Field 5 and 6 retaining wall and the Field 5 and 6 dividing wall were apparent in the profile. In both cases the cobbles that formed the walls were resting on the Layer I soil and they did not extend more than 5 centimeters below the ground surface. 32 Figu 0. P Site 2 11 Tre c - o th w ll rofile and v w to th esre 2 SIH 0 n h 1 s u a p ie e w t. Electric lines 0 25 50 Scale in centimeters Layer II Layer I 285 105 Layer I - dark yellowish brown (10 YR 3/4) clay loam grass sod with roots. Layer II - dusky red (2.5YR 3/4) clay loam with some cobbles present. Rock Grass 33 RC-0670 Figure 21. SIHP Site 2011 Trench-2 south wall profile and view to the east. RC-0670 34 0 25 50 Scale in centimeters Layer II ayer IL o kR c ra sG s 90270 Layer I - dark yellowish brown (10 YR 3/4) clay loam grass sod with roots. Layer II - dusky red (2.5YR 3/4) clay loam with some cobbles present. RC-0670 35 0 25 05 ceScale in ntimeters Rock Gr ssa e I da h b o n ( 0 Y 3 m g s o sLay r - rk yellowis r w 1 R /4) clay loa ra s sod with r ot . ye I d d (2 5Y 3 a m w e b eLa r I - usky re . R /4) cl y loa ith som co bles pres nt. 010 82 0 Figure 22. SIHP Site 2011 Trench-3 south wall profile and view to southeast. Layer II aL yer I Field 5/6 retaining wall Field 5/6 dividing wall RC-0670 SIHP Site 50-30-04-2012 Site 2012 consists of a cobble lined concrete slab located along the southeastern boundary of the current study parcel on the surface of Site 2011 Field 9 (see Figure 10). The slab is only partially intact, and most of the concrete is missing from its northwestern half (Figure 23). The remaining concrete surface measures 10 meters long by 3.5 to 5 meters wide, but it is apparent that the slab used to be larger, measuring roughly 10 meters along each side (Figure 24). The concrete was poured on a level soil ground surface with its edges retained by a single course alignment of cobbles. The cobble alignment is still present along the intact edges of the slab, but the cobbles have been removed from the area to the northwest. The thickness of the concrete is 2 to 3 centimeters, but the cobble alignment stands up to 35 centimeters tall (Figure 25). The southeastern edge of Site 2012 is obscured by a thick growth of snake plant (Sanseveria trifasciata) that was likely originally planted as an ornamental along that edge of Site 2012. The surface of the concrete is pitted and cracked, but it is fairly level. There is a square hole in the former center of the slab that measures 15 centimeters by 15 centimeters. This hole likely once held a wooden support post for a roofed structure that used to be present on top of the slab. The concrete slab clearly dates to the Historic Period. It could be the foundation of one of the two structures shown next to the study parcel on the 1925 map of Kāhili kuleana and rice fields (see Figure 8). Another Historic feature (not recorded during the current inventory survey) that contains a concrete basin and a rock lined trench that may have formerly housed a water wheel is present 15 meters southeast of the slab, outside of the project area. A Historic debris pile noted in the bushes down slope (east) of the study parcel contained glass, metal, and ceramic materials that date from the late nineteenth century to the early twentieth century. For example, a “George Jones & Sons” maker’s mark on the base of an ironstone plate found in the pile indicates that the plate was manufactured in England between 1873 and 1907 (http://www.thepotteries.org /mark/j/jonesgeo.html). It is likely that the construction of Site 2012 also dates to this general time period. The structure, based on the concrete slab floor, may have been a shed or garage outbuilding, as houses of that time period were often built using post and pier construction techniques. The Historic occupants of the parcel were likely involved in the cultivation of rice, which waned on the Island of Kaua‘i ca. 1929 (Char 1975). Figure 23. SIHP Site 2012, concrete slab, view to east. 36 RC-0670 Figure 24. SIHP 2012 plan view. Cobbles Tree Concrete Projected original extent of foundation N true (20) 0 1 2 Scale in meters (heights in centimeters) Thick (Sansevieria trifasciata) vegetation Modern burn pile (90) (35) (30) Post base 37 RC-0670 Figure 25. Construction detail along the eastern edge of Site 2012, view to northeast. Summary As a result of the current study two sites were recorded; a series of terraced fields (Site 2011) and a concrete slab (Site 2012). Based on archival documents and subsurface testing, the fields appear to reflect use of the property for rice cultivation during the late nineteenth and early twentieth centuries. That these fields were built upon a prior kula and lo‘i agricultural system is documented in Māhele records, although the archaeological record within the current study parcel was silent with respect to the earlier land use. Mapping and testing of the portions of Site 2011 that extend beyond the current study parcel (Figure 26) may shed light on the earlier land use. The terraces in those areas are heavily vegetated and would require substantial clearing prior to their recordation. Those areas are on a parcel that is also owned by the same entity that owns the current study parcel, and discussions with DLNR-SHPD are underway with respect to an appropriate methodology for clearing and documenting the continuation of Site 2011. The concrete slab (Site 2012) is located on the surface of Field 9 of Site 2011 along the southeastern boundary of the study parcel. This Historic Period feature appears to date from the first half of the twentieth century or the late nineteenth century, and was likely associated with other residential/industrial features (some shown on a 1925 map (see Figure 8) and some still present on the adjacent parcel) and the processing of rice and other cultivated produce. 38 Study parcel Projected extent of fields Figure 26. Map showing the current study parcel and the projected extent of Site T-2. RC-0670 39 RC-0670 SIGNIFICANCE EVALUATIONS AND TREATMENT RECOMENDATIONS The above-described archaeological resources are assessed for their significance based on criteria established and promoted by the DLNR-SHPD and contained in the Hawai‘i Administrative Rules 13§13-284-6. These significance evaluations should be considered as preliminary until DLNR-SHPD provides concurrence. For resources to be considered significant they must possess integrity of location, design, setting, materials, workmanship, feeling, and association and meet one or more of the following criteria: A Be associated with events that have made an important contribution to the broad patterns of our history; B Be associated with the lives of persons important in our past; C Embody the distinctive characteristics of a type, period, or method of construction; represent the work of a master; or possess high artistic value; D Have yielded, or is likely to yield, information important for research on prehistory or history; E Have an important traditional cultural value to the native Hawaiian people or to another ethnic group of the state due to associations with traditional cultural practices once carried out, or still carried out, at the property or due to associations with traditional beliefs, events or oral accounts—these associations being important to the group’s history and cultural identity. The significance and recommended treatments for the two sites recorded within the current project area are discussed below. Site 2011 consists of a series of nine terraced fields that cover the entire study parcel. The fields are part of a larger irrigated system that continues beyond the boundaries of the study parcel to the south and east. Site 2011 is considered significant under Criterion D for information it has yielded, relative to the Precontact and Historic use of the general project area. The fields within the current study parcel (Fields 1-9) have been subject to detailed mapping and subsurface testing. It is argued that the work conducted at Fields 1-9 of Site 2011 is adequate to mitigate any potential impacts that may result from the construction of a single family dwelling on the parcel. Therefore, no further work is the recommended treatment for those specific fields. The portion of Site 2011 located outside the boundaries of the study parcel has not yet been subject to detailed recording. These additional fields should be subject to recording in a manner consistent with the current project prior to any land disturbance in that area. The land owner of the current study parcel also owns the land upon which Site 2011 extends, and has expressed a desire to restore and preserve the remaining portion of Site 2011 located beyond the boundaries of the current study parcel. Site 2012, the concrete slab, is also considered significant under Criterion D for information it has yielded relative to the Historic use of the general project area. It is argued that the information collected during the current inventory survey is adequate to mitigate any potential impacts to the site that may result from the construction of a single family dwelling on the parcel. No further work is the recommended treatment for Site 2012. Despite the recommendation of no further work for the two recorded sites; the potential, however remote, still remains to encounter buried cultural deposits within the study parcel. Specifically, subsurface deposits or features associated with the agricultural terracing might be revealed, potentially producing further information relative to the temporally development of the terracing. For this reason it is recommended that an archaeological monitor be present during ground disturbance activities associated with the construction of the single-family dwelling. These activities will include utility trenching and excavation for both the septic system and the house foundation piers. 40 RC-0670 REFERENCES CITED Alexander, W. D. 1991 A Tour of Kauai in 1849, Private Journal of William DeWitt Alexander. In The Kauai Papers, Kauai Historical Society. Beckwith, M. 1970 Hawaiian Mythology. Honolulu: University of Hawaii Press. Bennett, W. 1931 Archaeology of Kauai. B.P. Bishop Museum Bulletin 80. Honolulu. Burgett, B., L. McGerty, and R. Spear 2000 An Archaeological Inventory Survey of an Approximately 27.56 Acre Parcel, Kāhili Ahupua‘a, Ko‘olau District, Island of Kaua‘i, Hawai‘i [TMK 5-2-21:6]. SCS Project 107-Final. Prepared for Cheryl Schenck. Char, T. 1975 The Sandalwood Mountains Readings and Stories of the Early Chinese in Hawaii. University Press of Hawaii, Honolulu. Chinen, J. 1961 Original Land Titles in Hawaii. Honolulu: privately published. Ching, H. 1971 Kilauea Land is Placed on Open Market. Honolulu Star-Bulletin, Honolulu. D:10:3-4. Dole, S. 1892 Evolution of Hawaiian Land Tenure. Hawaiian Historical Society Papers No.3, Honolulu. Elmore, M., and J. Kennedy 2001 An Archaeological Inventory Survey Report for a Property Located at TMK: 5-1-05: 05 in Kahili Ahupua‘a, Hanalei District, Island of Kaua‘i. Prepared by Archaeological Consultants of the Pacific, Inc., Hale‘iwa. 2002 An Archaeological Inventory Survey Report for a Property Located at TMK: 5-1-05: 16 (por.) in Kahili Ahupua‘a, Hanalei District, Island of Kaua‘i. Prepared by Archaeological Consultants of the Pacific, Inc., Hale‘iwa. 2004 An Archaeological Data Recovery Report For TMK:5-1-05:16 in Kāhili Ahupua`a, Hanalei District, Island of Kaua`i. Archaeological Consultants of the Pacific, Inc. Prepard for Sal Di Leonardo. Cordy, R. 2000 Exalted Sits the Chief. The Ancient History of Hawai‘i Island. Mutual Publishing: Honolulu, Hawai‘i. Foote, D., E. Hill, S. Nakamura, and F. Stephens, 1972 Soil Survey of the Islands of Kauai, Oahu, Maui, Molokai, and Lanai, State of Hawaii. USDA, SCS and UH Agriculture Experiment Station, Washington, DC. 41 RC-0670 Fornander, A. 1916-1917 The Story of Lonoikamakahiki. In Fornander Collection of Hawaiian Antiquities and Folk- Lore, edited by Thomas G. Thrum. Bishop Museum Press, Honolulu. pp. 278-363. 1996 Ancient History of the Hawaiian People. Mutual Publishing, Australia. Handy, E. S. C. and Handy, E. G. 1972 Native Planters in Old Hawaii, Their Life, Lore and Environment. Bishop Museum Press, Honolulu. Hammatt, H., and W. Folk 1996 Archaeological Inventory Survey Report at Kāhili, Ko‘olau, Kaua‘i (TMK: 5-2-21:05). CSH Report on file at DLNR-SHPD. HSB/Honolulu Star-Bulletin 1935 Hawaiian Sugar Plantation History: No. 12—Kilauea, Island of Kauai. Honolulu Star-Bulletin, Honolulu. p. 5. Ida, G., and H. Hammatt 1997 Archaeological Inventory Survey of an 89-Acre Parcel in Kāhili Ahupua‘a, Koolau District, Kauai (TMK: 4-5-1-5:52). Cultural Surveys Hawaii. Prepared for Kilauea Management Co. Joesting, E. 1984 Kaua‘i the Separate Kingdom. Published by University of Hawai‘i Press and Kaua‘i Museum Association, Ltd. Kamakau, S. 1992 Ruling Chiefs of Hawaii. The Kamehameha Schools Press, Honolulu (revised edition). 1976 The Works of the People of Old Nā Hana a ka Po‘e Kahiko. Bishop Museum Press, Honolulu. Kirch, P. 1985 Feathered Gods and Fishhooks: An Introduction to Hawaiian Archaeology and Prehistory. Honolulu: University of Hawaii Press. Kuykendall, R. 1938 The Hawaiian Kingdom 1778–1854. Honolulu: University Press of Hawaii. Malo, D. 1971 Hawaiian Antiquities Mo‘oleo Hawai‘i. Translated by Nathaniel B. Emerson, Bishop Museum Press, Honolulu. McGerty, L., W. Fortini, and R. Spear 1997 An Archaeological Inventory Survey of a Portion of a 26 Acre Parcel, Kalihi [sic] Ahupua`a, Ko‘olau District, Island of Kaua‘i (TMK 5-2-21:7) Scientific Consultant Services, Inc. Project No. 095-3. Prepared for Justin Hughes. McGerty, L., and R. Spear 2001 An Inventory Survey of An Approximately Six-Acre Parcel in Kāhili Ahupua`a, Hanalei District, Kaua`i (TMK:5-2-21:4) Scientific Consultant Services, Inc. Project Number 248-2. Prepared for Bill Stevenson. OSP/Office of State Planning 1992 State Land Use District Boundary Review: Executive Summary—Kauai. Honolulu. 42 RC-0670 Pukui, M., and A. Korn 1973 The Echo of Our Song: Chants and Poems of the Hawaiians. Honolulu: University Press of Hawaii. Rechtman, R., M. Ka‘imipono Orr, and D. Dougherty 2001 Archaeological Inventory Survey of the Hālualani Property (TMK: 4-5-2-02:11, 12), Kilauea and Kalihi Wai Ahupua‘a, Ko‘olau and Halele‘a Districts, Island of Kaua‘i. Rechtman Consulting Report RC-0046. Prepared for Country Brokers, Hanalei, Hawai‘i. SB/Honolulu Star-Bulletin 1971 Sugar Era Ends at Kilauea, Kauai. Honolulu Star-Bulletin, Honolulu. A:5:1-2. Schmitt, R. C. 1968 The Population of Northern Kauai in 1847. In Hawaii Historical Review, edited by Richard A. Greer, Hawaiian Historical Society, Honolulu. Silva, C. 1995 A Historical and Cultural Report of Hā‘ena State Park, Halele‘a, Kaua‘i. Prepared for DLNR- State Parks Division. Takaki, R. 1982 An Entering Wedge: The Origins of the Sugar Plantation and a Multi-Ethnic Working Class in Hawaii. The Taminment Institute, Honolulu TenBruggencate, J. 1871 The Last Pauhana: Scores Jobless. Honolulu Advertiser, C:7:3-7 Honolulu. Thrum, T. 1907 Heiaus and Heiau Sites Throughout the Hawaiian Islands. Island of Kauai. Hawaiian Almanac and Annual 1907 36–44. Honolulu: Thos. G. Thrum. Wichman F. B. 1998 Kauai: Ancient Place Names and Their Stories. University of Hawai‘i Press, Honolulu. 43 RC-0670 APPENDIX A 44 RC-0670 45 January 15, 2021 Laurel Loo 4357 Rice Street, Suite 102 Lihue, Kauai, Hawaii 96766 RE: 5-2-012-019 (Single-family Dwelling for Mike Kaplan) Dear Ms. Loo: I am a principal at a permitted archaeologist firm and I am familiar with this property. I prepared an Archaeological Inventory Survey for this property and a neighboring property for the Hendrikus Group in 2010. Today I am consulting for Mike Kaplan on the property. The 2010 Archaeological Inventory Survey of the property resulted in a Department of Land and Natural Resources-State Historic Preservation Division accepted treatment recommendation of “no further work” for the archaeological features on the property. No further historic preservation work is required for the development of a single-family dwelling on the property and portions of the rock walls near the future dwelling may be removed and then replaced to allow construction of the dwelling. Should you have any questions, or if you would like further information please feel free to contact me. Sincerely, Matthew R. Clark, M.A. Senior Archaeologist – Director ASM Hawaiʻi Exhibit L EXHIBIT M Ka'aiua S.Hull Director of PIanning Jodi Higuchi Sayegusa Deputy Director ofPlanning COUNTY OF KAUA'I PLANNING DEPARTMENT DIRECTOR'S REPORT I.SUMMARY Action Required by Consideration ofUse and Class IV Zoning Permits to allow Planning Commission:construction of a farm dwelling unit (FDU). Permit Application Nos.Class IV Zoning Permit Z-IV-2021 -8 UsePermit U-2021-7 Name ofApplicant(s)MICHAEL KAPLAN II.PERMIT INFORMATION ||E^ggjp|.E(3C]J|EiB:' Use Permit Pursuant to Section 8-11.3 ofthe Kaua'i County Code (1987)as amended,a Use Permit is required since the project is situated within the Special Treatment District. 1I Project Development Use Permit Variance Permit Special Permit Zoning Permit CIass 1 IV im A Class IV Zoning Permit is a procedural requirement for obtaining a Use Permit within the Special Treatment - Resource (ST-R)District. Special Management Area Permit DUse Minor AMENDMENTS I1 Zoning Ainendment General Plan Amendment I1 State Land Use District Ainendment F.1.b.1 \3 2021 Date of Receipt of Completed February 11,2021 Application: Date ofDirector's Report:March 23,2021 Date of Public Hearing: Deadline Date for PC to Take Action (60 Day): III.PROJECTDATA APRIL 13,2021 May 22,2021 :%Kt),iE(;Tii3aa BffiaN:; Parcel Location:Kilauea.Situated approximately 1,700 feet from Kahili Makai Road and 2,700 feet from the Kahili Makai Road/Kuhio Highway intersection. Tax Map Key(s):|5-2-012:019 Area:I 0.735 acres ZONING &DEVELOPMENT STANDARDS Zoning:Open (0)/Special Treatment District -Resources (ST-R) State Land Use District:Agricultural General Plan Designation;Natural Height Limit:25 feet Max.Land Coverage;50% Parking Requirement:2 min.parking spaces required per dwelling unit, Total =Two (2) Front Setback:10 feet Rear Setback:5 feet OR 'A Building Plate Height Side Setback:5 feet OR 'A Building Plate Height Community Plan Area:North Shore Planning Area (NSPA) Community PIan Land Use Designation: NA. Deviations or Variances Requested:NA. IV.LEGAL REQUIREMENTS Section 8-3.1(f),KCC: Public Hearing Date: This report is being transmitted to the Applicant and Planning Commission in order to satisfy the requirements of Section 9.0 ofthe COK SMA Rules and Regulations,relating to the scheduling ofa public hearing within sixty (60)days ofthe filing ofa completed application.The application was received on February 11,2021 and the Applicant was notified accordingly ofthe Planning Department's intent to commence permit processing. APRIL 13,2021 2 1 P age Z-IV-2021-8,U-2021-7;Director's Report KAPLAN 3.17.2021 V.PROJECT DESCMPTION AND USE As represented,the Applicant is proposing the construction of a one-story fami dwelling unit (FDU)featuring 2 bedrooms with 2.5 bathrooms and containing a total living area of approximately 2,373 square feet (SF).The primary entrance to the FDU is covered by a Porte Cochere that occupies approx.396 SF,which brings the total area ofthe project to 2,796 SF.The entire site is located in the Open (0)zoning district and construction occurs within a cleared area on the parcel. The County's Tax Maps shows the subject parcel is recognized as a Kuleana (Land Commission Award L.C.Aw.10333)and contains an area approximately 0.735 acres. As represented in the application,access to the project site is through easements affectin{ adjacent properties (refer to Page 2,Section II ofthe Application). VI.APPLICANT'S REASONS/JUSTIFICATION It is noted that the Applicant has commenced with the consti'uction ofthe residence through a previous application;SMA Use Permit SMA(U)-2011-1,Class IV Zoning Pemiit Z-IV- 2011-1,and Use Permit U-20 11-1.The application involved the construction of the dwelling unit that is being proposed through this application as well as improvements on a neighboring parcel (TMK:5-2-021 :Por.041,Unit 1).These permits were invalidated by a court order indicating that it time limitations has lapsed (refer to Page 3,Section V.ofthe Application). Z-IV-2021-8,U-2021-7;Director's Report KAPLAN 3.17.2021 3|Page The Applicant appeared before the Planning Commission on April 23,2019 and received approval involving modifications to the previously approved FDU design that resulted in: o a 341 sq.ft.reduction from 2,694 sq.ft.to 2,353 sq.ft. o a reduction oflot coverage from 9.9%to 8.7%. o a reduction ofbuilding height from 21'to 19'Vi\ o a design change for the farm dwelling. Based on the circumstances noted above,the Applicant is requesting permits to allow continuation for the construction ofthe proposed FDU and the justification ofthe project is contained in the Application. VII.ADDITIONAL FINDINGS 1.The project site is located in the KTlauea area,along the makai side ofKuhio Highway.The property is considered a Kuleana and situated entirely within Open (0)zoning district.The area within the Open District is also situated within the Special Treatment —Resource District (ST-R). 2.Special Treatment-Resource District (ST-R) The propei'ty is located in the ST-R District.It is the intent of that distoict to insure that development within these areas recognize,preserve,maintain and contribute to the enhancement ofthose characteristics which are ofparticular significance or value to the general public. 3.The State Land Use District (SLUD)designation is "Agricultural,"which allows for agricultural uses that are consistent with Chapter 205 ofthe Hawai'i Revised Statutes (HRS). 4.The subject property is NOT located within the Visitor Designation Area (VDA)and the General Plan (GP)designation is "Natural".The GP recognizes that residential development on agricultural lands is an unsustainable trend,and emphasizes preserving agricultural lands in intact form while limiting other uses.When development occur,it should be clustered so as to minimize the requirements for new in&astructure and the impacts on open space,and adjacent land uses. 5.The property is situated within the North Shore Planning Area (NSPA)and will be subjected to all applicable requirements.Additionally,the proposed development shall be subjected to the standards prescribed in Sections 8-4.3 and 8-4.5 ofthe CZO. 6.The subject parcel is in close proximity to the KIlauea River along its northern boundary and approximately 5,000 feet away from the shoreline area (KIlauea Bay). As such,a Shoreline Setback Determination is not applicable. 7.The proposed Farm Dwelling Unit (FDU)is located within Zone 'X'ofthe Federal 4 1 Pag e Z-IV-2021-8,U-2021-7;Dlreclor's Report KAPLAN 3.17.2021 Emergency Management Agency (FEMA)Flood Insurance Rate Map.FEMA has identified those areas within the Zone "X"are determined to be outside the 0.2% annual chance floodplain,which means a flood ofthat size or greater has a 0.2- percent chance (or 1 in 500 chance)ofoccui'ring in a given year. 8.The general topography ofthe property contains a very gentle slope that moves from south to north,in the direction towards KTlauea River.The neighboring parcels are characterized by steep slopes that slope towards KTlauea River.There are numerous lava rock terraces on this parcel as well as neighboring properties. 9.Access As previously mentioned,the primary access to the project site is through easements affecting adjacent properties and is through an unimproved driveway. 10.Existing Land Use Permits The following information represents land use approvals/permits associated with the subject property: o Special Management Area Use Permit SMA(U)-2011-1,Use Permit U-2011 -1,and Class IV Zoning Permit Z-IV-2011-1:The application received approval by the Planning Commission on September 28,2010 and it authorized the construction of a Farm Dwelling,accessory agricultural storage &office structures,and site improvements. 11.Special Manaeement Area fSMA) The subject property is located within the SMA,however,the construction ofthe first residence on a parcel is not considered "development"and therefore exempt from an SMA Permit,pursuant to Hawaii Revised Statutes (HRS)§205A-22. VIII.AGENCY COMMENTS Comments from applicable government agencies are being sought and are expected at timeofthepublichearing scheduled on April 13,2021.At the present time,the department has received comments only from the COK Dept.of Public Works - Engineering Division,which is attached as Exhibit 'A'.Comments from the COK.Fire Dept.,Housing Agency &Dept.of Water,and the State Department of Health (DOH)are being anticipated. IX.PRELIMINARY EVALUATION In evaluating the Applicant's proposal to construct the residence and associated site improvements,the following aspects are taken into consideration: 1.GENERAL PLAN The proposed development satisfies the following policies ofthe General Plan,as Z-IV-2021-8,u-2021-7;Director's Report KAPLAN 3.17.2021 5|Page takenfrom Sections 1.3 &1.4: A.Section 1.3,entitled "VISION AND GOALS" 1)Goal #1 A Sustainable Island -As represented,the project is an example of responsible growth in an area designated for residential and open space uses.The Applicant intends to utilize the parcel to support agricultural activities for the island. 2)Goal #2 "A Unique and Beautiful Place"-The project will complement the natural,cultural,social and built environmental assets ofthe Kilauea area,and more specifically,around the KTlauea River area.As proposed, the project is compatible with similar uses in the area.The Applicant is selecting earth-tone colors,vegetation screens,and landscaping which will enhance the appearance ofthe dwelling unit. 3)Goal #3 "A Healthy and Resilient People"-There will be minimal visual impacts since the footprint ofthe structure has decreased in size from the original application in 2011 (approx.341 SF)and anticipate no significant negative impacts on historic sites or Hawaiian cultural practices. 4)Goal #4 "An Equitable Place,with Opportunity for All"-The project would support and enhance economic and business opportunities andjobs on Kaua'i. B.Section 1.4,entitled "POLICIES TO GUIDE GROWTH" 1)Policy #1 "Manage Growth to Preserve Rural Character"-As proposed,the project is consistent in preserving the rural character of the neighborhood and occiirs in a location that is zoned for residential development. 2)Policy #2 "Provide Local Housing"-The Applicant recognizes the need for more housing in the north shore area and is intended to further support housing opportunities. 3)Policy #8 "Protect Kauai's Scenic Beauty"-The project should not have any substantial negative impacts on the visual resources in the KTlauea area.The proposed new color scheme and landscaping for the project would lessen the overall visual impact ofthe cunent improvements,as viewed from the Kllauea Bay area or along the river side. 4)Policy #9 "Uphold Kaua'i as a Unique Visitor Destination"-The General Plan identify areas like Ha ena,Wainiha and Hanalei being drastically impacted by non-traditional visitor industry operations.As a result,these communities have been considerably altered as a consequence ofthese operations.The project area is outside ofthe visitor destination area and the proposed FDU is prohibited from being utilized as a Transient Vacation Rental or Homestay. 5)Policy #11 "Help Agricultural Lands Be Productive"-As previously represented,the Applicant intends to utilize a portion ofthe Z-IV-2021-8,U-2021-7;Director's Report KAPLAN 3.17.2021 6 1 P age parcel for agricultui'al purposes. 2.NORTH SHORE PLANNING AREA fNSPA) The proposed dwelling unit is consistent with the goals and objectives ofthis plan, and is compatible with the existing residences in this neighborhood.Furthermore,it complies with the development standards contained in Section 10-2.4(e)ofthe Kaua'i County Code (1987),as amended. 3.USE PERMIT Pursuant Article 20 ofthe Comprehensive Zoning Ordinance (CZO),Chapter 8 ofthe Kaua'i County Code (1987),the purpose ofthe Use Permit procedure is to assure the proper integration into the community ofuses which may be suitable only in specific location ofa district,or only under certain conditions,or only ifthe uses are designed, arranged or conducted in a particular manner,and to prohibit the uses ifproper integration cannot be assured.Section 8-20,5 ofthe CZO specifies a Use Permit may be granted only ifthe Planning Commission finds that the use meets the following cntena: o The use must be a compatible use; o The use must not be detrimental to persons or property in the area; o The use must not cause substantial environmental consequences;aad o The use must not be inconsistent with the intent ofthe Comprehensive Zoning Ordinance (CZO)and General Plan. Based on the criteria noted above,the following aspects are examined: a.Compatible Use -The construction of a farm dwelling remains consistent with surrounding improved land uses.Historically,the kuleana was utilized for agricultural purposes and fhe proposed development will allow for the Applicants to continue fhis use.The appearance ofthe building has been designed to minimize visual impact to the surrounding community.The location and size ofthe proposed project will not create unusual noise or other conditions that may be incompatible to the surrounding area. b.Will Not Be Detrimental to Persons Residing on Property or in the Area - As represented,the proposed project is located within a rural agricultural neighborhood.As previously mentioned,the project site is not prone to flood hazards.Since the project is situated within a very rural neighborhood,the proposed development would not be detrimental to persons residing in the area and properties surrounding the project site are similarly zoned. Therefore,the project should not have significant adverse impact to the community. c.Will Not Cause Substantial Harmful Environmental Consequences -The project site has been previously disturbed and utilized for agricultural purposes,and it is unlikely that rare,threatened or endangered species,or sensitive habitat will be affected by the proposed development.Due to the 2-IV-2021-8,U-2021-7;Director's Report KAPLAN 3.17,2021 7 1 P age extensive ground disturbance that occurred from the past,it is unlikely that any mammalian or avian species,or botanical resources would be impacted by the project. d.Will Not Be Inconsistent With the Intent of the CZO and General Plan - The subject property as well as the adjacent parcels along the makai side of the highway are similarly zoned to accommodate the mixed uses in this agricultural subdivision.As proposed,the project is consistent with the development standards ofthe CZO and Vision &Goals ofthe General Plan. 4.CZO DEVELOPMENT STANDARDS As proposed,the project complies with the building height,setback,and off-street parking requirements for development within the Open/Special Treatment -Resource (0/ST-R)zoning district,as specified in Sections 8-4.3 &8-4.5 the Comprehensive Zoning Ordinance (CZO). In order to further ensure that the project is compatible with its surroundings and to minimize the visual impact ofthe structure,the extemal color should be ofa moderate to dark earth-tone color,and the Applicant should provide substantial landscaping.The proposed color scheme and a landscape plan should be submitted to the Plaiming Department for review and acceptance prior to building permit application. As previously mentioned,the project site is situated outside ofthe VDA.As such,the proposed farm dwelling should not be utilized for transient accommodation purposes. a.Special Treatment -Resource District (ST-R):In considering the proposal,it is noted that the project is not visible to the general public from Kahili Makai Street or public vantage points along KTlauea Bay.The project is already situated within a heavily wooded area,and through proper landscaping,any visual impacts ofthe farm dwelling or associated stmcture would be mitigated as viewed from certain vantage points across the Kilauea River. Finally,it is uncertain as to whether the Applicant has made provisions for night illumination with the project,based on the preliminary plans that have been submitted.If so,night illumination should be designed to minimize adverse impacts on the Federally Listed Threatened Species,Newell's Shearwater and other seabirds.Night lighting should be shielded from above and directed downwards and shall be approved by the U.S.Dept.of the Interior Fish and Wildlife Service.Ifexternal lighting is to be used in connection with the proposed project,all external lighting should be only ofthe following type:downward- facing shielded lights.Spotlights aimed upward br spotlighting of stmctures is prohibited. X.PRELIMINARY CONCLUSION Based on the foregoing,it is concluded that through proper mitigation measures the proposed development would not have any detrimental impact to the environment or the surrounding area and is in compliance with the criteria outlined for the granting of a Use 8|Page Z-IV-2021-8,U-2021-7;Director's Report KAPLAN 3.17.2021 Permit and Class IV Zoning Permit.Additionally,the project is consistent with the objectives/goals/policies ofthe General Plan,North Shore Planning Area,the Comprehensive Zoning Ordinance,and other applicable ordinances.The development will not have any substantial adverse environmental or ecological effect.Any adverse environmental or ecological effect that may result will be minimized to the extent practicable;and The Applicant should institute the "Best Management Practices"during the construction phase ofthe project in order to insure that the proposed development does not generate impacts that may affect the health,safety,and welfare ofthose in the surrounding area of the proposal. The Applicant shall implement to the extent possible sustainable building techniques and operational methods for the project. XI.PRELMINARY RECOMMENDATION Based on the foregoing evaluation and conclusion,it is hereby recommended that the proposed development involving the construction of a faim dwelling and associated site improvements through Class IV Zoning Permit Z-IV-2021-8 and Use Permit U-2021-7 be APPROVED subject to the followingconditions: 1.The project shall be constructed as represented.Any changes to the operation and/or the respective stmctures shall be reviewed by the Department to determine whether Planning Commission review and approval is warranted. 2.In order to ensure that the project is compatible with its surroundings and to minimize the visual impact ofthe stmcture,the extemal color ofthe proposed residence shall be of a moderate to dark earth-tone color.The proposed color scheme and a landscape plan should be submitted to the Planning Department for review and acceptance prior to building permit application. 3.The Applicant shall submit for review and approval by the Planning Department, a landscape plan composed ofnative species,or species common to the area,to help to screen the proposed structures,and integrate the site with its surroundings. 4.The Applicant is made aware that the proposed residence shall not be utilized for any transient accommodation purposes.It shall not be used as a transient vacation rental (TVR)or as a homestay. 5.If extemal lighting is to be used in connection with the proposed project,all external lighting should be only ofthe following type:downward-facing shielded lights.Spotlights aimed upward or spotlighting of structures is prohibited. Z-IV-2021-8,U-2021-7;Director's Report KAPLAN 3.17.202] 91P age 6.The Applicant shall develop and utilize Best Management Practices (BMPs) during all phases of development in order to minimize erosion,dust,and sedimentation impacts ofthe project to abutting properties. 7.Unless otherwise stated in the permit,once a permit is issued,the Applicant must make substantial progress,as determined by the Director,regarding the development or activity within two (2)years,or the permit shall be deemed to have lapsed and be no longer in effect. 8.The Applicant should resolve and comply with all agency requirements as recommended in the permit application review,uicluding but not limited to the building permit &drainage requirements ofthe County DPW Engineering Division,County Fire,Department,potable water &fire protection requirements for the County Dept.ofWater,and regulations involving environmental concems as administered by the State Department ofHeaIth. 9.Since there are known archaeological sites (agricultural terraces)on the subject parcel,the Applicant shall closely with State Department ofLand and Natural Resources -Historic Preservation Division (SHPD)in order to ensure that these archaeological sites remain undisturbed and/or unaffected by the proposed construction activities.Furthermore,the Applicant is advised that should any archaeological or historical resources be discovered during ground disturbing/construction work,all work in the area ofthe archaeological/historical findings shall immediately cease and the Applicant shall contact the SHPD and the Planning Department. 10.Prior to commencement ofthe proposed development,written confirmation of compliance with the requirements from all reviewing agencies shall be provided to the Planning Department. 11.The Applicant is advised that prior to construction and/or use,additional government ageucy conditions may be imposed.It shall be the Applicant s responsibility to resolve those conditions with the respective agency(ies). 12.The Planning Commission reserves the right to add or delete conditions of approval in order to address or mitigate unforeseen impacts this project may create,or revoke the permits through the proper procedures should conditions of approval be violated or adverse impacts be created that cannot be properly addressed. The Planning Commission is further advised that this report does not represent the Planning Department's final recommendation in view ofthe forthcoming public hearing process scheduled for April 13,2021 whereby the entire record should be considered prior to decision making.The entire record should include but not be limited to: a.Pending government agency comments; b.Testimony from the general public and interested others;and Z-IV-2021-8,U-2021-7;Director's Report KAPLAN 3,17.2021 10 1 Pag e c.The Applicant's response to staffs report and recommendation as provided herein. DALE A.CI'UA Planner Approved &Recommended to Commission: -^ Date KA'ADSTA~S.HULL Director of Planning :3/Z-3 J-ZoZ-t Z-IV-2021-8,U-2021-7;Director's Report KAPLAN 3.17.2021 111P age EXHIBIT"A" (Agency Comments) For reference COUNTY OF KAUA'I PLANNING DEPARTMENT 4444 RICE STREET,SUITE A473,LIHU'E,HI 96766 Phone:(808)241-405a;;,,,,;,0;r\;- TO:Kaaina S.Hull,Director (Romio) SUBJECT:Class FV Zoning Permit Z-IV-2021 -{ Family Detached,Tax Map Key:(4) TO: 1[DepartmentofTransportation-STP DOT-Highways,Kaua'i (info only) DOT-Airports,Kaua'i (info only) I1 DOT-Harbors,Kaua'i (info only) State Department ofHealth 11 StateDepartmentofAgriculture State Office ofPlanning State Dept.ofBus.Econ,Dev.Tourism I1 State Land Use Commission State Historic Preservation Division [_]DLNR -Land Management D DLNR -Forestry &Wildlife [1 DLNR -Aquatic Resources DLNR-OCCL February 11,2021 !,Use Py(nit|tISI%l-'S0^3ling,Single 5-2-012:010,Michael Kaplan,Applicant PW 02.21.058 .Cfcl D D D D D DDD D DPW -Wastewater DPW -Building DPW -Solid Waste Department ofParks &Recreation Fire Department County Housing Agency County Economic Development KHPRC Water Department Kaua'i Civil Defense U.S.Postal Department UHSeaGrant County Transportation Agency Other: February25,2021FORYOURCOMMENTS(pertaining to your department): We have reviewed the subject application for the constmction ofa partially completed single family dwelling at TMK:(4)5-2-012:010.Construction activities were suspended when the Circuit Court ruled pennits for this project were expired.We offer the following comments. 1.All existing drainage runoffvolumes and flow pattems shall be maintained and subject to Best Management Practices (BMPs).BMPs shall be implemented at all times to the maximum extent practicable to prevent damage by sedimentation,erosion,or dust to streams,watercourses,natural areas,and the property ofothers. Sincerely, Michael Moule,P.E. Chief,Engineering Division MM/PT copy:Design and Permitting This matter is scheduled for a public hearing before the County ofKaua'i,Planning Commission on 4/13/2021 at the Lihu'e Civic Center,Mo'ikeha Building,Meeting Room 2A-2B,4444 Rice Street,Lihu'e,Kaua'i,at 9:00 am or soon thereafter.Ifwe do not receive your agency comments by March 2,2021,we will assume there are no objections to this permit request.Mahalo! r r CADES SCHUTTE A Limited Liability Law Partnership MAUNA KEA TRASK 8418-0 3135 Akahi Street,Suite A Lihu'e,Hawai'i 96766 Telephone:(808)521-9297 Attomey for Petitioners-Interveners WEST SUNSET 32 PHASE 1,LLC; CHARLES SOMERS,as Trustee ofthe Charles Somers Living Trust; CS DEVELOPMENT LLC; and CHARLES SOMERS,Individually BEFORE THE PLANNING COMMISSION OFTHE COUNTY OF KAUA'I In the Matter ofthe Application Of MICHAEL KAPLAN,Trustee ofthe Michael A. Kaplan Revocable Trust,date August 12,1992 as amended and restated by instrument dated July 16,2017,affecting real property located at Kahili Ahupua'a,Hanalei,Island and County of Kauai,State of Hawaii,more particularly identified as Tax Key No.(4)5-2-012:019,and containing an area of 32,034 sq.ft.,more or less. USE PERMIT N0.U-2021-7;CLASS IV ZONING PERMIT N0.Z-IV-2021-8 PETITION FOR INTERVENTION; DECLARATION OF CHARLES SOMERS; DECLARATION OF COUNSEL; EXHIBITS "1"-"15"; CERTIFICATE OF SERVICE PIanning Commission Public Hearing: Date:Aprill3,2021 Time:9:00 a.m. Place:Lihue Civic Center,Moikeha Building Meeting Rooms 2A and 2B 4444 Rice Street Lihue,Hawaii PETITION FOR INTERVENTION WESTSUNSET32PHASE1,LLC;CHARLES SOMERS,asTrusteeofthe Charles Somers LivingTrust;CS DEVELOPMENT LLC;and CHARLES SOMERS,Individually (collectively "Somers"),by and through his undersigned attomeys hereby submits this Petition for Intervention and moves to be admitted parties to the County ofKaua'i Planning Commission f;^-b-3-'APR1 32021 ("Commlssion")proceedings relating to the application for Use Permit U-2021-7 and Class IV Zoning Permit Z-IV-2021-8 (the "Application"),Tax Map Key ("TMK")(4)5-2-012:019 ICahili Ahupua'a,Hanalei,Island and County ofKaua'i,by MICHAEL KAPLAN,Trustee ofthe Michael A.Kaplan Revocable Trust,date August 12,1992 as amended and restated by instrument dated July 16,2017 ("Kaplan").Somers requests that contested case hearingbe held with respect to the Application. This Petition is brought pursuant to the Kaua'i County Planning Commission Rules of Practice and Procedure,("Planning Commission Rules")Ch.4 et.seq.,Hawaii Revised Statutes ("HRS")Ch.205A,and Title IV,Chapter 8 ofthe Comprehensive Zoning Ordinance ("CZO"),et.seq. I.HISTORY OF KAPLAN'S DEVELOPMENT. Kaplan is seeking to complete the construction ofa single family residence on TMK No. (4)5-2-012:019 (the "Kuleana Lot").The development ofthe single family residence is actually part of a larger development that has been the subjectoflitigationbetweenKaplan, Somers and the County since 2019.The Honorable Judge Watanabe's Findings ofFact, Conclusions ofLaw,and Decision and Order ("Order")are attached hereto and describe the history ofthe Development,relevant portions ofwhich are stated below.See Exhibit ("Ex.")1. Kaplan purchased the Kuleana Lot and a neighboring lot identified as TMK No. (4)5-2-021:041-0001 (por.)("Parcel 41")(together the "Subject Properties")from the Hendrikus Group,LLC ("Hendrikus")in October of 2018.Ex.1 at Findings ofFact ("FOF") T[9.Prior to Hendrikus'tenure,the Subject Properties were owned by Arthur M.Saunders ("Saunders")who constructed four (4)separate,eight-sided,single-room structures within the Subject Properties (the "Saunders Development").Ex.1 at FOF 1[26.The entirety ofthe Saunders Development was constructed without any of the required Special Management Area permits,land use permits,zoning permits,or building permits.Ex.1 at FOF ^[29. Hendrikus purchased the Subject Properties from Saunders with knowledge ofthe Saunders zoning violations.Ex.1 at FOF 1[30.On July 15,2010,Hendrikus submitted a Special Management Area Permit Assessment and Application &Class IV Zoning Permit Application for a development containing three (3)parts:(1)proposed structures for the Kuleana; (2)proposed structures for Parcel 41;and (3)an Archaeological &Agricultural restoration project (the "Hendrikus Development").Ex.1 atFOFpl.Hendrikus'areaofdevelopmentis identified as the "Project Area"and included all ofthe Kuleana Lot,a portion ofParcel 41,and incorporates acreage on Somers Property and neighboring Lot 4.Ex.1 at FOF 1)11 .The Project Area comprises a total of 9.848-acres and is described as "a historic agricultural and arehaeological complex ofterraced pond fields and associated rock walls",and issignificant for its archaeological,agricultural,historic,and natural features.Ex.1 at FOF 1[12.Through his permit application,Hendrikus desired to rectify the known zoning violations on the Subject Properties.Ex.1 at FOF 1)32. During hearing on Hendrikus'application,Kilauea resident Maka'ala Ka'aumoana ("Ka'aumoana")testified that the Hendrikus development was in an active area for traditional activities and gatherings,and that the quality ofthe in-stream resources ofKilauea Stream is important for people's rights.Ex.1 at FOF 1[40.Ka'aumoana indicated that including a water quality testing condition in the Hendrikus permits was important so that the impact to the Kilauea stream as a public trust resource was known.Ex.1 at FOF fftl.On September 29, 2010,per approval by the Commission,the Planning Director issued Special Management Area Use Permit SMA (U)201 1-1,Class IV Zoning Permit Z-IV-2011-1,and Use Permit U-2011-1 (the "Hendrikus Permits")to Hendrikus for construction ofnew single family residence, accessory agricultural storage and office structure,development ofirrigation well,accessory photovoltaic installation,demolition ofstructure and archaeological restoration ofhistorical auwai,rock walls,and terraces,subject to ten (10)conditions.Ex.1 at FOF ^[44.Ka'aumoana's request for water quality testing was included in Hendrikus'permit as condition 10.Ex.1 at FOF 1[43. On or about March 29,2019 Kaplan submitted a letter application (the "Kaplan Applicatlon")to the Commission asking for:1)a two year continuance to complete the work approved in the Hendrikus Permits;and 2)Commission approval to modiiy the design ofthe previously approved single-family residence.Ex.1 at FOF 1[46.The alterations proposed by Kaplan included,inter alia,increasing the interior living area ofthe single-family residence from 2,098 sq.ft.to 2,353 sq.ft.Ex.1 at FOF 1|47.Although it was not discussed before the Commission,whereas the original single-family residence proposed by Hendrikus was to be ofa less intrusive post and pier construction,Kaplan changed his design to a more intrusive concrete foundation.Hendrikus'previous archaeological studies were based upon the understanding that the proposed house will be ofpost and pier construction.Application,Ex.K at 1 and 40. At its April 23,2019 meeting,after a briefpresentation by the Planning Department and Kaplan's representatives,the Commission approved Kaplan's application for an extension of time and modification ofthe design ofthe single-family residence.Ex.1 at FOP 1[66. On May 21,2019,Somers filed a Petition for the Revocation ofSpecial Management Area Use Permit SMA (U)2011-1;Class IV Zoning Pennit Z-IV-2011;Use Permit U-2011. Ex.1 at FOF 1[70.On June 27,2019,the Commission issued its written decision denying r'r Somers'Petition for Revocation.Ex.1 at FOF 1)87.Somers appealed the KCPC's decision to the Pifth Circuit Court,Honorable Judge Kathleen Watanabe presiding. On June 9,2020 Judge Watanabe issued her Findings ofFact,Conclusions ofLaw,and Decision &Order,and ordered the following: (A)Special Management Area Use Permit SMA (U)2011-1;Class IV Zoning Permit Z-IV-2011-1,and Use Permit (U)2011-1 lapsed on September 28, 2012 and are deemed to be no longer m effect and no further development shall proceed under the authority ofthe Subject Permits; (B)This matter is remanded to the Planning Department with instructions to find that Kaplan's request for the construction of a farm dwelling unit in addition to the pre-existing development on thc Subject Property, and amendment to modify the design of the previously permitted single family resldence requires a Use Permit pursuant to Chapter 8-11.3 of the Kauai County Code,a Class IV Zoning Permit pursuant to Chapter 8-11.3 of the Kauai County Code,and constitutes "Development"pursuant to HRS 205A-22 and SMA Rule 1.4 F,thus requiring a SMA Use Permit as deflned in SMA Rule 7.3 C; (C)The Director shall inform Kaplan of,and the KCPC,the Planning Department,and Kaplan shall comply with the following requirements pursuant to SMA Rule 7.3 C (a)-(d):the requirement of an application pursuant to SMA Rule 8.0,the public hearing requirements pursuant to SMA Rule 9.0,the Planning Commission's requirements for action pursuant to SMA Rule 10.0,and the area ofcritical concem to delineate the scope of information which the applicant must address;and (D)Kaplan's request for Development shall not be approved unless the Director or Planning Commission has first made the requisite findings pursuant to HRS §205A-26 (2)(A)-(C)and SMA Rule 4.0 B (1)-(3)after conducting a public hearing and any other necessary hearings pursuant to HRS Ch. 205A,the SMA Rules of the County of Kauai,and the RPPPC,consistent with this Court's Findings of Fact,Conclusions of Law,and Decision and Order Order at 43-44. This case is currently on appeal before the Supreme Court ofthe State ofHawaii, Intermediate Court ofAppeals. II.NATURE AND EXTENT OF SOMERS'INTEREST. Somers is a landowner and part-time resident within the ahupua'a ofKilauea and Kahili. Declaration ofCharles M.Somers ("Somers Dec.")at 1[4.Somers uses his properties,the Kilauea stream and the beach and coastal areas ofKahili and Kilauea for recreational activities, including but not limited to swimming,snorkeling,paddling,walking,picnicking,fishing hiking and the like,as well as for exercise and meditative and spiritual renewal.Id.at 1(5.Somers is man-ied and has four children;his family also uses these areas for the same purposes.Id.at T|6. Somers has an abiding respect for Native Hawaiian history and culture and advocates for the preservation and protection ofNative Hawaiian historic sites.Id.at T|7.Somers has a right to a clean and healthful environment pursuant to Article 11,Section 9 ofthe Hawaii State Constitution. Somers owns eleven (11)properties in and around the Kilauea valley,ten (10)ofwhich are located within or partially within the SMA.Id.at 1[8.The properties are identified as TMK Nos.:(4)5-1-005-017:0003;(4)5-1-005-016:0002;(4)5-2-012-035;(4)5-2-021-007:0004; (4)5-2-004-097:0001;(4)5-2-004-047:0002;(4)5-2-004-047:0001;(4)5-2-021-006:0005; (4)5-2-012-009:0004;(4)5-2-012-015:0003;and (4)5-2-012-015:0002.Id.Out ofthese eleven (11)properties five (5)will be directly,significantly and negatively affected by Kaplan's proposed development;they are:(4)5-2-012-035 (Ex.2);(4)5-2-021-007:0004 (Ex.3); (4)5-2-021-006:0005 (Ex.4);(4)5-2-012-009:0004 (Ex.5);and (4)5-2-012-015:0003 (Ex.6). Id.at 1[9.However,Somers reserves the right to amend this Petition upon discovery ofevidence that Kaplan's development may affect his other properties as well. TMK No.(4)5-2-012:035 ("Parcel 35")is approximately 162 acres and is directly adjacent to and abuts the Kuleana Lot.Ex.7.Parcel 35 is encumbered by two (2)conservation r r easements,identified herein as "C-l"and "C-2".Ex.8.Somers is the "Owner"ofthese conservation easements and the Hawaiian Land Trust ("HILT")is the "Holder"ofthe conservation easements.The purposes of C-1 is to establish and maintain forever the "Conservation Values"ofthe Easement Area,which are: a)Water and Wetland Resources -protect the quality of water resources within or in the vicinity of the Easement Area,including protect the quality of wetlands,including the habitat they provide for endangered water birds; b)Archaeological Resources -protect Native Hawaiian archaeological resources,which have been identified in the Baseline Documentation or are identified or discovered subsequently; c)Indigenous Wildlife Resources -protect intact areas of indigenous wildlife habitat,including endangered species; d)To the extent not in conflict with the Water and Wetlands Resources,Archaeological Resources,and Wildlife Resources, Scenic Resources -protect scenic vistas visible from public rights- of-way and other public access points in the vicinity of the Property;and e)To the extent not in conflict with the Water and Wetlands Resources,Archaeological Resources,and Wildlife Resources, Agricultural Resources -protect and preserve land suitable for agricultural uses,including agroforestry uses. Id. A portion ofKaplan's project area is within a portion of Somers'property encumbered by C-l and is subject to the terms and conditions ofeasement GU-4 ("GU-4")as described in the Declaration ofExclusive Use Easement,dated February 5,2003,and recorded April29,2003 as Doc.No.2003-078712.Ex.9.Kaplan's development will change existing drainage pattems, cause harmfal environmental consequences to the Kilauea Stream and significantly and adversely affect the Conservation Values ofC-1,and will hinder,impede,impair and/or prevent the use and enjoyment of Somers'property by Somers and his family,including but not limited to,the quiet enjoyment,ownership,control,use,maintenance or development ofSomers' property.Somers Dec.at T[10. TMK No.(4)5-2-021-007:0004 ("Parcel 7-Unit 4")is located on the Kilauea stream downstream from Kaplan's development (Ex.10)and will be significantly and adversely affected by erosion,pollution,runoff,and other detrimental environmental effects caused by Kaplan's development.Somers Dec.at 1[11.TMK No.(4)5-2-021 -006:0005 ("Parcel 6-Unit 5")is located on the Kilauea stream downstream from Kaplan's development (Ex.11)and will be significantly and adversely affected by erosion,pollution,runoff,and other detrimental environmental effects caused by Kaplan's development.Somers Dec.at ^[12.TMK No.(4)5-2- 012-009:0004 ("Parcel 9-Unit 4")is located on the northwest rim ofKilauea valley (Ex.12)and possesses valuable scenic resources which are significantly and adversely affected by Kaplan's development.Somers Dec.at 1[13.TMK No.(4)5-2-012-015:0003 ("Parcel 15-Unit 3")is also located on the northwest rim of Kilauea valley (Ex.1 3)and possesses valuable scenic resources which are significantly and adversely affected by Kaplan's development.Somers Dec.at ^[14. More recent pictures depicting the Development as viewed from Somers'properties on the north-westem rim ofKilauea valley are attached hereto as Ex.14. III.THE NATURE OF^iOMERS'STATUTORY OR OTHER RIGHT. The nature of Somers'statutory or other rights to intervene are based upon environmental concems,historical and cultural concems,and concems ofa neighboring landowner.Somers has a real and sincere interest in protecting and maintaining the quality ofthe environment within the Kilauea valley and has a direct interest in ensuring that the special controls on development within the SMA are strictly and carefully applied to all developments in this area.Somers Dec. at 1|15.Somers also has a direct interest in ensuring that the tenets ofCZO Article 9,Open Districts,and CZO Article 11,Special Treatment Districts,are carefully applied to all developments in this area.As a person who,along with his family,uses and has an interest in protecting the environment and the natural,cultural and historic resources ofthe Kilauea valley, and as an adjoining landowner whose property partially lies within Kaplan's project area,Somers is directly and immediately affected by the Application such that his interest in this proceeding is clearly distinguishable from that ofthe general public. The court has adopted very liberal guiding tenets conceming standing in environmental cases and has said that such requirements should not be barriers to justice.See Life ofthe Land v. Land Use Commission,63 Haw.166,171,623 P.2d 431,438 (1981).The standing of adjoining or nearby property owners to ensure environmental protections in land use proceedings is a settled issue under Hawaii law.See,East Diamond Head Association v.Zoning Board of Appeals,52 Haw.518,479 P.2d 796 (1971)(holding landowners whose land adjoined land subject to a zoning variance were "persons aggrieved"under HRS§91-14);Dalton v.City and County ofHonolulu,51 Haw.400,462 P.2d 199 (1969)(concluding that "residing in very close proximity"to a proposed high-rise apartment was sufficient to confer standing and thus sufficient to establish a "concrete interest"in a "legal relation"subject to protection);and Waianae Mode! Neighborhood Assoc.,Inc.v.City and County ofHonolulu,55 Haw.40,514 P.2d 861 (1973) (granting standing to an organization whose members resided "within the area"ofa proposed apartment hotel). Conceming the issue ofstanding,the circuit court has found that Somers clearly established his "interest in the land"in the circuit court appeal as Kaplan's project area is within a portion ofSomers'Property.Ex.1 at Conclusion ofLaw ("COL")1[44.The Court further determined that denial of Somers'Petition denied him ofhis right and duty to preserve and r r maintain the Conservation Values ofthe Easement Area within C-l and to prevent any use ofthe Easement Area that will significantly impair or interfere with its resources,which may result in sanctions and adversarial action taken against Somers by HILT,and constitutes an "injury in facf'.Ex.1 atCOL1[47. IV.TH£SPECIFIC ISSUES TO BE RAISED IN CONTESTED CASE. Somers intends to raise the following issues in contested case;however,Somers reserves the right to amend this Petition upon discovery ofevidence that Kaplan's Application raises other issues not currently contained therein. 1.whether the construction of the single family house is "development"as defined by HRS §205A-22 and SMA Rule 1.4F,and court order,thus requiring a SMA Use Permit; 2,whether notice ofthe hearing is accurate and complete under HRS §205A-29 and County SMA Rules and the CZO; 3.whether the proposed development may have significant adverse environmental or other impacts,including impacts to Native Hawaiian historic sites and cultural resources; 4.whether the proposed development may have a significant adverse effect on Somers'adjoining properties; 5.whether there are modifications and/or conditions which could mitigate adverse impacts on the environment and on Somers; 6.whether the construction ofthe single-family structure complies with the purpose ofthe Use Permit procedure in CZO §8-3.2 to assure the proper integration into the community ofuses which may be suitable only in specific locations in a district,or only under certain conditions,or only if the uses are designed,arranged or conducted in a particular manner,and to prohibit such uses ifthe proper integration cannot be assured; 7.whether the development complies with the Kauai County General Plan; 8.whether the development complies with the North Shore Development Plan Ordinance; 9,whether the development complies with the purpose ofthe County of Kauai Open (0)zoning district as provided in CZO §8-9.1 et.seq.; 10 10.whether the development complies with the purpose ofthe State Land Use Commission Agricultural District; 11.whether the development complies with the purposes and requirements of the Special Treatment,Scenic/Ecologic Resources District ("ST-R")as described in CZO §§8-11.1,8-11.2(c),and 8-11.5 et.seg.;and 12.whether the application contains an accurate and sufficient analysis ofthe impact the development could have on Native Hawaiian customary and traditional practices as required under Ka Pa 'akai O Ka 'Aina v.Land Use Com 'n,State ofHawaii,94 Haw.31,7 P.3d 1068 (2000). V.THE EFFECTS OF ANY DECISION ON SOMERS'INTERESTS. Somers and Kaplan have been litigating issues conceming the environment and land use and development relating to this specific development for nearly two years and,as provided supra,the Court has already found that Somers has standing as an "interested person"to participate in the land use and development process with regard to development on Kaplan's property.Further,the court ruled that failure to allow Somers to participate in the land use and development process with regard to development on Kaplan's property denies him ofhis right and duty to preserve and maintain the Conservation Values ofthe Easement Area within C-l and to prevent any use ofthe Easement Area that will significantly impair or interfere with its resources,which may result in sanctions and adversarial action taken against Somers by HILT, and constitutes an "injury in fact."Somers will be further injured ifhe is not able to intervene and participate in a contested case hearing regarding this application because it pertains to the same development. Oranting Kaplan's Application would significantly adversely affect Somers'interest in protecting the conservation values ofC-1 which lies within Kaplan's project area.Somers Dec. at 1[10.Grading,grubbing and landscaping in and around the Kuleana Lot as part ofthe Development will cause erosion,runoff,and pollution to enter the Kilauea stream,significantly adversely impacting Somers'property interests in Parcel 35,Parcel 7-Unit 4,and 11 Parcel 6-Unit 5.Further,allowing the Development will significantly adversely impact Somers' view and scenic resources from Parcel 35,Parcel 9-Unit 4,and Parcel 5-Unit 3. Granting Kaplan's Application will significantly adversely affect Somers'interests in a clean and healthful environment,and his use ofhis properties and the Kilauea stream and the beach and coastal areas ofKahili and Kilauea for recreational activities,including but not limited to swimming,snorkeling,paddling,walking,picnicking,fishing hiking and the like,as well as for exercise and meditative and spiritual renewal.Somers Dec.at 1[18. Finally,granting Kaplan's Application will significantly and adversely affects Somers' interests in protecting and preserving Native Hawaiian cultural and historic resources throughout the KTlauea valley.Somers Dec.at T]19.Originally,Clark and Rechtman (2010)conducted an archaeological inventory survey ("AIS")ofthe Kuleana Lot for Hendrikus.Application at Ex.K.They documented nine fields or portions offields ofSite 2011,which were mapped in detail and subject to backhoe testing.Ex.15 at 2.Site 201 1 was assessed as significant under Criterion d and recommended for no further work within the subject parcel.Id.SHPD concurred and accepted the report in a letter dated April 5,2010 (Log No.2010.0523,Doc.No. 1003MV03).Id.However,Hendrikus'previous archaeological studies and adverse impact assessments were based upon a differently designed single-family residence with a post and pier foundation.Application,Ex.K at 1 and 40. Subsequently,Clark et al.(201 1)conducted an AIS of approximately roughly 21 acres, belonging to the same landowner,including TMK:(4)5-2-021:041 and portions ofTMK: (4)5-2-012:035 and(4)5-2-021:004.Ex.15at2.They documented an 'auwat (diteh)and 60 additionalten-acedfieldsofSite2011 withinTMK:(4)5-2-021:041.Id.Although archival documents suggest that Site 201 1 was used for rice and vegetable cultivation during the late 12 nineteenth and early twentieth centuries,it is clear that the rice fields were built upon an earlier kula and lo 'i agricultural system that was present at the time ofthe Great Mahele.!d. Kaplan fails to acknowledge the significance ofthe Native Hawaiian historic and cultural resources on the Kuleana Lot and neighboring properties.Further,Kaplan has never analyzed the significant adverse effect that a graded concrete foundation would have on this significant historic site.Instead,Kaplan is inadequately relying on a decades old analysis based upon the design ofa single-family residence resting on a post and pier foundation. VI.QTHER MATTERS TO CONSIDER. Somers'environmental concerns and his interests as the owner ofnumerous other properties within and around the Kilauea valley are unique and are not represented by other parties to the proceeding or the public.Somers participation will assist the Commission in assessing the potential impacts ofthe development on the SMA and the Open/ST-R zoning districts,and on the Kilauea valley in general. Somers will assist the Commission in developing a complete record as Kaplan will be required to present evidence in support ofhis applications in a complete and rigorous manner. Somers will examine witnesses offered by Kaplan,and Somers witl offer evidence and exhibits in support ofhis own position. Somers'involvement will not delay the proceeding because Somers has a legal right to request intervention in this proceeding and to participate in contested case hearing. VII.CONCLUSION. Based on the foregoing,Somers respectfully requests he be allowed to intervene in this proceeding and that the Commission implements contested case hearing procedures. 13 DATED:Lihu'e,Hawaii,April 5,2021. CADES SCHUTTE LLP MAUNA KEATRASK Attorney for Petitioners-Interveners WEST SUNSET 32 PHASE1,LLC; CHARLES SOMERS,as Trustee ofthe Charles Somers Living Trust; CS DEVELOPMENT LLC; and CHARLES SOMERS,Individually 14 BEFORE THE PLANNING COMMISSION OFTHE COUNTY OF KAUA'I In the Matter ofthe Application Of MICHAEL KAPLAN,Trustee ofthe Michael A. Kaplan Revocable Trust,date August 12,1992 as amended and restated by instrument dated July 16,2017,affecting real property located at Kahili Ahupua'a,Hanalei,Island and County of Kauai,State ofHawaii,more particularly identified as Tax Key No.(4)5-2-012:019,and containing an area of 32,034 sq.ft.,more or less. USE PERMIT N0.U-2021-7;CLASS IV ZONING PERMIT N0.Z-IV-2021-8 DECLARATION OF CHARLES SOMERS DECLARATION OFCHARLES M.SOMERS I,CHARLES M.SOMERS,declare as follows: 1.My name is Charles Michael Somers. 2.I am the beneficial owner of WEST SUNSET 32 PHASE 1,LLC;The Charles Somers Living Trust;and CS DEVELOPMENT LLC. 3.I am familiar with the Kaplan properties identified as TMK Nos. (4)5-2-012:019 ("Kuleana Lot")and (4)5-2-021:041-0001 (por.)("Parcel 41")(collectively the "Subject Propertles"). 4.I am a landowner and part-time resident within the ahupua'a of Kilauea and Kahili. 5.I use my properties,the ICilauea stream and the beach and coastal areas of Kahili and Kilauea for recreational activities,including but not limited to swimming,snorkeling, paddling,walking,picnicking,fishing hiking and the like,as well as for exercise and meditative and spiritual renewal. 6.I am married and have four children.My family also uses these areas for the same purposes. 7.I have an abiding respect for Native Hawaiian history and culture and I advocate for the preservation and protection ofNative Hawaiian historic sites. 8.I own eleven (1 1)properties in and around the Kilauea valley,ten (10)of which are located within or partially within the SMA.These properties are identified as TMK Nos.:(4)5-1-005-017:0003;(4)5-1-005-016:0002;(4)5-2-012-035;(4)5-2-021-007:0004; (4)5-2-004-097:0001;(4)5-2-004-047:0002;(4)5-2-004-047:0001;(4)5-2-021-006:0005; (4)5-2-012-009:0004;(4)5-2-012-015:0003;and (4)5-2-012-015:0002. 9.Out ofthese eleven (11)properties five (5)will be directly,significantly and negatively affected by Kaplan's proposed development;they are:(4)5-2-012-035 ("Parcel 35");(4)5-2-021-007:0004 ("Parcel 7-Unit 4");(4)5-2-021-006:0005 ("Parcel 6-Unit 5"); (4)5-2-012-009:0004 ("Parcel 9-Unit 4");and (4)5-2-012-015:0003 ("Parcel 15-Unit 3"). 10.A portion of Kaplan's project area is within a portion of Parcel 35 encumbered by conservation easement C-l and is subject to the terms and conditions of easement GU-4.Kaplan's development will change existing drainage pattems,cause harmful environmental consequences to the Kilauea Stream and significantly and adversely affect the Conservations Values ofC-1,and will hinder,impede,impair and/or prevent me from using and enjoying my property,including but not limited to,the quiet enjoyment,ownership,control,use, maintenance or development ofmy property. 11.Parcel 7-Unit 4 is located on the Kilauea stream downstream from Kaplan's development and will be significantly and adversely affected by erosion,pollution, runoff,or other detrimental environmental effects caused by Kaplan's development. 12.Parcel 6-Unit 5 is located on the Kilauea stream downstream from Kaplan's development and will be significantly and adversely affected by erosion,pollution, runoff,or other detrimental environmental effects caused by Kaplan's development. 13.Parcel 9-Unit 4 is located on the northwest rim of Kilauea valley and possesses valuable scenic resources which are significantly and adversely affected by Kaplan's development. 14.Parcel 15-Unit 3 is also located on the northwest rim ofKilauea valley and possesses valuable scenic resources which are significantly and adversely affected by Kaplan's development. 15.I am sincerely interested in protecting and maintaining the quality ofthe environment within the Kilauea valley,and I have a direct interest in ensuring that the special controls on development within the SMA and the tenets ofCZO Articles 9 and 11 are strictly and carefiilly applied to all developments in this area. 16.I have put significant amounts of my personal resources towards preserving and protecting the Kilauea valley and all ofits coastal resources. 17.I support numerous local community groups and North Shore non-profits because I believe that those who have the resources should contribute to and take care of the community they live in. 18.Granting Kaplan's Application would significantly and adversely affect my interests in a clean and healthfiil environment,and the use and enjoyment of my properties and the Kilauea stream and the beach and coastal areas of Kahili and Kilauea for recreational activities,including but not limited to swimming,snorkeling,paddling,walking,picnicking, fishing hiking and the like,as well as for exercise and meditative and spiritual renewal. 19.Granting Kaplan's Application will significantly and adversely affect my interests in protecting and preserving Native Hawaiian cultural and historic resources throughout the KTlauea valley.When I went through the permitting process for my home,I initially agreed to withdraw my first application to better study and understand the historic and cultural resources on Parcel 35.Subsequently,I ensured that none ofthe development ofParcel 35 would occur anywhere near the historic sites on my property.However,it is my understanding that Kaplan is building his house within the largest single pre-historic taro field complex in the ahupua'a of Kilauea and Kahili.It is a travesty that Kaplan's development can proceed to construct his single-family residence without adequately studying the effect it will have on this significant historic resource and without adequate safeguards to preserve and protect this priceless historic and cultural site. I declare under penalty ofperjury under the laws ofthe State ofHawai'i that the foregoing is tme and correct to the best ofmy knowledge. DATED:Lihu'e,Hawai'i,April2-r2021. BEFORE THE PLANNING COMMISSION OFTHE COUNTY OF KAUA'I In the Matter ofthe Application Of MICHAEL KAPLAN,Trustee ofthe Michael A. Kaplan Revocable Trust,date August 12,1992 as amended and restated by instrument dated July 16,2017,affecting real property located at Kahili Ahupua'a,Hanalei,Island and County of Kauai,State ofHawaii,more particularly identified as Tax Key No.(4)5-2-012:019,and containing an area of 32,034 sq.ft.,more or less. USE PERMIT N0.U-2021-7;CLASS IV ZONINO PERMIT N0.Z-IV-2021-8 DECLARATION OF COUNSEL I,MAUNA KEA TRA8K,declare as follows: 1.I am an attomey with Cades Schutte LLP,attomeys for Petitioners- Interveners WEST SUNSET 32 PHASE 1,LLC;CHARLES SOMERS,as Trustee of the Charles Somers Living Trust;CS DEVELOPMENT LLC;and CHARLES SOMERS, Individually.Unless otherwise stated,I make this declaration based on personal knowledge. 2.Attached hereto as Exhibit "1"is a true and accurate copy of the Fifth Cireuit Court's Findings of Fact,Conclusions of Law,and Decision and Order in Civil No. 5CC191000105,dated June 9,2020. 3.Attached as Exhibit "2"is a true and accurate copy ofthe Warranty Deed for TMK No.(4)5-2-012-035. 4.Attached as Exhibit "3"is a true and accurate copy ofthe Apartment Deed for TMK No.(4)5-2-021-007:0004. 5.Attached as Exhibit "4"is a true and accurate copy ofthe Apartment Deed forTMKNo.(4)5-2-021-006:0005. 6.Attached as Exhibit "5"is a true and accurate copy of the Apartment Deed forTMK.No.(4)5-2-012-009:0004. 7.Attached as Exhibit "6"is a tme and accurate copy ofthe Apartment Deed forTMK.No.(4)5-2-012-015:0003. 8.Attached as Exhibit "7"is a true and accurate copy ofthe County ofKauai online Real Property Tax report overview for TMK No.(4)5-2-012-035. 9.Attached as Exhibit "8"is a true and accurate copy of the Orant of Conservation Easement for Conservation Easement "C-l".Attached at the end ofExhibit 8 is a true and accurate copy ofamap showing both Conservations Easements C-l and C-2. 10.Attached as Exhibit "9"is a true and accurate copy ofthe Declaration of Exclusive Use easement for Easement GU-4. 11.Attached as Exhibit 10"is a true and accurate copy of the County of Kauai online Real Property Tax report overview for TMK No.(4)5-2-021-007:0004. 12.Attached as Exhibit "11"is a true and accurate copy of the County of Kauai online Real Property Tax report overview for TMK No.(4)5-2-021-006:0005. 13.Attached as Exhibit "12"is a tme and accurate copy of the County of Kauai online Real PropeUy Tax report overview for TMK No.(4)5-2-012-009:0004. 14.Attached as Exhibit "13"is a true and accurate copy of the County of Kauai online Real Property Tax report overview for TMK No.(4)5-2-012-015:0003. 15.Attached as Exhibit "14"is a true and accurate copy ofthe Declaration of Rohn Boyd dated March 18,2021 with pictures attached that accurately depict the condition of the development of TMK Nos.(4)5-2-012-019 and TMK:No.(4)5-2-021-041:0001 on Marchl0andl6,2021. 16.Attached as Exhibit "1 5"is a true and accurate copy of the Department of Land and Natural Resources-State Historic Preservation Division ("DLNR-SHPD")letter dated March 6,2020 regarding:HRS Chapter 6E-42 Historic Preservation Review -SMA Permit: SMA U-2011-1;Class IV Zoning and Use Pennit:2011-1;Zoning Pennit:Z-177-2020;Building Permit:19-2096;Relocation Permit [of structure]:19-2482)Archaeological Preservation Plan for a Portion ofSite 50-30-04-2011 Kahili Ahupua'a,Ko'olau District,Island ofKaua'i TMK: (4)5-2-021:041 por.Lot 0001]. I declare under penalty ofperjury under the laws ofthe State ofHawai'i that the foregoing is true and correct to the best ofmy knowledge. DATED:Lihu'e,Hawai'i,April 5,2021. MAUNA KEA TRASK EXHIBIT 1 APPROVED CADES SCHUTTE LLP ROY A.V1TOUSEK 111 1 862 MAUNA KEA TRASK 841 8 3135 Akahi Street,Suite A Lihu'e,Hawai'i 96766 Telephone:(808)521-9297 Attorneys for Appellants WEST SUNSET 32 PHASE 1,LLC; CHARLES SOMERS,as Trustee ofthe Charles Somers Living Trust;and CHARLES SOMERS,Individually Electronically Filed FIFTH CIRCUIT 5CC191000105 09-JUN-2020 03:02 PM IN THE CIRCUIT COURT OF THE FIFTH CIRCUIT STATEOFHAWAI'I WEST SUNSET 32 PHASE1,LLC; CHARLES SOMERS,as Trustee ofthe Charles Somers Living Trust;and CHARLES SOMERS,Individually, Appellants, V. COUNTY OF KAUA'l PLANNING COMMISSION;COUNTY OF KAUA'l PLANN1NG DEPARTMENT,by its Director,Ka'aina Hull;M1CHAEL KAPLAN,Trustee ofthe Michael A.Kaplan Revocable Trust,dated August 12,1992 as amended and restated by instrument dated July 16,2017, Appellees. CIVILN0.5CC191000105 (Administrative Appeal) APPELLANTS WEST SUNSET 32 PHASE 1,LLC,CHARLES SOMERS,AS TRUSTEE OF THE CHARLES SOMERS LIVING TRUST,AND CHARLES SOMERS,INDIVIDUALLY'S FINDINGS OF FACT,CONCLUSIONS OF LAW, AND DECISION AND ORDER HEAR1NG DATE: Date:May 19,2020 Time:1:30 p.m. Judge:Hon.KathleenN.A.Watanabe EXHIBIT 1 APPELLANTS WEST SUNSET 32 PHASE 1,LLC, CHARLES SOMERS,AS TRUSTEE OF THE CHARLES SOMERS LIVING TRUST,AND CHARLES SOMERS, INDIVIDUALLY'S FINDINGS OF FACT, CONCLUSIONS OF LAW,AND DECISION AND ORDER Appellants WEST SUNSET 32 PHASE I,LLC,CHARLES SOMERS,as Trustee ofthe Charles Somers Living Trust,and CHARLES SOMERS,Individually's Administrative Appeal ofthe County ofKaua'i Planning Commission's June 27,2019,written final decision and order ("Order"),denying Appellants'Petition for Revocation ofSpecial Management Area Use Permit SMA (U)2011-1;Class IV Zoning Permit Z-IV-2011;Use Permit U-2011-1,came on for hearing before the Honorable Kathleen N.A.Watanabe ofthe above entitled court on May 19, 2020,at 1:30 p.m.Mauna Kea Trask,Esq.appeared on behalfofAppellants WEST SUNSET 32 PHASE 1,LLC,CHARLES SOMERS,as Trustee ofthe Charles Somers Living Trust,and CHARLES SOMERS Individually,Teresa S.Tico,Esq.,K.elsey S.Yamaguchi,Esq.,and Laurel K.S.Loo,Esq.appeared on behalfofAppellee M1CHAEL KAPLAN,Trustee ofthe Michael A. Kaplan Revocable Trust,dated August 12,1992 as amended and restated by instrument dated July 16,2017,Christopher M.Donahoe,Esq.appeared on behalfofAppellee COUNTY OF KAUA'I PLANNING DEPARTMENT,and Appellee COUNTY OF KAUA'I PLANN1NG COMMISS10N having not appeared pursuant to its Statement ofno Position and no Appearance flled September 19, 2019. The Court having considered the record,memoranda,exhibits and oral argument ofthe parties,and being fully informed ofthe premises,hereby makes and enters the following Findings ofFact,Conclusions ofLaw,and Decision and Order Vacating the Planning Commission's Decision and Orders filed May 2,2019 and June 27,2019 and Remanding this matter as provided herein. FINDINGS OF FACT THE PARTIES 1.This is an appeal filed by Appellants WEST SUNSET 32 PHASE1,LLC, CHARLES SOMERS,as Trustee ofthe Charles Somers Living Trust,and CHARLES SOMERS Individually,("Somers")from the decision ofAppellee COUNTY OF KAUA'I PLANN1NG COMM1SS10N ("KCPC")filed June 27,2019,denying Somers'Petition for Revocation of Special Management Area Use Permit SMA (U)2011-1;Class IV Zoning Permit Z-1V-2011 -I ; andUsePermit U-2011-1. 2.Somers is the owner ofthat certain parcel located at 1957 Kahili Quarry Road, Kilauea,HI 96754 and identified as TMK.No.(4)5-2-012:035 (the "Somers Property").'See County ofKaua'i Certified Record on Appea]("COK")000413-000414. 3.Somers'Property is approximately 162 acres and is directly adjacent to and abuts those certain properties that are the subject ofthis appeal,identified as TMK Nos.(4)5-2- 012:019 (the "Kuleana")and (4)5-2-021:041-0001 (por.)("Parcel 41")(together the "Subject Properties").(COK 000413-000418.) 4.Somers'Property is encumbered by two conservation easements,identified herein as "C-l"and "C-2."(COK 000419-000473.)Somers is the "Owner"ofthese conservation easements and the Hawaiian Islands Land Trust ("HILT")is the "Holder"ofthe conservation easements.(COK 000419-000473;000630-000631.)Somerswas obligatedto transfer C-l to HILT by the KCPC as a condition ofthe development ofthe Somers Property (COK000441.) To the extent that any finding of fact stated herein may include or more properly be designated as a conclusion of law,it shall be deemed to be a conclusion of law as well. Similarly,to the extent that any conclusion of law stated herein may include or more properly be designated as a finding offact,it shall be deemed to be a finding offact as well.The findings of fact include findings only on those issues necessary for and relevant to this ruling. Somers faces injury in the form ofpenalties and sanctions imposed via injunctive and equitable reliefifhe fails to maintain the Conservation Values within C-l.(COK000422 -000423.) 5.Appellee COUNTY OF KAUA'I PLANNING COMMISSION ("KCPC")is an administrative agency ofthe County ofKaua'i,a municipal corporation that is organized under the laws ofthe State ofHawai'i.The K.CPC administers the Special Management Area ("SMA")Use Permit process as well as other development permit processes. 6.Appellee COUNTY OF KAUA'I PLANNING DEPARTMENT ("Planning Department"),by its Director,Ka'aina Hull ("Planning Director"),is a County executive agency which administers the County zoning and subdivision codes.The Planning Director is the administrative head ofthe Planning Department and has responsibility for executing powers granted to the Planning Department by statute,ordinance,and/or rule. 7.The KCPC is the SMA "authority"for the County of Kaua'i,under HRS §205A- 22 (1993).See Sandv Beach Defense Fund v.Citv and Countv ofHonolulu,70 Haw.361,365, 773 P.2d 250,254 (1989). 8.The County has its principal place ofbusiness in Lihu'e,Kauai,Hawai'i and does business throughout the County. 9.Appellee MICHAEL KAPLAN,Trustee of the Michael A.Kaplan Revocable Trust,dated August 12,1992 as amended and restated by instrument dated July 16,2017 ("Kaplan"),is the owner ofthe Subject Properties which he purchased from the Hendrikus Group,LLC ("Hendrikus")in Octoberof2018.(COK 000599-000614.) THE SUBJECT PROPERTIES AND PROJECT AREA 10.The Subject Properties are adjacent to and abut each other and comprise a total of 12.3acres.(COK 000415-000418.) 11.The area ofdevelopment within the Subject Properties is identified as the "Project Area."The Project Area includes all of the Kuleana,a portion of Parcel 41 ,and incorporates acreage on Somers Property and neighboring Lot 4.(COK 000006 &COK 000045.) 12.The Project Area comprises a total of9.848-acres,and is described as "a historic agricultural and archaeological complex ofterraced pond fields and associated rock walls." (COK 000006.)The Project Area is significant for its archaeological,agricultural,historic,and natural features.(COK 000011.) 13.The Project Area is situated approximately 1 mile inland ofthe coastline.(COK. 000006.)The Project Area is also approximately 1 mile inland from the U.S.Fish &Wildlife, Kilauea Point National Wildlife Refuge.(COK 000027.) 14.The Project Area is within the State land use Agricultural district,the County Open (0)zoning district and the Special Treatment District Resource Sub-zone (ST-R),is designated as Open under the General Plan,is within the North Shore Development Plan area, and is within the SMA.(COK 000386 -000387.) 15.The Special Treatment District-Resource (ST-R)designation is for land and water areas which have unique natural forms,biologic systems or aesthetic characteristics which are of particular significance and value to the general public.(COK 000275.) 16.The K.auai County General Plan speaks specifically to Historical and Archaeological Resources found on the Subject Properties.(COK 000275.) 17.The "Soil Survey for the Islands ofKauai,Oahu,Maui,Molokai,and Lanai,State ofHawaii"prepared by the U.S.Department ofAgriculture,Soil Conservation Service,identifies the soils on the Subject Properties as rough broken land (Rrr)and Puhi silty clay loam 25 to 40% slope (PnE).(COK 000274.)Due to topographical slopes,the erosion hazard is described as severe,and the runoff is rapid on this type ofsoil.(COK.000274.) 18.As a result ofan archaeological inventory survey ("AIS")prepared in 2010,two historical fieldwork sites were recorded and associated with the Project Area.(COK 000125.) SIHP Site 50-30-04-2011 ("Site 2011")consists ofa series ofnine terraced fields that are part of a larger irrigated field system that covers the entire Project Area and continues beyond the boundaries ofthe Subject Properties to the south and east.(COK 000124 -000125.)SIHP Site 50-30-04-2012 ("Site 2012")consists ofa cobble-lined concrete slab located along the southeastern boundary ofthe Kuleana on the surface ofSite 2011 Field 9.(COK 000124, 000136.)Sites 2011 and 2012 are considered significant under Criterion "D"ofHawaii Administrative Rules ("HAR")§13-284-6 for information they have yielded,relative to the Pre- contact and Historic use ofthe general project area.(COK 000140.) 19.Portions ofthe Project Area are adjacent to and inclusive ofthe Kilauea Stream and an "Unnamed Stream."(COK 000014).It is probable that portions ofthe Project Area directly adjacent to the Kilauea Stream and the Unnamed Stream include wetland habitat.(COK 000026.) THE HISTORY OF AND DEVELOPMENT PLANS FOR THE SUBJECT PROPERTIES The Physical and Historical Context ofthe Subject Properties. 20.The Subject Properties are within the Ahupua'a ofKahili,'ili ofKupa.(COK 000114 -115.)In the Great Mahele ("Mahele")the entirety ofthe Ahupua'a ofKahili,with the exception ofeight kuleana parcels,was awarded to William Lunalilo (LCAw.8559B),who later became the Hawaiian Monarch reigning between 1873 -1874.(COK.0001 14.) 21.The Kuleana is one of the eight kuleana lots within the Ahupua'a of Kahili that were awarded during the Mahele.(COK.000114.)The Kuleana was awarded in 1848 to Naiamaneo as LCAw.10333.(COK 000114.)Naiamaneo's kuleana claim was not for a house lot,which was located elsewhere,but consisted ofseveral small irrigated lo'i (taro fields)and adjacent kula (flat land).(COK 000114.) 22.Mahele records indicate that the area within the Kilauea stream valley supported more than twenty-five lo'i,house sites,and kula land where noni (Morinda citrifolis),wauke (Broussonetia papyrifera)and oranges were cultivated.(COK000114.) 23.Parcel 41 is approximately 17.879 acres and constitutes Unit A ofLot 3,a Limited Common Element ofthe Kimolana Estates Condominium Property Regime. (COK000007.) The Tavlor Development. 24.County building permit records indicate that the Kuleana was developed by former owner Gregory A.Taylor ("Taylor")who applied for and received building permit #85- 1470 to construct a single family residence.(COK000007.) 25.Taylor constructed the single family residence which was subsequently destroyed by Hurricane Iniki in September 1992.(COK.000007.)Remnants ofthe residence were removed after the hurricane and traces ofTaylor's single family residence no longer exist.(COK000007.) The Saunders Development. 26.Prior to Hendrikus'tenure,the Subject Properties were owned by Arthur M. Saunders ("Saunders").(COK000009.)During his tenure,Saunders constructed four (4) separate,eight-sided,single-room structures within the Subject Properties (the "Saunders Development").(COK000009.) 27.Structure 1 straddled the northern kuleana parcel boundary and extended into exclusive use easement GU-4A;Structure 2 was located within Parcel 41;and Structures 3 and 4 were located within the Kuleana.(COK000009 &000045.) 28.Saunders also installed an array of solar panels on the Subject Properties as part of his development.(COK.000273.) 29.The entirety ofthe Saunders Development was constructed without any ofthe required Special Management Area permits,land use permits,zoning permits,or building permits.(COK000273.) The Hendrikus Development. 30.Hendrikus purchased the Subject Properties from Saunders with knowledge ofthe zoning violations.(COK 000273.) 31.On July 15,2010,Hendrikus submitted a Special Management Area Permit Assessment and Application &Class IV Zoning Permit Application for a development containing three (3)parts:(1)proposed structures for the Kuleana,(2)proposed structures for Parcel 41,and (3)an Archaeological &Agricultural restoration project.(COK000009 -000011.) 32.Through his permit application,Hendrikus desired to rectify the known zoning violations on the Subject Properties.(COK000273.) 33.As to that portion ofthe development involving proposed structures for the Kuleana and Parcel 41,Hendrikus specifically applied for the following: [Kuleana] a)Construction of a new 2 bedroom,2.5 bath Single Family Residence (SFR)with a living area of approximately 2,098 square feet plus lanais and covered walkways of an additional 596 square feet. b)Obtain "After the Fact"(ATF)zoning &building permits for the existing, unpermitted "Structure 3"- -a free standing,single-room structure that will be utilized as an agricultural storage building by the Applicant. c)Demolition and/or complete removal of'Structure 4[.]" d)Relocation of unpermitted "Structure 1"which straddles the kuleana parcel boundary and extends into easement GU-4A."Structure I"will be relocated to [Parcel 41]and will become part ofthe proposed Home Office Building [.] e)Removal of existing concrete slab (former house foundation)which straddles the eastern parcel boundary. f)Development of a permitted,non-public,potable drinking water well & associated pump facilities to service the Project Area (well location and water facilities to be designed after preliminary County zoning permit approval is granted). g)Development of photovoltaic solar facilities to serve as a power supply. Most likely to be located on the roofs of proposed structures. LOT COVERAGE -Total proposed Lot Coverage for the kuleana parcel is 3,177 square feet which is less than 10%ofthe 32,016.60 sqft parcel. (COK 000009 -000010,bold in original.) [Parcel41] a)New Construction -32 x 36'accessory agricultural building [("the barn')]for dry storage offarm equipment,supplies,and machinery[.]The exact barn location will be determined after clearing of the terraces occurred. b)New Home Office Building -Relocation and reconfiguration of existing, unpermitted "Structures 1 &2"to become parts of the proposed Home Office Building.[...]The proposed Home Office will tie these two structures together with a covered walkway,and add a third new 12'xl2' Office bathroom.The structure will be accessory to the agricultural activities on TMK.(4)5-2-021 :041-0001 and will support the Landscaping Services business ofthe Hendrikus Group,Inc.[.] c)Development of a permitted,non-public,potable drinking water wetl & associated pump facilities to service the Project Area (well location and water facilities to be designed after preliminary County zoning permit approval is granted). d)Development of photovoltaic solar facilities to serve as a power supply. Most likely to be located on the roofs ofproposed structures. TOTAL LOT COVERAGE =2,502 sq.ft. (COK 000010,bold in original.) 34.As to the portion ofthe development involving Archaeological &Agricultural restoration,Hendrikus proposed to clear the terraces and associated pond fields located within the Subject Properties ofundesirable non-native vegetation,restore rock wall features,and reestablish agricultural practices,maintained lawns,and ornamental landscaping within the portion ofthe Project Area located on Parcel 41.(COK.000011 .) 35.Hendrikus'application did not state how long the developments associated with the Kuleana and Parcel 41 would take,but he did specifically state that the Archaeological & Agricultural restoration project was anticipated to take 5-10 years.(COK.OOOO 11.) 36.Public Hearing on Hendrikus'application was set for August 24,2010. (COK000272.) 37.On September 28,2010,the KCPC held a continued hearing on Hendrikus' permit application.(COK000641-000649.)The September 28,2010 agenda item described the Hendrikus application as follows: Use Permit U-2011-1,Class IV Zoning Permit Z-IV-2011-1,and SMA (U)2011- 1 to permit the construction of a new single family residence,accessory agricultural storage and office structures,development of irrigation well, accessory photovoltaic installation,demolition of structure and archaeological restoration ofhistorical auwai,rock walls,and terraces in Open-Space Treatment District (0/ST-R)in Kahili Ahupua'a located in Kilauea,approx..1,700 ft.from Kahili Makai Road and 2,700 ft.from the intersection of Kahili Makai Road and Kuhio Highway,further identified as Tax Map Key 5-2-012:019 &5-2- 021:041:001 (por)and containing approx..18-164 acres =Hendrikus Group,Inc. [Director's Report received 8/10/10,hearing closed 8/24/10.] (COK000642.) 38.At the September 28,2010 hearing,Kilauea resident Ms.Maka'ala Ka'aumoana ("K.a'aumoana")testified on the Hendrikus application.(COK000642.) 10 39.Ka'aumoana reviewed the Hendrikus application thoroughly and advocated for the inclusion ofa permit condition requiring water quality testing before,during,and after the development.(COK000642 -000647.) 40.Ka'aumoana testified that the Hendrikus development was in an active area for traditional activities and gatherings,and that the quality ofthe in-stream resources ofK.ilauea Stream is important for people's rights.(COK.000642.) 41.Ka'aumoana indicated that including a water quality testing condition in the Hendrikus permits was important so that the impact to the Kilauea stream as a public trust resource was known.(COK000643.) 42.While deciding whether or not to include Ka'aumoana's request for the inclusion ofwater quality testing as a permit condition,K.CPC Commissioner Morikami asked Hendrikus what his timeframe was for the completion ofthe project from beginning to end.(COK000645.) Mr.Hendrikus responded that he hoped to complete the project within the next year and a half. (COK000645.) 43.After discussion on Hendrikus'application the KCPC moved to approve Hendrikus'permit application with the inclusion ofMs.Ka'aumoana's request for water quality testing as condition number 10,which states: Applicant shall provide for three water quality samplings and analysis,pre- construction,during construction,and post construction at two locations. a.Along the Kilauea Stream at the northern most boundary ofthe property. b.Along the unnamed stream at the most northern boundary ofthe property. (COK 000648 -000649.) 44.On September 29,2010,the Planning Director issued Special Management Area Use Permit SMA (U)201 1-1,Class IV Zoning Permit Z-1V-2011-1,and Use Permit U-2011-1 11 (the "Subject Permits")to Hendrikus for construction ofnew single family residence,accessory agricultural storage and office structure,development ofirrigation well,accessory photovoltaic installation,demolition ofstructure and archaeological restoration ofhistorical auwai,rock walls, and terraces,subject to ten (10)conditions.(COK000335-000336.)The Subject Permits do not provide a timeframe within which Hendrikus must make substantial progress ofthe development.(COK000335-000336.) Kaplan's Permit Application. 45.Kaplan purchased the Subject Properties from Hendrikus in October 2018. (COK000594.) 46.On or about March 29,2019 Kaplan submitted a letter application (the "Kaplan Application")to the K.CPC asking for 1)a two year continuance to complete the work approved in the Subject Permits and 2)K.CPC approval to modify the design ofthe previously approved single-family residence.(COK 000594 -000595.)Kapan's Application was not accompanied by an affidavit or legal memorandum,nor was it served upon any individual or entity other than the KCPC. 47.The alterations proposed by Kaplan included,inter alia,increasing the interior living area ofthe single-family residence from 2,098 sq.ft.to 2,353 sq.ft.,adding a 400+sq.ft. porte cochere to the single-family residence,and adding 22 sq.ft.ofstone walls.(COK.000595, 000617,000619.)At the same time,Kaplan proposed to remove 415 sq.ft.ofscreened in lanai area,remove 181 sq.ft.ofwalkways,and remove a 483 sq.ft.storage shed that was located away from the single-family residence on the same property.Id. 48.The Kaplan Application indicated that by the time he purchased the Subject Properties,Hendrikus had completed a substantial amount ofwork,particularly clearing the 12 heavily wooded Property,and that Hendrikus stopped short ofbuilding his single-family residence.(COK.000594.) 49.In a letter attached to Kaplan's Application as Exhibit "D",Hendrikus stated that after he was granted the Subject Permits he immediately got started on the many projects involved in the development.(COK.000615). 50.Hendrikus stated that it was and is an incredible amount ofwork to clear and maintain the heavily wooded Subject Properties.(COK000615.)According to his letter, Hendrikus demolished an existing structure on the Kuleana,constructed a home office building and storage barn on Parcel 41,and spent an incredible amount oftime restoring the archaeological resources and activities on the Subject Properties.(COK000615.) 51.In his letter Hendrikus did not state that any ofthe work he performed occurred within two (2)years ofthe issuance ofthe Subject Permits,nor did he state that the Planning Director made a determination that substantial progress had been made on the development within two (2)years ofthe issuance ofthe Subject Permits.(COK000615.)Instead,Hendrikus stated that after almost nine years ofcontinuous work,he realized that it was not financially feasible for him to construct the single family residence,so he sold the Subject Properties to Kaplan.(COK.000615.) 52.On April 18,2019 Kaplan's architect Santo Giorgio ("Giorgio")sent an email to Planning Department staffproviding information on the status ofthe Hendrikus building permits for all the huts on the Subject Properties.(COK000382.)Giorgio attained the permit status information offofthe County ofKauais Public Works Building Department website and believed that the following information was accurate: 13 •10-2250 -relocate hut from parcel 19 easement "HUT 1" WORK PERFORMED -NEVER F1NALLED •10-2251 -relocate hutfromparcel 41,moved approximately 15'"HUT2 FINALLED 2/22/13 BY MERV1N RAPOZO •10-2252 -renovate huts 1&2,add breezeways,build new "HUT 5" SOME WORK PERFORMED HUT 5 NEVER BU1LT -NEVER F1NALLED •10-2253-to permit existing structure "HUT 3"STATUS-1N PLAN CHECK FYI WE WILL SUBM1T PLANS TO REMOVE"HUT 3"AS SOON AS WE GET EXTENSION APPROVAL,AGAIN TH1S LIMITS OVERALL SCOPE ON KULEANA •10-2254-to demolish structure "HUT 4"STATUS -1N PLAN CHECK •11-264 2 storybarnFlNALLED 7/13/15 BYMERV1NRAPOZO •13-518 addlofttobarn FINALLED 7/13/15 BYMERVINRAPOZO •13-2282 solar system F1NALLED 7/13/15 BY MERVIN RAPOZO •11-102 single family residence STATUS -1N PLAN CHECK, FYI PERMIT WAS REACTIVATED ON 2/13/19 AND PLAN REV1EW FEES WERE ACCEPTED BY BUILDING DEPARTMENT (COK 000382). 53.Kaplan did not file a SMA Assessment with the Planning Department pursuant to SMA Rule 7.1 in relation to his application. 54.Kaplan's Application did not provide any information concerning the consistency ofhis development with the objectives,policies and guidelines contained in HRS ch.205A the Coastal Zone Management Act ("CZMA"). 55.Upon receipt ofKaplan's application,the K.CPC placed the application on its April 23,2019,meeting agenda as a "General Business Matter."(COK 000702.)The KCPC did not set the matter for "Public Hearing"and the Planning Department did not require Kaplan to comply with the notice requirements contained in HRS §205A-29 and SMA Rule 9.0.Instead, the Planning Department and KCPC allowed the agenda to be posted in accordance with HRS § 92-7.(COK 000491.) 14 56.Somers was not given notice ofthe meeting pursuant to SMA Rule 9.0 D. (COK 000409.) 57.Based upon the information contained in the Kaplan Application,the Planning Department prepared a Director's Report dated April 23,2019.(COK000386 -000389.) 58.The Director's Report described the action required by the K.CPC on Kaplan's Application as involving,"Consideration ofTime Extension for the construction ofafarm dwelling unit on a parcel and Amendment to modify the design ofthe single family residence." (COK.000386.) 59.The Director's Report found that,"pursuantto Chapter 8-11.3 ofthe Kauai Count Code,a Use Permit is required for all uses,structures and development within the Special Treatment District."(COK000386.) 60.The Director's Report found that,"pursuant to Chapter 8-11.3 ofthe Kauai County Code,a Class IV Zoning permit is a procedural requirement when a Use Permit is required for development within the Special Treatment District."(COK000386.) 61.The Director's Report found that,"pursuant to Section 205A ofthe Hawaii Revised Statutes ("HRS")and the Special Management Area Rules and Regulations ofthe County ofKauai,the construction ofan additional residence on a lot ofrecord constitutes 'Development,'and therefore,a SMA Use Permit is required as defined in Section 7.3 ofthe SMA Rules."(COK000386.) 62.The Director's Report did not contain any findings that:(1)the 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,and welfare,or compelling public interest;or (2)the development is consistent with the objectives, 15 policies,and special management area guidelines as enumerated in HRS Chapter 205A and any guidelines enacted by the legislature.(COK000386-000389.) 63.The Director's Report contained a preliminary recommendation to the KCPC that the extension oftime and amendment to allow construction ofa farm dwelling unit and associated improvements be approved.(COK000389.)However,the Director's Report contained a qualification that its report did not represent the Planning Department's final recommendation in view ofthe forthcoming public hearing process scheduled for April 23,2019 whereby the entire record should be considered prior to decision making,including but not limited to:pending government agency comments,testimony from the general public and interested others;and the applicant's response to staffs report and recommendation as provided therein.(COK.000389.) April 23,2019 Hearine on Kaplan's Permit Application. 64.On April23,2019 the KCPC held a hearing on Kaplan's Application. (COK000702.)The OLptuiiIit'i 20;2010 agenda item described the Kaplan Application as follows: Request for Extension of Time and Amendment to Special Management area Use Permit SMA (U)-2011-l,Class IV Zoning Permit Z-1V-2011-1,and Use Permit U-2011-1,for Michael Kaplan Tax Map Keys:5-2-012:019,5-2- 021:041:001(por.)to allow additional time to construct a single family residence and reduce the size of the previously approved residence. (COK000702.) 65.Despite the Director's Report informing the KCPC to consider the entire record at the upcoming "public hearing"prior to decision making,including but not limited to,testimony from the general public"and "interested others;"the Planning Department did not provide a public hearing on Kaplan's Application,did not publish public notice ofthe hearing once within the County ofKaua'i and once in a newspaper ofgeneral circulation in the State at least twenty 16 (20)calendar days prior to the date ofthe hearing,and Kaplan did not serve written notice ofthe hearing to persons listed on the current Real Property Division ofthe Department ofFinance of the County of Kaua'i or to the addresses shown on such Real Property Assessment Notice List for at least eighty-five percent (85%)ofall tax map key parcels within 300 feet from the Subject Properties. 66.At its April 23,2019,meeting,after a brief presentation by the Planning Department and Kaplan's representatives,the KCPC approved Kaplan's application for an extension oftime and modification ofthe design ofthe single-family residence.(COK000702 - 000704.) 67.No public testimony was received by the KCPC at its April 23,2019 hearing on Kaplan's application and there was no discussion regarding whether Kaplan's request constituted "Development"under HRS §205A-22 and SMA Rule 1.4 F,the lack ofpublic notice,the lapsing ofthe permits under SMA Rule 10.0,or the development's consistency with the SMA objectives,policies,and guidelines under SMA Rule 4.0 B (1)-(3)or HRS §205A-26 (2)(A)- (C).(COK000702 -000704.) 68.On May 2,2019,the KCPC issued its written decision approving Kaplan's Application (the "Kaplan Decision").(COK 000390.)The Kaplan Decision contained no findings of fact or conclusions of law. 69.The Kaplan Decision did not contain any findings that: the development will not have any substantial adverse environmental or ecological etfect,except as such adverse effect is minimized to the extent practicable and clearly oiitweighed by public health,safety,or compelling public interests.Such adverse eftects shal]include,but not be limited to,the potential cumiilative impact of individiial tlevelopments.each one of wliich taken in itself might not have a substantial adverse effect,and the elimination of planning options; 17 the development is consistent with the objectives,policies,and special management area guidelines of this chapter and any guidelines enacted by the legislature;and the developinent is consistent with the county general plaii and zoiiing.Such a finding of consistency does not preclude concurrent processing where a general plan or zoning amendmeiit may also be required. Somers'Petition for Revocation of^h^Subiect Permits. 70.On May 21,2019,Somers filed a Petition for the Revocation ofSpecial ManagementAreaUsePermitSMA(U)2011-l;ClassIVZoningPermitZ-IV-2011;Use Permit U-2011 (the "Petition")pursuant to the Rules ofPractice and Procedure ofthe Kauai Planning Commission ("RPPPC")Ch.12.(COK 000402-000478.) 71.In his Petition Somers stated that he is the owner of the Somers Property and that it is directly adjacent to and abuts the Subject Properties.(COK 000403.) 72.Somers also stated that he is the "Owner",and HILT the "Holder",of two (2) conservation easements,identified as C-l and C-2,the purpose ofwhich is to establish and maintain forever the "Conservation Values"ofthe Easement Area,which are: a)ffater and Wetland Resources -protect the quality ofwater resources within or in the vicinity of the Easement Area,including protect the quality of wetlands, including the habitat they provide for endangered water birds; b)Archaeological Resoiirces -protect Native Hawaiian archaeological resources, which have been identified in the Baseline Documentation or are identified or discovered subsequently; c)Indigenous Wildlife Resources -protect intact areas of indigenous wildlife habitat, inctuding endangered species; d)To the extent not in conflict with the Water and Wetlands Resources, Archaeological Resources,and Wildlife Resources,Scenic Resources -protect scenic vistas visible from public rights-of-way and other public access points in the vicinity ofthe Property;and e)To the extent not in conflict with the Water and Wetlands Resources, Archaeological Resources,and Wildlife Resources,Agricultural Resources - 18 r r protect and preserve land suitable for agricultural uses,including agroforestry uses. (COK000404.) 73.Somers also stated that a portion ofKaplan's Project Area,including easements V-2 and GU-4A,are located within the boundaries ofthe Somers property encumbered by C-l. (COK000404.) 74.Somers alleged that both he,as Owner,and HILT,as Holder,ofC-1 and C-2 are affected by Kaplan's development and must have an opportunity to review any development in the easement area;and that pursuant to RPPPC,Rule 1-12-2,as owner ofthe neighboring property,Owner ofC-1 and C-2,and Grantor ofEasement GU-4A,he is both a person and entity who is so directly and immediately affected by the Subject Permits that his interest is clearly distinguishable from that ofthe general public and may therefore file the Petition with the Planning Director.(COK.000405.) 75.ln the Petition,Somers argued that:(1)the Subject Permits had lapsed on September 28,2012;(2)Kaplan's request for modification was made upon improper procedure; (3)the KCPC and Kaplan had failed to follow the notice requirements contained in SMA Rule 9.0,etseq.;and (4)the Director s Report and the K.CPC Decision did not contain sufficient findings regarding the development's impact to the SMA as required by HRS §205A-26 (2)(a)- (c)or SMA Rule 4.0 B (1)-(3).(COK 000407-000411.) 76.Upon receipt,the Planning Director did not reject Somers'Petition as incomplete, inaccurate,or failing to comply with the Rules ofthe Commission as provided in RPPPC Rule 1- 12-3 (b). 77.Kaplan filed a memorandum in opposition to Somers'Petition,in which he argued:(1)Somers had no standing to file a petition to revoke;(2)Somers failed to state a 19 claim;(3)the Director and KCPC's process to approve the extension and modification request was proper (i.e.,notice under SMA Rule 9.0 was not required);and (4)that Kaplan's request did not constitute a development under the CZMA and SMA.(COK 000578-000621). 78.Somers filed a reply briefto Kaplan's memorandum in opposition arguing:(1) Somers has standing;and (2)that notice is required under State and County law.(COK 000479- 000486.) 79.On or about June 25,2019,the Planning Department prepared a Director's Report in which it recommended that Somers'Petition be denied.(COK 000487-000592.) June 25,2019 Hearin^on Somers'Petition for Revocation ofthe Subject Permits. 80.On June 25,2019,the KCPC held a hearing on Somers'Petition.(COK000789 - 000806.) 81.Attorneys for Somers and Kaplan appeared at the hearing and argued for and against the merits ofthe Petition respectively.Id. 82.Kaplan's arehitect,Mr.Giorgio,testified on behalfof Kaplan.(COK000797 - 000800.) 83.After argument and hearing,the KCPC entered into a half-hour "unanticipated" executive session in order to speak with the deputy county attorney "for clarification on what [they]just heard [during the hearing]."(COK000805.) 84.After the executive session,ICCPC Chair Mahoney reconvened the hearing and stated the K.CPC was to,"decide what to do on revocation ofspecial management area Use Permit SMA(U)-2011-1,Class IV Zoning Permit Z-IV-2001-1,and a Permit U-2011-1 for Michael A.Kaplan,a request for revocation,"and asked ifthere was a motion on the floor. (COK000806.) 20 85.In response,Commissioner Ho made a motion,"to deny Mr.[Somers']petition for revocation of Permits SMA (U)-2011-1 Class IV,2011-1 and Use Permit U 2011-1. (COK000806.) 86.The KCPC voted unanimously to deny Somers'Petition.(COK000806.) 87.On June 27,2019,the KCPC issued its written decision denying Somers'Petition for Revocation (the "Somers Decision").(COK000593.)The Somers Decision contained no findings of fact or conclusions of law. 88.The Somers Decision memorialized the action taken by the K.CPC effective June 25,2019,to revoke the approval to allow an extension oftime and modifications to the design ofthe farm dwelling unit for Michael Kaplan,and stated that Somers'request was denied. (COK000593.) 89.The KCPC did not find that Somers Petition lacked reasonable cause to believe that there is currently a failure ofKaplan to perform according to the conditions imposed in the Subject Permits pursuant to RPPPC 1-12-5. 90.At no time during hearing on Somers'Petition did either the KCPC or the parties argue that there was no reasonable cause to believe that there is currently a failure of Kaplan to perform according to the conditions imposed in the Subject Permits pursuant to RPPPC 1-12-5. 91.On July 27,201 9,Somers appealed from this decision of the KCPC denying his Petition to the Circuit Court ofthe Fifth Circuit (the "Agency Appeal Civil No.19-1-0105"). 21 CONCLUSIONS OF LAW JURISDICTION AND VENUE Jurisdiction. 1.The court has jurisdiction over this administrative appeal pursuant to HRS § 91-14,HRS §603-21.8,SMA Rule 15.0,RPPPC Rule 1-6-18 (i),and Rule 72 ofthe Hawai-i Rules ofCivil Procedure. Venue. 2.Venue is proper in this Court pursuant to HRS §603-36. STANDARD OF REVIEW 3.When a circuit court reviews an agency determination,that court acts as an appellate court.Diamondv.Dobbin,132 Haw.9,319 P.3d 1017 (2014). 4.An agency's findings offact are reviewable under the clearly erroneous standard to determine ifthe agency's decision was clearly erroneous in view ofreliable,probative,and substantial evidence on the whole record.Curtis,90 Haw.at 393,978 P.2d at 831. 5.A finding offact is clearly erroneous when the Court,after reviewing the entire record,is left with a definite and firm conviction that a mistake has been made.See,Aio v. Hamada,66 Haw.401,406,664 P.2d 727,731 (1983). 6.An agency's conclusions oflaw are []freely reviewable to determine ifthe agency's decision was in violation ofconstitutional or statutory provisions,in excess ofstatutory authority orjurisdiction of [the]agency,or affected by other error of law.Ctirtis v.Board of Appeals,County ofHawai'i,90 Haw.384,393,978 P.2d 822,831 (S.Ct.1999);Hardin v. Akiba,84 Haw.305,310,933 P.2d 1339,1344 (S.Ct.1997). 7.Conclusions of law that present mixed questions of fact and law are reviewable under the clearly erroneous standard because the conclusion depends upon the facts and 22 circumstances ofthe particular case.See Ciirtis,90 Haw.at 393,978 P.2d at 831;Price v. Zoning Board ofthe Appeals ofthe City ofHonolulu,77 Haw.1 68,172,883 P.2d 727,732 (S. Ct.1994). 8.Under statute governing judicial review of contested administrative cases,an agency's exercise ofdiscretion is reviewable to determine whether it is arbitrary,or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.Hawaii Medical ServiceAss'n v.Adams,120 Haw.446,209 P.3d 1260 (2009),as amended,certiorari rejected 2009 WL 3402732,certiorari rejected 2009 WL 3451205. 9.Courts reviewing agency determinations for abuse ofdiscretion must engage in a two-step inquiry;the court must first determine whether the agency determination under review was the type ofagency action within the boundaries ofthe agency's delegated authority,and ifit was within the agency s realm ofdiscretion,the court must then analyze whether the agency abused its discretion,but ifthe determination was not within the agency's discretion,then it is not entitled to the deferential abuse ofdiscretion standard ofreview.Unite Here!Local 5 v. Department ofPlanning and Permitting,114 Haw.453,454 P.3d 394 (2019). 10.Pursuant to HRS §91-14 (g)(3),questions regarding procedural defects are reviewable for unlawful procedure.TIG Ins.Co.v.Kauhane,1010 Haw.311,67 P.3d 810 (2003). 11.Under Hawai'i law,an agency decision should be reversed if it is in violation of constitutional or statutory provisions,affected by other error oflaw,clearly erroneous in view of the reliable,probative,and substantial evidence on the whole record,or arbitrary and capricious. See,HRS §91-14(g)(l),(2),(4),(5),(6)(1996). 23 r r THE KCPC AND THE PLANNING DEPARTMENT ARE AGENCIES UNDER HRS CH.20SA. 12.As used in HRS ch.205A,the term "Agency"means,among other things,"any agency,board,commission,department,or officer ofa county government or the state govemmeiit[.]"HRS §205A-1.Under the express terms ofHRS §205A-1:(i)the KCPC is an "agency board,commission,or department ofthe County ofKauai and,therefore,is an "Agency"as that term is used in HR.S ch.205A,and (ii)the Planning Department is an "agency board,commission,ordepartmentofthe CountyofKaua'i and,therefore,is an "Agency"as that term is used in HRS ch.205A. 13.The objectives and policies ofHRS ch.205A and any guidelines enacted by the legislature are binding upon the KCPC and the Planning Department when reviewing Kaplan's Application.HRS §205A-4 (b). 14.ln reviewing Kaplan's Application,the KCPC and the Planning Department shall implement the objectives ofthe coastal zone management program,and shall give full consideration to ecological,cultural,historic,esthetic,recreational,scenic,and open space values,and coastal hazards,as well as to needs for economic development.HR.S §205A-4 (a). 15.This court determines that both the KCPC and the Planning Department shall ensure that their rules and their interpretation oftheir rules comply with the objectives and policies ofHRS ch.205A and any guidelines enacted by the legislature when reviewing Kaplan's Application.HRS §205A-5 (a). 16.This court determines that both the KCPC and the Planning Department shall enforce the objectives and policies ofHRS ch.205A and any rules adopted pursuant to the CZMA in reviewing Kaplan's Application.HRS §205A-5 (b). 24 SOMERS'PETITION FOR REVOCATION OF THE SUBJECT PERMITS WAS A CONTESTED CASE. 17.A "Contested case"means a proceeding in which the legal rights,duties,or privileges ofspecific parties are required by law to be determined after an opportunity for agency hearing.HRS§91-1. 18.Pursuant to HRS §91-14,in order for proceedings before an agency to constitute a contested case from which an appeal can be maintained,the agency must be required by law to hold a hearing before a decision is rendered.T.i'ng/e v.//G£^4,107Haw.178,184,111 P.3d587, 593 (2005). 19.KCPC action on a Petition for Revocation ofPermits pursuant to RPPPC Ch.12 involves a three-step process:(1)filing a Petition for Revocation ofPermits pursuant to RPPPC Rule 1-12-3,which the Planning Director may reject pursuant to RPPPC l-12-3(b)ifit is incomplete,inaccurate or fails to comply with the Rules ofthe KCPC;(2)holding a hearing pursuant to RPPPC Rule 1-12-5 to determine whether there is reasonable cause to believe that there is a failure to perform according to the conditions imposed on the Permits and to issue an Order to Show Cause;and (3)holding an Agency Hearing on the Order to Show Cause according to the contested case hearing procedures contained in RPPPC ch.6,pursuant to RPPPC 1-12-7. 20.According to the record,the Planning Director did not reject Somers'Petition pursuant to RPPPC Rule l-12-3(b),the KCPC did not find that there was no reasonable cause to believe that there is a failure to perform according to the conditions imposed on the Permits pursuant to RPPPC 1-12-5,and although the KCPC did not formally issue an Order to Show Cause,Kaplan was served with a copy ofSomers'Petition for Revocation and filed a memorandum in opposition to the same,to which Somers filed a reply brief. 25 21.At the June 25,2019 hearing on Somers'Petition,attorneys for Somers and Kaplan argued the merits ofSomers'Petition,K.aplan's architect Mr.Giorgio testified as a witness,and the K.CPC voted to deny Somers'Petition based upon the merits ofhis Petition,not upon the threshold matter involving lack ofreasonable cause. 22.Under RPPPC 1-12-7 the K.CPC was required to hold an agency hearing prior to denying Somers'Petition for Revocation on its merits.Pursuant to RPPPC Rule 1-1-2, "'Agency Hearing'refers only to such hearing held by the Commission immediately prior to a judicial review ofcontested case as provided in Section 91-14 HRS[.]" 23.The Court determines that the June 25,2019 KCPC hearing on Somers'Petition for Revocation ofthe Subject Permits was a "Contested case"as defined by HRS §91-1 and RPPPC 1-1-2 (7)(i),and that Somers may appeal the KCPC's June 27,2019 Decision to the Circuit Court of the Fifth CircuitpursuanttoHRS§91-14,HRS§603-21.8,SMARule 15.0, RPPPC Rule 1-6-18 (i),and Rule 72 ofthe Hawai'i Rules ofCivil Procedure. THE JUNE 27,2019 KCPC DECISION DENYING SOMERS'PETITION IS IN VIOLATION OF HRS §91-12 24.Every decision and order adverse to a party to the proceeding,rendered by an agency in a contested case,shall be in writing or stated in the record and shall be accompanied by separate findings offact and conclusions oflaw.HRS §91-12. 25.The Statutory requirement that administrative agencies set forth separately its findings offact and conclusions oflaw is intended to assure reasoned decision making by agencies and to enablejudicial review ofagency decisions.AppUcation ofHawaii Elec.Light Co.,Inc.,60 Haw.625,594 P.2d 612 (1979). 26.Findings offact,to be sufficient to support an administrative order,must include the basic facts from which the ultimate facts and terms ofthe statutory criteria may be inferred. 26 Huwuii Public Employment Relations Bd.V.United Piiblic Workers,Local 646.AFSCME,AFL- CIO,66 Haw.461,667 P.2d 783 (1983). 27.Even though there may be evidence on record to support an agency's conclusions, that does not excuse an agency from its duty to make findings as a result ofconsideration ofthe evidence.Application ofKauai Elec.Division ofdtizens Utilities Co.,60 Haw.166,590 P.2d 524(1978). 28.To be granted deference by a reviewing court,agency's decision must be consistent with legislative purpose.Camara v.Agsalud,67 Haw.2121,6885 P.2d 794 (1984). 29.Agency decisions are afforded deference,which presupposes that the agency has grounded its decision in reasonably clear findings offact and conclusions oflaw./n re Water Use Permit Applications,105 Haw.1,93 P.3d 643 (2004). 30.The June 27,2019 written decision ofthe KCPC is devoid ofany findings offact and/or conclusions oflaw and is therefore in violation ofthe requirements ofHRS §91-12. 31.The KCPC's failure to comply with HRS §91-12 is inconsistent with the legislative purpose ofthat statute and HRS ch.91. 32.The KCPC's June 27,2019 decision is not afforded deference by this court,as deference presupposes that the agency has grounded its decision in reasonably clear findings of fact and conclusions of law. 33.ThisCourtdeterminesthattheKCPC'sJune27,2019DecisionviolatedHRS § 91-14(g)(l)because the KCPC failed to satisfy HRS §91-12.See Rife v.Akiba,81,Haw.84, 912 P.2d 581 (1996). 27 SOMERS HAS STANDING TO PETITION TO REVOKE THE SUBJECT PERMITS AND TO APPEAL THE KCPC'S JUNE 27,2019 DECISION. 34.Pleadings in administrative proceedings are to be construed liberally rather than technically,fTaltrip v.TS Enterprises,Inc.,140 Haw.226,231,398 P.3d 815,820 (2016)(brackets omitted)(citing Peny,62 Haw.at 685-86,619 P.2d at 108);Diipree v.Hiruga, 121 Haw.297,314,219 P.3d 1084,1101(2009). 35.Administrative pleadings need not be drawn with the refinements and subtleties of pleadings before acourt.Perry,62 Haw.at 686,619 P.2d at 108 (citation,internal quotation marks omitted)." 36.Hawaii courts have adopted very liberal guiding tenets concerning standing in environmental cases and have said that such requirements should not be barriers tojustice.Life oftheLandv.Land Use Commission,63 Haw.166, 171,623 P.2d 431,438 (1981). 37.Within the meaning ofstatute governingjudicial review ofagency decisions,an "aggrieved person"is one who has suffered an injury in fact.Asato v.Procurement Policy Bd., 132 Hawai'i 333,322 P.3d 228 (2014). 38.A person aggrieved is a person whose interests were injured,but where the interests at stake are in the realm ofenvironmental concerns,courts have not been inclined to foreclose challenges to administrative determinations through restrictive applications ofstanding requirements./«re Water Use PermitApplications,105 Hawai'i 1,93 P.3d 643(2004). 39.Pursuant to RPPPC Rule 1-12-5,a person with interest in the land,or a person or entity who otherwise caii demonstrate that they are so directly and immediately affected by the Permit that their interest is clearly distinguishable from that ofthe general public may file a petition for revocation ofa permit with the Director. 28 40.The standing ofadjoining or nearby property owners to ensure environmental protections in land use proceedings is a settled issue under Hawaii law.See,East DiamondHead Association v.Zoning Boarct ofAppeals,52 Haw.518,479 P.2d 796 (1971)(holding landowners whose land adjoined land subject to a zoning variance were "persons aggrieved"under HRS § 91-14);Dalton v.City and County ofHonoluhi,51 Haw.400,462 P.2d 199 (1969)(concluding that "residing in very close proximity"to a proposed high-rise apartment was sufficient to confer standing and thus sufficient to establish a "concrete interest"in a "tegal relation"subject to protection);and Waianae Model Neighborhood Assoc.,Inc.v.Cily and County ofHonolulu, 55 Haw.40,514 P.2d 861 (1973)(granting standing to an organization whose members resided "within the area"ofa proposed apartment hotel). 41.The purpose of C-1 is to establish and maintain forever[,]and to prevent any use ofthe Easement Area that will significantly impair or interfere with the "Conservation Values" ofthe Easement Area,which are:a)Water and Wetland Resources,b)Archaeological Resources,c)Indigenous Wildlife Resources,d)Scenic Resources,and e)Agricultural Resources.(COK000422). 42.Somers is obligated to protect the Conservation Values ofC-1 and H1LT,as Holder of C-1,may act to prevent Owner or third persons from conducting any activity on or use ofthe Easement Area that is inconsistent with the protection ofthe Conservation Values or terms of C-l,and H1LT may require Somers to restore such areas or features ofthe Easement Area that may be damaged by any inconsistent activity or use.(COK000423). 43.HILT may enforce C-l in the case ofbreaches by Somers or third persons by appropriate legal proceedings and may obtain injunctive and other equitable reliefagainst any 29 violations,including without limitation reliefrequiring removal ofoffending structures and other restoration ofthe Easement Area.(COK.000423.) 44.In his Petition for Revocation ofthe Subject Permits,Somers'clearly established his "interest in the land"as Kaplan's project area is within a portion ofSomers'Property encumbered by conservation easement C-l. 45.ln his Petition for Revocation ofthe Subject Permits,Somers'clearly established his status as a person or entity who otherwise can demonstrate that they are so directly and immediately affected by the Permit that their interest is clearly distinguishable from that ofthe general public,due to his standing as a neighboring land owner with the obligation to maintain forever and prevent any use ofthe Easement Area that will significantly impact or interfere with the "Conservation Values"of C-1. 46.Somers,as a neighboring landowner and Owner ofconservation easement C-l with a duty to protect its Conservation Values,is unquestionably "a person with interest in the land"and a person whose interest "is clearly distinguishable from that ofthe general public"and therefore has standing to Petition to Revoke Kaplan's Permits pursuant to RPPPC §1-12-2. 47.This Court determines that the KCPC's denial of Somers'Petition denied him of his right and duty to preserve and maintain the Conservation Values ofthe Easement Area within C-l and to prevent any use ofthe Easement Area that will significantly impair or interfere with the aforementioned resources,which may result in sanctions and adversarial action taken against Somers by HILT,and constitutes an "injury in fact"and establishes Somers as a "person aggrieved"with the right to administratively appeal the KCPC's June 27,2019 wriuen decision pursuanttoHRS§91-14. 30 ON SEPTEMBER 28,2012,THE SUBJECT PERMITS WERE DEEMED TO HAVE LAPSED AND BE N0 LONGER IN EFFECT PURSUANT TO SMA RULE 10.0. 48.UnderSMARule 10.0: Unless otherwise stated in the permit,once a permit is issued,the applicant must make substantial progress,as determined by the Director,regarding the development or activity within two (2)years,or the permit shall be deemed to have lapsed and be no longer in effect. 49.The tenets ofSMA Rule 10.0 concerning substantial progress and lapse operate as a condition ofall SMA Use Permits issued by the K.CPC,unless otherwise stated in the permit, and as such applied to the Subject Permits. 50.This Court determines that on September 28,2012,by operation of SMA Rule 10.0,the Subject Permits were deemed to have lapsed and be no longer in effect. 51.There is no evidence that Hendrikus made substantial progress 011 the development,as determined by the Director,within two years ofthe issuance ofthe permit. 52.Hendrikus'letter does not state that substantial progress was made on the development within two (2)years of issuance ofhis permits,but instead says that after almost "nine years ofcontinuous work"it was not financially feasible to construct the single family residence,so he sold the property to Kaplan.(COK000615.) 53.Similarly,the April 18,2019 email from Kaplan's architect Mr.Giorgio does not establish that substantia]progress was made on the development within two (2)years ofissuance of the permits. 54.The Oiorgio email clearly illustrates that out ofthe nine (9)building permits that were applied for by Hendrikus over the past nine (9)years,only seven (7)were applied for withintwo(2)yearsofissuanceofthepermits,i.e.10-2250, 10-2251,10-2252, 10-2253,10- 2254,11-264,and 11-102.(COK000382.)Out ofthese seven (7)building permits,none were 31 completed or "finalled"within two (2)years ofissuance ofthe permits.Given these facts the Court determines that substantial progress was not made on the Hendrikus development within two years ofSeptember 28,2010. 55.This Court determines that SMA Rule 10.0 provides for mandatory not discretionary "lapse"ofSMA Permits if substantial progress is not made,as determined by the Director,within two (2)years ofissuance ofthe permit. 56."Shall"is defined as "will have to"or "must."Webster's ThirdNew Int'l Dictionary 2085 (1961).As to the meaning ofshall,"it is further stated: As used in statutes.contracts,or the like,this word is generally imperative or mandatory.In common or ordinary parlance,and in its ordinary signification,the term "shall"is a word ofcominand,and one which has always or which must be given a compiilsory meaning;as denoting obligation.The word in ordinaiy iisage mecms must and is mconsistent with a concept ofcHscretion. Leslie v.Board of Appeals of Couiity ofHawaii,109 1-law.384,126 P.3d 1071 (2006), citing Blcick's Law Dictionary 1375 (6th ed.1990)(emphasis added). 57.In Perry v.Planning Comm'n,62 Haw.666,619 P.2d 95 (1980),the court articulated a three-prong test for determining when the word "shall"may be interpreted as directory.First,"shall"can be read in a non-mandatory sense when a statute's purpose "confute[s]the probability ofa compulsory statutory design."62 Haw.at 676,619 P.2d at 102. Second,"shall"will not be read as mandatory when "unjust consequences"result.Id.Finally, "the word 'shall'may be held to be merely directory,when no advantage is lost,when no right is destroyed,when no benefit is sacrificed,either to the public or to the individual,by giving it that construction."Id.at 677,619 P.2d at 103. 58.In this case,the first prong ofthe test is not met as the purpose ofSMA Rule 10.0 clearly does not "confute the probability ofa compulsory statutory design."SMA Rule 10.0 clearly provides that,unless otherwise stated,the applicant "must"make substantial progress,or 32 the permit "shall"be deemed to have lapsed and be no longer in effect.By using both "must" and "shall"in the same sentence,SMA Rule 10.0 clearly supports and proves the mandatory nature ofthat provision. 59.As to the third prong,it is inarguable that with regard to the authority granted in an SMA Use Permit,advantages are lost,rights are destroyed,and benefits are sacrificed upon lapsing of the permit and,therefore,"shall"cannot be held merely to be directory. 60.As to the second prong,the court concludes that lapse ofthe Subject Permits would not result in "unjust consequences." 61."Special controls on development are necessary to avoid permanent losses of valuable resources and the foreclosure ofmanagement options [.]"HRS §205A-21 and SMA Rulel.2. 62.The SMA Rule 10.0 requirement that permits shall lapse ifsubstantial progress is not made,as determined by the Director,within two (2)years ofthe issuance ofthe permits constitutes "special controls on development"within the SMA is consistent with the objectives, policies,and guidelines ofthe CZMA. 63.A plain reading ofSMA Rule 10.0 requiring lapse ofthe Subject Permits because substantial progress was not made within two (2)years ofissuance ofthe permits,as determined by the Director,does not violate Kalan's Due Process rights to develop his property. 64.A protected property interest under both the federal and state constitution's due process clause,"stems from an independent source such as state law -rules or understandings that secure certain benefits and that support claims ofentitlement to those benefits."Brescia v. North Shore Ohana,115 Haw.477,168 P.3d 929 (2007);citing Roth,408 U.S.at 577,92 S.Ct. 2701. 33 65.A property interest will be seen to exist "ifdiscretion is limited by the procedures in question,that is,whether the procedures,if followed require a particular outcome."Brescia, Id;citing Crown Pointl,LLCv.Intermountain Rural Elec.Ass'n,319 F.3d 1211,1217 (10th Cir.2003)(citing Hyde Park Co.v.Santa Fe City Council,226 F.3d 1207,1210 (10th Cir. 2000)).See also Jacobs v.City ofLawrence Kansas,927 F.2d 1111,1116 (10th Cir.1991) 66.Only ifthe governing statute compels a result upon compliance with certain criteria,none ofwhich involve the exercise ofdiscretion by the reviewing body,does it create a constitutionally protected property interest[.]Shanks v.Dressel,540 F.3d 1082,1091 (9th Cir. 2008)(citations and internal quotation marks omitted). 67.The issuance ofan SMA Use Permit is a discretionary act by the KCPC and in no instance is the K.CPC compelled to issue a SMA Use Permit or the amendment or modification ofthe same. 68.No development shall be allowed in any county within the special management area without obtaining a permit in accordance with HRS ch.205A,Part II.HRS §205A-28. 69.No development shail be approved unless the authority has first found: (A)That the development will not have any substantial adverse environmental or ecological etfect,except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health,safety,or compelling public interests.Such adverse effects shall include,biit not be limited to,the potential cumulative impact of individual developments,each one of which taken in itself miglit not have a substantial adverse eftect,and the elimination of planning options; (B)That the development is consistent with the objectives,policies,and special management area giiidelines of this chapter and any guidelines enacted by the legislature;and (C)That the development is consistent with the county general plan and zoning. Siich a Hnding of consistency does not preclude concurrent processing where a general plan or zoning amendment may also be required. HRS §205A-26 (2)(A)-(C),SMA Rule 4.0 B (1)-(3). 34 70.The KCPC is not required to grant a request to modify or delete an SMA permit condition imposed,but may do so for good cause shown.RPPPC 1-12-9 (b). 71.Because neither state nor county law compels that Kaplan be granted either a SMA Use Permit or modification ofa SMA Use Permit upon compliance with certain criteria, and because the KCPC has discretion to grant such a request,a constitutionally protected property interest is not created in a SMA Use Permit if substantial progress is not made,as determined by the Director,regarding the development or activity within two (2)years ofthe issuance ofthe permit,and therefore the automatic lapse ofa SMA Use Permit under the provisions ofSMA Rule 10.0 does not deprive Kaplan ofany Due process rights. 72.When construing a statute or administrative rule,courts are "bound to give effect to all parts ofa statute,and ...no clause,sentence,or word shall be construed as superfluous, void,or insignificant ifa construction can be legitimately found which will give force to and preserve all words ofthe statute."Keliipiileole v.Wilson,85 Haw.217,221,941 P.2d 300,304 (1997)(quotation marks omitted). 73.To interpret SMA Rule 10.0 in a way that would treat the lapsing provision as surplusage is inconsistent with the special development controls applicable within the SMA,and the objectives,policies and guidelines ofthe CZMA and SMA Rules. KAPLAN'S APPLICATION TO AMEND AND MODIFY THE SUBJECT PERMITS WAS MADE UPONIMPROPER PROCEDURE 74.Under SMA Rule 10.0,permits can be amended through the procedure outlined in RPPPCCh.12. 75.Under RPPPC Rule l-12-9(a),"[i]fa permit holder desires to have a modification or deletion ofa condition that was imposed by the Commission,the permit holder shall file a 35 motion in accordance with Section 1-6-16 ofthese Rules and serve a copy to all parties to the proceeding in which the condition was imposed." 76.According to the record,Kaplan's Application requesting modification did not comply with the requirements ofa motion as provided by RPPPC Rule 1-6-16,was not served on any party,and was not accompanied by an affidavit or legal memorandum setting forth the grounds upon which it was based. 77.However,because the Hendrikus permits lapsed on September 28,2012,this Court determines that allowing Kaplan to amend or modify a permit that had lapsed approximately seven (7)years prior was in violation ofstatutory provisions,in excess ofthe statutory authority and jurisdiction ofthe KCPC and the Planning Department,affected by other error of law,and arbitrary and capricious,or characterized by abuse of discretion or clearly unwarranted exercise ofdiscretion in violation ofHRS 91-14 (g)(1)(2)(4)and (6). 78.The April 23,2019 Director's Report correctly found that Kaplan's request constituted "Development"and required a SMA Use Permit. 79.HRS §205A-28 provides,"[n]o development shall be allowed in any county within the special management area without obtaining a permit in accordance with this part." 80.Any "Development"within the SMA shall be subject to the review ofthe Director,Planning Department,and Planning Commission,and shall be pursuant to the objectives,policies and guidelines set forth in SMA Rule Sections 1.2,3.0,and 4.0 and the procedures set forth in SMA Rule Sections 7.0 and 8.0.SMA Rule 5.0. 81.The SMA Rules are special rules applicable to development within the SMA that incorporate by reference the general procedural rules contained in the RPPPC and all provisions 36 ofthe RPPPC used as part ofa SMA proceeding must be interpreted and applied consistent with the objectives,policies,and guidelines ofthe CZMA and SMA Rules. 82.The objectives and policies ofthe CZMA are "paramount in any determination involving the use ofland in a special management area."Mahiiiki,65 Haw.at 519,654 P.2d at 882-883(1982). 83.Public participation is a clearly stated objective and policy ofthe CZMA.HRS § 205A-2 (b)(8),(c)(8).As such,in implementing the CZMA,the SMA Rules,and the RPPPC the KCPC and the Planning Department must stimulate public awareness[,]and participation in coastal management,and promote public involvement in coastal zone management.Id. 84.According to the objectives and policies ofthe CZMA concerning "managing development,"the K.CPC and the Planning Department shall:improve the development review process,communication,and public participation in the management ofcoastal resources and hazards;use,implement,and enforce existing law effectively to the maximum extent possible in managing present and future coastal zone development;and communicate the potential short and long-term impacts ofproposed significant coastal developments early in their life cycle and in terms understandable to the public to facilitate public participation in the planning and review process.HRS §205A-2 (b)(7),(c)(7)(A)&(C). 85.The April 23,2019 Director's Report clearly provided that Kaplan's application constituted development and that a SMA Use permit was required as defined in Section 7.3 of the SMA Rules.(COK000386).Because the Planning Director made this determination,he was obligated to inform Kaplan ofthe following:the requirement ofan application pursuant to SMA Rule 8.0;the public hearing requirements pursuant to SMA Rule 9.0;the Planning Commission's 37 requirements for action pursuant to SMA Rule 10.0;and the area ofcritical concern to delineate the scope ofthe information which the applicant must address.SMA Rule 7.3 C (a)-(d). 86.The general RPPPC rules must be implemented and interpreted consistent with the objectives,policies,and guidelines ofthe CZMA despite the Directors discretion to require a notice ofhearing on the modification or deletion ofconditions contained in RPPPC Rue 1-12-9 (a)orthe provisions ofRPPPC 1-6-16. 87.This Court determines that the KCPC and the Planning Department were obligated to hold a public hearing on Kaplan's application so as to effectuate the objectives, policies,and guidelines ofthe CZMA regarding Public Participation and Managing Development. 88.This Court determines that the KCPC's approval ofthe Kaplan Application at its April 23,2019 hearing was made upon unlawful procedure for failing to follow the SMA Use Permit application and public hearing procedure provided for in the County ofKauai SMA Rules and the CZMA,and is thus in violation ofHRS 91-14(g)(3). THE KCPC AND KAPLAN FAILED TO PROVIDE SOMERS AND THE PUBLIC WITH ADEQUATE NOTICE OF THE APRIL 23,2019 HEARING AS REQUIRED BY HRS §205A-29 (A)AND SMA RULE 9.0. 89.Public participation is a specific objective and policy under the CZMA and the SMA Rules.See HRS §205A-2 (b)(8)and (c)(8)and SMA Rule 3.0. 90.HRS §205A-29 provides that: The authority shall provide for adequate notice to individuals whose property rights may be adversely affected and to persons who have requested in writing to be notified of special management area use permit hearings or applications.The authority shall also provide public notice statewide at least twenty days in advance of the hearing. 38 91.With regard to the Kaplan Application,the KCPC,the Planning Department,and Kaplan were all required to comply with the notification procedures contained in HRS §205A- 29 (a)and SMA Rule 9.0. 92.Under SMA Rule 9 A: The Planning Commission shall conduct a public hearing within a period ofsixty (60)calendar days from the date ofacceptance ofa properly filed and completed application as determined by the Planning Department, unless the sixty-days period is waived by the applicant.The Planning Department Commission shall give written notice to the applicant,and notice shall also be published once within the County ofKaua'i and once in a newspaper of general circulation in the State at least twenty (20) calendar days prior to the date of the public hearing in a publication pursuantto HRS Section 1-28.5. 93.UnderSMARule9D: At least twenty (20)calendar days prior to the scheduled date of such hearing,the applicant shall either hand-deliver written notices to persons listed on the current Real Property Assessment Notice List located at the Real Property Division of the Department of Finance of the County of Kaua'i,or send by certified mail written notices to the addresses shown on such Real Property Assessment Notice List for at least eighty-five percent (85%)of all tax map key parcels within 300 feet from the nearest point of the tax map key parcel involved in the petition. 94.Upon receipt ofKaplan's application,the KCPC did not set the matter for "Public Hearing"as required by SMA Rule 9.0 A.Instead,the KCPC placed the application on its April 23,2019,meeting agenda as a "General Business Matter." 95.The KCPC did not conduct a "Public Hearing"upon Kaplan's application,and the Planning Department did not require Kaplan to comply with the notice requirements contained in HRS §205A-29 (a)and SMA Rule 9.0 A and D. 96.The KCPC and the Planning Department allowed the agenda merely to be posted in accordance with HRS §92-7. 39 97.The April 23,2019 KCPC agenda item language concerning the Kaplan Application was insufficient under HRS §92-7 to notify the public or Somers that the Hendrikus permits were being amended or modified per ICaplan's Application.The agenda item made no reference to the entire development permitted under the Subject Permits and did not reference that the Subject Permits were originally granted to Hendrikus. 98.Neither Somers,the public,nor other neighboring landowners were given adequate notice ofthe meeting as required by HRS §205A-29 (a)and SMA Rule 9.0.(COK 000793.) 99.Pursuant to HRS §205A-29 (b): No agency aiithorized to issue permits pertaining to any development within the special management area shall aiithorize any developnient unless approval is first received in accordance with the procedures adopted pursuant to this part. 100.There is no lawful authority to support the premise that the mandatory notice requirements in the CZMA and County SMA Rules do not apply to Kaplan's Application for permit extension and modification as provided in the June 25,2019 Director's Report.(COK 000491.) 101.The CZMA and the SMA Rules require both public notice and specific individualized notice to nearby property owners and other individuals whose property rights may be adversely affected is required,and specifically provides the process and procedure therefor. 102.This Court determines that the KCPC and Planning Director's decision to waive public notification and hearing requirements with regard to Kapan's application was an abuse of discretion and clearly exceeded the bounds ofreason and disregarded rules or principles oflaw or practice to the substantial detriment ofSomers,and furthermore that it was in violation of 40 statutory provisions,in excess ofthe statutory authority orjurisdictions ofthose agencies,and was affected by other error oflaw in violation ofHRS 91-14(g)(l)(2)&(4). THE DIRECTOR'S APRIL 23,2019 REPORT AND THE KCPC'S MAY 2,2019 DECISION DID NOT CONTAIN THE FINDINGS REQUIRED BY HRS §20SA-26 (2)(A)-(C)OR SMA RULE 4.0 B (1)-(3). 103.The legislature has sought to maintain the integrity ofits declared policy by providing guidelines in HRS §205A-26 to be followed by the counties in reviewing applications for special management area use permits.Mahuiki v.Planning Comn,65 Haw.506,654 P.2d 874(1982). 104.Both State and County law require that no development shall be approved unless the authority has first found: (A)That the developinent will not have any substantial adverse environmental or ecological et'fect,except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health,safety,or compelling public interests.Such adverse effects shall include,but not be limited to,the potential cumulative impact of individiial developments,each one of which taken in itself might not have a substantial adverse effect,and the elimination of'planning options; (B)That the development is consistent with the objectives,policies,and special management area guidelines of this chapter and any guidelines enacted by the legislature;and (C)That the development is consistent with the county genera]plan and zoning. Such a finding of consistency does not preclude concurrent processing where a general plan or zoning amendment may also be required. HRS §205A-26 (2)(A)-(C),SMA Rule 4.0 B (1)-(3). 105.The Hawaii Supreme Court has overturned the granting ofSMA permits because the findings required by [HRS §205A-26]paragraph (2)were not made.See,Mahuiki v. Planning Commission,65 Haw.506,654 P.2d 874 (1982),and HiiiAlaloa v.Planning Commission etal.,68 Haw.135,705 P.2d 1042 (1985). 41 106.The Court in PASHfound that the Hawai'i County Planning Commission may not issue special management area use permit unless it found that proposed project will not have any significant adverse effects.Ptiblic Access Shoreline Hawaii by Rothstein v.Hawai 'i County P!anmngCom'nbyFiijimoto,79Haw.425,903 P.2d \246,cert.ciemed,116S.Gt.1559,517 U.S.1163,134L.Ed.2d660(1995). 107.The Project Area is acknowledged to be significant for its archaeological, agricultural,historic,and natural features.(COK 000011.) 108.The inclusion ofthe Subject Properties within the Open/Special Treatment District-Resource (ST-R)zone establishes that there are unique natural forms,biologic systems, or aesthetic characteristics which are ofparticular significance and value to the general public existing thereon.(COK 000275.) 109.The U.S.Department ofAgriculture,Soil Conservation Service,identifies the soils on the Subject Properties as rough broken land (Rrr)and Puhi silty clay loam 25 to 40% slope (PnE)and due to topographical slopes,the erosion hazard ofthe Project Area is described as severe,and the runoffis rapid on this type ofsoil.(COK 000274.) 110.Hawaii law mandates that the KCPC find that proposed developments are consistent with the CZMA's objectives policies and guidelines prior to approving such development.HRS §205A-26 (2)(a)-(c)and SMA Rule 4.0 B.(1)-(3).Neither the Director nor the KCPC made any ofthe requisite findings that the proposed project was consistent with the objectives,policies and guidelines ofthe CZMA. 111.This Court determines that the failure ofthe KCPC and Planning Director to make findings that Kaplan's proposed development was consistent with the CZMA's objectives policies and guidelines prior to approving such development as required by HRS §205A-26 (2) 42 (a)-(c)and SMA Rule 4.0 B.(1)-(3)was an abuse ofdiscretion and clearly exceeded the bounds of reason and disregarded rules or principles of law or practice to the substantial detriment of Somers,and furthermore that it was in violation ofstatutory provisions,in excess ofthe statutory authority orjurisdictions ofthose agencies,and was affected by other error oflaw in violation of HRS91-14(g)(l)(2)&(4). DECISION AND ORDER IT IS THEREFORE ORDERED,ADJUDGED AND DECREED that Appellee COUNTY OF KAUA1 PLANNING COMMISSION's Decision and Order dated May 2,2019, Approving an extension of time and modification to the design of the farm dwelling unit;and Appellee COUNTY OF KAUAI PLANNING COMMISSION's Decision and Order dated June 27,2019,Denying Somers'Petition for the Revocation of the approval to allow an extension oftime and modifications to the design ofthe farm dwelling unit for Michael Kaplan, are hereby VACATED. Accordingly,the Court grants Appellant Somers'Administrative Appeal and orders that: (A)Special Management Area Use Permit SMA (U)2011-1;Class IV Zoning Permit Z-IV-2011-1,and Use Permit (U)2011-1 lapsed on September 28, 2012 and are deemed to be no longer in effect and no further development shall proceed under the authority ofthe Subject Permits; (B)This matter is remanded to the Planning Department with instructions to find that Kaplan's request for the construction of a farm dwelling unit in addition to the pre-existing development on the Subject Property,and amendment to modify the design of the previously permitted single family residence requires a Use Permit pursuant to Chapter 8-11.3 of the Kauai County Code,a Class IV Zoning Permit pursuant to Chapter 8-11.3 of the Kauai County Code,and constitutes "Development"pursuant to HRS 205A- 22 and SMA Rule 1.4 F,thus requiring a SMA Use Permit as defined in SMA Rule 7.3 C; (C)The Director shall inform Kaplan of,and the KCPC,the Planning Department,and Kaplan shall comply with the following requirements pursuant to SMA Rule 7.3 C (a)-(d):the requirement of an application pursuant to SMA Rule 8.0,the public hearing requirements pursuant to 43 SMA Rule 9.0,the Planning Commission's requirements for action pursuant to SMA Rule 10.0,and the area ofcritical concern to delineate the scope of information which the applicant must address;and (D)Kaplan's request for Development shall not be approved unless the Director or Planning Commission has first made the requisite findings pursuant to HRS §205A-26 (2)(A)-(C)and SMA Rule 4.0 B (1)-(3)after conducting a public hearing and any other necessary hearings pursuant to HRS Ch. 205A,the SMA Rules of the County of Kauai,and the RPPPC,consistent with this Court's Findings of Fact,Conclusions of Law,and Decision and Order. IT IS SO ORDERED: DATE:Lihu'e,Kaua'i,June 9,2020 JU ^^ij^^^ OF THE ABOVE-ENTITLED COURT WEST SUNSET 32 PHASE l,LLC;et al.v.COUNTY OF KAUA 'I PLANNING COMMISSION, etal.;Civil No.5CCI91000105;APPELLANTS WEST SUNSET 32 PHASE1,LLC, CHARLES SOMERS,AS TRUSTEE OF THE CHARLES SOMERS LIV1NG TRUST,AND CHARLES SOMERS,INDIVIDUALLY'S FINDINGS OF FACT,CONCLUSIONS OF LAW,AND DECISION AND ORDER 44 NOTICE OF ELECTRONIC FILING Electronically Filed FIFTH CIRCUIT 5CC191000105 09-JUN-2020 03:02 PM An electronic filing was submitted in Case Number 5CC191000105.You may review the filing through the Judiciary EIectronic Filing System.Please monitor your email for future notifications. CaseID:5CCI91000105 Title:WEST SUNSET 32 PHASE 1 LLC ETC VS.COUNTY OF KAUAI Filing Date /Time:TUESDAY,JUNE 9,2020 03:02:56 PM FHing Parties: Case Type:Circuit Court Civil Lead Document(s): Supporting Document(s):87-0rder Granted Document Name:87-APPROVED -APPELLANTS WEST SUNSET 32 PHASE 1,LLC,CHARLES SOMERS.AS TRUSTEE OF THE CHARLES SOMERS LIVING TRUST,AND CHARLES SOMERS,INDIVIDUALLY'S FINDINGS OF FACT, CONCLUSIONS OF LAW Ifthe filing noted above includes a document,this Notice ofElectronic Filing is service ofthe document under the Hawai'i Electronic Filing and Service Rules. This notification is being electronically mailed to: Chris Donahoe (cdonahoe@kauaj.gov) Mauna Kea Kaukaohu Higuera-Trask (mtTask@cades.com ) Kelsey Sachi Yamaguchi (KSY@m41aw.com ) KathleenN.A.Watanabe (kathleen.ii.watanabe@courts.hawaii.gov ) Teresa S.Tico (haenagirl@gmail.com ) David J.Minkin (dminkin@m41aw.com ) Laurel Loo (ll@M4law.com ) Roy A.Vitousek (rvitoiisek@cades.com ) The following parties need to be conventionally served: lof2 COUNTY OF KAUAI PLANNING COMMISSION 2of2 EXHIBIT 2 r r [(/ 21 1/2 Z12 R-S92 STATE OF HAWAII BUREAU OF CONV6YANCES RECORDED DEC 08,2011 08:01 AM DocNo(6)20t 1-207044 ISl NICKI ANN THOMPSON REGISTRAR CONVEYANCE TAX:$0.00 LAND COURT SYSTEM After Recordation Retum To: Charles M.Someis 5241 ArnoldAvc. McClellan,CA 95652 t REGULAR SYSTEM ByMail(-<l.)Pickup () TG:201129935-1 TGE:T11015281 Barbara Paulo JotalPages:_a ^-/ TAX MAP KEY N0.:(4)5-2-012-035 WARRANTY DEED THIS INDENTURE,made effective the dayof. BEC (i a ain -,2011, by CHARLES M.SOMERS,a married man,as to an undivided 73.53 pereent interest,and WEST SUNSET 32 PHASE 1,LLC,a Califomia limited liability company,as to an undivided 26.47 percent interest,hereinafter referred to as "Giantor,"and WEST SUNSET 32 PHASE1, LLC,a California limited liability company,as to an undivided 26.47 percent interest,and CHARLES SOMERS,as Trustee ofthe Charles Somers Livmg Trust dated November 12, 2002,with ftill powers to sell,mortgage,lease or otherwise deal with the land,as to an undivided 73.53 pereent interest,both ofwhose mailing address is 5241 Amold Avenue,McClellan, California 95652,hereinafter referred to as "Grantee," SIINESSETH: That Grantor,for and in considetation ofthe sum ofTBN DOLLARS ($10.00),and other valuable consideration to Orantor in hand paid by Grantee,the receipt whereof is hereby acknowledged,does hereby grant,bargain,sell and convey unto Grantee,forever,the property, situated on the Island and County ofKauai,Slate ofHawaii,and described in Exhibit A attached hereto and by reference made a part bereof. TO HAVE AND TO HOLD the same,together with all buildings and unproveinents thereon,all rights,privileges,and easements held or enjoyed in connection therewith,all rents, issues and proflts (herefrom,or appurtenant thereto,and all ofthe estate,right,title and interest ofGrantor therein and thereto,unto Grantee,Grantee's suceessors and assigns,forever. 1382922.V] EXHIBIT 2 AND Orantor does hereby covenant and agree witb Grantee,Grantee's successors and assigns,that Grantor is lawfiilly seised in fee simple ofthe premises hereby conveyed;that Grantor has good right to sell and convey the same as aforesaid;that the same are free and clear from all encumbrances,except non-delinquent reat property taxes and as may be described in Exhibit A;and that Grantor will,and Orautor's heirs,legal representatives,successors and assigns shall,forever WARRANT AND DEFEND the title to the land against the lawfiil claims and demands ofall persons whomsoever,except as aforesaid. AT ALL TIMES HEREIN the tenns "Grantor"and "Grantee"or any pronouns used in place tbereof,shall mean and include the masculine or feminuie,singular or plural number,and individuals,firms or corporations,and their and each oftheir respective heirs,legal representatives,successors aud assigns,according to the context thercof,and the covenant ofauy two or more persons herein shall bejoint and several, IN WITNESS WHEREOF,Grantor has signed this instmment as ofthe day and year first above written. ORANTOR: 's M.Sofcers •est Sunsyt 32 Phase 1,LLC, limited liability company By 1382922.VI '/W/A / 'J^Mi.HI^T^ On A^.^l ss: .,2011,before me personally appeared Charles M.Somers also knovm as Charles Somers,to me personally known or satisfactorily proven,who,being by me duly swom or affirmed,did say that such person(s)executed the foregoing instniment as the ftee act and deed ofsuch person(s),and ifapplicable in Ifae capacities shown,having been duly authorized to execute such instnunent in such capacities. WREHN 8RAXTON Conntulon *1MW91 HMUf PvMe •Cdlfornlt Stcnimflto Counly 'Comm,Explfn OBI 30,20131I Name(print):{A^ Notary Public, My commission expires: A<t//< 1382922.VI EXHIBITA All ofthat certain pareel ofland (being portion(s)ofthe land(s)described in md covered by Royal Patent Grant Number 2896 to Charles Titcomb)sltuate,lying and being at Kilauea,Island and County ofKauai,State ofHawaii,being LOT 2,and thus bounded and described: Begimiing at the northwest comer ofthis parcel ofland on the South side ofKaliili Quany Road, the cooniinates ofsaid point ofbeginning refeired to Goveinment Survey Triangulation Station "KILAUEA"being 2,782.44 feet south and 521.47 feet west,thence runnmg by azimuths measured clockwise &om true South: 1. 2. 3. 4. 5. 6. 7. 8. 271' 282" 273' 284' 263' 276' 260° 273' 24' 25' 02' 20' 22' 15' 24' 12' 323.52 feet along the remaioder ofGrant 2896 to Charles Titcomb and along Kahili Quarry Road; 171.59 feet along the remainder ofGrant 2896 to Charles Titcomb and along Kahili Quany Road; 206.82 feet along the remainder of Giant 2896 to Charles Titcomb and along Kahili Quany Road; 240,81 feet along the remainder ofOrant 2896 to Charles Titcomb and along Kahili Quany Road; 192.32 feet along fhe remainder ofGrant 2896 to Charles Titeomb and aloag Kahili Quarry Road; 340.73 feet along the remainder ofGrant 2896 to Charles Titcomb and along Kahili Quarry Road; 540.36 feet along the remainder ofGrant 2896 to Chailes Titcomb and along Kahili Quarry Road; 349.03 feet along the remainder ofGrant 2896 to Cbailes Titcomb and along Kahili Quarry Road; 1382922.VI T 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 231' 195' 183< 198' 218' 231' 320° 10° 82° 32° 122° 104° 37° 51'233.24 57'553.98 40'187.75 36'110.64 47'350.95 53'37.25 42'10"170.85 28'37"1,149.00 ll'37"330.00 17'2,094.00 43'2,543.88 00'56.73 00'91.10 19'77.47 feet along the remainder ofGrant 2896 to Charles Titcomb and along Kahili Quairy Road; feet along the remainder ofGrant 2896 to Charles Titcomb and along Kahili Quarry Road; feet along the remainder ofGrant 2896 to Charles Titcomb and along Kahili Quarry Road; feet along the remainder ofGrant 2896 to Charles Titcomb and along Kaliili Quarry Road; feet along the remainder ofGrant 2896 to Charles Titcomb and along Kahili Quany Road; feet along the remainder of Grant 2896 to Charles Titcomb and along Kahili Quarry Road; feet along Land Commission Award 85559- B Apana 38 to Wm.C.Lunalilo; feet along Land Commission Award 8559-B Apana 38 to Wm.C.Lunalilo; feet along Land Commission Award 8559-B Apana 38 to Wm.C.Lunalilo; feet along Land Commission Award 8559-B Apana 38 to Wm.C.Lunalilo and along Lots 8,7 &6,Kahili Makai Subdivision; feet along Lmd Commission Award 8559-B Apana 38 to Wm.C.Lunalilo and along Lots 6,5,4 &3,Kahili Makai Subdivision; feet along Exclusion 3; feet along Exclusion 3; feet along Exclusion 3; 1382922.VI 23. 24. 25. 26. 27. 28. 29. 30. 31, 32. 33. 34. 336° 32° 96° 53° 99° 54° 21° 116° 173° 131' 66° 97' 00'178.50 43'261.57 38'921.80 32'30"1,398.45 29'10"44.84 50' oo' 35' 43' 39' 53' 37' feet along Exclusfon 3; feet along Land Commission Award 8559-B Apana 38 to Wm.C.Lunalilo and along Lot 3,Kahili Makai Subdivision; feet along the remainder ofGrant 2896 to Charles Titcomb and along Lot 8-W-l-A, Kilauea Agricultural Subdivision; feet along the remainder ofGrant 2896 to Charles Titcomb and along Lot 8-W-1 -A, Kilauea Agricultural Subdivision; feet along the remainder ofOrant 2896 to Chailes Titcomb and along Lot 8-W-7, Kilauea Agricultural Subdivision; 883.06 feet along the remainder of Grant 2896 To Charles Titcomb and along Lots 8-W-10 and 8-W-11,Kilauea Agricultural Subdivision; 245.00 feet along the remainder of Grant 2896 to Charles Titcomb and long I^t 8-W-l 1, Kilauea Agricultural Subdivision; 130.00 feet along the remainder ofOrmt 2896 to Charles Titcomb and along Lot 8-X Kilauea Agricultural Subdivision; 590.00 feet along the remainder ofGrant 2896 to Charles Titcomb and along Lot 8-A-10-H,8- A-10-J,2 and 8-A-10-N-1,Mahikoa Subdivision III; 50.00 feet along the remainder ofGrant 2896 to Charles Titeomb and along Lot 8-A-10-N-1, Mahikoa Subdivision D[; 100.00 feet along the remainder ofGiant 2896 to Charles Titcomb and along Lot 8-A-10-N-1, Mahikoa Subdivision DI; 74.79 feetalong(heremainderof0rant2896to Charles Titcomb and along Lot 8-A-10-N-1, Mahikoa Subdivision III; 1382922.VI 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 191° 202° 253° 129° 115° 233" 333° 254° 211° 239" 212" 122" 20' 34' oo' 05' oo' 31' 53' 19' 58' 58' 05' 05' 16.80 12.70 179.00 61.40 90.50 284.84 42"332.27 57"465.61 48"474.77 03"99.92 140.00 190.00 feet along the remainder ofOrant 2896 to Charles Titcomb and along Lot 8,Mahikoa Subdivision; feet along the remainder ofGrant 2896 to Chartes Titcomb and along Lot 8,Mahikoa Subdivision; feet along the remainder ofGrant 2896 to Charles Titcomb and along Lot 8,Mahikoa Subdivision; feet along the remainder ofOrant 2896 to Charles Titcomb and along Lot 8,Mahikoa Subdivision; feet along the remainder ofdrant 2896 to Charles Titeomb and along Lot 8,Mahikoa Subdivision; feet along the remainder ofGrant 2896 to Charles Titcomb and along Lots 8 and 8-W- 9-B-2,Mahikoa Subdivision; feet along the remainder ofGrant 2896 to Charles Titcomb and along Puu Lani Phase IV Subdivision; feet along the remainder ofdrant 2896 to Charles Titcomb and along Puu Lani Phase IV Subdivision; feet along the remainder ofGrant 2896 to Charles Titcomb and along Puu Lani Phase IV Subdivision; feet along the remainder of Grant 2S96 to Charles Titcomb and along Puu Lani Phase IV Subdivision; feet along the remainder ofGrant 2896 to Charles Titcomb and along Puu Lani Phase III Subdivision; feet along fhe remainder of Grant 2896 to Charles Titcomb and along Puu Lani Phase III Subdivision; 1382922.VI -I 47.141°00'150.00 feetalongtheremainderofGtant 2896to Charles Titcomb md along Puu Lani Pbase III Subdivision; 48.153°05'200.00 feetalongtheremainderofGrant2896to Charles Titcomb and along Puu Lani Pbase DI Subdivision; 49.187°40'330.00 feetalongtheremainderofGrmt2S96to Charles Titcomb and along Puu Lani Phase II Subdivision; 50.213°40'818.11 feetalongtheremainderofGrant2896to Cbarles Titcomb and atong Lot 8-H-7-19 and Lot 8-H-7.39 (Waipua Road),Puu Lani Phase I Subdivision; 51.124"19'150.50 feetalongtheremainderofGrant2896to Charles Titcomb and along Lot 8-H-7-19 and Lot 8-H-7-39 (Waipua Road),Puu Lani Phase I Subdivision; Thence along the remainders of Grant 2826 to Charles Titcomb and Lot 8-W-9-A-1,Puu Lani Phase II Subdivision and Kilauea Agricultural Subdivision on a curve to tbe rigbt having a radius of 29.00 feet,the chord azimuth and distance being: 52.259°19'41.01 feet; 53.304°19'334.16 feetaloDgtheremamdersofGrant2896to Charles Titcomb and Lot 8-W-9-A-1,Puu Lani Phase D Subdivision and Kilauea Agricultural Subdivision; 54.263°44'50"530.54 feetalongtheremaindersofGrant2896to Charles Titcomb and Lot 8-W-9-A-1.Puu Lani Phase II Subdivision and Kilauea Agricultliral Subdivision; Thence along the remaindeis ofGrant 2896 to Charles Titcomb and Lot 8-W-9-A-1,Fuu Lani Phase H Subdivision and Kilauea Agriciiltural Subdivision on a curve to the left having a radius of 750.00 feet,the choid azimuth and distance being: 1382922.VI y 55.276'14'34"1,106.08 feet; 56.138°44' 57.191°15' 58.202°45' 269.82 feet along tbe remainders ofGrant 2896 to Charles Titeomb and Lot 8-W-9-A-1,Puu Lani Phase II Subdivision and Kilauea Agricultural Subdivision; 68.57 feetalongtheremaindersofGrant2896to Charles Titcomb and Lot 8-W-9-A-1,Puu Lani Phase II Subdivision and Kilauea Agricultural Subdivision on a curve to the left having a radius of 550.00 feet,tbe choid azimuth and distance being: 1,002.15 feet; 59.isr 06' 60.220°03' 99.39 feet along the remainders of Grant 2896 to Charles Titcomb and Lot 8-W.9-A-),Puu Lani Phase II Subdivision and Kilauea Agricultural Subdivision; 127.36 feet along the remainders ofGrant 2896 to Charles Titcomb and Lot 8-W-9-A-1,Puu Lani Phase II Subdivision and Kilauea Agricultural Subdivision; Thence along the remainders ofGrant 2896 to Charles Titcomb and Lot 8-W-9-A-1,Puu Lani Phase II Subdivision and Kilauea Agricultural Subdivision on a curve to the left having a radius of 225.00 feet,the chord azimuth and distance being: 61. 62. 194"00'397.33 feet; 106°37'261.47 feetalongtheremaindereof0rant2896to Charles Titcomb and Lot 8-W-9-A-1,Puu Lani Phase D Subdivision and Kilauea Agricultiual Subdivision to the point of beginaing and containing an area of 161.88 acres,more or less. Together wifh an access easement (15 feet wide)located at tbe southwest edge ofLot 8-H-7-123 ofthe Puu Lani Subdivision Unit UI (Tax Map Key No.(4)5-2-015-111),containing an area of 0.054 acrc,as set forth in DEED dated October 2,1979,recorded in Liber 14041 at Page 162. Together with a nonexclusive easement for roadway (including vehicular,pedestrian and equestrian traffic)purposes,and for utility purposes,over under,acioss and upon Easement I382922.VI ^ r r AU-1,30 feet wide,containing an area of 0.5367 acres,more or less,affectmg Lot 8-W-9-C,as more particularly described therem,as granted by mstouments dated October 3,1989,recorded in Liber 23734 at page 706 and in Liber 23734 at Page 730;and subject to the terms and provisions contained therein. Together also with a non-exclusive easement for access and utility purposes over and across Lot 8-W-9B-2 (Tax Map Key No.(4)5-2-011-039),designated as Easement "AU-1",44-feet wide, as granted by GRANT OF EASEMENT AU-1 dated December 20,1991,recorded as Document No.92-001276;and subject to the terms and provisions contained therein,as shown on (he map attached thereto,and more particularly described therein. Together also with a non-exclusive utility easement over Easement "U-l",as granted by GRANT OF UTILITY EASEMBNT U-l,dated November 15,2000,recorded as Document No.2000- 175324;and subject to the terms and provisions contained therein. Together also with a non-exclusive view easement over Easement "SB-2",as granted by GRANT OF EASEMENT SB-2,dated November 15,2000,recorded as Document No.2000- 175327,and subject to the tenns and provisions contained therein. TOGETHER also with a perpetual non-exclusive easement for pedestrian,equestoian and vehicular access puiposes,and drainage purposes,and underground utility puiposes,over Grantor's Property,Tax Key (4)5-2-004-047,more particulariy described therein,as granted by GRANT OF EASEMENT dated November 21,2000,recorded as Document No.2000-183832, and subject to the terms and provisions contained therein. BEING THE PREMISES ACQUIRED BY WARRANTY DEED GRANTOR :FLOYD A.M1LLER,JR.,Trustee of the Floyd A.Miller,Jr.1997 Trust dated January 16,1998 GRANTEE :CHARLES M.SOMERS,a married man,and WEST SUNSET 32 PHASE 1,LLC,a Califomia limited liability company,as Tenants in Common DATED :Julyl6,2004 RECORDED ;DocumentNo.2004-148675 SUBJECT,HOWEVER,to the following: 1.MineralandwaterrightsofanynatureinfavoroftheStateofHawaii. 2.The terms and provisions contained in the Letter Agreement dated July 10,1972,as set forth in DEED dated December 2,1972,recorded in Liber 8782 at Page 1. 3.RIGHT-OF-ENTRY 1382922.VI 10 TO :CmZENS UTILITIES COMPANY,a Delaware corporation (whose interest is now held by KAUAI ISLAND UTILITy CO- OP) DATED ;September 14,1978 RECORDED :Liber 13263 Fage 93 GRANTINO :a right-of-entry and temporary easement for construction and maintenance ofpower aiid commumcation lines 4.One Hundred Year Flood Building Setback Line,as shown on survey map dated Sq>tember 11,1978,preparedbyMasaoFujishige,Regi8teredLandSurveyorNo.1065. 5.Designation ofEasements D-1,D-2, D-3,D-4,D-5 and D-6 for drainage purposes located on the westerly boimdary ofthis lot and more fiilly described as follows: EASEMBNT"D-1" Easement "D-1"(10 feet wide)for drainage purposes located on the westerly boundaiy of tfais lot and more particularly described as follows: Beginning at a pipe at the northwest comer ofthis easement and at the northeast comer of Lot 8-H-7-19,Puu Lani Subdivision Unit I,the coordinates ofwhich referred to Govemment Survey Triangulation Station "KILAUEA"being 4,448.89 feet south and 2,423.11 feet west,thence numing by azimuths measured clockwise from true south: 1. 2. 3. 4. 304° 34° 124° 213° 19' 19' 19' 40' 207.00 feet affecting Lot 8-W-9-A; 10.00 feet affecting Lot 8-W-9-A; 206.89 feet affecting Lot 8.W-9-A; 10.00 feet along Lot 8-H-7-19 to the point of begiiming and containing an area of 2,069 square feet,more or less. EASEMENT "D-2" Easement "D-2"(10 feet wide)for drainage purposes,located on the westerly boundaiy ofthis lot and more fully described as follows: Beginning at a pipe at the southeast coraer ofthis easement and at the southeast comer of Lot 8-H-7-24,Puu Lani Subdivision Unit I,tbe coordinates ofwhich referred to Govemment Survey Triangulation Station "KILALFEA"being 4,792.64 feet south and 2,652.07 feet west,thence numing by azimuths measured clockwise finm trae South: 1.213°40'10.00 feet along Lot 8-H-7-24; 1382922.VI /( 2. 3. 4. 304°19' 34°19' 124°19' 50.11 feet affecting Lot 8-W-9-A; 10.00 feet affecting Lot 8-W-9-A; 50.00 feet affecting Lot 8-W-9-A to the point of begimiing and containing an area of 501.00 square feet,more or less. EASEMENT "D-3" Easement "D-3"(10 feet wide)for drainage purposes,located on the westerly boundary ofthis lot and more fiilly described as follows: Beginning at a pipe at the southwest comer ofthis easement and at the southeast comer ofLot 8-H-7-78,Puu Lani Subdivision Unit II,the coordinates ofwhich refenred to Govemment Sutvey Triangulation Station "KILAUEA"being 4,961.71 feet south and 2,764.69 feet west,thence running by azimuths measuied clockwise from tnie South: 1. 2. 3. 4. 213°40' 304°19' 34°19' 124°19' 10.00 feet along Lot 8-H-7-78; 50.11 feetaffectingLotS-W-9-A; 10.00 feet affecting Lot 8-W-9-A; 50.00 feet affecting Lot 8-W-9-A to the point of beginning and containing an area of 0.012 acre,more or less. EASBMENT "D-4" Easement "D-4"(10 feet wide)for drainage piuposes,loeated on the westerly boundary ofthis Lot and more fully described as follows: Beginning at a pipe at the northwest comer ofthis easement and on fhe northeast side of I-ot S-H-7-73,Puu Lani Subdivision Unit II,the coordinates ofwhich refened to Govemment Siuvey Triangulation Station "KILAUEA"being 5,222.82 feet south and 2,889.19 feet west,thence running by azimuths measured clockwise &om tme South: 1. 2. 3. 4. 304°19' 34°19' 124°19' 187°19' 50.00 feet afFecting Lot 8-W-9-A; 10.00 feetaffectingLot8-W-9-A; 44.98 feet affecting Lot 8-W-9-A; 11.19 feet affecting Lot 8-H-7-73 to the point of beginning and contaming an area of 0.011 acre,moie or less, 1382922.VI 17- EASEMENT "D-5" Easement "D-5"(10 feet wide)for drainage purposes,located on the westerly boundary ofthis Lot and moie fully described as follows: Beginning at a pipe at the easterly comer ofthis easement and on the southeriy comer of Lot 8-H-7-99,Puu Lani Subdivision Unit III,the coordinates ofwhich referred to Govenunent Survey Triangulation Stadon "KILAUEA"being 5,456.93 feet south and 2,920.70 feet west,thence nmning by azimuths measured clockwise &om tme South: 1. 2. 3. 4. 5. 187°40' 273°00' 3°00' 93°00' 153°05' 5.02 feetalongLotg-H-7-99; 50.00 feetafrectingLot8-W-9-A; 10.00 feet afiecting same; 47.53 feet affecting same; 5.77 feet along Lot 8-H-7-100 to the point of beginning and containing an area of 0.011 acre,more or less. EASEMENT "D-6" Easement "D-6"(10 feet wide)for drainage purposes,located on the westerly boundary ofthis Lot and more fully described as follows; Beginning at a pipe at the southeast comer ofthis easement and at the northeast comer of Lot 8-H-7-121,Puu Lani Subdivision Unit III,the coordinates ofwhich referred to Govennnent Survey Triangulation StaUon "KILAUEA"being 5,462.24 feet south and 2,912.23 feet west,thence numing by azimuths measured clockwise from tme South: 1. 2. 3. 4. 122°05' 212°05' 302°05' 32°05' 10.00 feet along Lot 8-H-7-121 to a pipe; 50.00 feet affecting Lot 8-W-9-A; 10.00 feet affecting Lot 8-W-9-A; 50.00 feet affecting Lot 8-W-9-A to the point of beginning and containing an area of 0.011 acre,moie or less. 6.The tenns and provisions contained m the following; FNSTRUMENT :DEED DATED RECORDED Novembei8,1978 Liber 13301 Pagellg 1382922.VI 10 t^ 7. 8. 9. 10. 11. 12. 13. Designation ofEasement "E-9"for electrical and telephone anchor purposes,as shown on survey map dated September 11,197S,prepared by Masao Fujishige,Registered Land SurveyorNo.1065. Designation ofEasement "P-1"(20 feet wide)in favor ofthe County ofKauai for pedestrian access purposes,as shown on survey map dated Septerober 11,1978,prepared by Masao Pujishige,Registered Land SurveyorNo.1065. ORANT TO DATED RECORDED GRANTING COUNTYOFKAUAI September26,1978 Liber 13301 Pagell2 granting an easement for pedestrian purposes over Easement "P-1", being more particularly described therein Designation ofEasement "V-l"(30 feet wide)for vehicular access purposes in favor of Lot8-W-ll,as shown on survey map dated September 11,1978,preparedbyMasao Fujishige,Registered Land SurveyorNo.1065. GRANT TO DATED RECORDED GRANTINO MICHAEL J.NOONAN and ALICE R.NOONAN,busband and wife,their respective heirs,successors and assigns as titleholdeis ofLotS-W-11 November8,1978 Liber13301 Page 107 granting a non-exclusive roadway and utility easement over Easement "V-l",being more pardcularly described therein Designation of Easement "V-2"(20 feet wide)for vehicular access purposes in favor of Bxclusion 3,as shown on survey map dated September 1 1,1978,prepared by Masao Fujishige,Registered Land SurveyorNo.1065. GRANT TO DATBD RECORDBD ORANTING MICHAEL M.DYER and CHARLENE G.DYER,husband and wife,their respective heirs,successois and assigns as titleholders ofExclusion 3,L.C.Aw.10333,Tax Map Key (4th division)5-2- 004-006 November8,1978 Libei13301 Page103 granting a non-exclusive roadway and utility easement over Easement "V-2",being more particularly described therein 1382922.VI 11 ^ 14.The terms and provisions contained in the following: INSTRUMENT :FARM DWELLING AGREEMENT DATED :January22,1982 RECORDED :Llber 16185 Page 507 PARTIES :LARRYC.McKNIOHTandTERRYA.McKNlGHT,"Applicants",and COUNTY OF KAUAI PLANNING DEPARTMENT,"DepartmeDt" 15.The tenns and provisions contained in the followmg: INSTRUMENT :FARM DWELLING AOREEMENT DATED :September 16,1988 RECORDED :Liber 22512 Page48 PARTffiS :T.JACKBENNINGTON,husbandofRitaBennington,and MARTHA ANN BENNINGTON,unmamed,"Applicants",and COUNTY OF KAUAI PLANNING DEPARTMENT"Dqiartment" 16.The terms and provisions contained in the following: 17. 18. 19. INSTRUMENT DATED RECORDED PARTIES AGREEMBNT TO RELEASE RIGHTS TO THREE-PHASE POWER INSTALLATION March 13,1990 DocumentNo.90-040344 IDEAL DEVELOPMENT,INC.,a Hawaii corporation,and CITIZENS UTILITIES COMPANY,a Delaware Corporation Restriction ofAccess Rights to Kahili Quarry Road as shown on Subdivision Map recertified on May 27,1993,prepared by Ronald T.Wagner,Registered Land Smveyor. RIGHT-OF-ENTRY TO : DATED RECORDED ORANTmG GRANT TO JEFFREY S.DORN,single,and CATHERINE LOVE CURTIS, single June22,1993 DocumentNo.93-103204 a right ofentry onto the land described above PRIME PARCELS INC.,a Hawaii corporation 1382922.VI 12 (& 20. 21. 22. DATED :April 15,1997 RECORDED :DocumeatNo.97-058762 GRANTING :granting the right in the nature of a peipetual exclusive easement for roadway purposes (including vehicular,pedestrian and equestrian)over Easement "A-l",as shown on the map attached thereto,and being more particularly described therein The tenns and provisions contained in the following: INSTRUMENT :CORRECTION DEED DATED RECORDED October27,1998 DocumentNo.98-170705 Free flowage ofKilauea Stream,as shown on tax map. GRANT TO :IDEAL ACRES,L.P.,a Hawaii Limited Partnership DATED :October 2,2000 RECORDED :DocumentNo.2000-148918 GRANTING :an exclusive use easement over Easement "VW-2",for View and Corridor purposes in favor ofUnit 5 ofthe Paradise Island Ranch Condominium,as shown on the map attached theretO,and being more particularly described therein ABOVE GRANT AMENDED BY FNSTRUMBNT DATED RECORDED 23.GRANT TO DATED RECORDED GRANTING December 14,2000 Document No.2000-177306 BBAL ACRES,L.P.,a Hawaii Limited Partnership October 2,2000 Document No.2000-148919 aa exclusive use easement over Easement "VW-1",for View Corridor purposes in favor of Unit 1 of fhe Paradise Island Rancb Condomiiuum,as shown on the inap attached thereto,and being more particularly described therein ABOVE ORANT AMBNDED BY INSTRUMENT DATED :December 14,2000 RECORDED :DocumentNo.2000-177306 I382922.VI 13 /4. 24.ORANT TO DATED RECORDED GRANTING IDEAL ACRES,L.P.,a Hawaii Limited Partnership December 7,2000 Document No.2000-175319 an easement over Easement "VW-l-A",for view and lunited easement in favor ofUnit 1 ofthe Paradise Island Ranch Condominium,as shown on the map attached thereto,and being more particularty described therein IDEAL ACRES,L.P.,a Hawaii Limited Partnership December 7,2000 DocumentNo.2000.175320 an easement over Easement "VW-3",for view and limited use in favor ofUnit 2 ofthe Paradise Island Ranch Condominium,as shown on the map attached thereto,and being more particularly described therein ABOVE GRANT AMENDED BY INSTRUMENT DATED :Decemberl 4,2000 RECORDED :Document No.2000-177307 CORRECTION TO FIRST AMENDMENT TO GRANT OF VIEW AND LIMFTED USE EASEMENT VW-3,VW-4,AND VW-5 dated January 5,2001,recorded as Document No.2001 -00463 7;re:description of the Benefited Units. 25.GRANT TO DATED RBCORDED GRANTING 26.GRANT TO DATED RECORDED GRANTING ffiEAL ACRES,L.P.,a Hawaii Limited Partnership December 7,2000 Document No.2000.175321 an easement over Easement "VW-4",for view and limited use in favor ofUnit 3 ofthe Paradise Island Ranch Condominium,as shown on fhe map attached thereto,and being more particularly described therein ABOVE GRANT AMENDED BY INSTRUMENT DATED :December 14,2000 RECORDED :DocumentNo.2000-177307 1382922.VI 14 t1 27. 28. 29. 30. CORRECTION TO FIRST AMENDMENT TO GRANT OF VBEW AND LIMTTED USE EASEMENT VW-3,VW-4,AND VW-5 dated January 5,2001,recorded as Document No.2001-004637;re:description ofthe Benefited Units. GRANT TO DATED RECORDED GRANTEMG IDBAL ACRES,L.P.,a Hawaii Limited Paitaership December 7,2000 Document No.2000-175322 an easement over Easement "VW-5",for view and limited use in favor ofUnit 4 ofthe Paradise Island Ranch Coadominium,as shown on the map attached thereto,and being more particularly described therein ABOVE GRANT AMENDED BY DMSTRUMENT DATBD :December 14,2000 RECORDED :DocumentNo.2000-177307 CORRECTION TO FIRST AMBNDMENT TO GRANT OF VIEW AND LBirTED USB EASEMENT VW-3,VW-4,AND VW-5 dated January 5,2001,recorded as Document No.2001-004637;re:description ofthe Benefited Units. GRANT TO DATED RECORDED GRANT&fG TOEAL ACRES,L.P.,a Hawaii Limited Partnership Novemberl5,2000 Document No.2000-175323 an easement over Easement "GU-1",for general use,as shown on the map attached thereto,and being more particularly described therein Tbe tenns and provisions contained in the following: INSTRUMENT :WARRANTY DEED DATED :December 20,2000 RECOtoED :DocumentNo.2000-180730 The terms and provisions contained in the following: INSTRUMENT :ENCROACHMENT AOREEMBNT DATBD :—(acknowledgedMarch 8,2001 and March 20,2001) RECORDED :DocumentNo.2001-045132 I382922.VI 15 (Y PARTffiS 31. 32. 33. CRAIO S.DAVBDSON md PATRICIA A.DAVIDSON,husband and wife,and FLOYD A.MILLER,19..,Trastee ofthe Ployd A. Millar,Jr.1997 Revocable Tmst dated January 16,1998 The tenns and provisions contained in the following: INSTRUMENT :ENCROACHMENT AGREEMENT DATED :April 10,2001 RECORDED :DocumentNo.2001-057638 PARTIES :RONALD MAX BURKHART and BERENICE BURKHART, husband and wife,and FLOYD A.MILLER,JR.,Trustee ofthe Floyd A.Miller,Jr.1997 Revocable Tmst dated January 1 6,1998 The temis and provisions contained in the following: INSTRUMBNT :ENCROACHMENT AOREEMENT DATED RECORDED PARTffiS GRANT TO DATED RECORDED GRANTING 34.GRANT TO DATED RECORDED GRANTmG April2,2001 DocumentNo.2001-059313 TIMOTHY EDWARD WALPOLB and CAROLYN ELIZABETH WALPOLE,husband and wife,and FLOYD A.MILLER,JR., Trustee ofthe Floyd A.Miller,Jr.1997 Revocable Tmst dated January 16,1998 IDEAL ACRES,L.P.,a Hawaii limited partnership,and BENJAMIN BOLLAG,husband ofNaomi Bollag May 25,2001 DocumentNo.2001-087094 an exclusive easement over Easement "GU-3"for general use,as shown OD the map attached tbereto,and being more particularly described therein BENJAMIN BOLLAG,husband ofNaomi Bollag November 13,2001 DocumentNo.2001-188393 the right to use the portions ofEasement "GU-1",as shown on the map attached thereto,and being more particularly described therein 1382S22.VI 16 /4 35. 36. 37. 38. 39. 40. GRANT TO DATED RECORDED GRANTING GRANT TO DATED RECORDED GRANTING MATmEW GRIGGS BEALL February 20,2002 DocumentNo.2002-036935 the right to use tbe portions ofEasement "GU-1",as shown on the map attached thereto ROBERT K.HUTCHENS Januaiy 30,2002 Document No.2002-018988 fhe right to use the portions ofEasement "GU-1",as shown on the map attached thereto -AS TO THE INTEREST IN EASEMENT "OU-l":- AGREEMENT OF SALE VENDOR :mEALACRES,LP,aHawaiilimitedpartnership VENDEE :WILLIAM A.LBONARD DATED :Marchl8,2002 RECORDED :DocumentNo.2002-063350 AMOUNT :$18,500.00 ORANT TO :WILLIAM A.LEONARD DATED :Januaiy _,2002 (acknowledged February 21,2002 and March 13 , 2002) RECORDED :DocumentNo.2002-063351 GRANTING :the right to use the portions of Easement "GU-1",as shown on the map attached tfaereto Any claim or boundaiy dispute wUch may exist or arise by reason ofthe failure ofthe GRANTS dated November 15,2000 recorded as Document Nos.2000-175324 and 2000- 175327 to locate with certainty the boundaries ofBasements "U-l"and "SB-2", respectively,described in said instruments. The terms and provisions contained in the following: DISTRUMENT :DECLARATION OF EXCLUSrVE USE EASBMENT 1382922.VI 17 -w 41. 42. 43. 44. DATED RECORDED ORANT TO DATED RECORDBD ORANTING asofpebruary 5,2003 Document No.2003-078712 KAUAIPUBLIC LAND TRUSTa Hawaii nonprofit corporation December 22,2008 DocumentNo.2008-191932 a perpetual easement for Conservation over said Easement "C-l", more particularly descibed therein ABOVE EASEMENT ASSIGNED TO :MAUICOASTALLANDTRUST.aHawaiinonprofitcorporation DATED :March30,2011 RECORDED :DocumentNo.2011-084772 GRANT TO :KAUAI PUBLIC LAND TRUST,a Hawaii nonprofit coiporation DATED :December 22,2008 RECORDED :DocumentNo.2008-192741 GRANTING :a peipetual easement for Conservation,over said Easement "C-2", more particularly described therein ABOVE EASEMENT ASSIGNED TO :MAUI COASTAL LAND TRUST,a Hawaii nonprofit coiporatioh DATED :March30,2011 RECORDED :DocumentNo.20)1-055037 The tenns and provisions contained in the following: INSTRUMENT DATED RECORDED DECLARATION INCORPORATMG CONDmONS OF APPROVAL INTO NSTRUMENTS OF CONVEYANCE August 4,2010 DocumentNo.2010-115969 Claims arising out ofcustomary and traditional rights and praetices,including without limitation those exercised for subsistence,cultural,religious,access or gathering purposes,as provided for ia the Hawaii Constitution or the Hawaii Revised Statutes. 1382922.VI 18 -?' EXHIBIT 3 w 1 1/1 B-33117884 STATE OF HAWAII BUREAU OF CONVEYANCES RECORDED February 05,2018 8:01 AM DOC No(s)A-66100200 Isl LESIIE T.KOBATA REOISTRAH Conveyance Tax:$18,000.00 LAND COURT SYSTEM^u REGULARSYSTEM After Recordation,Retum by: CS Development LLC 5241 AmoldAveaue McClellan,CaUfomia 95652 MaiI(X)Pickdp() TO: TGE: 201800499-S 2421806721 Oknda Matsushima R5 This document contains 13 pages TYFE OF DOCUMENT: APARTMENTDEED PART1ES TO DOCUMENT: ORANTOR: GRANTEE: KAHILI MAKAI HOLDINOS,LLC a Hawaii limited liability company P.0.Box 915 Hanalei,Kauai,Hawaii 96714 CS DEVELOPMENT LLC a Cali&mia limited liability company 5241 Amold Avenue McClellan,Califomia 95652 PROPERTy DESCRIPTION: 4316 KahiU Makai Street,#D Kilauea,Kaiiai,Hawaii 96754 Tax Map Key No.(4)5-2-021-007 C.P.R.0004 EXHIBIT 3 APARTMENTDEED KNOW ALL MEN BY THESE PRESENTS: KAHILI MAKAI HOLDINGS,LLC,a Hawaii limited liability company,with a mailing address of P.0.Box 915,Hanalei,Kauai,Hawaii 96714,hereinafter called the "Grantor",in consideration of the sum of Ten Dollars ($10.00)and other good and valuable consideration to the Orantor paid by CS DEVELOPMENT LLC,a Catifomia limited liability company,with a maUing address of 5241 Amold Avenue,McClellan,Califomia 95652,hereinafier called the "Orantee",the receipt ofwhich is hereby acknowledged,does hereby grant and convey uato the Grantee,as a tenant in severalty,its successor and assigns,(he property described in Exhibit A"attached hereto and incorporated herein by reference. AND the reversions,remainders,rents,issues,and profits thereof,and all ofthe estate,right, title,and interest ofthe Grantor,both at law and in equity,therein and thereto. TO HAVE AND TO HOLD the same,togefher with the improvements thercon and all rights, easements,pnvfleges and appurtenances thereunto beloaging or appertaining or held and enjoyed therewith,unto the Grantee,according to the tenancy herein set forth,forever. The Graator hereby covenants with the Orantee fhat the Grantor is lawfiiUy seised in fee simple ofthe premises described herein and has good right to sell andconvey the same;that fhe same are free and clear of all encmnbraBces except as set forth herein and except for the lien of real property taxes not yet required by law to be paid;and that the Grantor will WARRANT AND DEFEND the same unto the Grantee against the lawful claims and demands ofall persons,except as aforesaid. The Grantee confinns that Grantee Iias inspected the property being conveyed and specificaUy attests that Grantee is purehasing the property on an "AS IS"basis,without any representatiou or warranties,express or implied,with a full understanding tliat only Grantee andnot the Grantor will be responsible for any and all imperfections,defects,obsolescence,wear and tear, and all other conditions ofsaid property and hereby waives any claim hereafter against the Grantor for breach ofexpress or implied warranty as to the condition ofthe property,except claims which are based on the Grantor's concedment ofmaterial facts and defects which Grantor is required by lawto disclose. This conveyance and the respective covenants offhe Grantor and Ae Grantee shall be binding on and inure to the benefit oftbe Grantor and the Grantee,respectively.The terms "Grantor"and "Orantee"as and when used herein,or any pronouns used in place thereof,shall mean and include the singular or plural number,individuals,partnerships,trustees and corporations,and each oftheir respective heirs,personal representatives,successors and assigns.All covenants and obligations undertaken by two or more persons shall be deemed to be joint and several unless a contrary intention is clearly expressed herein. -2- The Grantee bereby agrees and covenants with the Orantor that the Grantee will observe, perfonn,comply with and abide by the Declaration of Condominium Property Regime and the Bylaws,including any amendments thereto,described in Exhibit "A"hereto. This Apartment Deed may be executed in counterparts.Each counterpart shall be executed by one or more of the parties hereinbefere named and tfae several counterparts shaU constitute one instrument to the same effect as thoughthe signatures ofall tbe parties are upon the same document. IN WITNESS WHEREOF,the Grantor and Grantee have caused these presents to be duly executed on fhis _day ofjanuary 2018. SignatwepagesfoUow;the remainder ofthispage is intenlioiwlly left blank -3- KAHILI MAKAI HOLDINGS,LLC a Hawaii limited liability comgany Name:Alexander Korotkevich Title:Member By:^t-Q^C^C-tC- Name:OlgaGolik Title:Member Grantor J ss: I, Lilia Lally ConsularAssociate America at U.S Embassy MOSCOW .,Counsul ofthe United States of _,duly commissioned and qualified.do hereby certifv that onthis ai3 davofjanuarv20)8.before me personally appeared ALEXANDER KOROTKEVJCH and OLGA GOLIK,to me personally known,and known to me to be the individuals described in,whose names are subscribed to,and who executed the annexed instrument,and being informed by me oftbe contents of said instrument,duly acknowledged to me that they executed the same freely and voluntarily for the uses and purposes therein mentioned. IN WITNESS WHEREOF,I have hereunto set my hand and official seal the day and year last above written. Lilia Lally ConsularAssociate U.S.Embassy Moscow Counsel ofthe United States ofAmerica Commission Indefinite -4- CS DEVELOPMENT LLC, a Califomia limited liability company By, /6HARLES SOMERS z^^//MEMBER Grantee STATE OF CALIPORNIA COUNTyOF ss: On this _day ofJanuary 2018,before me appeared CHARLES SOMERS,to me p&s^ndly known,who,being by me duly swom or affimied,did say that he executed the foregoing'AEARTMENT DEED dated Januaiy _,2018,wbich document consists ofthirteen (13)pages,as Kis'^ee act and deed,and ifapplicable,in the capacity shown,having been duly authorized to execute'such instrument in such capacity. I certify under PEI^ALTY OF PERJURY under the laws ofthe State of Califomia that the foregoing paragraph is true"and correct. WTTNESSmyhandandoffieialsed.,/S^^tC~t7^' Name ofNotary: Noteiy Public,in and.for said County and State. My commission expires: T -5- ACKNOWLEDGMENT A notary public or other officer completing this certificate verifles only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulnass,accuracy,or validity ofthat document. State of Califomia County of Sacramento J On January 26,2018 ^. before me.Wrenn^Braxton,Notary (insert name and titte of the officer) Charles Somerspersonallyappearad who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s)is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by his/her/their signature(s)on the instrument the person(s),or the entity upon behalf of which the person(s)acted,executed the instrument. 1 certify under PENALTi'OF PERJURY under the laws of the State of Califomia that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature L-L WRENNJ.BBAXTON NolafyPublic-Califofnia SaOTmfintoCounty Conunissioni»22l6ai2 My Comm.Expires Oct 30.2021 ^rL (Seal) EXHIBIT "A" •FIRST:- Apartment No.D of the Condominium Project known as "KAHILI MAKAI ESTATES"as established by Geclaratlon of Condoininium Property Regime dated June 2,1999/recorded in the Bureau of Conveyances as Document No.99-099732 and as shown on Condoininium Map No^2914,and any ainendments fchereto. Together with easements appurtenant to said Apartment established by and described in the Declaration/ including the following: (A)An exclusive easement to use the Parking Stall/Space,if any,as shown in the Declaration, as amended. (B)Nonexclusive easements in the conimon elements designed for such purposes for ingress to/egress froin,utility services for and support of said Apartment^in the other coironon elements for use according to thei.r respective purposes,subject always to the exclusive or limited use of the llmited cominon eleinents as provided in the Declaration,and in all ofcher apartments and common elereents of the building in which said Apartment is located or any adjacent buildings for support. SECOND:- An undivided 20%interest in all common elernents of the Project^as established for said Apartment by the Dedaration/as tenant in coinmon with a.11 other owners from time to time of undivided interests in and to said common elements. The land upon whicb said Condominium Project "KAHILI MAKAI ESTATES"is located is described as follows: All of that certain parcel of iand situate at Kahili/Kilauea^ Hanalei,Island and County of Kauai,State of Hawaii/being more particularly described as follows: LOT 7,being a portion of the consolidation of porfcion of Royal Patent Number 8323,Land Coirunisslon Award Nurnber 8559-B, Apana 3B to William C.Lunalilo with the following Land Coamiission Awarda;Royal Patent Nuunber 3486,Land Commission Award Number 9067,Apana 1,2 and 3 to Keo;Royal Patent Number 3879^Land Conunission Award Number 10013,Apana 1,2 and 3 to Leiraanu;Royal Patent Number 3880,Land Commisaion Award Ntimber 10013-B,Apana 1 and 2 to Mokuhalii;Royal Patent Nuinber 3762,Land Commission Award Number 10015 to Laukini; Royal Patent Number 7754,Land Comnission Award Number 10083 to Mamuakalono;situated at the east end of Lot 11 (Roadway), Kahili Makai Subdivision at Kahili aforesaid,and thus bounded and described as follows: Beginning at the south corner of this parcel of land,being also the east corner of Lot 6,at the east end of Lot 11 (Roadway),Kahili Makai Subdivision,the coordinates of said point of beginning j:eferred fco Government Survey Triangulation Station "KAMOKO"being 8254.74 feet North and 3644.25 feet West and running by azimuths measured clockwise from true South: 1 2. 159°53 262°17 3.349°22' 37'30 1801.77 feet along Lot 6,Kahili Makai Subdivision; 867.13 feet along Kahili-Kilauea boundary; 1277.73 fset along Lot 8,Kahili- Makai Subdivision; 704.96 feet along same; Thence along the east end of Lot 11 (Roadway)/Kahili Makai Subdivision/on a curve to the left having a radius of 48.00 feet,the chord azimuth and distance being: 5.98°23'02"46.71 feet to the point of beglnning and containing an area of 26.19 acres, more or less. Together with a non-exclusive easement for ingress and egress over and across Lot 11 (Roadway),"Kahili Makai Subdivision"/ provided that in the event the owner of said-Lot 11 (Roadway) shall at any time transfer^convey and/or dedicate the same to the County of Kauai and/or any other governmental agency or body having jurisdiction over public roadways for public roadway purposes/this easement shall automatically cease and teriiiinate effective upon the date of such transfer,conveyance and/or dedication.Said Lot 11 (Roadway)is more particularly de»cribed as follows: All of that certain parcel of land situate at Kahili,Kilauea, Hanalei,Island and County of Kauai/State of Hawaii,being more particularly described as follows: Being a portion of the consolidation of portion of Royal Patent Number 8323,Land Coinmission Award Nuinber 8559-B/Apana 38 to William C.Lunalilo with the following Land Coromission Awards:Royal Patent Nuinber 3486,Land Commission Award Niunber 9067,Apana 1,2 and 3 to Keo;Royal Patent Number 3879,Land Coinmission Award Niiinber 10013,Apana l/2 and 3 to Leimanu; Royal Patent Number 3880,Land Commission Award Number 10013 B,Apana 1 and 2 to Mokuhalii;Royal Patent Number 3762,Land Conunission Award Niuaber 10015 to Laukini;Royal Patent Number 7754/Land Coinmission Award Nurober 10083 to Mamuakalono; situated on the northeasterly side of Kuhio Highway,F.A.P. No.S-0560(8)/at Kahili aforesaid,and thus bouiaded and described as follows: Beginning at the southwesfc corner of this parcel of land, being also the southeast corner of Lot 2f Kahilj.Makai -11- Subdivision/and on the northeasterly side of Kuhio Highway, F.A.P.No.£-0560 (8)^the coordinates of said point of beginning referred to Government Survey Triangulation Station"KAMOKO"being 5930.75 feet North and 4558.94 feet West and running by azimuths measured clockwise from true SouLh: Thence along Lot 2,Kahili Makai Subdivision,on a curve to the left having a radius of 30.00 feet,the chord aztmu.th and distance being: 219°14'11"41.64 feet; 175°1T 17"133.06 feet along same; Thence along same on a curve to the left having a radius of 422.00 feet,the chord azimuth and distance being: 165°08'38"148.65 feet; 155°00'120.00 feet along same; Thence along same on a curve to the right having a radius of 328.00 feet,the chord aziinuth and distance being: 179° 204° 30 00 272.04 feet; 637.46 feet along Lot 3,Kahili Makai Subdivision; Thence along Lot 4,Kahili Makai Subdivision,on.a curve to the right having a radius of 1528.00 feet, the chord azirauth and distance being: 210' 271' 45 30 359.19 feet; 835.02 feet along Lots 4,5 and 6, Kahili Makai Subdivision; Thence along Lot 6/Kahili Makai Subdivision,on a curve to the right having a radius of 40.00 feet,the chord azimuth and distance being: 197 47 59'26.97 feet; Thence along Lofcs 6 to 9,inclusive,Kahili Makai Subdivision^on a curve to the right having a radius of 48.00 feet,the chord azirauth and distance being: 10.307 30 74.18 feet; -111- 11 12 13 14 15 16. 17 18 19 20 Thence along Lot 9/Kahili Makai Subdivision,on a curve to the left having a radius of 40.00 feet,the chord aziniuth and distance being: 57°12'01"26.97 feet; 37°30'835.02 feet along same; Thence along saine on a curve to the left having a radius of 1472.00 feet,the chord azimuth and distance being: 30' 24' 45 00 346.03 feet; 637.46 feet along Lots 9 and 10, Kahili Makai Subdivision; Thence along Lot 10/Kahili Makai Subdivision,on a curve to the left having a radius of 272.00 feet,the chord aziiauth and distance being: 359' 335' 30' 00 • 225.58 feet; 120.00 feet along same; Thence along same on a curve to the right having a radius of 478.00 feet,the chord azimuth and distance being: 345°08'38"168.37 feat; 355°17'17"133.06 feet along same; Thence along same on a curve to the left having a radius of 30.00 feet,the chocd azimuth and distance being: 311'20 24"41.64 feet; Thence along Kuhio Highway^F.A.P.No.3-0560 (8),on a curve to the left having a radius of 155.00 feet,the chord azinuth and distance being: 85'17 17"113.79 feet to the polnt of beginning and containing an area of 3.43 acreSf more or less. Tagether also with Accegs Easement A-5 (25 feet wide)over and across Lot 5,Access Easements A-6-l (25 feet wide),A-6-2 (25 feet wxde]and A-6-4 (25 feet wide)over and across Lot 6 all in favor of Lot 7/as granted by that certain undated Declaration of Easements recorded on April 8,1993,as Document No.93-056508,and as more fully described in Amendment to said Declaration dated December 14,1993, -IV- recorded as Document No.93-213173. BEING THE PREMISBS ACQUIRED BY QOITCLAIM DEED GRANTOR: GRANTEE: DATED: RECORDED; ALBXANDER KOROTKEVICH,unmarriiid,and OLGA GOLIK,unmarried KAHILI MAKAI HOLDINGS,LLC,a Hawaii lljnited liability company May 8,2009 Document No.2009-078340 SUBJECT,HOWEVER,to the following: 1.Mineral and water rights of any nature. 2.Any and all exiating archaeological sites or historic or prehistoric remains,including but not limited to, gravesifces/artifacts/rock wall and trails located on th-e land described herein. 3.Clai.ms arising out of custoinary and ttadifcional rights and practices/including without liraitation those exercised for subsistence,cultural,religious/access or gathering purposes/as provided for in the Hawaii Constitution or the Hawaii Revised Statutes. 4.Flood setback lines a$shown on the map of the "Kahili Mak.ai Subdivision"prepared by Cesar C.Portugal, Registered.Land Surveyor,Certificate No.2225-SE,dated October 27,1981. 5.Irrigation Easement "D-9 situate along a portion of the southeasterly side of Lot 7 as shown on the map of the "Kahili Makai Subdivision"prepared by Cesar C.Porfcugal^ Registered Land Surveyor,Certificate No.2225-SE,dated Octobsr 27,1981. 6.Easement "SD~2"for drainage purposes,as shown on map of the "Kahili Makai Subdivision"prepared by Cesar C. Portugal,Registered Lanci Surveyor^Certificate No.2225- SE,dated October 27,1981. 7.The terms and provisions contained in the following: INSTRCMENT: DATED: RECORDED: PARTIES: AGREEMENT TO INCORPORATE AGMCULTORAL RESTRICTIONS INTO INSTRUMENTS OF CONVEYANCE February 16,1382 Llber 16378 Page 307 BETA PACIFIC,INC.,Hawaii corporation, "Subdivider",and the COUNTY OF KBUAI PLANNING DEFARTMENT,"Commission" The terms and provisions contained in fche following: INSTRUMENT:DECIARATION OF RIGHT OF OSE DATED:April 6,1982 RECORDED:Liber 16378 Fage 358 The terms and provislons contained in the following: INSTROMENT: DATED: KARRANTY DEED May 25,1982 -V- 10 11 12 13 RECORDED:Liber 16378 Page 369 The terms and provisions contained in the following: INSTRUMENT: DATED: RSCORDED: WAKRANTY DEED May 25,1982 Liber 16378 Page 3B8 Access Easement A-7 (25 feet wide}in favor of Lots 5 and 6t as granted by that certain undated Declaration of Easements recorded in said Bureau as Document no.93- 056508 ,and more particularly described in Amendment to said Declaration dated December 14,1993,recorded in said Bureau as Document No.93-2131.73. The terms and provisions confcained in the following: INSTRDMENT:DECLARATION REGARDING EASEMENTS DATED:—(Acknowledged October 15,1992 and October 16,1932) BBCORDED:Document No.93-056508 Said above declaration was amencted by instrument dated December 14,1993,recorded as Document No.93-213173. The terms and provisions confcained in the following: INSTBQMENT: DATED: OMRECORDED DISCLOSURE,RELEASE,INDEMNITY SND LIMITATION OF RBMEDIES FOR TAX MAP KEY (4)5-2-21-07 undated 14 The tenns and provisions contalned in the following: 15 16 INSTROMENT: DATED; RECORDED: WAIVER BND RELEASE November 19,1998 Document No.38-178822 The terms and provisions contained in the following: INSTRUMENT:DECLARATION OF CONDOMINIHM PROPERTY REGIME FOR "KAHILI MTtKAI BSTATES" CONDOMINIUM PROJECT DATED:June 2,1939 RECORDBD:Document No.99-099732 MAP:2914 and any amen-dments thereto Said above declaration was amended by instrument dated August 13,1999,recorded as Document No.99-133559,dated August 31,1999,recorded as Document No.99-144243,dated September 29,1999,recorded ag Document No.99-177189, dated February 24,2006,recorded as Document No.2006- 049530 and dated December 3/2008,rocorded as Document No.2008-189691. The terms and provisions contained in the following: INSTRUMENT:BY-LAWS OF THE ASSOCIATION OF APAKTMENT OHNERS DATED:June 2,1999 RECORDED:Document No.99-099733 -VI- 17 The terms and provisions contained in the followlng: INSTROMENT:DECLAKATION OF RESTRICTIVE COVENANTS OF THE KAHILI MAKAI ESTATES CONDOMINIUM PROPERTY REGIME DATED:September 24,1999 RECORDED:Document No.99-161161 18.Easement A-l for access purposes,as inentioned in instruroent dated Septeiaber 29,1999^recorded as Document No.99-177189. 19 Easement AU-1 for access and utility purposes as mentioned in instrument dated September 29,1&99^recorded as OoGument No.99-177189. 20 21 22 23 24 25 26. Easement E-l .for utility purposes as mentxoned in instruinent dated September 29,1999,recorded as Docuinent No.99-177189. Easement E-2 for utility purposes as nientioned-in instrument dated September 29,1999/recorded as Document No.89-177189. Easement E-3 for utility purposes as mentioned in instruinent dated September 23,1999,recorded as Document No.99-177189. Easement U-l for utility purposes as mentioned in instrument dated September 29,1999,recorded as Document No.99-177189. Easenient U~2 for utility purposes as mentioned in instrument dated September 29,1999,recorded as Document No.99-177189. NOTICE OF DEDICATION DATED: RECORDED: BY; RE: PERIOD: GRANT TO: DRTED: RECORDED: GR&NTING; January 27,2000 Document No.2000-015284 FLOYD A.MILLER dedlcation of land for Agriculture purposes 10-year CITIZENS UTILITIES COMPANY,now known as CITIZENS COMMUNICATIONS COMPRNY,whose interest is now held by KAUAI ISLAND UTILITY COOPEBATIVE,and VERIZON HAWAII INC.,now known as BAWAIIAN TELCOM,INC. January 23,2001 Document No.2001-165891 an easement for utility and incidental purposeSf the said area being designated as Easement "E-l" Said above grant was assigned by instruin-ent dated December 20,2004,recorded as Document No.2004-264421. -Vll- 27.The terans and provisions contained in the following: INSTRUMENT:KAHILI M.AKAI ESTATES APARTMENT DEED DATED:June 3,2006 RECORDED:Document No.2006-109479 END OF EXHIBIT "A" -vui- EXHIBIT 4 STATE OF HAWAII BUREAU OF CONVEYANCES RECORDED April 09,2018 8:01 AM Doc No A66730105 CONVEYANCE TAX:$17.700.00 /s/LESLIET,KOBATA,Reglstrar SKC 12 LAND COURTSYSTEM REGULAR SYSTEM After Recordation,Return by:Mail (x )Pickup () CS DEVELOPMENT LLC 'TG:201801250-S 5241 ARNOLD AVE TGE:24218106877 MCCLELLAN CA 95652 Glenda Matsushima 12^pages— TYPE OF DOCUMENT: APARTMENT DEED RS-2 PAR'HES TO UOCUMEN')': GRANTOR:LAUREL NICOLE SPELLMAN SMITH and BRIAN JOtW SMITH,wife aiid husband GRANTEE:CS DEVELOPMENT Lt.C, a Hawali limited liability company 5241 Aniold Avenue McCleIlan,California 95652 TAX MAP KEY FOR PROPERTY: (4)5-2-021 -006 CPR No.0005 UnitNo.5 (W:/DOCS/ia5.1/4U,'W0152UO.DOCX)EXHIBIT 4 APAJR 1 MENT UEEU KNOW ALL PEOPLE BY THESE PRESENTS: LAUREL NICOLE SPELLMAN SMITH and BRTAN JOtlN SM1TI1,wife and husband, whose mailing address is 2201 3 Avcnue,Apt.2203,Seattlc,Washington 98121,hereinafter called the "Granlor",in consideration ofthe sum of'lcn Dollars ($10.00)md other good and valuable consideration to the Grantor paid by CS DEVELOPMENT LLC,a Hawaii limited liability company,whose mailiag address is 5241 Ainold Avenue,McClellan,Califomia 95652, hereinafier called tlie "Grantee",the receipt of which is hereby acknowledged,do hereby graat and convey unto the Grantee,as a tenant in severalty,its successors and assigns,the propcrty described in Exhibit "A"attached hereto and incorporated hercin by reference. AND the reversions,remainders,rents,issues,and profits thereof,and al!of the estate, right,title and interest of the Grantor,bolh at law and in equity,therein and thcreto. I'O HAVR AND TO HOLD the same,together with the improvements thereon and all rights,easemeats,privileges and appurtenances thereunto belonging or appertaining or held and enjoyed therewith,unto the Granfee,according to the tenancy herein set forth,forevei. The Grantor hereby cuvenaiits with the Grantee that fhe Grantor is lawfully seised in fee simple of thc prcmises describcd herein aiid has good right 1o sel)and convey tlie same;that the same are free and clear ofall encumbrances excepl as set fortb herein and except for the lien nf real pro]->erty taxcs not yet requircd by ]aw to bc paid;and that tfie Grantor will WAHRANT AND DEREND the same unto the Grantee against the lawfill claims and demands of all persons, except as aforesaid. Thc Grantee confirms that Grantcc has inspccted the property being conveyed and specifically attests that Grantee is purchasing the property on an "AS 1S"basis,vvilhoul any representations or warranties,express or implied,with a full understanding that only Grantce and not the Grantoi will be responsible for any and all unperfections,defects,obsolescence,wear and teai,and all other conditions of said property and hereby waives any claim hereafter against the Grantor for breach of express or implied warranty as to the condition of the property,except claims which are based on the Grantor's concealment ofmaterial facls and defects which Grantor is required by law lo disclose. This conveyance and thc rcspective covenauts of the Grantor and the Grantec shaU be binding on and inure to the benefit of the Grantor and the Grantee,respectively.The terms "Grantor"and "Grantee"as and when used herein,ot any pronouns used in place thcreof,shall mean and include the singular ur plural nimiber,individuals,partnerships,trustees and corporations,and cach oftheir respective heu-s,peisonal representatives,successors and assigns. All covenants and obligations undertaken by two or more persons sball be deemed to bejoint and several unless a contrar)'intcnlion is clearly expressed herein. tW:/DOUS/]B54;4nni,'0152230.DOCX)-2- The Grantee hereby agrees and covenants with tbe Grantor that tbe Grantee niU observc, perform,comply wilh and abide by tlie Declaralion of Condominiuni Property Rcgirne and thc Bylaws described in Exhibil "A"heieto. This Apartment Deed may be executed m couaterparts.Each counterpart shall be executed by one or inore of the parties hereinbcfore named and the several couaterparts shall constilute one instrument to the samc effecl as though the signalures ofall the parties are upon (he same document. IN WI'I'NESS W^IKREOF,thc Grgptor apd the Giantec haye caused these presents to be duly executed on [his 'Qw_day of ft/lfll'C^l 20 |^'. (SIGNATURES COh'TWUED ONNEri'PAGE) {WjTX>CS/t05'l/-tOAV0152230,DOCX}-3- GRANTOR:^^UURELNTCOLESPElSl'MAN SMTTH f^T^y-/. BRIAN JO]W SM1TH STATE OF COUNTY OF ti-aw^ kCLLUu .—_) )SS: —} On this ^,ey_day of \^W ,before me appcarcd LAUKEL N1COI.E SPbLLMAN SMl'l'H,1o me p^rs^ually known,who,bemg by nie duly sworn or affiiTned,did say (hat such person(s)executed the foregoing,APARTMENT DEED dated LU1/(&h--^.//20_,which document consists of II page(s),as tbe free act and dccd of such person(s),and if applicable,in the capacilies shown,having bccn duly autliorized to cxccutc such instnimeat in such capacities. ^wmxwtf,, ^^l*^7-57^.]*!Vi§BlSW ^'"^^''""iiw'n^ ^ Nafe<f^otary:/^^^ Notary Public,in and for said County and State. 5-"'Jajiici.^&rca-/ My commission expires: GLENDAMATSUSHIMA Expiration Date:November 18,2019 fW^DCX:S/lU54/40/W)l52230.DQC\r)-4- STATE OF COUNTY OF ttGir^ )SS: J ^before me appearedOuthis_3-Q__day of 'JCl.lUllMl BRIAN JOHN SMITII,ta me personaUy knowa,who^eing by me duly swom or affinmed,did say that such person(s)executed the forcgoing APARTMENT DEED dated UVlclii-l'c'j]^_,20_,which document consisls of (/_page(s),as the tre.e act and deed of such person(s),and if applicable,in Ihe capacities shown,having been duly authorized to executc such instniment in such capacities. ^: ^ ^ss^/y'^^1',^0-tAH^ij^^5^UJv^us^/^^•w'^/ '^u"^^ ^sy u Nante^SFNotary: Nolary Public,in and for said Coiinty and State. ^^u^dJ?C.yc.u^- My commissiou expu-es: GLENDAMATSUSHIMA Expiration Date:November 18,2019 {W./DOCS/1054/40AV015223L'.DOC:X }-5- GRANTEE:CS DEVELOPMENT LLC, a Mawaii limited liability company ^eHARDESS, lembi A notary public or other officer completing this certific^te verifies only the identity oftbe individii^)who signed the document to which this certifi6gte is attached,and not tbe truthfulness,'^:curacy,or validity ofthat document. ACKNOWLEDGMENT STATE OF CAL1FORNIA COUNTY OF On 20 fore me, Notary Public Notary Public,personally appcared CRApJ,F»S SOMERS,who proved to me on the basis of satisfactory evidence to be the person whd^e namc is subscribcd to tlie within instnunent and acknowledged to me that he executed the\ame in his authorized capacity,and that by his signature on the instnmient the person,or th\entity upon bchalf of which the person acted, executed the instrument. 1 uertify under PENALTy OF PERJURY imder foregomg paiagraph is true and corrcct. WITNRSS my hand and official seal. le laws of the State ot Califomia that the {W/1K)CS/1054»40/'W01S2230.DOI;X )-6- STA'l'l':(.)!•'HAWAII COUNTY OF KAUAI ss: On this 27lh day ofMARCH 2018 in the 51"Circuit,State ofllawai'i,belbre me personally appeared CHARLKS SOMERS to be known lo be ihe person described in and who execuled the foregoing instrument identified or describcd iis APARTMENT DEED and acknowledged that hc executed the same as his free act and deed,in said capacity. The foregoing instrument is undated and contained 12 pages at the time ofthis acknowledgement/certification. ^\^y//i"^^ """lilMW^ Notary Publi^,State ot'IIa^iii Print Name: My Commission Expires: GLENDAMATSUSHIMA Expiration Date:November 18,2019 EXJtUBlT "A" -FFRST:- Condominium Unit No.5 ,together with their appurtenant limited commoa elcinent land area,of that certain Condominium Project known as "MANA MELE",as established by Declaration ol'Condominium Property Regime dated —---(acfcnowledged July 9,1998), recorded in thc Bureau of Conveyances ofthe State ofHawaii as Document No.98-139884,as amended and restated,and as shown on Condominium Map No.2797 and any amendments thereto. 'I'ogether with exclusive use of the limited cominon elements appurtenant thereto,and appurtenaiit easements as described in said Ueclaiation and nonexclusive easements in Ihe common clements desigiicd for such purposes for ingrcss to,cgress from,utility services for,and support,maintenance and repair ofsaid Unit which arc shovvn on the Condommiuin Map for the Project or otherwise of record;in the other common elcmcnts for use according to their respective purposes,and in all other uniLs ofsaid Project. -SECOND:- An undivided 20%interest in all comnion elemcnts ofthe Project,including ihe land dcscribed in said Declaration as established tbr said unit by the Declaration,or such other perccntage hereafter established for said unit by any amendment ofthe Declaration,as tenant in common with the other owners ai)d tenants thereof. The laad upon wllich sairt Condominium Project "MANA MELE"is located is described as fotlows: AU oflhat certain parcel of'land (being portion(s)ofthe land(s)tlescribcd in and covered by Land Patent Number 8323,Land Commission Award Number 8559-B,Apana 38 to Wm.C. Lunalilo,Royal Patent Number 3486,Land Commission Award Nurnber 9067,Apanas 2 and 3 to Keo,Royal Patent Number 7754,Land CommissioD Award Numbcr 10083 to Mamuakalono and all of Royal Patent Number 3762,Land Commission Award Niunber 10015 to Laukini) situate,lying and being on the northwcsterly side of Ixit 11 (Roadway),at Kahili,Kilauca, Hanalei,Island and County of Kauai,State ol Hawaii,bemg LOT 6 of tlie "KAHILI MAKAI SUBDIVISION",and containing an area of 27.56 acres,more or less- Together with a non-exclusive easement for ingress and egress over and across LOT 11 (Roadway),containing an area of 3.43 acrcs,more or lcss,of the Kithili Makai Subdivision"; provided that in the event the owner of said Lot 11 (Roadway)shall at any lime Iraiisfer,cunvey and/or dedicate the samc to Ihe County ofKauai and/or any other govemmental agency or body having jurisdiction over public roadways for public roadway purposes,this easemeat shatl {W:/IX)CS/1054/40/W01S2230.DOCX}-7- automatically cease aud terminate effective upon the datc of such transfer,conveyance and/or dedication- Together also with a peipetual nonexclusive vehicular etuement,being EASEMENT "B-l"(30 f'eet wide),containing an area of 5,433 square feet,more or less,more particularly described as per survey of Cesar C.Portugal,Registered Professional Land Surveyor,datcd November 3,1982,as set forth in DUCLARAT10N AND GRANT OF EASEMUN'I'datcd June9,1983,recorded in Liber 17178 atPage 237;and t'urther subjectto thecovenants setforth thereln. Save aiid excepting thosc certain parcels of land situated within said Lot 6,being all of Royal Patent Number 3762,Land Commission Award Number 10015 to Laukini,and portions of (I)Royal Patent Number 3486,I.and Commission Award Number 9067,Apanas 2 aud 3 to Keo, and (2)Royal PatentNumber 7754,Land Comniission Award Number 10083 to Mamuakaloiio. Said parcels of land being more particularly described in Declaration of Condomimum Property Regime dated --—(acknowledged July 9,1998),recorded in the Bureau of Conveyaiices ofthe State of Hawaii as Document No.98-139884,as amended and restated. Being the same premises cunveyed to LAUREL NICOLE SPELLMAN SMTTH and BRIAN JOIIN SM1TI-I,wife and husband,as Tenaiits by Ihe Entirety,by WARRANTY APARTMENT DEED (SL'BJECT TO "AS IS"CONDIT10N)dated December 14,2011,and recorded mthe RureaiiofConveyancesofthe Stote ofHawaii as Docuroent No.A-43670381. TOGETHER WITH a'l built-in fumiture,attaclied existing fixturcs,built-in appliaiices, water heater,electrical and/or gas and plumbing fixtures,attaclied caipeting,if any,ceiling fan, dryer,range,refrigerator smoke detectors and washer. SUBJECT,1IOWEVEK,(o tbc following: 1.Mineral and water rigbts of any nature. 2.Flood setback lines,as shown on the map of the "KAHILI MAK.AI SUB111VIS10N"prepared by Cesar C.PDrtugal,Registered Land Surveyor,dated October 27, 1981. 3.Dcsignation ofEasement "D-8",coiitainiag an area of 0.09 acre,more or less,for irrigation purposes,as shomi on the map of the "Kahili Makai Subdivision"prepared by Cesar C.Portugal,Registered I.and Surveyor,dated October 27,198), 4,•J'he terms and provisi'ons contained in thc AGREEMENT TO INCORPORATE AGR1CULTURAL RESTRJCTIONS LNTO INSTRUMENTS OF CONVEYANCE dated February 18,1982,Tecorded in Liber 16378 al Page 307,by and between BETA PACIFIC,INC., a Hawaii corporation,and the COUNTY OF KAUAT PI.ANNINO DEPARTMENT. {W^DOCS/1054/4(i/WDlJ2250.DOCX } 5.The terms and provisions contained in the DECI-ARATION OF RIGHT OF USE dated April 6,1982,recorded in Libci 16378 at Page 358. 6.The terms and provisions contained iii DEED dated May 25,1982,recoided in Liberl 6378 atPage 378. The foregoiug includes,but is nut lunited to,matters relatiiig to the reservation in favor of Beta Pacific,Inc.of the right to grant easements over and across Rasement "D-8" described thereui. 7.As to that portion ofLot 6 being Royal Patent Number 3762,Land Commission Award Number 10015 to Laukim,claims by Ihrough and under any owncr ofa right,title and interest in and to that portion of Lot 6,including wiUiout limitation,tbe heirs and assigns of I:[enry Long,also knou'n title and mterest,if auy,of the hyirs aiid assigns of Henry Long,also known as Henry Dwyer Long;heirs and assigns of Sara L.Femandez,also known as Sara Long Femandez;heirs and assigns of Rosalina Chandler;heirs and assigns of Rosalina Inciong,also known as Roscline Gooman Incioag;heiis and assigns of Rub'm Gooman,a1so known as Rubin Akamu Gooman,Stuart Gooman;Aarai)Oooman;Morgan Gooman;and Karen Gooman. 8.Right uf Entry in favor uf CITIZENS UTILITFES COMPANY,whose mterest is now hcld by KAUAI ISLAlMD Lmi.JTY CO-OP,datcd April 27,1982,recorded in Liber 1751 1 at Page 488;grimtiiig au easement for utility purposes. 9.Desiguation of Easemcut "A-6-1"(25 feet wide),contauiing an area of 22,451 square feet morc or less,for mgress and egress purposes,in favor of Ix)t 5,as set forth and described iii DECLARATION RF-GARDING EASEMENTS dated -—(acknowtedged Octobcr 15,1992),recorded as Document No.93-056508,as amended by instrument dated December 14,1993,recorded as Dor.umentNo.93-213173. 10.Designation of Easement "A-6-2"(25 feet wide),containing an arca of 8,805 square teet,more or less,for ingress and egress purposes,in favor of Lots 5 aiid 7,as sct forth and described in DECLARAT10N REGARDING EASEMENTS dated —-(acknowledged October 15,1992),recorded as Document No.93-056508,as amended by instrument dated Decemberl4,1993,recorded asDocutnentNo.93-213173. 11.Designation of Easement "A-6-3"(25 feet wide),contaimng an area of 19,627 square feet,more or less,for ingress and egress purposes,in favor of Lot 5,as set forth and described m DECLARATION REGARDING EASEMENTS dated -—(acknowledged October 15,1992),recorded as Document No.93-05650S,as amcnded by instrument dated December 14, 1993,recordedasUocumentNo.93-213173. 12.Designation of Easement "A-6-4"(25 feet wide),containing an area of 3,208 square feet,moie or less,for ingress and egress purposes,in favor of Lot 7,as set forth and described in DECLARATION REGARDING EASEMENTS dated -—(acknowlcdged |W:/OOCS/10S4MDftV0152?.10DOC.X|-9- Octobcr 15,1992),recorded as Documcnt No.93-056508,as amended by instrument dated Ueccmber 14,1593,recorded as Documcat No.93-213173. 13.WAIVER AND RELEASE dated November 4,1996,recorded as Document No. 96-158845,by THOMAS WEINBERG with the COUNTY OF KAL'AI by and for the Department of Water and Board of Water Supply,regarding lack of county-supplied water scrvice. 14.'lhe terms and provisions contained in the following: DECLARATION OF CONDOMINIUM PROPBRTY REGIME FOR "MANA MELE CPR"CONT30MINIUM PROJECT dated —(acknowledged July 9,1998),recurded as DocumentNo.98-139884. Condominium Map No.2797 and any amendments Ihereto. AMENDED AND RESTATED DECLARATION 01;CONDOMlKrUM PROPERTY R£GIME OF MANA MELE dated May 3,1999,recorded as Documcct No. 99-074248;re:redesignates the name ofthe condominium projecl to "MANA MELE",etc. Said Amended and Restated Declaration was ainended by instrument dated June 17,1999,recorded as DocumentNo.99-115241. CONSENT ANT)J01NDER to said Amended and Restated Ueclaration and to saiil amendment of Ainended as\d Restated Declaration is dated June 29,1999,recorded as Documcnt No.99-115238,by THOMAS WEINBERG,unmairicd. Said Ucclaration was fiirther amended by instrument daled July 10,2006, recordud as Document No.2006-137658. Assignment of Guest House right for tbe Mana Mele Condominium Property Rf-eimc dated March 15,2007,recorded as Document No.2007-109577. 15-'l'he tenns and provisions contained in the following: BY-LAWS OF THE ASSOCIATION OF APARTMENT OWNERS dated — (acknowledged July 9,)99S)recordcd as Document No.98-139885. Said By-Laws were amended by uistrument dated July I,1999,recorded a.s Document No.99-115239. CONSEN l'ANU J01NDER to said By-Laws and amendment of By-I.aws is dated June 29,1999,recorded as Document No.99-115238,by THOMAS WEFNBERG, urimarried. |W/DOCS/]US4/«)ftVO]S22ill.DOCX )-10- 16.Thc tcrms and pruvisions containcd in Apartmcnt Oeed dated May 20,1999. recorded as Docuinent No.99-1 15245. 17.NOT1CE OF DEDICATION dated January 1,2000,recorded as Docuraent No. 2000-023398,by FLOYD A MILLER JR.and MICHAEL P.MOYNTHAN,regarding dedication ofland for agriculture purposes for a period of 10 years. (W:fDOCS/]OS-l/40/WOl5223U.DOCX }-11- EXHIBIT 5 STATE OF HAWAII BUREAU OF CONVEYANCES RECORDED September 11,2020 8:01 AM DocNoA75590098 CONVEYANCE TAX:$14,250.00 /s/LESLIE T.KOBATA,Registrar ICL9 ^LAND COURT SYSTEM KEGULARSYSTEM Afler Recordatioa,Retum by:Mail()Pickup() CSDEVELOPMENTLLC TG:202037796-S 5241 ARNOLD AVE TGR:24220159403 MCCLELLAN CA 95652 Glenda Matsushima TYPE OF DOCUMENT: APARTMENTDEED PARTTES TO DOCUMENT: GRANTOR:GHASSAN J.DEHNI and ANA SILVIA P.T.DEITINI,busband and wife GRANTEE:CS DEVELOPMENT LLC,a Hawaii limited liability compimy 5241 ArnoIdAvenue McClellan,Califomia 95652 RS-2 TAX MAP KEY FOR PROPERTy: (4)5-2-012-009 CPRNo.0004 UnitNo.4 (W:/DOCS/1054«3/W01«5«22.DOCX)EXHIBIT 5 APAKTMENT DEED KNOW ALL PEOPLE BY THESE PRJBSENTS: GHASSAN J.DEHNI and ANA SILVIA P.T.DEI-INI,husband and wife,whose mailing address is P.O.Box 464,Marion,Massachusetts 02738,hereinafter called the "Orantor",in consideration ofthe sum ofTen Dollars ($10.00)and other good and valuable considerationto fhe Grantoi paid by CS DEVELOPMENT LLC,a Hawsii limited liability company,whose mailing addrcss is 5241 Amold Avenue,McClelIan,Califomia 95652,hereinafier called the "Grantee", ihe receipt ofwhich is hereby aclmowledged,do hereby grant md convey unto the Grantee,as a tenant in severalty,its siiccessors and assigns,the property described in Exhibit "A attached hereto and incoiporated herein by reference. AND the reveisions,remainders,rents,issues,and profits thereof;and aU of the estate, right,title and interest oflhe Grantor,both at law and in equity,therein and thereto. TO HAVE AND TO HOLD the same,together with the improvements thereou and all rights,easements,privileges and appurteiiances thereunto belonging or appertaining or held and enjoyed therewith,imto the Grantee,according to the tenancy herein set forth,forever. Tbe Grantor hereby covenants wifb tbe Orantee that thc Grantor is lawfillly seised in fee simple offhe preiiiises described herein and has good right to sell and convey the same;fhat the same are free md ciear of all encumbrances except as set foitb herein and except for the lien of real property taxes not yet required by law to be paid;and that the Grantor •will WARRANT AND DEFEND the same unto the Grantee agamst tlie lawfal claims aiid demands ofall persons,except as aforesaid. This conveyance and the respective eovenants of the Grantor and the Orantee shall be binding on aad inure to tbe benefit of the Grantor and the Grantee,respectively.The temis"Grantor"and "Graatee"as and when used herein,or any pronouns used m place thereof,shall mean and include the smgular or plural number,individuals,partnerships,trustees and corporations,and each oflheir respective heirs,pcrsonal representatives,successors and assigns. AB covenants and obligations undertaken by two or more peisons sball be deemed to be joint and several unless a contraiy intention is clearly expressed herein. Tlie Grantee sball observe,perfbrm,comply with and abide by (he Declaration of Coniloinimum Property Regime and the Bylaws described in Exhibit "A"hereto. This Apartment Deed may be executed in counterparts.Eacll counterpart shaU be executed by oae or more ofthe parties bereinbefore named and the several counterparts shall constitute one instrument to the same effect as though the signatures of all tbe parties are upon the same document. {W:/nOCSn054/43/W(ll(5«22-DOCX)-2- IN WTrNESS WqEREOF,tte Granlpr lias caused these presents to be duly exccuted oa this S t:t'day of /d'—f^f-^.-20 _3). GRANTOK:^^A OHASSA1<J.DEH1^/ Pto- A^ILVIA.P.T.DEIWI (W^DOGS/U»tM3AnU!8t2JSOOC}-3- d^^y STATEOP'^^~ COUNTYQ:-u'('.trfa-*~<-^-') J )SS: ff On fliis __?_^-day of /Q_-J-^f-^^L^,-.20_^6__,befoie ine appeared GHASSAN J.DEHNI,to me personaUy laiown,'who,being by ine duly swimi csf affitnud,did say fiiat sudi.pereon(i)executed the foregoing APAB.TMENT DEED dated /<<—A-/-'^.f _,20 *',vAich documettfconsistsiof ^pagefs),as tfae free act aad deed ofsucli peisonts),and tfappBcable,in the capaci.ties shown,having been duly authorized to exccute sucli iiutrument in such capacities. (^^•^^C.A,^-^f-TJ-^J^. NsuSieofNotaiT: Notoiy Pul>Bc,ia and fot said County and State. My coimmgsionexpires:^/^-/»<•/>^>s^ STATEOP "^'A- couNrroF J )SS: -^"jLu>*(-iU-^!&)7~ On tliis ^£&(^.day of /(^--e--L^feE=..^/^<„20_^__,before ue appcared ANA SBLVIA P.T.DBHNI,to roe pets'onally I&iwn,wbo,beuig by me duly swom or afiinned,: did/Etiy that such peisoa(s)executed fbe foregoin^APARTMENT DEED dated -i 20 c^.vAicli docuaent consists of f page(s),as the ftee act and deed ofsuch pe(son(s),and ifapplicable,in tbe capacities ahown,liawng been duiy anfhorized to cxecute such insh-umait in sutsh capacities. .»"""."."'.""><• ^OWN^'\/c^e!se^y\ In:i><5. t-.c^-^<^- •'ftsase ofNotaiy: Notaiy Public,in and for Baid County end State. MycomBUSBiosexpb^s://—/-'//>-o.^ |WtfDOCS/l(154/43/WI>K5ffi2JX)CX }-4- r r EXfflBFT "A" -FIRST:. Unit No.4 of the Condomimum Project known as "PATtADISE ISLAND RANCH CONDOMB4IUM",as described in Amended and RestatedDeclarationofCondommiumProperty Regune dated October 2,2000,recorded in tbe Bureau of Conveyances of fhc State of Hawaii as Document No.2000-141482,ofwhichfhe original Declaiation is dated March 27,1990,recorded in llie Bureau of Conveyaiices of the State of Hawaii as Documenl No.90-082927,as shown on Condomimum Map No.1333 and any aiiiendnients thereto. Together with appurteaant easements as follows: Exdusive easemcnts to use other limited common elemeuts appurtenant thereto designated for its exclusive use by the Dedaration,and tlie Condominium Map. -SECOND:- An undivided 20%interest appurtenant to the aparbnent imd ia all common elements of said Project as described in Ihe Declaration. The land upon which said Condominium Project "PARADISE ISLAND RANCH CONDOMTNIUM"is located is described as follows: All of that certam parcel of land (portion of the land described in and covered by Royal Patent Number 2896 to Charles Titcomb)situate,lying and being at Kilanea,Island and County ofKauai,State ofHawaii,beingLOT 1,being alsoporlions ofLot 8-W-9-A-1,oflhe "PUU LANI PHASB U SUBDrVISION"and "KCLALIEA AGRICULTURAL SUBDFVISION",contaming an area of 54.14 acres.more or less. Together also wilh Easement "AU-1"(30 ft.wide)for and utility purposcs,affectug I-ot 8-W-9-C,as gi'anted by GRANT OF UTILITY EASEMENT,dated October 3,1989,recordcd in Liber 23734 at Page 730;subject to tbe terms and provisions contained thcrein,as ainended by RELOCATION OF UTHJTY EASEMENT dated —(acknowlcdged Tuly 8,2002),recorded as DocumentNo.2002-121095,said easement being more particularly described tlierein. Saiil premises beiug more fully described in Amended and Restated Declaration.of Condommium Property Regime dated October 2,2000,recorded in said Bureau of Conveyances as Docmiient No.2000-141482,of which the origina]Declaiation is dated March 27,1990, recoided as DocumentNo.90-082927. Together with Easement VW-5"for view and liaiited use puqioses designated for tlie exclusive use ot'Unit 4,as gimted by GRANT OF EXCLUSIVE USB EASEMENT VW-5 dated Dcccmber 7,2000,recorded as Document No.2000-175322,as amended by uistruments daled {WflX)C»1054/43/W01(S822.DOCX }.5- Dex^mber 14,2000,recorded as DocumentNo.2000-177307 and datedJanuaiy 5,2001,recorded as Document No.2001-004637;subject to the terms aud provisions contamed (herein,as sliovm on map attached thereto,and more particularly described tlierein. Tugether an easement for general use purposcs over Easement "GU-1 as granted by GRANT OF OENERAL USE EASEMENT GU-1 dated November 15,2000,recorded as Document No.2000-175323;subject to fhe terms and provision contaiaed therein,more particularly described therein. -Note:-1.SaidEasement"OU-l"isnotcontiguouswithLotl. 2.No msurance will be provided with respect to said easement in gross. Together wifh a non-exclusive easement for pedestrian,equestrian and vehicular access purposes,dramage and underground utility puiposes,across aad over a thirty (30)feet wide road, known as "KahiU Quany P."ad",as granted by GRANT OP EASEMENT dated Novcmber 21, 2000,recorded as Document No.2000-183832;subject to the tenns and provisions contained therein,roore particularly described therem. Together with an easement for genetal use purposes overEasement"GU-3"asgrantedby GRANT OF GENERAL USE EASEMENT GU-3 dated May 2,2001,recorded as Document No. 2001-087094;subject to the terms and provisions coiltained therem,more particularly described therein. -Note:-1.SaidEasement"GU-3"isnotcoDtiguouswitiiLot 1. 2.No msurance will be provided with respect to said easement in gross. Being the same premises conveyed to GHASSAN J.DEHNI and ANA SILVIA P.T. DEHNI,husband and wife,as Tenants by tt.e Entirety,by APARTMENT DEED dated December 15,2015,recordedin(heBureauofConveyancesofthe StateofHawaii asDocument No.A-58300380. SIJBJECT,HOWEVER,to the foUowing: 1.MmeralandwaterrigbtsofaDynature. 2.LETTER AGREEMENT dated July 10,1972,as contained in Exbibit 2 of DEED dated Decembei 2,1972,recorded in Liber 8782 atPage 1. 3-RIGHT-OF-ENTRY to HAWAIIAN TELEPHONE COMPANY,now hiown as HAWAUAN TELCOM,INC.,and CmZENS mUrTIES COMPANY,now imown as CITIZENS COMMUNICATIONS COMPANY,whose interest is now held by KAUAI ISLAND mUITY COOPERATTVE,dated September 14,1978,recorded in Liber 13263 al Page 93, (W:/DOCS/1054/43/WO)«5«22.DOCX}-6- granting a right-of-entiy and temporary easement for constmction,and maintenance ot'power aud communication lines. 4.DESIGNATION OF EASEMENT "R-2"for roadway and utility purposes,as referenced on subdivision map prepared by Masao Fujishige,Land Surveyor dated September 11, 1978,approved by the Plaiming Commission,Cuunty ofKauu,on November 8,1978. 5.ORANT to MICRAEL M.DYER aad CHARLENE 0.DYER,husband and wife, tbeir respective heirs,successors and assigns as titleholders ofLot 8-W-9-C,dated November 8, 1978,recorded in Liber 13301 at Page 98,grantmg a non-exclusive roadway and utility easement over,under and across Easement "R-2 ,being more particularly described flierein. 6.ThetenQsandprovisionscontauiedintheWARRANTYDEEDdatedNovemberS, I978,recordedinLiber 13301 atPage 118. 7.The tenns md provisions containe.d in the AGREEMENT TO RRLEASE RIGHTS TO THREE-PHASE POWER INSTALLATION dated Maich 13,1990,recoided as Document No.90-040344,by and belween mEAI-DEVELOPMENT,INC.,a Hawaii corporation,"Ideal", and C1TEENS UTIL1TIES COMPANY,a Delawaie corporation,now known as CITIZENS COMMUNICATIONS COMPANY,whose in.terest is now held by KAUAI ISLAND UTBLITY COOPERATIVE. 8.The tenns and provisions contained in the following: AMENDED AND RESTATED DECLARATION OF CONDOMINIUM PROPERTY REGIME OF PARADISE ISLAND RANCH AND CONDOMINIUM MAP N0. 1333,dated October 2,2000,recorded as Document No.2000-141482. Condomimum Map No.1333 and aay amendments thereto. The foregoing Ameuded and Restated Declaration restates the original Declaration dated March 27,1990,recorded as Document No.90-082927. Said above Declaration was furiher amended by instruments dated November 3, 2000,recorded as DocumentNo.2000-175317,datedNovember 17,2000,recorded as Documenl No.2000-175318,dated April 25,2003,recorded as DocumentNo.2003-111199,and dated — (ackaowledgedNovember 13,2007),recorded as DocumentNo.2007-202723. ASSIGNMENT OF GUESTHOUSERIGHTS datedNovember 14,2007,recorded as DocumentNo.2007-202725. (W^DOCS/10S4/i|3/W0165822.DOCX )-7- 9.The temis aad provisions contained in the AMENDEU AND RESTATED BYLAWS OF PARADISE ISLAND RANCH dated October 2,2000,recorded as Document No. 2000-141483. Said By-Laws were amended by mstrument dated October 23,2000,recorded as DocuoientNo.2000-153219. 10.WATVER AND RELEASE dated February 10,1 992,recorded as Document No. 92-021811 by TOEAL DEVELOPMENT INC.,with tlie COUNTY OF KAUAI regardmg lack of Couuty-supplied water service. 11.Restnction of access until Kahili Quarry Road is improved to a sbrteen (16)foot wide pavement up to the proposed Iwenty (20)foot wide access easement,as rcferenced on subdivision map prepared by Ronald T.Wagner,Land Surveyor,with Keidi Engmeering,dated January 17,1990,approved by the Plamiing Commission,County ofKauai,on March 25,1993, as set forth in CORRECTtON DEED dated October 27,1998,recorded as Document No. 98-170705. 12.The terms and provisions contained in fhe CORRECTION DEED dated October 27,1998,recorded as Document No.98-170705. 13.WAIVER AND RELEASE dated July 24,2000,recorded as Docuroent no. 2000-108195,by IDEAL ACRES,LP willi thc BUILDING DP/ISION OF THE DEPARTMENT OF PUBLIC WORKS OF THE COUNTY OF KAUAI regarding water service. 14.The terms and pmvisions contained in the DECLARATION OP PROTECTTVE COVBNANTS AND HOUSE RIJLES FOR PARADISB ISLAND RANCH CONDOMINmM dated October 2,2000,rccorded as DocumentNo.2000-141484. 15.GRANT to roEAL ACRES,L.P.,a Hawaii limited partnership,dated November 15,2000,recordedasDocumentNo.2000-175324,grantiaganon-exclusiveeasement for utility purposes over Easement "U-l",more particularly described as Easeroent "AU-2"and"AU-3"therein,and referenced on map attached fhereto. 16.GRANT to IDEAL ACRES,L.P.,a Hawaii limited partnership,dated November 15,2000,recordedasDocumentNo.2000-175326,grantinganon-exclusiveeasemeat for view protecting setback puiposes over Easement "SB-l"referenced on map attached thereto. 17.GRANT to U3EAL ACRES,L.P.,a Hawaii iimited partnership,dated November 15,2000,reeorded as Document No.2000-175327,granfmg non-exclusive easement foi view purposes over Easement "SB-2"referenced on map attached thercto. 18.PARADISE ISLAND RANCH CONDOMINIUM AUTHORIZATtON (UNIT 4) dated March 15,2001,recoided as Document No.2001-041070. {W:mOCS/10S4;43/W01(i5822JX)CX } 19.The terms and provisioDS contained in the PARADISE ISLAND RANCH QU1TCLAIM APARTMENT DEED dated April 18,2001,recorded as Document No. 2001-068318. 20.GRANT to FLOYD A.MILLER,JR-,Trustee ofthe Floyd A.Miller,Jr.,1997 Revocable Trost dated January 16,1998,dated May2,2001,recorded as Document No. 2001-087093.CONSBNT given by PLOYD A.MILLER,JR-Trustee ofthe Floyd A.Miller,Jr., 1997 Revocable Trust dated January 16,1998,by iBStrument dated —(acknowledged June 29, 2001),recorded as Document No.2001-104271,granting a iion-exclusive access mid utility easement over Eascment "AU-35",referenced on map attached thereto. 21.GRANT to KAUAI ISLAND UTILrTY COOPERATTVE and VERIZON H.A.WAH INC,now known as HAWA1IAN TRLCOM,INC.,dated Decembe.r 20,2004,recorded as Document No.2005-123336,granting a right and easement for utility purposes over Easement "AU-2","AU-3"and "U-3"referenced on map attached fhereto and more particularly described therein. Note:-1.Basement "U-3 was declared null and vuid by mstrument dated —(acknowledged November 13,2007),recordedasDoc>unentNo.2007-202723. 2.No Joinder by KAUAI ISLAND UTILITY COOPERATF/E and HAWADAN TOLCOM,INC. 22.Any unrecorded leases aud matteis arising &oro or affecting the same. 23.Discrcpancies,conflicts in boundary lines,sbortage in area,encroachmeats or any other matters wbich a corrcct survey or archaeological study would disclose. 24.Any liea (or claim of lien)for services,labor or material arismg from an improvement or woik related to the land described herein. (W:/DOCS/1U54/43AV0165822.DOCX)-9- EXHIBIT 6 STATE OF HAWAII BUREAU OF CONVEYANCES RECORDED JanuaryOS,2019 8:01 AM DocNoA694 70025 CONVEYANCE TAX-$3,336.00 /s/LESLIE T.KOBATA,Registrar SKC 10 LAND COURT SYSTEM REGtJI.AR_^YSrEM Aftcr Rccordation,Rctuni by:Mail ()Pickup () CS DEVl-:1.0PMENT LLC 'I'O:201860496A 5241 ARNOI.D AVENUU TGU:24218122065 MCCLIiI-LAN CA 95652 Cilcnda Matsushiina RS 10 pgs TYPEOFUOCUMENT: APARTMHN'l DKHU PAK'ni^S TO DOCL'MENT: GRANTOR:RICIIAR.D GELB.unmamcd GRANTEK;CS DLVHLOPMENT LLC,a IIawaii limited liability conipaiiy 5241 Amold Avenue McCldIan,Califomia 95652 TAX MAP KJZY I-'OR PROPERTY: ('1)5-7-012-015 CPR No.0003 Unit No.3 {W:/1>C)CS/t054/4(]./\\'015?OR4.rKX.'X }EXHIBIT 6 Al'ARlMENT UEED KNOW ALL PEOl'1.1-:BY TIIF.SF,PRiiSENTS: RIC1IARD GELB,unmarried,whosc mailing address is 111 Easl 56"'Streel,Apf.211. New York,New York 10U22.hereinafter called thc "Grantor".111 co.iisideratiun of thu sum uf Ten Dollars ($10.00)and othcr good and valuable consideration lu Ihe Granlor paid by CS DEVELOPMENT LLC,a llawaii limitcd liability coinpany,whose mailing addrcss is 5241 Amold Avenue,McClcilan.Califomia 95652,hereinafler called ihe "Grantcc",thc rcccipl of which is hereby acknowledgcd,<Iocs hereby gnint cind cunvey unto lh&Grantee,as a tcnant in scveralty,its successors and assigiis,the property described in I^xhibit "A"attachcd hereto anct incorporated herein by reference. AND ihe reversions,remainders.rcnts,issucs,and profits thcreof'.and all o[the estate, right,title and interc.st oflhe Grantor.both at law and in equity,thcrcin and thereto. TO IIAVE AND TO IIOLD ihe same,together witli the improvements thereoii and all rights,easements,privilcgcs and appurlenanccs thercunlo belonging or appcrlainin^or held and enjoyed therewith,unto the Grantee,according to the tenancy lierein set t'orth,forever. 'ITic Grantor hcreby covenants with thc Grantec that the Grantor is lawfully sciscd in fee simplc ofthe premises dcscribed hcrein and has good rightto scll and coin'ey tlie same;Ihal the same are free and clear of all encumbrances except as set forth herein and except for the lien of real property taxes not yel required by law to be paicl;and (hat the Granlor will WARRANT AND DEFEND the same unto the Grantce against the lawful claiins and deinands ofall pcrsons, except 'dS aforesaid. This coin'cyance and the rcspcctive coveiiaiits of the (irantor aiid the (irantee shall bc binding on and inurc to thc bcnctit of the Orantor and thc Grantee,respcctively.The tcrm<; "Graiitor"and "Grantee"as and when used hcrcin,or any pronouns used in place tticreof,shall mcan and include the singular or plura)number,iiidividuals,partncrships,trustccs and corporations.and each oftheir respective liecrs,personal rcprcscntativcs,succcssors and assigns- All covenants and obligations undertakcn by two or more persons shall bc deemcd to bcjoint and .several unless a contrary inlention is clearly cxprcsscd hcrcln. The (jrantee hereby agrees aiid covenajits witlt tlic Grantor that tlie (irantee wil]obsen'e. pcrt'orm,comply with and abide by the Deciaration of Condominium Property Rcgime and the Bylaw's describcd in Exhibit "A"hcrelo. This Apartment Deed may bc cxccuted in coiuilerparis.Each countcrpait sliall be cxccuted by onc or morc of thc partics hcrcinbcfore namcd and thc scvcral countcrparts shall cunslitule one instrument to thc samc ej'fccl as Ihough Ihe signatiires ofall the parties are upon the sainc documcnt. iW;/DOCS/iy54/40W01;-/084.£K>CX i IN WITNESS WIffiREOF,tlie Grantor and the Grantee have caused these presents to be duly executed on Ihis _day of DEC 1 7 21118 ,20_. (SIGNATURES CONTINUED ONNEXT PAGE) (W^DOCS/1054/41VW0157084JX)CX)-3- r r GRANTOR: CJTY OF )tepublio af the Phillppines atvofManila ,_......L.tcc. ^bassyoftte Unltid Slate of Am^^5s: fifflHg ) sssssKXKsmajQBmaxM ) Donna K.Carlson Consular AssociateI,of the United MANILA.PH'LIPPTNES day of duly commissioned and DEC!7 2018 ,20_,before States of America at quaUfied,do bereby certify that cn this me personally appeared RICHARD OELB,to me personally known,and known to me to be thc individual dcscribed in whose nanje^K ,gyjbscribed to,and who executed the foregoing APARTMENT DEED dated DEC ?7_2018 _,20_,which dociunent consists of TiiTis page(s),and being informed by me of the contents of said instrument,he duly ackiiowledgcd to ine that he executed thc same freely and voluntarily for the uses and purposes therein mentioned. IN WITNESS WJlffiREOF,I havc bcreunto set my hand and ofGcial seal the day and year first above mentioned. 'UWV^B^K,,Ca<P,^o^- Donna K.Carlson Consular Associate INpEFl rE COMMISS')ON (W^DOCS/IOS4/<WW0157084J10CX)-4- GRANTEE:CS DEVHLOPMEN I'LI.C. a llawaii limited liabiliily company By. Cl [ARLE.S SQKM-i ^llsMcmber, A notary public or othcr officer compleling this certilicate vcrifies onlv the idcntitv oflhe individual who si.iinetl the documeiit to which this certificatc is attached,and nol llic truthfulncss,accuracy.or ^'aIidily ofthat docfcuTicnt. ACKNOWLEDGMENT S'lA'l'E ()1-CALlFOlWIA COUN'l'Y OF ) ) _) On ,20 ,before rne, Nolary Public,persoiially appcared\^KARLF.S SOMERS,ivho provcd to me on the basis of satisfactory evidcnce to be llie pcrson\vhose name is subscribed to thc wilhin instrumenl and acktiowledgcd to mc that lie cxcciited ^e saine in his authorized capacity,and ihat by his signature on thc instrumen(the person,o\thc entity upon behalf of which ihe person aclcd, exccutcd thc instrumcnt. I uertil'y under PliNAI.TV 0V PI;R.IIJ!<Y under\he lavvs of (he Statc of Califomia thal the furegoing paragraph is true and correct. WITNRSS my hand and nfHcial seal. Notary Public {W:/D<.K;S/l(>5.V4U,W0157n84 DOCX }-5- STATKOFIIAWAII COUN'IYOFKAUAI ss: On Ihis 27lh dav ot'I3F.CLMRI;K 2()1){iii the 5'"Circuil,Stale ol'Hawai"i.betbre me personally appeared CHARI-HS SOMFRS to be known lo be the person describcd in and who excculed ihc tore.aoinK in.strumcnt identilicd or duscribed as APARTMENT DtiED and acknowlcdged ihat lie exccuted tlie saine as llis free act and deed,in said capacities. I'he lorcyoiny instrumenl is undaled and containcd 10 pagcs at (he lime ot this acknowleducment/t-crtiticalion. g'.^'..'''-B.ay\'A'ftl^\^^J^I§yf.i°r<ib,.i=l"^^^!^-C^py^/yj^^J.^.;'^X^^'SS^'/'//fr;,7""'-1' lotary Public,Slale ofllawaii PrinlName: My Commission Expirus: GLENDAMATSUSHIMA Expiration Date:November 18,2019 EXH1BI 1 "A" -FIRS'I':- Condomlnium Urut 3 to^eihcr with its appurtenant limifed comnion clcmcnt land area, ofthe Condomiiiium Project taown as "K1LAUEA WATERFALI.FARMS",as eslablished by Declaratiou of Condominium Propeny Rcgime datad January 17,2UU2,rccordcd in (hc Burcau of Convcyances of llie State of Hawaii as Documcnt No.2003-154246,and as shuwn on Conduininium Map No.3616 iind any amendmenls thereto. Together witli exclusive usc of tlie limited common elcmenl appurtenaiit thcreto,and appurtenant easemcnts as dcsi.'ribed in said Oeclaration aad lionexclusivc eascmcnts in Ihe coniiiion cleinenls desigiied tbr sudi pu^oses for inyress to,egrcss frorn utility serviccs for,and suppurt,mainlenance and repair ofsaid Unit which are shiiwii ontlic Condominium Map for Ihe Projcct or othervvisc of record:in the other common clcmenls for use according to their rcspcctive purposes,and in all olhcr Dnits ofsaid Project. -SUCOND:- An undividcd 20%inlerest in all commun elemcnts ofthe Project,including the land described in said J.)cc[aration as established for said Unil by tlie Declai-ation,or such olher perccnlagc hcrcafter cstahlished for said I.Jnil by any amendment ofthe Declaration,as lenant in commoii wLtli the olher owncrs and tenants thcrcof,subject to all exclusive and non-exclusive casemcnts appurtcnanl to thc othcr Units respcctively ofthe Project and reserving and subjecl to all easemenls required for drainage,sewers aiid aiiy utilities scn'ing <he Project. The land upoii which said Condominium Project "Kll.AUEA WAl'ERi-'ALL FARMS"is located is described as follows: All ofthal ccrtain parcel ofltmd (bcing portion(s)ofthe ]and(s)described in and covered by Royal I'atenl Granl Number 2896 tu Charles litcoinb)sitiiate,lying and being approximalely 808 feel east of Kilauea Lighthousc Road.at Kilauca,Island and (^nimty of Kauai,State of llawaii,bcin.i;LOT 8-W 9-C oflhe "K1LAUEA AGRICUL'I'UI^AL SUB.D1V1SION".and thus bounded and described: Beginning al a plpe at Ihe northwest conicr of this parcel of land and on the east boundary of l-ot 8-BB Kilauca Subdivision III,the coordmales of this said point of beginiling rcfcrred lo Government Survey 'l'riangulation Station "KILAUEA"being 3,098.95 feet south and 3,502.56 feet west thence runnin^by ay.imulhs meaKured clockwise from tme South: 1.2973 58'801.83 fccl along Lut 8-W-13 lo apipc; 2.271°3S'Ofi"458.78 feelalong Lul 8-W-14 (o apipc; (W,/TX1CS/1()54,'40/W()1 57084.IWCX ;^6- J. 4. .-). 6. 7. 281°15'80S.29 lccl along.samc tu apipc; ])°15'846.53 feel alung l.ot 8-W-9-A to a pipc; 83°4-1'50"516.58 fecl along same to a pipe: 124°19'372.50 fei,;t aloiig sainc (o a pipe; 44.00 lcct along same to a pipc; 9. 10. 11. 12. 34°19' 124°19' 227°00' 181°10' 1)7"58' '21!"41' 352.50 fect alony I.ots 8-H-7-18,8-H-7-8, 8-H-7-7,8-H-7-6,and 8-11-7-36: 39.65 1'cet alung Lot R-W-12 to a pipc; 631.12 ('eet along Siimc to a pipc; 808.26 fcet along same to a pipe; 28.06 fect alojig Lot S-BB Kilauea Subdivision 111 to thc point ot' beginniiig and containing an arua of 25.039 acres,more or less. Togctlier with F.aseineiil "R-2",being a roadway and utilily easemenl for roadway aiid ulility access purposes to l.ot 8-W-9-C.'(Puu Lani Phase II Subdivisiun),located on the wcst boiuidary ofLot 8-W-9-A.(Puu Lani Phase 11 Subdivision)and [he north boundary ofLot 8-11-7- 39 (Roadway Lot.Piiu Lani Unil I Subdivision)and morc fully described as follows: Begininiig at a pipc 011 fhe snulh boundar^of Lot R-W-9-C and also the north comer of Lot 8-11-7-39,thc coorriinales ot~this said point of beginniiig referred to Govemment Suncy Trianeulation Station "K-II.ADF.A"bcing 4,355.58 feet south and 2,559.80 feet west,thencc running by a/.imulhs incasurcd clockwise from tnie Soulli: 1. 2. 3. 4. 214°19' 304°19' 34°19' 124"19' 44.00 fcet along Lot ii-W-9-C ta apipe; 44.00 lect along same; 44.00 feel over and across 1 -ot 8-W-9-A to a pipe; 44.00 feel aluny Lot 8-H-7-39 to the point of beginning and containing an area of 1,936 square "Teet,more or }css,a^ yanled in instrumciil dated Novembcr 8,1978.recorded in Libcr 13301 at Page 98. {W:/l)<.K.'t>/IOS4/40,WOJ570ik4.rX)L'X }-7- Being the saine prcmises conveyed to KIC11ARD (jIil-B aiid ROSA M.GELB,husband and vvifc,as Joinl I'cnants.by AI'ARTMRNT )1)i[il)datcd Fcbniary 25,2008.and rccorded in the Bureau ofCunveyances ofthe Statc of IIttwaii as Documenl No.2008-030649. SUBJECT,IIOWEVER,lo thc Ibllowing: I.Mineral aiid walcr rights ol'aiiy nature. 2.Lt^tler Ayreemcnl daled July 10,1972,as conttiijaed iii DL'.I^D dated Decembc:r 2, 1972.recorded in Liber 8782 at Paec 1. 3.RIGMT-OF-EN'1-RY to HAWAIIAN 'I'EL.I^PHONE (X)MPANY,now knovffl as I1AWAI1AN TE1.COM INC..and Cll'1/.HNy Dl'IU'riES COMPANY,iiow knowii as CIT1ZENS COMML"M1CATIONS COMPANY,whosc intcrcst is now hcld by KADAI FSI.AN11 UTILITY COOPER.'M'IVI-:,dalcd Sepleiuber 14,1978,rccorded iii Liber 13263 at Page 93, granting a right-of-entr\'and tcmporary eascmcnt for conKtnictioii anil maintcnancc ofpowcr and communication lines. 4.Thc tcnns and provisioiis containcd in WARRAN'l'Y UUEU datetl Jiint;19,1981, recorded in Libcr 15650 at PaRe 783. 5.GKANT to BENJAMIN liOJ.LAG dated Oclober 3,1989,recorded in Liber 23734 al Page 730,granting the righl in the nalure of a nonexclusivc caseiiicnt for utilily puqioses,ovcr,undcr,across and upon Hascmcnt "AIJ-1 (30 fcct widc)containing an area of 0.5367 acre,morc or less,being more particularly described thcruin. RELOCATION 01--UTJLITY EASEMEN'f,by MICHAEI,DYER and CI4ARLENE DYER,husband and wifc,dalcd—(acknowledged July 8,2002),rccordcd as 2002-121095. 6.CiRANT lo NI010LAS IAN HOLISEGO and PASCALE MARIE-FRANCOISE HOUSEGO,husband and wife.aiid M1C11AEL ROY SlRONti and CANUAC:!;I.OUJSI-: S'l'RONG,husband and wite,and ASSOC1ATION Ol'-APAR-t'MEN'l'OWNERS OF IIONUA FARMS dated November 18,1992,recorded as Document No.92-196471,granting thc right in the nature ofa perpelual noncxclusive eascment (subjcct to tcrmination)for roadvvay (including vehicular,pedestriaii and equestrian traffic)purposes,over,xinder,across and upon I^ascmcnl "A-2"as shown on thc map attachcd Ihcrcto. 7.ORAN')'to Cn'IXENS UTILITIES COMPANY,now known as CITIZENS COMMUNICATIONS COMPANY,whosc iiitcrest is iiow held by KAUAI ISI.AND UTILITY COOPERA'IIVE and GTF.IIAWAIIAN TEI-EPMONE COMPANY INCORPORATED.now known as HAWAIIAN 'l'El.COM,INC.,dated January 14,1994,recorded as Document No. 94-039101,granting a pcrpetual right and eascmcnt to build,construct,reconstruct,rcbuild, repair,maintain and opcratc pole and wire lines cmd/or undergruund Imes,ctc.,for the {W:/T)OCS./105.1/10m015708-1.DOCK t -8- transmission and disthbulion ofelectricil.y,ctc.as Hascmenl "E V'as ^hown 011 thc inap atlachcd thereto. 8.'l'lie temis and provisions contained in Ihe following: DECLARATION OF CONDOMINIUM PROPLR'IY REGIMI;FOR "K11.AUKA WATERFALL FARMS"CONDOMIN1UM PROJKCT dated July 17,7.002. recorded as Uocumcnt No.2003-154246. Condo]iiinium Map No.3616 and any amcndmcnls tliereto. Said above Ueclaration was anieiided by instniment diited April 7,2006,ri^corded as Documuilt No.2006-072166,anti dalcd neccmlicr 30,2009,rccojded as Document No. 2010-006050. -Note:-Anv rccorded eunendnients to llie I^eclaration of lloiizontal or Condoiiiinium Propcny Regime amending llie assigninent uf parking stalls to ancl f'roin apartinents other than thc specific apailrnenl drscribcd hcrein,arc not shown. 9.The lerms and provisions contained in the BY-IAWS OF 'l (1K ASSOCIA'I'ION OF APARTMKNT OWNER.S dated Jaiiuary 17,2002,rccorded as llocumcnt No.2003-154247. 10.ORANT to KAUAI 1S1.AND DT11JTY COOl'ERATIVF,and VliRlZON HAWAII INC..iiow know-n as IL'YWADAN TE1.COM,INC.,dated I-'ebruary 17,2005,recorded as Document No.2005-143758,graiiting a riglil and cascrncnt ibr utilily purpo-'icy over Easements "T-1","T-2","U-l"and "AU-1".said liascmeiits bcing niore particularly describcd tliercin. 11.WAIVUR AKD RELEASE datcd Marcli 6,200fi,rccordccl as Docunicnl No. 2007-051531,by MICHAEL M.DYER,CI1ARI.ENE G.DYER,ROY A.WR1GHT,SUSAN L. WRIGIIT,and PAULA FERGUSON with K.'\UA1 1SLAND U'ni.rfY COOPERATrVE.a I lawaii coopcrative associalion. fW./DCXJS'l U:i4/40AV01570S4 DOCX 1 -9- EXHIBIT 7 oh ^ r r AUA,(/. tat?ot Overview Parcel 520120350000 Situs/Physical 1957 KAHILIQUARRV RD TotalMarketValue $13.817,900 Last2Sales ID Address TotalAssessed tU.817,900 Date Price Reason Acreage 161.88 MailingAddress SOMERS.CHARLES M Value 12/20/2000 $4050000 MULTI- Class RESIDENTIAL TRUST Total Exemptions $0 PITT C/OB&ZPROPERTIES Total NetTaxable $13,817,900 n/a O n/a 5241ARNOLDAVE Value MCCLELLANCA 95652 BrielTax Description LOT2 161.880 AC DES (Note;Not to be used on legal documents) The Geographic tnformation Systems (GIS)nups and data arc made availabte sotely for idformational purposes.The GIS data is iiot the official reprcsentation of any ofttic !nfo,rm?.tiorl "Ktudedl-andd.°",otr.e^acea.s.ite surveYor le6al(focument cfescriptions.The County of Kauai (County)makes orextendsiioclaims,representatioiis or warranties ofaiiykind.either express or iniplied,Jnkjding,without limitation,the implied warranties of merchantability and fitness for a particular purpose.as to the quality,content,accuracy,currency'. or completenessof the informatioii.text,rnaps.graphics.links and other items contained in any of (he GIS data.In no event shall the County become liable for aiiy errors or omissioiis'h the GIS,and will notunder aiiy circunstances be liable for aoy direct.indirect,special,incidental,consequential.or other loss.injury or dainage caused hy its use or otherwise" arisine in ronnection with jts use eveii if spedfically advised of the possibility of such toss.injury or damage,The data and or functional.ty on this site maychange penodically aiid withoiit notice.In usine the GISdata,users agree to indemnify,defend.and hold harmless the County for any and all liability of any nature arising outofor resultiiig from the lack ofaccuracyorcorrectiiessofthedata.or the use of the data- Date created:3/29/2021 Last Data Uploaded:3/2W20219.-08:37 AM Developed by Schneider G£OSPATI*L EXHIBIT 7 EXHIBIT 8 ^ R-650 STATE OF HAWAII BUREAU OF CONVEVANCES RECORDED DEC 23,2006 10:00 AM Doc N0(5)2008-191932 (s)NICKIANNTHOMPSON REOISTRAR 28 1<1 Z9 LAND COURT T\.REGULAR SYSTEM AFTER RECORDATION,RETURN BY MAIL (X )PICK-UP ( Tom Pierce Attorney at Law A Limited Liability Company P.0.Box 798 Makawao,Hl 96768 TOTAL'NO.PAGES:S--VAffectsTMKNdT--74)5-2-012:03^ GRANT OF CONSERVATION EASEMENT THIS GRANT OF CONSERVATION EASEMENT ("Easement")is made by CHARLES M.SOIVIERS and WEST SUNSET 32 PHASE 1,LLC,a Califomia limited liability company,whose address is 5241 Arnold Ave,McClellan,California 95652 (collectively "Owner"),in favor of KAUAI PUBLIC LAND TRUST,a Hawai'i nonprofit corporation,whose address is PO Box 562,Kilauea,Hl 96754 ("Holder"), OSI 218 Somers Esmi Final.doc EXHIBIT 8 RECITALS 1.Owner is the owner in fee simple of certaln property situated in Kilauea,on the Island of Kauai,County of Kauai,State of Hawai'i,bearing Tax Map Key Number (4)5-2-012:035.consisting of approximately 161.88 acres ("the Property"). 2.Pursuant to Planning Commission's Findings of Fact,Conclusions of Law, Decision and Order ("D&O")dated October 2,2008,in Special Management Area Use Permit SMA(U)-2008-5,Use Permit U-2008-4,and Class IV Zoning Permit Z-IV-2008-6 (the "County Permits"),the Planning Commission ofthe County of Kauai ("Planning Commission")approved the County Permits for certain uses on the Property,subject to certain conditions as contained in the D&O.Among other things,the D&O included conditions requiring Owner to grant to a qualified organization a perpetual conservation easement over an approximately 80 acre portion of the Property,plus other related conditions (collectively "the D&O Easement Conditions").The D&O Easement Conditions are attached hereto as Exhibit A,and incorporated herein by this reference, 3.Pursuant to the D&O Easement Conditions.Owner intends to encumber with the covenants and restrictions set forth in this Easement an 80.1 acre (more or less)portion ofthe Property that is further described and identified as "Consen/ation Easement 'C-1'"in the metes and bounds description,attached hereto as Exhlbit B, and incorporated herein by this reference (the "Easement Area").Exhibit C is a map showing the Easement Area and Property. 4.As recommended by the D&O Easement Conditions,Owner has included within the Easement Area's boundaries areas adjacent to the KTIauea Stream,as well as the archaeological sites identified as SIHP #50-30-04-580 and 581.Owner has also included other archeological sites identified as SIHP #50-30-04-582 and 583.The SIHP sites are identified in an archaeological inventory study,which is part of the "Baseline Documentation"identified further below. 5.Owner intends,as owner of the Easement Area,to convey to Holder the right to preserve and protect the "Conservation Values"(identified further below)of the Easement Area in perpetuity and represents that the Easement Area is free and clear of all encumbrances except those identified in the title report,which is part ofthe Baseline Documentation. 6.HRS Chapter 198 provides that any public body and any organization which qualifies for and holds an income tax exemption under Section 501 (c)ofthe federal Internal Revenue Code of 1954,as amended,and whose organizational purposes are designed to facilitate the purposes ofHRS Chapter 198,may acquire and hold conservation easements by purchase,agreement,donation,devise,or bequest. 7.Holder warrants that Holder is a charitable organization described in Section 501(c)(3)ofthe Internal Revenue Code of 1986,as amended,and the regulations thereunder (the "Code"),and Holder has received a determination letter 081218 Somers Esmt Final.doc r r from the Internal Revenue Service,dated September 29,1993,to the effect that Holder is not a private foundation within the meaning of Section 509(a)of the Code. 8.Holder represents that Holder is a "Qualified Organization,"as that term is defined in Section 170(h)(3)of the Code. NOW,THEREFORE,KNOWALL MEN BY THESE PRESENTS,in consideration ofthe above and the mutual covenants,terms,conditions,and restrictions contained herein,Owner hereby grants and conveys to Holder and its successors and permitted assigns a conservation easement (the "Easement")in perpetuity over the Easement Area ofthe nature and character and to the extent hereinafter set forth.Owner declares that the Easement Area shall be held,mortgaged,encumbered,transferred,sold, conveyed,used,and occupied subject to the covenants,conditions,restrictions,and easements hereinafter set forth,which covenants,conditions,restrictions.and easements shall be deemed to run with the land in perpetuity and to burden the EasementArea in perpetuity. COVENANTS AND RESTRICTIONS I.BACKGROUND 1,1 Baseline Documentation.Owner and Holder agree that the following documents,collectively referred to as the "Baseline Documentation",provide an accurate representation of the Easement Area as of the effective date of this grant.and that these documents are intended to serve as an objective information baseline for monitoring compliance with the terms of this Easement: a)Summary Baseline Report,including photographs,prepared by Holder; b)Shideler,Tulchin &Hammatt,Archaeological Literature Review and Field Inspaclion for thg Approximately 163-Acre Kilauea Falls Ranch Property,Kilauea Ahupuaa,Koolau District,Kauai Island,TMK (4)5-2-012:035 (August 2007); c)David &Gunther,/4 Suivey of Botanical,Avian and Terrestrial Mammalian Species,Kilauea Falls Ranch,Hanalei District,Island of Hawai'i (July 17,2007)', d)Shideler,Yucha &Hammatt,Archaeological Inventory Survey of an Approximately 74-Acre Portion ofthe Kilauea Falls Property,Kilauea Ahupuaa, Koolau Dlstrict,Kauai Island,TMK (4)5-2-012:035 (por.;(March 2008), e)U.S,Fish &Wildlife Service,et al.,Kilauea Point National Wildlife Retuge Land Conservation Plan and Environmental Assessment (May 2007); f)John Edson,Agroforeslry Management Plan Prepared for Charles Somers, Ki'fauea Fa/fs Ranch,Kilauea.Kauai (Aug.14,2007); g)Map (36"x 46")of Easement Area prepared by Ailana Surveying &Geomatics LLC,dated October 13,2008; 081218 Soniers Esmt Final.doc h)Traits and roads map relating to Easement Area; i)Aerial photograph,dated January 12,1988,of EasementArea and surrounding properties;and j)Preliminary Title Report issued by Title Guaranty,dated November 10,2008. 1.2 Puroose.The purpose of this Easement is to establish and maintain forever, subject to the express restrictions in this Easement,and to prevent any use of the Easement Area that will significantly impair or interfere with,the resources identified below,collectively referred to as the "Conservation Values"of the Easement Area. which are: a)Waterand Weflands Resources -protectthe quality ofwater resourceswithin or in the vicinity of the Easement Area,including protect the quality of wetlands, including the habitat they provide for endangered water birds: b)Archaeological Resources -protect Native Hawaiian archaeological resources, which have been identified in the Baseline Documentation or are identified or discovered subsequently; c)Indigenous Wlldlife Resources -protect intact areas of indigenous wildlife habitat.including endangered species; d)To the extent not in conflict with the Water and Wetlands Resources, Archaeological Resources,and Wildlife Resources,Scenlc Resources -protect scenic vistas visible from public rights-of-way and other public access points in the vicinity of the Property;and e)To the extent not in conflict with the Water and Wetlands Resources. Archaeological Resources,and Wildlife Resources,Agricultural Resources - protect and preserve land suitable for agricultural uses,including agroforestry uses, II.DEVELOPMENT RIGHTS 2.1 Extlnauishment_of_DeveloDment Rights.This Easement shall extinguish any "Dwelling Unit"density,as that term is defined by the Comprehensive Zoning Ordinance ofthe County of Kauai ("CZO"),arising out ofthe Easement Area.It is Owner's intention that any Dwelllng Unit density attributable to and arising out of the Easement Area shall be extinguished,and shall not be transferred to any other portion ofthe Property,including but not limited to,sixteen (16)Dwelling Units attributable to the Easement Area at the time of the grant of this Easement.As provided by Section 4.10) of this Easement,neither Owner nor any other person or entity may transfer said rights to any other portion of the Property or to any other property, III.ENFORCEMENT 3.1 Affirmatjve Riahts of Holder.Owner hereby grants the following rights to Holder,which rights shall be in addition to,and not in limitation of,any other rights and 081218 Somers Esmt Final.doc r r remedies available to Holder: a)To prevent Owner or third persons (whether or not claiming by,through,or under Owner)from conducting any activity on or use of the Easement Area that is inconsistent with the protection of the Conservation Values or terms of this Easement,and to require of Owner or third persons the restoration of such areas or features of the Easement Area that may be damaged by any inconsistent activity or use; b)Upon fourteen (14)days prior notice (in the manner set forth in Section 10.8)to Owner,and without unreasonably interfering with Owner's use ofthe Easement Area as restricted by this Easement,to enter upon the Easement Area,but not including building interiors,at reasonable times and in a reasonabte manner in order to monitor Owner's compliance with.and otherwise enforce the terms of. this Easement,provided that in the absence of evidence which gives Holder a reasonable basis to believe there has been a violation of the provisions of this Easement (which evidence shall be made available to Owner at the time of such notice and request to enter the Easement Area).such entry shall not occur more often than once per year; c)Where Holder has a reasonable belief that there is a significant and imminent threat to any of the Conservation Values,the right to enter upon the Easement Area,but not including building interiors,upon twenty-four (24)hourwritten notice to Owner.Notice to Owner is required in the manner set forth in Section 10.8,except that,in addition,notice under this provision may also be provided by email or by facsimile transmission,as long as such notice is confirmed orally or in writing as having been received by Owner or Owner's attorney; d)To oblain injunctive and other equitable relief against any violations,including without limitation relief requiring removal of offending structures and other restoration ofthe Easement Area to the condition that existed prior to any such violation (it being agreed that Holderwill have no adequate remedy at law);and e)To enforce this Easement in the case of breaches by Owner or by third persons (whether or not claiming by,through,or under Owner)by appropriate legal proceedings,after providing Ownerwilh reasonable notice and a reasonable opportunity to cure. 3.2 Holder's Remedies. a)Notice.Holder must notify Owner of the violation.Holder's notice may include its recommendations of measures to be taken by Owners to cure the violation and restore features of the Property damaged or altered as a result of the violation. b)Opportunity to Cure.Except as provided in Section 3.2(d),Holder shall provide Owner an opportunity to cure the violation.Owner's cure period expires thirty (30)days after the date of Holder's notice to Owner subject to extension for the time reasonably necessary to cure,provided:(i)Owner ceases the activity 081218 Somers Esmt Final.doc r r constituting the violation promptly upon receipt of Holder's notice;(ii)Owner and Holder agree within the thirty-day period upon the measures Owner will take to cure the violation;(iii)Owner commences to cure within the initial thirty day period;and (iv)Owner thereafter continues to use good faith efforts and due diligence to complete the agreed upon cure. c)Alternative Remedies.In the event Owner fails to cure in the manner provided by Section 3.2(b),and except for emergency circumstances.as set forth in Section 3.2(d),Holder may:(i)bring an action at law or in equity in a court of competent jurisdiction to enforce the terms of this Easement;(ii)require the restoration of the Easement Area to a condition substantially similar to that which existed prior to such violation at Owner's cost;(iii)enjoin any noncompliance by temporary or permanent injunction;and (iv)ifadjudged the prevailing party, recover reasonable damages,including without limitation attorney's (ees,arising from such violation or noncompliance. d)If Holder,in its sole discretion reasonably exercised,determines that emergency circumstances require immediate action to prevent or mitigate significantdamage to the Conservation Values to be protected by this Easement,Holder may pursue its remedies under this Section 3.2 with concurrent notice to Owner and without waiting for the period for cure to expire.Holder shall give prior oral notice for all such actions and shall provide Ownerwith written notice of all actions taken by it pursuant to this Section 3.2(b)immediately thereafter.Nothing in this Section 3,2(b)shall be construed to waive any procedural rights Owner has under the Hawai'i Rules of Civil Procedure or the Rules of the Circuit Courts of the State of Hawai'i. 3.3 Forbearance Not a Waiver.Any forbearance by Holder to exercise its rights under this Easement in the event of any breach of any term of this Easement shall not be deemed or construed to be a waiver by Holder of such term or of any subsequent breach of the same or any other term of this Easement or of any of Holder's rights under this Easement.No delay or omission by Holder in the exercise of any right or remedy upon any breach shall impair such right or remedy or be construed as a waiver. 3.4 Acts Bevpnd Owner's Control.Nothing contained in this Easement shall be construed to entitle Holder to bring any action against Owner for any injury to or change in the Easement Area resulting from causes beyond Owner's control,including,without limitation,acts oftrespassers or the unauthorized wrongful acts ofthird persons,fire, tsunami,flood,storm,earth movement,and major tree disease,or from any prudent action taken by Owner under emergency conditions to prevent,abate,or mitigate significant injury to the Easement Area resulting from such causes.Notwithstanding the foregoing,nothing herein shall preclude Owner's and Holder's rights to pursue any third party for damages to the Easement Area from vandalism,trespass,or any other violation of the terms of this Easement,or to take preventative steps to deter or discourage trespassers or third parties from actions that would violate the terms of this Easement. 081218 Somers Esml Final.doc 3.5 Costs.With respect to any judicial action to enforce the terms of this Easement, the prevailing party shall be entitled to an award of costs of suit.including reasonable attorneys'fees. IV.RESTRICTIONS 4.1 Prohibited Uses.Except as provided in Article V ("Reserved Rights"),the following acts or uses are expressly forbidden on.over,under,or in connection with the Easement Area: a)Subdivision of the Easement Area or any other type of division of the Easement Area Into more than one ownership. b)Mining,surface mining,excavating,dredging,or removing from the Easement Area of soil,loam,peat.gravel,sand,cinder,hydrocarbons,rock,or other mineral resource or natural deposit; c)Commerclal or industrial uses of the Easement Area; d)Constructing or placing of any building,including dwellings,mobile homes, transmission or receiving tower,energy facility,or other temporary or permanent structure or facility on or above the Easement Area; e)Cutting.removing,or otherwise dsstroying trees,grasses,or other vegetation; f)The installation of underground storage tanks or the placing,filling,storing,or dumping on the Easement Area of soil,refuse,trash,vehicle bodies or parts, rubbish.debris,junk,waste,or other such substance,whether or not generated on the Easement Area; g)Use of motorized vehicles outside of permitted tralls or roads or for unpermitted activities; h)Any grazing,stabling or boarding ofdomestic animals; i)Alteration of the natural watercourses; j)Including the Easement Area or any portion thereof as part of the gross area of any other property not subject to this Easement for the purposes ofdetermining density,lot coverage,or open space requirements.under otherwise applicable laws,regulations,or ordinances controlling land use and building density.The development rights which are encumbered and extinguished by this Easement shall not be transferred to any other property or portions ofthis Property pursuant to a transferable development rights plan,cluster development arrangement,or otherwise;and k)Any unanticipated use or activity on or at the Easement Area which would impair the Conservation Values unless such use or activity is necessary forthe proteclion of the Conservation Values that are the subject of this Easement,in which case such use or activity shall be subject to providing Notice pursuant to ArticleVI, 081218 Somers Esmt Final.doc 4.2 Addltional Limitations.Owner shall comply with all Federal,State and County laws when conducting construction,development,grading or other permitted activities within the Easement Area. V.RESERVED RIGHTS 5.1 General Reserved Riahts.The provisions ofArticle IV notwithstanding,the following rights,uses,and activities of or by Owner shall be permitted by this Easement: a)The right to engage in all acts or uses not prohibited herein that are not inconsistent with the purpose of this Easement; b)The right to all manner of access to and personal use and enjoyment of the Easement Area,including without limilation the right to undertake activities reasonably necessary to carry out the rights reserved to Owner,provided such actions are not inconsistentwith the purpose ofthis Easement; c)The right to make use of all water rights appurtenant to or otherwise benefiting the Propertybut leaving sufficient quantity and quality available for native habitat restoratlon,both wetland and upland; d)Subject to obtaining Approval pursuant to the Approval procedures set forth in Article VI,The right to construct fences around or within the Easement Area; e)Subject to obtaining Approval pursuant to the Approval procedures set forth in Article VI,the right to construct,repair,and maintain nonresidential structures, including but not limited to,buildings (but not dwellings),walls,utility (water,gas, solid waste,electric.telecommunications)transmission lines and related utility equipment (underground or overground),and other similar improvements (collectively the "Permitted Improvements")wilhin Easement Area,provided that the aggregate impervious coverage of all roofed structures may be not greater than 2,000 square feet,unless Holder determines that exceeding this aggregate llmit will subslantially further one or more of the primary Purposes of this Easement,namely Water and Wetlands Resources.Archaeological Resources, and Wildlife Resources. f)The right to perform routine maintenance and upkeep immediately around any Permitted Improvements in the Easement Area to the extent customary in connection with such structures and otherwise consistent with the Purpose of this Easement; g)Subject to obtaining Approval pursuant to the Approval procedures set forth in Article VI,the right to grant utility easements encumbering the Easement Area for the purpose of providing utilities to other parts of the Property but to no other properties,provided it is commercially impracticable to provide utility access through other properties or other parts ofthe Property. h)The right to conduct non-commercial,non-motorized.outdoor recreational activities.such as,but not limited to,(ishing,bird watching,hiking,picnicking, 081218 Somers Esmt Final.doc swimming,boating,which do not otherwise conflict with the Conservation Values, as well as the ability to transport people to and from such activities with motorized vehicles,provided such transportalion takes place only on permitted trails and roads; i)The right to conduct noncommercial horseback riding and graze horses for noncommercial purposes subject to conducting such activities pursuant to a management or conservation plan approved by a third party mutually agreed to by Owner and Holder. ])Subject to obtaining Approval pursuant to the Approval procedures set forth in Article VI,the right to conduct commercial outdoor educational or recreational activities that are non-motorized and of low intensity,and which do not otherwise conflict with the Conservation Values; k)The right to operate motorized vehlcles on permitted trails and roads for the purpose of obtaining access to other parts of the Property that have no alternative access; I)Subject to the limitations set forth in Section 5.2 and Section 5.4,the right to use motorized vehicles and equipment in the Easement Area for land management, environmental restoration or agricultural/agro-forestry activities within the Easement Area,including but not limited to,ATVs,trucks,excavators,graders, chainsaws,chippers and "weed eaters;" m)The right to compost,burn,or store vegetative waste generated by permitted activities and uses and the right to store for removal at reasonable intervals normal and customary waste generated on the Easement Area by permitted activities and uses; n)The right to post all or a portion of the Easement Area against trespassing and hunting and erect identification,interpretive and warning signs; o)Subject to providing Notice pursuant to Article VI,the right to lease or grant other less-than-fee interests in all or any portion of the Easement Area for any use or activity that is permitted by this Easement; p)The right to deny access to any person to any portion of the Easement Area, except as expressly provided elsewhere in this Easement; q)The right to take any emergency action Owner reasonably believes necessary to protect human,animal or plant li(e,or improvements permitted by this Easement within EasementArea; r)The right to grant the County o(Kauai and/or the State of Hawai'i rights-of-entry on,over and across the Easement Area in order to engage in remedial and restorative work within the Kilauea Stream; s)The right to alter watercourses,if directly related to the construction or placement ofwetland impoundment units for endangered species recovery. 081218 Somers Esml Finai.doc 5.2 Owner's Land Manaaement and/or Restoration of Easement Area.Owner has the right (but no obligation)to conduct land management and/or environmental restoration activities within the Easement Area,including but not limited to removal of alien species.restoration ofwildlife habitat,restoration ofwetlands,and introduction of native species.To the extent Owner chooses to initiate any land management or environmental restoration work,the following express reserved rights and restrictions and limitations shall apply: a)Owner reserves the right without notice or approval to prune existing plants or trees,remove dead timber,remove or kill alien plants or trees,plant native plants or trees or otherwise conduct habitat restoration,or to otherwise conduct customary land management activities.provided:(i)such activlties preserve or otherwise do not significantly alter the present condition of any part of the Easement Area and are not inconsistent with the Conservation Values:(ii)the aggregate area affected by these activities is not greater than two (2)acres in any consecutive twelve month period or twenty (20)acres in aggregate over any time period;and (iii)a management plan shall be prepared for any such activities which fall within a deslgnated wetlands area and/or endangered species habitat area; b)Subject to obtaining Approval pursuant to the Approval procedures set forth in Article VI,Owner may remove or plant native or non-native vegetation,including trees,for other purposes,including but not limited to,for fire protection or to preserve vistas existing at the grant of this Easement,provided a management plan shall be prepared for any such activities which fall within a designated wetlands area and/or endangered species habitat area; c)With respect to any land management or environmental restoration activities within the Easement Area which will affect an aggregate area of more than two (2)acres in any consecutive twelve month period or twenty (20)acres in aggregate over any time period,the following procedures shall apply: i.Owner and Holder shall agree upon a consulting third party with appropriate credentials and expertise ("Environmental Consultant")to prepare a restoration management plan for the portion of the Easement Area to be restored ("Management Plan"). ii.During preparation of the Management Plan,the Environmental Consultant shall consult with Holder to assure consistency with the pertlnent aspirations enunciated in the Kilauea Point National Wildlife Refuge Land Conservation Plan and Environmenfal Assessmenf (May 2007),which are:(i)protect and enhance native coastal plant communities;(il)protect and enhance nesting areas for nalive species such as Nene,seabirds and wintering shorebirds;(iii)protect and encourage the recovery of endangered Hawaiian water birds and other endangered birds;and (iv)conserve and ehhance aquatic resources. 081218 Somers Esmt Flnal.doc 10 iii,Holder is granted up to but not more than sixty (60)days in which to engage in consultation with the Environmental Consultant;provided Hotder and Owner may extend the consultation period by mutual agreement. iv.If Owner,Holder or the Environmental Consultant deems it helpful,any of them may consult with the United States Fish and Wildlife Service regarding the proposed Management Plan during the consultation period. v.Owner shall conduct all work in accordance with the Management Plan, or,as necessary,seek and obtain amendments to the Management Plan subject to the procedures set forth in this Section 5.2. 5.3 ResloratiQn_of Easement Area bv Holder or Third Parties.Owner has the right (but no obligation)to permit Holder or a third party designated by Holder to conduct environmental restoration within the EasementArea.Such permission by Ownershall be subject to negotiation and execution of a mutually agreeable right of entry or similar agreement. 5.4 Aaricultural or Aaroforestrv Activities.All agricultural or agroforestry activities within the EasementArea may be conducted onlywith the Approval ofthe Holder, subject to the Approval procedures set forth in Article VI. 5.5 Roads and Trails.The following reserved rights and restrictions apply with respect to creation,maintenance and repair of roads and trails within the Easement Area. a)Mapping.Owner and Holder have verified roads and trails within the Easement Area existing at the time of granting of this Easement and have described and identified their location on maps and other documents,which are part ofthe Baseline Documentation.Owner and Holder may have also identified the general location of roads or trails that may be created by Owner without approval after granting the Easement (collectively "Pre-Approved Roads and Trails").Owner and Holder may have also identified roads or trails that are agreed to be decommissioned at the time of construction of certain of the Pre-Approved Roads and Trails.all as set forth in the Baseline Documents. b)Existlng Roads and Tralls.Owner may maintain and repair existing roads and traits within the Easement Area to their general condition at the time of the grantlng ofthis Easement. c)Improving Existing Roads and Trails.Subject to obtaining Approval pursuant to the Approval procedures set forth in Article VI,Owner may improve the condition of existing roads and trails. d)Constructing Pre-Approved Roads and Trails.Subject to the Notice procedures set forth in Article VI,Owner may construct any ofthe Pre-Approved Roads and Trails:provided Owner shall in its Notice document,advise Holder of the construction methods to be used and the steps that will be taken to assure 081218 Somers Esmt Finat.doc 11 consistency with the terms ofthis Easement:provided further,ifthe Baseline Documents identify a road or trail to be decommissioned at the time ofthe construction of any Pre-Approved Road or Trail,Owner shall also explain in the Notice document the process for decommissioning such road or trail. e)Constructing Other Roads and Trails.Subject to obtaining Approval pursuant to the Approval procedures set forth in Article VI,Owner may construct new tralls or roads other than the Pre-Approved Roads and Trails. 56 Ownership or Division of Easement Area Separate from Remainder of Propertv.Owner reserves the right to divide ownership of the Easement Area from the remainder ofthe Property under the following restricted situations and none others: i,Owner may establish a Condominium Property Regime ("CPR")on the Property,including the EasementArea,pursuantto Hawai'i Revised Statutes ("HRS")Chapter 514B and designate the Easement Area as a Common Element of the CPR.The Easement Area as a Common Element shall be subject to the exclusive control and administration of the Association of Unit Owners of the CPR ("Association")formed by the Owner pursuant to HRS 514B.To the extent a conveyance ofthe Common Element is necessary to effect control by the Assoclation,the conveyance shall be subject to Section 8.4 of this Easement.Upon formation,the Association shall consult with Holder,and thereafter,within a reasonable time period,adopt rules and regulations affecting all CPR Unit Owners (reviewed and approved by hlolder) to assure that CPR Unit Owners'uses and activities within the Easement Area are consistent with the terms of this Easement. ii.Owner may designate all of the Easement Area as a limited Common Element appurtenant to a CPR Unit;provided that ownership of the CPR Unit may only be by a Qualified Organization,and the selection ofthe Qualified Organization is subject to the Approval of Holder pursuant to the Approval procedures set forth in Article VI.To the extent determined preferable or necessary,and subject to state or county land use laws then in effect, possession or ownership by the Qualified Organization may also take place through a long term lease or subdivision process.However,under any of these circumstances,ownership of the Easement Area is limited to a Qualified Organization,and the conveyance is subject to Section 8.3 ofthis Easement. VI.NOTICE AND APPROVAL PROCEDURES 6.1 Notice Procedure."Notice"as required in thls Easement is for the sole purpose of informing Holder of Owner's intent to exercise one of the specific rights or activities, which is expressly identified in this Easement as requiring Notice.Owner has no duty to provide Notice,except where expressly required in this Easement.Holder's right to monitor under this Notice procedure does not include a right to intervene,unless provided under the circumstances set forth in the Affirmative Rights and Remedies 081218 Somers Esml Final.doc 12 granted to Holder in Article III ofthis Easement.Where Notice is expressly required under this Easement,Owner shall notify Holder as follows;Delivery of the Notice shall be as required by Section 10.8;the Notice shall describe the nature,scope,location, timetable,and any other material aspect ofthe proposed activity in sufficient detail to permit Holder to understand the scope of such activity;unless Holder expressly identifies a lesser period of time,Owner shall not initiate or exercise the activity requiring notice until thirty (30)days after Holder's Receipt of Notice,as defined by Section 10.8, 6.2 ADproval Procedure.Where Approval is expressly required under this Easement (and in no other cases is it required).Grantor shall request approval from Holder in writlng,as follows:The request for approval shall describe the nature,scope, location,timetable,identify its conformity with this Easement,and,when applicable, evidence conformily with existing land use regulations,and any other material aspect of the proposed activity.Delivery of the request for approval shall be as required by Section 10.8.Holder shall have thirty (30)days from receipt ofthe request in which to approve,disapprove,or approve subject to modification,the request;at Holder's sole discretion,but subject to good falth reasons,Holder may extend the approval/disapproval period by an additional thirty (30)days.Approval shall not be unreasonably withheld by Holder.In the case of withholding of approval,Holder shall notify Grantor in writing with reasonable specificity of the reasons for withholding of approval,and the conditions,ifany,on which approval might otherwise be given. Failure ofthe Holder to respond within the above time limitations,shall constitute approval. 6.3 Breach of Notice or ADproval Procedures.Failure to provide Notice or obtain Approval as required in this Article VI shall be a material breach ofthis Easement and shall entitle Holder to such rights or remedies as may be available under Article III of this Easement.Notwithstanding the foregoing,Holder may,at its sole option,permit Owner to cure the breach by submitting after-the-fact communications and documents showing the conformity of such activity with this Easement and with any relevant Federal.State or County laws,or by showing despite lack of conformity with this Easement or the laws,that the action was justified because of an emergency or public health and safety grounds,as described in Subsection 5.1(q). VII.OWNER RESPONSIBILITIES 7.1 Costs.LiabilitiBS.and Taxes.Owner retains all responsibilities and shall bear all costs and liabilities ofany kind related to the ownership,operation,upkeep,and maintenance of the EasementArea,including the maintenance ofgeneral liability insurance coverage,and including any taxes assessed on Owner's interest in the EasementArea. 7.2 Hazardous Material.Ownershall hold harmless,indemnify,and defend Holder and Holder's members,directors,officers,employees,agents,and contractors and the heirs,personal representatives,successors,and assigns ofeach ofthem from and 081218 Somefs Esml Final.doc 13 against all liabilities,penalties,costs,damages,expenses,causes of action,claims, demands,orjudgments,including,without limitation,reasonable attorneys'fees,arising from or in any way connected with the presence or release of any hazardous material or substance ofany kind on the Easement Area.This Section 7.2 shall not apply in the case of any hazardous material or substance in any manner placed on the Easement Area by Holder or Holder's representatives or agents. 7.3 Indemnification.Owner shall hold harmless,indemnify,and defend Holder from any and all liabilities,injuries,losses,damages,judgments.costs,expenses ofevery kind,and fees,including reasonable attorneys'fees actually incurred,Holder may suffer or incur as a result of or arising out of the wrongful intentional or negligent act or omission of Owner,Owner's employees,agents,guests,and invitees on the Easement Area.Holder agrees to hold harmless,indemnify,and defend Owner from any and all liabilities,injuries,losses,damages,judgments,costs,expenses ofevery kind,and fees,inctuding reasonable attorneys'fees actually incurred,Owner may suffer or incur as a result of or arising out of the wrongful intentional or negligent act or omission of Holder,Holder's employees,agents,guests,and invitees on the EasementArea. VIII.ASSIGNMENT BY HOLDER;TRANSFERS BY OWNER 8.1 Limitations on Assignment bv Holder.The benefits ofthis Easement shall not be assignable by Holder,except (i)if as a condition of any assignment,Holder requires that the purpose ofthis Easement continues to be carrled out,and (ii)ifthe assignee,at the time ofassignment,qualifies under Section 170(h)ofthe Code and the laws ofthe State of Hawai'i as an eligible donee to receive this Easement directly.Holder shall notify Owner in writing at least sixty (60)days prior to any assignment of thls Easement. Any attempted assignment by Holder of the beneffls of this Easement contrary to the terms hereof shall be invalid but shall not operate to extinguish this Easement. 8.2 Succession.Ifat any time it becomes impossible for Holder to ensure compliance with the covenants,terms.conditions and restrictions contained in this Easement and Holder has not named a successor organization,or the Holder shall cease to exist or to be a qualified organization under Section 170(h)of the Code or to be authorized to acquire and hold consen/ation easements under Hawai'i Revised Statutes Chapter 198 (or any successor provision(s)then applicable),then Holder's rights and obligations under this Easement shall become vested and fall upon an entity, with purposes similar to Holder's,constituting a "qualifled organization"within the meaning of the Code:Drovided that if such vesting in any such entity is deemed to be void under the Rule Against Perpetuities,the rights and obligations under this Easement shall vest in such organization as a court having jurisdiction shall direct,pursuant to the applicable Hawai'i law and the Code,with due regard to the purposes ofthis Easement. 8.3 Transfers bv Owner.Owner agrees to incorporate by reference the terms of this Easement in any deed or other legal instrument by which Owner transfers any interest in all or a portion of the Easement Area,including,without limitation,a leasehold interest.Owner further agrees to give written notice to Holder ofthe 061216 Somers Esml Final.doc 14 proposed transfer of any such interest at least twenty (20)days prior to the date of such transfer,The failure of Owner to perform any act required by this Section shall not impair the validity of this Easement or limit its enforceability in any way,nor shall such failure in any way be interpreted to void or make voidable the conveyance of any such interest. IX.AMENDMENT;EXTINGUISHMENT 9.1 Limitati'ons on Amendment.If circumstances arise under which an amendment to or modification of this Easement would be appropriate,Owner and Holder may by mutual written agreementjointly amend this Easement;provided that no amendment shall be made that will adversely affect the qualification of this Easement or the status ofHolder under any applicable laws,including Sections 170(h)and 501(c)(3) of the Code and the laws of the State of Hawai'i.Any such amendment shall be consistent with the purpose of this Easement,shall not affect its perpetual duration, shall not permit any residences within the Easement Area,and shall not permit any impairment of the Conservation Values of the Easement Area.Any such amendment shall be filed in the State of Hawai'i Bureau of Conveyances.Nothing in this Section shall require Owner or Holder to agree to any amendment or to consult or negotiate regarding any amendment. 9.2 Limitations on Extlnauishment.Ifcircumstances arise in the future that render the Purpose ofthis Easement impossible to accomplish,this Easement can only be terminated or extinguished,whether with respect to all or part of the Easement Area,by judicial proceedings in a court ofcompetentjurisdiction.Unless otherwise required by applicable law at the time,in the event of any sale of all or a portion of the Easement Area (or any other property received in connection with an exchange or involuntary conversion of the Easement Area)after such termination or extinguishment,and after the satisfaction of prior claims and net of any costs or expenses associated with such sale,Owner and hlolder shall divide the proceeds from such sale in accordance with their respective percentage interests in the fair market value of the Easement Area,as such percentage interests are determined under the provisions of Section 9.3,adjusted, if necessary,to reflect a partial termination or extinguishment of this Easement.All such proceeds received by Holder shall be used by Holder in a manner consistent with Holder's consen/ation purposes. 9.3 Percentaae Interests.Forpurposes ofthis Section,the parties hereto stipulate that as ofthe effective date ofthis grant,the Easement and the restricted fee interest in the Easement Area each represent a percentage interest in the fair market value of the Easement Area.Said percentage interests shall be determined by the ratio of the value of the Easement on the effective date of this grant to the value of the Easement Area, without deduction for the value of the Easement,on the effective date of this grant. The parties shall include the ratio ofthose values with the Baseline Documentation of the Easement Area (on file at Holder's offices).For purposes of this Section,the ratio of the value ofthe Easement to the value ofthe Easement Area unencumbered by the Easement shall remain constant,and the percentage interests of Owner and Holder in 081218SOfnefsEsmlFinal,doc 15 r r the fair market value of the Easement Area thereby determinable shall remain constant. 9.4 Condemnation.If all or any part of the Easement Area is taken under the power of eminent domain by public,corporate,or other authority,or otherwise acquired by such authority through a purchase in lieu of a taking.Owner and Holder shall join in appropriate proceedings at the time of such taking to recover the full value of the inlerests in the Easement Area subject to the taking and all incidental or direct damages resulting from the taking.All expenses reasonably incurred by the parties to this Easement in connection with such taking shall be paid out of the recovered proceeds. Owner and Holder shall be respectively entitled to compensation from the balance of the recovered proceeds in conformity with the provisions of Sections 9.2 and 9.3 (with respect to the allocation of proceeds).The respective rights of Owner and Holder set forth in this Section 9.4 shall be in addition to,and not in limitation of,any rights they may have at common law. 9.5 Reversal of ApDroval of Countv Permits.Notwithstanding anything else contained herein,ifthe Planning Commission's D&O approving the County Permits is appealed or challenged judicially,and if as a result thereof,after all appeals,a final judicial decision is entered reversing the approval ofthe County Permits (collectively "All Relief Is Exhausted"),then in such a case the Owner shall have the right,in the exercise of the Owner's sole discretion,to cancel this Easement,Owner shall exercise Owner's right to cancel this Easement not later than 180 calendar days from the filing date of the judicial order or judgment that may be identified as establishing that All Relief Is Exhausted. X.GENERAL PROVISIONS 10.1 Compliance Certificates.Holder shall within thirty (30)days of receipt of a request from Owner,execute and deliver to Owner any document that may be requested by Owner,including an estoppel certificate or compliance certificate,to certify to the best of Holder's knowledge Owner's compliance with any obligation of Owner contained in this Easement or otherwise to evidence the status ofthis Easement. Owner shall be responsible for any additional costs incurred by Holder beyond its predetermined annual administrative costs associated with this Easement for the production of such document(s),including,but not limited to,staff time,site visits, mapping,copying,etc. 10.2 Reasonableness Standard.Owner and Holder shall follow a reasonableness standard and shall use their best efforts to make any determinations that are necessary or are contemplated to be made by them (either separately or jointly)under this Easement in a timely manner and shall cooperate with one another and shall take all other reasonable action suitable to that end. 10.3 Controllinci Law.The interpretation and performance of this Easemenl shall be governed by the laws of the State of Hawai'i. 10.4 Liberal Construction.Any general rule of construction to the contrary OB1218Somers Esmt Final.doc 16 notwithstanding,this Easement shall be liberally construed in favor ofthe grant to effect the purpose of this Easement.If any provision in this instrument is found to be ambiguous,an interpretation consistent with the purpose ofthis Easement that would render the provision valid shall be favored over any interpretation that would render it invalid. 10.5 Severabilitv.If any provision of this Easement or the application thereof to any person or circumstance is found to be invalid,the remainder of the provisions of this Easement shall not be affected thereby. 10.6 Entire Aareement.This instrument sets forth the entire agreement of the parties with respect to the Easement and supersedes all prior discussions,negotiatfons, understandings,or agreements relating to the Easement,all ofwhich are merged herein.No alteration or variation ofthis instrument shall be valid or binding unless contained in an amendment that complies with Section 9.1. 10.7 Successors.The covenants,terms,conditions,and restrictions of this Easement shall be binding upon and inure to the benefit ofthe parties hereto and their respective personal representatives,heirs,successors,and assigns and shall continue as a servitude running in perpetuity with the Easement Area,provided that no owner shall be responsible except for violations occurring on such owner's land while owner thereof. 10.8 Notices.Except as otherwise provided in this Easement,any notice,demand, request,consent,approval,or communication that either party desires or is required to give to the other shall be in writing and either (i)served personally,(ii)sent by certified first class,priority mail,postage prepaid,or (iii)sent by a nationally recognized overnight courier,with all fees prepaid,and addressed as follows: To Owner at:Charles IVI.Somers West Sunset 32 Phase 1 ,LLC 5241 Amold Ave McClellan,CA 95652 With a copy to: To Holder at; Tom Pierce,Esq. Attorney at Law,LLLC P.0.Box 798 Makawao,Hl96768 Kaua'i Public Land Trust P.0.Box 562 Kilauea,Hl 96754 081218 Somers Esm!Final.doc 17 or to such other address as any of the above parties from time to time shall designate by written notice to the others.With respect to any provision of this Easement requiring notice,demand,request,consent,approval,or communication by a date certain,such communication shall be considered received by the other party two days after mailing by first class mail. 10.9 Effective Date.Owner and Holder intend that the restrictions arising hereunder take effect on the day and year this Easement is recorded in the State of Hawai'i Bureau of Conveyances after all required signatures have been affixed hereto.Holder may re-record this instrument at any time as may be required to presen/e its rights in this Easement. 10.10 Counterparts.This Easement may be executed in counterparts.Each counterpart shall,irrespective of the date of its execution and delivery,be deemed an original,and the counterparts together shall constitute one and the same instrument. TO HAVE AND TO HOLD,the said Conservation Easement,unto the said Holder and its successors and assigns forever. IN WITNESS WHEREOF,the parties hereto have executed this Easement as of the date set forth below by each notary. "OWNER" Charies M,Somers .-—^^%^ and West Sunset^2-Phase 1,LLC ^^By: frleiCM''Somet< Sole (i/fember "HOLDER" Kauai Public Land Trust Jennifer Luck Executive Director By: Gary Blaich President OS1218 Somers Esmt Final.doc 18 r r CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State o)Cafifornia Coun.y of Sa6/^-^ff^/Counly .,:' On heC.c^.J^Jbelb,.e ,.e.iL^W^^)^7V A / personally appeared-cd ^.^/^^^.^//^S (Ikre insi;rl ii.inicand tillc ol'llieolTiccf) /' who proved to me on the basis of satisfaclory evidence to be the person(s)whose name(s)is/are subscribed to the within instrument and acknowledged to mc thal he/she/lhey executed thc same in his/her/their authorized capacity(ies).and thai by his/her/lheir signature(s)on Ihe instrument the person(s),or the entity upon behalt'of which the person(s)acied,execuled ihe instrumenl. 1 certily under PENALTY OF PLiRJURY under Ihe laws ol'lhc State orC'alifornia Ihat ihe foregoing paragraph is true and cofrect. WITNESS my hand and'ofl'icial seal. U^(.^^^ Signalufcot hoiary 1'ublic (Ni)iLiry Scal) WRENN 8R XTON Commissi-n ti )617''>9 NotarYPv.Lilic .Cali1 inia SaciamentoCoi / MYComm.ExplfesOcuO,2009 ^ ADD1TIONAL OPTIONAL INFORMATION DF.SCRIPTIONOFTHEATI'ACIIEDDOCUMENT (Tillc or descriplion ofailuchcd documcnt) tTiilc or dcscripiion ol'fiiiachcd ilociiintint cuniinued) NiiniberofPages_Docuinent Date (Additiona!informuliuil) CAPACITY CLAIMF.D BY THE SIONER a Individiial (s)•i-l Corporaie Officer iniicl D Panncr(s) D Attomey-i«-!:acl D Trustee(s) D Olher INSTRUCTIONS FOR COMPLETINO THIS FORM .iny ackimwh'<iK<w\l coiiif)tctocf i>i Catifoniw iiwsi coiiimn verbiagf exacily as uppears Hfiuve ht tlw im!w~y svciioiv or a scparule wk.iwwtedgnieni fwm imist bv properiy compfeieti ciml aliiiclied 10 ihai docwiieiti,Ttii'oiily excepiioii is if a docwwiil is 10 be recordeii oiiuide ofCalifomia.!/i iiich mssances.aiiy atiertwfive octu<a\viv<{yiieiii vcrlfiiigr as iiiay be prinied 011 siich u docuiMnt so Iwig as ihe verbiage (iues iiot reffwre ihv iiofary 10 do someiiii/ig itiai is itfegal for a 'iotary 'm CaUforma (i.e,ceriifymg Ifie (wilwrhed capachy of liiv sigwr}.PSecise ciieck ihr doctiHWtil carefiiltyforpropsr isotartal wonling awlallach ifiis/o/'w ifreqxired. •Staic and County infornuiiiun niusi bc ihc Siaic and County wheru ihe document sigiirr<s)pcr.soiially appeyrtfd bclorc ihc notary public lor acknowlcdeiTicnl. •Uulc ot'tiolarixaiion musi lit;ilii;dait;ihat tlic si^r»:r(s)pcrsonally appeari.-d which musi also (H;ihi;samc daic thu acknowledgmcm is cumplt.'led. *'I~hi*iwiary piiblic musi pnni his or her namc as 11 appuarii within his or her comnii.s.siiiii I'Mllowed hy a coinina and ihtfn yoiir litle (nnlan'public). •('nni llu-numi.'fs)of documunt !>i&ner(i)w!m prrsonally iippcar .11 ihc limc of nu(un/iftlt>fl. *Indicuit;tliu t;tmc<;l singuliir M plurul t'orms by crossing ol'l'inconect lomis (i.e. liei'shc/tliflVT-is/aw )or circliiigtheuoncct rorms,Failurc tocorrectly indicatc ihis inlnrnialitiii inuy luati (o riijeciitin ufdocumeni rccnrcling. *Thc noiar>'si;al imprcssiun miist be clcar and phoiographicolly rcproduciblc. impfi.'siiitiii miist noi covcr luxi ur lincs.Ifseal impr<;ssion smudgcs,re-scal ira suniciuni ari:a pcnnjis.oiiii:rwisc complcte a dill'iifuni iicknowlcdgmcnl fbmn. *Sienuiuri;nl'llic noltiry-puhlic ITIUSI maich thL-signaiitrc on filc wilh thc oH'icc ol' lliccciiiiiyulcrk, Adililiuniil iiilbrmiilitin is not rcquiriid bul coiild hclp to unsuri;ihis a<;ktwwlrdgmcnt is noi misuscd or atiarhed to a ditTcrcni documuni. Indiuiitc lillc orlypr nliitiachcdd&cumfm,nuinbcrofpagcsand daii; liidicaic iliu capuciiy claiined by ihc signcr.)f the claimed copuciiy i;.u cttrpnniK omctT,indicuk-ilir liilc (i e C'UO.CFO,Sccreiar)') •Sccufi'ly aiiiicl)ihis documuiit 10 llii;signcd documcnl 2008 Vefiiion CAPA v \2.10.07 800.873-9X6S mnv Noiar>'Classcs.cniii or to such other address as any of the above parties from time to time shall designate by written notice to the others.With respect to any provision of this Easement requiring notice,demand,request,consent,approval,orcommunication by a date certain,such communication shall be considered received by the other party two days after mailing by first class mail. 10.9 Effective Date.Owner and Holder intend that the restrictions arising hereunder take effect on the day and year this Easement is recorded in the State of Hawai'i Bureau ofConveyances after all required signatures have been affixed hereto.Holder may re-record this instrument at any time as may be required to preserve its rights in this Easement. 10.10 Counterparts,This Easement may be executed in counterparts.Each counterpart shall,irrespective of the date of its execution and delivery,be deemed an original,and the counterparts together shall constitute one and the same instrument. TO HAVE AND TO HOLD,the said Conservation Easement,unto the said Holder and its successors and assigns forever. IN WITNESS WHEREOF,the parties hereto have executed this Easement as of the date set forth below by each notary. "OWNER" Charles M.Somers and West Sunset 32 Phase 1 ,LLC By: Charles M.Somers Sole Member "HOLDER" Kauai Publi Jen^fer Lji Ex^cutivi^Oirector ^t^LBy: Gary Blaich President 081218 Somers Esmt Final.doc 18 STATEOFHAWAI'I COUNTY OF KAUAI On this )SS: W^day of QtUM^^2008,before me appeared Jennifer Luck,to me personally known,who,being by me duly sworn,did say that she is the Executive Director of the Kauai Public Land Trust, a Hawai'i nonprofit public benefit corporation,and did say that such person executed the^.foregoing Grant of Conservation Easement,which document consists of page(s),as the free act and deed of such person,and if applicable,in the capacity shown,having been duly authorized to execute such instrument in such capacity. -l^f 2.S, <ame of Nbtar^aiARIE.OGATA Notary Public,Fifth Judicial Circuit, Stale ofHawai'i. My commission expires:, Doc.Date:U^^tuA #p Notary Name:_atWBl Dpfc D.escrjptioi ,^ Qircuit itary Signatu Date 081218 Somers Esmt Final.doc 20 STATEOFHAWAI'I COUNTY OF KAUAI )SS: ) On this•^r^day of _OtUlMU^2008,before me appeared Gary Blaich,to me personally known,who,being by me duly sworn,did say that he is the President of the Kauai Public Land Trust,a Hawai'i nonprofit public benefit corporation,and did say that such person ej^pyted the foregoing Granl of Consen/ation Easement,which document consists of ^-T paae(s),as the free act and deed of such person.and if applicable,in the capacity shown,having been duly authorized to execute such instrument in such capacity. L.5 /' <-^s' (Name ofNotary:9» lB.OGAIA, Notary Public,Fifth Judicial Circuit, State ofhlawai'i. My commission expires:. Doc.Date:^^*#Paaes:^ Notary Nams:jiti >c.Descripti / wo^s^sun-sy vr ^w -luy (iitotary Signat^ t2i^nos_ )ate 081218 Somers Esml Final.doc 21 r r CO.NSERVA TION EASEMENT CONDI'I'IONS FROM PLANNING COMMISSION'S FINDINGS OF FACT,CONCLUSIONS OF LAW DEC1SIQELAND ORDEK.DATEU OCTOBER_1,2008 As represented by the Applicant,prior (o the issuance ofany building permits,theApplicant agrees to transfer a perpetual Conservation Easeinent over an approximately cighly (80)acre portion ofLoi 2 C'Conservation Easement Area"),The Conservation Easement shall comply with the applicable terms, condilions.and detinitions contained in Cliapter 198 (Conservalion Kasements)ofthe Hawai'j Revised Siatures,siibject to the foilowjng tcnns and conditions: i.The Applicant shall convey the Conservalion Easenient to a govemmental entity or50IC(3) organization ofApplicant's choice.provided such organization constitutes a "quaiified organization" asdefined in 170(h)(3)oflhe Iniernal Revenue Code of 1986 (Ihe Code).Said entily or organizalion shall have the capability ofdeveloping and maintaining threatened and endangered species habitat consistent with the Kllauca Pojnl Nationat Wifdlifc Rel'uge Land Conservation Plan and Environmental Assessment (May 2007}prepared by llie.U.S.Fisli and Wildlife Service. Prior to recordation.the Conservation Easement sliall be submitted to ihe Ptanning Departmenl 10 review its coinpliance with (his condilion.The Planning Departmenl shall solicit comments from the U.S.Fish &Wildlife Service.The Planning Departmcnt shall have 45 days to provide written cominents to the Applicant,in llieabsence ofwliich the Conservalion Easement shall bedeemed acceptable.The Planning Commission shall resolve any disagi-eements concerning the language of Ihe Conservation Easemeni. ii.The delineation and determinalion oflhe Conservaiion Easeineiit's boundanes and the conient ofthe reslrictive ternis ofthe Conservation Easement doctimcnt shall be as negotiated and agreed upon bctween the Applicant &nd the qualified organization provided; 1.That the Conservation Easemenl shall encumber approximately 80 acres of Lot 2 2.That the Conservaiion Eascincnf shall expressly extinguish density forsixteen (16)ofthe dwelling units permitted williin Lot 2.!l is Applicant's intention that any dvvetling unit density attribiitable to and iirising OLK ofthe Conservation Easeincnt Area shalf be extingLiished,and shail not be transferred to any olher porlion ofLot2. 3.Tliat the lands encumbered by llie Conservatioii Gaseinent and the terms set forth in the Conservation Easement fulfill a "conservaiion piirpose",asdefined in 170(h)(4)ofthe Code. 4.That except as resrricted in the Conservation Easement document,the Applicant shall have the right to the use.possession and enjoyment ofthe Conservaiion Easement Area. 5.That no dwclliny unils (includiny single fainily residences and fann dwelling units)shall be allowed to bc located witliin tlie Conservalion Kasemenl Area. 6.That to tlie extent reasonably possible,and subjcct negotiations w'nh the qualifled organizalion,the Conserviition Rasement Area will include:areas adjacent to the K.Tlauea Srream:and the archaeological sites idenlifted as SIHP ^50-30-04-580 and 581 in the Archaeological Inventory StLidy ofan Approximately 74-Acre Portion ofK.Tlauea Falls Ranch property (Applicant's Exliibit "F-5"), EXHIBITA CONSERVATION EASEMENT"C-1" Affecting TMK(4)5-2-012Parcel 35 Being a portion ol'Grant 2896 [o Charles Titcomb, Being also a portion ofLol 8-W-9-A-1 "Puu Lani Subdivision" Kilauea,Kauai.Hawaii Beginning al Ihe north easten)corner oflhis Conservation Easement,on the East sideofKahili Quarry Road,the coordinates ofsaid point ofbeginning referred (o Goveinment Survey Triangujation Station k'Kilauea being 1,576.52 feet South and 2,452.47 feet East and running by azimiiths measured clockwise Irom true South: 1.I"42'10"170.85 feet along L.C.Aw.8559-B Apana 38 10 Wm.C.Lunalilio; 2.320°28'37"1,149,00 feet along I-.C.Aw.8559-B Apana 38 10 Wm.C.Lunalilio; 3,10°11'37"330.00 feel along I-.C.Aw.8559-B Apana 38 to Wm.C.Lunalilio; 4.82°17'2.094.00 feel along L.C.Aw.8559-B Apana 38 to Wm.C.Lunalilio and along Lots 8,7 &6,Kahili Makai Subdivision; 5.32°43'2,543.88 feet along L.C.Aw.8559-B Apana 38 to Wm.C.Lunalilio and along Lots6.5,4 &3,Kahili Makai Subdivision; 6.122"00'56.73 feet along Exclusion 3; 7.104°00'91.10 feet along Exclusion 3; 8.37°19'77.47 feet along Exclusion 3; 9.336"00'178.50 feel along Exclusion 3; 10.32"43'261.57 feet along L.C.Aw.8559-B Apana 38 to Wm.C.Lunalilio and Lol 3 Kahili Makai Subdivision; 11.96°38'921.80 feel along Ihe remainder of'Grant 28y6 lo Charles Tilcomb and along Lot 8-W-I-A,Kilauea Agricultural Subdivision; 12.53°32"30"1.398.45 feet along tlre remainderofGrant 2896 to CharlesTilcomb and along Lot 8-W-I-A,Kilauea Agricultural Subdivision; 13.99°29'10"44.84 feel along the remainder ol'Grani 2896 to Charies Tilcomb and along Lot 8-W-7,Kilauea Agricullural Subdivision; 14.214°08'30"328.55 feel at't'eclingTMK(4)5-2-012 Parcel 35; EXHIBIT B C:'.ProJ<:(.'L^008\Soiiie(iChar|ci\CuiiKn'.iiiiiii tiuciiiciil ['•l.dw f'aifi:1 of4 Dccciiibcf l(i.200S 15.234°00' 16.249°03' 17.222°53' 18.177°27' 19.181°06' 20.194°31' 21.221°40' 22.246°22' 23.257°17' 24.231°21' 34"321.07 20"276.05 45"157.14 37"122.04 34"104.07 50"115.11 28"148.29 51"196.96 48"433.26 24"462.34 25.262°54'32"98.08 26.283°06'32"193.37 27.217°20-47"384.50 28.119°19-09"236.97 29.203°23'26"391.75 30.291°03'58"188.10 31.212°02'26"279.17 32.132°15'03"181.50 33.174°19'52"231.38 feet affecling TMK(4)5-2-012 Parcel 35; feel an'uclingTMK(4)5-2-012 Parcel 35; feet afreclingTMK(4)5-2-012 Parcel 35: feel al'leclingTMK(4)5-2-012 Pareel 35; feel alTecling TMK(4)5-2-012 Parcel 35; fect affecting TMK(4)5-2-0)2 Pareel 35; feet afrecling TMK(4)5-2-012 Parcel 35; feet affecling TMK(4)5-2-012 Parcel 35; feet afleclingTMK(4)5-2-012 Parcel 35; feel alongarchaeological site SIIIP #50-30-04-583 and affecling TMK(4)5-2-012 Paree]35; feet along archaeological sile SIHP #50-30-04-583 and affecting TMK(4)5-2-012 Parcel 35; feet along arehaeological site SIHP #50-30-04-583 and affeclingTMK(4)5-2-012 Parcel 35: feetaf'leclingTMK(4)5-2-012 Parcel 35: feel alongarchaeological sile SIHP #50-30-04-582 and affecling TMK(4)5-2-012 Pareel 35; feel along archaeological sile SII-IP #50-30-04-582 and aflecting TMK(4)5-2-012 Pareel 35; feet along archaeologica]sile SIHP #50-30-04-582 and affecting TMK(4)5-2-012 Parce]35; feel an'ecling TMK(4)5-2-012 Parcel 35; feel along arehaeologica]site SIHl'#50-30-04-581 and affecting TMK(4)5-2-012 Parcel 35; feet along archaeological site Sll-ll'#50-30-04-581 and affecling TMK(4)5-2-012 Parcel 35; EXHIBIT B C;'iPiujtTis\ZOOS>Suiiicf>Cliiifli;s^C«nscn'tilioii EascDiciiiC-l.dof P.lBC?of4 DL-cciiibur 16.2008 34.182°42-28"282.59 35.191°13'22"288.29 36.191°24'07"140.07 37.276°46'55"753.09 38.272"16'18"933.28 39.263°10'00"302.00 40.257°38'00"200.00 41.221°00'00"225.00 42.230°14'00"155.00 43.173°54'00"385.00 44.141°27'00"180.00 45.170°36'00"150.00 46.205"27'00"150.00 47.108°19'00"92.59 48.218"47'350.95 feel along archaeological sile SIHP #50-30-04-581 and affecling TMK(4)5-2-012 Pareel 35; feet along archaeological sile SIHP #50-30-04-580 &581 and affecling TMK(4)5-2-012 Parcel 35; feet along archaeological site SII-IP #50-30-04-580 &581 and affecting TMK(4)5-2-012 Pareel 35; t'eel along archaeological sile S111P #50-30-04-580 &581 and affecling TMK(4)5-2-012 Parcel 35; feet afl'ecting TMK(4)5-2-012 Parcel 35; feel along the building envelope and affecling TMK(4)5-2- 01211arcel35; feel atong Ihe building envelope and affecling TMK(4)5-2- 012Parcel35; feet atong the building envelope and an'ecting TMK(4)5-2- 012Parcel35; feet along the building envelope and affecting TMK(4)5-2- 012 Parcel 35; feel along Ihe building envelope and affecling TMK(4)5-2- OI2Parcel35; feel along the building envelope and affecting TMK(4)5-2- 012Parccl35; feel along Ihe building envelope and affecling TMK(4)5-2- 012 Pareel35; feel along the buiiding envclope and affecling TMK(4)5-2- 012Parcel35: feel along Ihe building envclope and aft'ecting TMK(4)5-2- 012 Parcel35; feel along ihe remainder ol'Grant 2896 to Charles Tilcomb and along Kahili Quarry Road; EXHIBIT B C:'J>rujL'cis''2003''Siii)icKCIiiflr.<\C'niiicrkalioii lijscnicni C-l.iloc ?,W 3 of ^Rrcciiibcr 16.2008 49.231°53'37.25 feel along Ihe remainder ol'Grant 2896 to Charles Titcomb and alony Kahili Quarry Road to thc point ofbeginning and containing an area ol'SO.IAcres,more orless, •^;;•-*/'!;"; My License Expires: April.30.2010 Anlhony D.Crook Licensed Professional Land Surveyor CertificateNo,12094 EXHIBIT B C:^>>iojecu'.200S'.Souit;ri CI)arles\Conscrv>ilion Easciiiciil C-1 .dor l*ayc4or4 Ducciiibcr ld,2008 cwuoun*u*nruouui n effnwnn •UKTIT n»u»«n*TBK iT*nni "nun**tm unfinmUtuuwnaoamB*>»CT nff* WVM. I.SM.52 FEET SOUIH Ft7 FEET EASI SCACUfF PLWTATIOW AG SUBOIVtSON CONSERVAT10N EASEMENT "C-l (A8EA •80.1 ACRES) of Kltoyo Slr*om KOW from lo>map <md 1<>hOTi fw llyrtfolln ^ufpoitl onty KAHIU MAKAJ SU801VISION PUU LWI SUBOl^S'ON MAI'.SIIOVVINC DL-SIGNATION ()]••CONSl.KVA'l'IO.M E..\sh:Mi';N'r'c-r AI'I-'IX'I'INC'rMt-(i);;.2.i)i'2rAR(']''.i.;i.'i nuNC ,.\roit'noN oFCiiAN'raii'ii.'ro CHAKi.KS'riTCOMUx?^^D BEINC;A1.SO .\I'OR'I'ION OF [,0'r B.W.'I.A.I •I'lll'V.\»l/^< SI'BDIVI.SION' KII.,\Ilfc\,KAIIAI,llAVVA[l I'AiUNA SURVEYING i;GEOUATICS LLC PHONE (808)346-1aia FAX L-aOO-6S5-6Z97 [NFO®AILANASURVEY1NC,COM C;\Fni)**b\200<\t<)ni*ft Chort»t\t<im>f*Lnl.fl>8 UCENSED ^^. PROFESSIONAL LAHD EXHIBJTC MAP DATED;OcfobT 14,2008 \VUS PRBPAMO Btt UE OR>b tiTLflu?(?roioN. "UCTHOHY D.CaoOK uctNsio pBonssioHu,u sunvrro ccimncATi Ha.iaow PROJECTf125-08 TMK(4)5-2-012-055 CWBytXTW AU UIIKM&TO ovwHoisfs icnn TIUUNUUINN fTinor •nuuu'nn *BNVrwUUIOMBfwvnsiKWm* •wn.SCALE I"=1000 SEACUrr PIANTAT10N AC SUBOIVISIQN CONSERVA110N EASEMENT "C-l" (AREA B of KUnu*o Slr<om icolwt from (ox mop ond I**horn lof lluttrgltyt pur(>(Mt«onl|f LOT 6-11-9-c CONSERVAT10N EASEMENT "C-2" (AREA -69.3 ACRES) KAH1U UAKA1 SUBNVlSttN PW UW SUSNWW MAI>.S['10\'V1N(;DKSICNATION O)-' a)N.SlLKVA'I'ION r.A.'iliMKN'l'"C-S' ,\Fri'x'riN(;•l'MK(4)5-2-012rARCEL3.i ItEI.MU ,\I'OKTION 01''CltANT •211')(i TO (:1 IAK1.E';'n'rcoMU »1-'.IN(;AI-SI >A I'OltTION OF I.OT 8.\V-i).A-l •. lANI.Sl.'DDIVISION-^tff D, ^ KIIAritA.KAII.VI,IIAWA^-^UCENSED^^ PROrESSIOHAL IAHD ^\\SUBWfOR /;^No.12094 VAJLANA SURVEYING A:GEOMATICS LLC PHONE (80a)348-iaia FAX l-800-655-62c7 IN[i'0®AILANASURVEYING.COM ClVnjxhVaO'O^twtlM*Chttrtn\S»m>n Ld.*»» EXHIBIT B MAP DA1ED:OtCember 16,2008 TVSIBflM Vjd PRHPAWD FY Kt 011 OMOt Uy SWtHVUION. itj ixniu gT^ii^i^ti t.fit "^UiTUOHY f.CROOIt UCUfBID PHOnMlOKU,UWD SVKVTTO CtRTVICArg HB.liOM PROJECT|»I 25-08 TMK(4)5-2-012-0.i5 EXHIBIT 9 Mo R-730 STATE OF HAWAII BUREAU OF CONVEYANCES RECORDED APR 29.2003 08:02 AM DocNo(s)2003.07871! /sfCARLT.WATANABE REQISTRAR OF CONVEYANCES 20 1/1 Z2 LAND COURT SYSTEM KEGULAR SYSTEM AFTER FtECORBSTION,RETURN BY MAIL (-X ) -—PICK-UP TO;LORNA A.NISHIMITSU 3135A AKAHI STREET LIHUE,HAWAII 96766 TITLE OF DOCUMENT: DECIARATION OF EXCLUSIVE USE EASEMENT This document conslsts o£ 12.pages. PARTIES-T6-DOCUMENT; DECLARANT:FLOYD A.MILLER,JR.,Trustee of the Floyd A.Miller,Jr.1997 Revocable Trust dated January 16,199B P. O.Box 715 Kilauea,HI 96754 PROPERTy D^SCRTPTlON: TAX KEY:(4)5-2-12-35 and 5-2-12-19 TrBER/PAGET DOCUMENT N0.: TRANSFER CERTIFICATE OF TITLE N0(3).: /2er.(mi/ EXHIBIT 9 DECIARATION OF EXCLUSTVE USE EASEMENT THIS Declaration of Easement is made as of the 5'day of February,2003,by FLOYD A,MILLER,JR.,Trustee of the Floyd A. Miller,Jr.1997 Revocable Trust dated January 16,1998,whose mailing address is P.O.Box 715,Kilauea,Hawaii 96754, hereinafter called the "Declarant", WITNESSETH; WHEREAS,Declarant is the owner of that property being a portion of Grant 2896 to Charles Titcomb,being also a portion of Lot 8-W-9-A-1,Puu Lani Phase II Subdivision and Kilauea Agricultural Subdivision,situate at Kilauea,Kauai,Hawaii, containing 161.88 acres,more or less,and more particularly described as Tax Map Key No.:(4)5-2-12-35 (hereinafter "Parcel 35");and WHEREAS,Declarant is the owner of that property being L.C. Aw.10333 situate at Kilauea,Kauai,Hawaii,containing 0.735 acre^more or less;and more particularly described as Tax Map KeyNo.:(4)5-2-12-19 (hereinafter "Parcel 19");and WHEKEAS,Declarant wishes to designate an exclusive use easeroent over,under and across a portion of Parcel 35,being Easement "GU-4",in favor of Parcel 19 for the use,enjoyment, improvement and ma.tntenance thereof, 2 - NOW,THEREFORE,Declarant does hereby declare,grant and convey unto himself,as Trustee,and Declarant's successors and assigns,an exclusive easement over,under and across Easement "GU-4"for the use,enjoyment,improvement and maintenance in favor of Parcel 19,said Easement "GU-4"being described and depicted in Exhibits "A"and "B",attached hereto. TO HAVE AND TO HOLD the same,for the purposes hereinabove provided,and for long as so used.This Declaration of Easement shall be subject to the following terms,covenants and condi- tions: 1.The owner of Parcel 19 shall have the sole right to use,enjoy,improve and maintain the Easement Area. 2.The Declarant shall not grant any similar or further rights to the Easement Area to any person or entity,without the consent of the owner of Parcel 19. 3.At such tirae that the Declarant no longer owns Parcel 19,Declarant.shall have no right to enter onto the Easement Area,nor to otherwise use,benefit or improve the Easement Area,except to remedy a violation hereof by the owner of parcel 19 as set forth hereln. 4.The owner of Parcel 19 shall use the Easement Area in a manner permitted by,and not contrary to any Federal,State or / County law,statute/code,ordinance,rule or regulation. Except as otherwise provided herein,the owner o£Parcel 19 may deal with the Easement Area as though it were the separate fee simple property of the owner of Parcel 19 and,except as limited herein,is granted a limited power of attorney,coupled the ownership interest in and to Parcel 19,to execute such docu- ments and consents as are reasonably necessary to use the Easement Area aa permitted hereunder. 5.Improvements that are permitted by this Declaration, within the Easement Area,include landscaping,paving and grading provided,however,that all necessary governmental approvals and permits have been first obtained by the owner of Parcel 19 prior to the commencement of the improvements. Construction,installation or erection of improvements or fixtures to the realty which require the issuance of building or other penaits by the County o£Kauai or any other governmental agency,other thsn fencing,are not permitted. 6.The owner o£Parcel 19 understands and agrees that no actions or improvements shall be undertaken which does or will, in the reasonable detenuination ot Declarant,cause Declarant, or Declarant's successors and assigns,to lose,forfeit,delay or impede Declarant's rights and entitlements as they relate to 4 - r r Parcel 35,or subject Declarant or Parcel 35 to civil or criminal actions commenced by governmental agencies or any other party. 7.In the event the owner of Parcel 19 violates the rights of the Declarant hereunder for a period longer than ten (10) days after written notice to the owner of Parcel 19,the Declarant shall have the right to coiranence an action against the owner of Parcel 19 for the abatement of the wrongful use,and/or the removal of tbe violation,and/or for damages resulting therefrom. 8.All improvements permitted hereunder which are undertaken by the owner of Parcel 19 shall meet all necessary governmental standards/conditions and requirements,following which the Easement Area shall be restored to a condition that will not undermine any portion of Parcel 35 or adjoining properties,which will Kiaintain pre-existing drainage patterns, and will not cause any hanuful enviromuental consequences to the Kilauea Stream. 9.The owner of Parcel 19 shall use and enjoy the Easement Area at no cost or expense to the Declarant,and shall repair any adjoining properties or improvements of the Declarant or third parties if such repairs are necessitated by the acts or omissions of the owner of Parcel 19,The owner of Parcel 19 shall indemnify and hold the Declarant hannless of and from any loss,cost,expense or damage,including,without limitation, attorney's and/or consultant's fees and costs,occasioned by the exercise of the rights granted hereimder. 10.The owner of Parcel 19 shall hold the Declarant harmless against and from any and all claims,damages,costs and expenses,including but not llmited to any claims for damages to property and injury or death by the owner of Parcel 19,and the invitees,licensees,agents,employees and contractors ot the owner o£Parcel 19,and of or froa breach or default by the owner of Parcel 19 in the performance of any of the terms, covenants and conditions bereof or from any act or omission of the owner of Parcel 19,and the invitees,licensees,agents, employees or contractors of the owner of Parcel 19.In case any action or proceeding is brought by reason of any such claim,and the Declarant is niade a party to such action or proceeding,the owner of Parcel 19 hereby agrees to pay the reasonatole costs and expenses thereof,including reasonable attorney's fees,incurred by the Declarant in defending the same and any judgment or settlement of such claim secured against the owner of Parcel 19 and/or the Declarant by reason of such action or proceedings. 6 - r r 11.Except as provided herein to the contrary,the owner of Parcel 19 5hall be absolutely liable to the Declarant for any damages to any part of Parcel 35,or to the Declarant's personal property or iinprovements on or upon Parcel 35 which arises from, is caused by,or proximately results from any acts or omissions of the owner of Parcel 19,or such owner's invitees,licensees, agents,employees and contractors,in connection with the exercise by the owner of Parcel 19 or such other person of the rights and privileges granted herein to,or the duties herein imposed upon,the owner of Parcel 19. 12.All use of the Easement Area shall be exercised oc undertaken in such a manner so as not to hlnder,impede,impair or prevent the use and enjoyment of Parcel 35 by the Declarant, including,but not limited to,the quiet enjoyment,ownership, control,use,maintenance or development of Parcel 35. 13.If at any time the Easement Area,or any part thereof, shall be condemned or taken for public use by any governmental authority or utility,the owner of Parcel 19 shall have the right to claim or recover from the condemning or taking authoci- ty,but not from the Declarant,such compensation as may be recoverable for the Easement Area or portion thereof so taken. 14.Tbe rights granted bereunder shall run solely in favor 7 - of the owner of Parcel 19,and may not be assigned,granted or otherwise given for the purpose of benefitting any other person, entity or real property,except to a successor in ownership of the real property interest in and to Parcel 19. 15.In tbe event that any controversy,clain or dispute between Declarant and the owner of Parcel 19 arising out of or relating to the Declaration or the breach hereof becomes part of a legal action or arbitration proceeding,the prevailing party shall be entitled to recover from the losing party reasonable expenses and costs,including,without limitation,reasonable attorney's fees,mediation or arbitration fees and costs,expert or consultant's fees and costs,and court costs. 16.The rights and obligations set fortb herein shall be binding upon,and shall inure to the benefit of,the Declarant, and his successors in interest,successors in trust,assigns, and any other person holding by or through the Declarant. 17.Thls Declaration shall be interpreted under and controlled by the laws of tbe State of Hawaii. IN WITNESS WHEREOF,the Declarant has hereunto set his hand as o(the date and year first above writtei STATE OF HAWAII ) COUNTY OF KAUAI On this :ss day of II-,i^-A'--^.,2003,before me personallyIU-A-.^., appeared FLOYD A.MILLER,JR.,Ti?dstee of the Floyd A.Miller, Jr.1997 Revocable Trust dated January 16,1998,to me known to be the person described in and who executed the foregoing instrument,and acknowledged that he executed the same as his free act and deed as such Trustee./ J-.s- Notary Public, My commission expires: State of Hawali ^..'j'.JOO^ 9 - DESCRIPTION EASEMENT "GU-4" (Exclusive) Affecting Lot 2,portion ofLot 8-W-9-A-1 ofPuu Lani Phase II Subdivision, Portion ofGrant 2896 To Charles Titcomb, Land situated at Kilauea,Kauai,Hawaii. Beginning at the east corner of this easement and the nonh corner of Unit A,Limited Common Element ofKimolana II,portion ofLot 3 ofKahili Makai Subdivision,the coordinate ofsaid point ofbeginning referred to Oovemment Survey Triangulation Station "KILAUEA"being 5,253.43 feet south and 248.22 feet west,thence running by azimuths measured clockwise from True South: 1 2. 4. 32-43' 122-00' 104UOO' 37°19' 336"001 78"17' 58°24' 150.87 56.73 91.10 77.47 27.39 44.33 30.78 feet along Unit A,Limited Common Element ofKimolana II,portion of Lot 3 Kahili Makai Subdivision; feet along R.P.3370,L.C.Aw,10333 to Naaimaneo; feet along R.P.3370,L.C.Aw 10333 to Naaimaneo; feet along R.P.3370,L.C.Aw.10333 to Naaimaneo; feet along R.P.3370,L.C.Aw.10333 to Naaima-neo; feet along remainder ofLot 2 portion ofLot 8-W-9-A-1 ofPuu Lani Phase II Subdivision,portion ofGrant 2S96 to Charles Titcomb; feet along remainder ofLot 2 portion ofLot 8-W-9-A-I ofPuu Lani Phase II Subdivision,portion ofGrant 2896 to Charles Titcomb; Page I of2 eXHIBITA Thence along centerline ofKilauea Stream for the next two courses beiny: 8.140°00'150.00 feet; 9. 10. 260''00' 225°00' 294°00' 150.00 feet; 163 25 feet along remainder ofLot 2 portion ofLot 8-W-9-A-1 ofPuu Lani Phase II Subdivision,ponion ofGrant 2896 to Charles Titcomb; 171.59 feet along remainder of Lot 2 portion ofLot 8-W-9-A-1 ofPuu Lani Phase II Subdivision,portion ofGrant 289£:o Charles Titcomb to the point of beginning and containing an area of l.OIOAcres. TMK:(4)5-2-12:35 Tte^V^ Licensed Professional Land Surveyor Certificate 9033-LS Portugal Surveying &Mapping,Inc. Lihue,Kauai,Hawaii January 30,2003 Page2of2 sl ^^''SS;-'•I°l, 2 S, ^^^^;^.^.'c'^<','*< >-( << ^: t s 1-1 ^i s t s ^: IXHIBIT B EXHIBIT 10 o^^i r !<-(lu/i/,(/,,blatc ol nawdi i r Overview /•)(y Legend D Parcels Roads Parcel 520210070004 Situs/Physical ID Address Acreage 11.612 MalllngAddress CSDEVELOPMENTLLC TotalExemptfons Class RESIDENTIAL KAHILI MAKAI ST TotalMarketValue $2.577,400 Last2Sales TotalAssessedValue $2.577,400 Date Price Reason 1/29/2018 $3000000 VALID 5241ARNOLDAVE Total NetTaxable $2,577,400 SALE MCCI-ELLANAFBCA Value 7/13/2007 $2425000 VALID 95652 SALE Briet Tax Descrlptlon APT D KAHIL]MAKA]ESTATES CM 2914TOG/PARKING STALL/SPACE UND 20%INT IN ALL COMMON ELEMENTS (Note:Not to be used on legal documents) The Geograplilc Infonnation Systenns (GIS)niaps and data are made available solely for informationalpurposes.The GIS data is not the official representation of any of theInfonnatianincluded,and do iiot replace a site survey or tegal docunwnt descriptions.TTie County of Kauai (County)makes or extends no ctaims.represcntations or warranties ofanykind,either express or in^ilied ialuding,without fimitation the impliedwarranties of merchantability and iitnessfor a partcular purpose,as to the quality,conteiit,accuracy,airrency',or comp eteness of the information,text,inaps,graphics,links and other items contained in any ofthe GIS data.In no eventshall the County becomc liable ror aiiy errors or omissionsintheGIS.andwill not under any drcumstances bc liabb for any dircct,indirect,special,incidental.ronsequentiat,or other loss,injury or damage caused by its use or otherwise arising in connection with its^use,even if sperifically advised of the possibility ofsuch bss.injury or ctamage.The data and or functionality on this site may change periodically and without notice.In using the GIS data,users agree to indemnify,defend,and hoy harmless the County for any and all liabidty of any nature arising outofor resulting fromthe lack ofaccuracyorcorrectnessofthedata,or the use of the data. Datecreated:3/29/2021 LastData Uptoaded:3/29/20219.08;37AM Devetoped by Schneider EXHIBIT 10 EXHIBIT 11 o^^i r (IUA/,1/ Statc ot 1 lawai i Overview ,0 ^y Legend D Parcels Roads Parcel 520210060005 Situs/Physical 4254KAHILIMAKAIST TotalMarketValue $1,865.700 Last2Sales ID Acreage 16.76 Class RESIDENTIAL Bnef TaxDescription Address TotalAssessedValue $1.865,700 Date Price Reason MailingAddress CS DEVELOPMENTLLC Totat Exemptlons $0 3/27/2018 $2950000 VALID TotalNetTaxable tl,865,700 SALE Value 12/14/2011 $1250000 VALID SALE UNIT S MANA MELE CM 2797TOG/UND 20%INT IN ALL COMMON ELEMENTS CSDEVELOPMENTLLC 5241ARNOLDAVE MCCLELLANAFBCA 95652 (Note:Not to be used on legal documents) TTie Geographic tnformation Systems (GIS)inaps and data are made avaijable solefy for informational purposes.The GIS data is notthe officialrepresentation of any of the informatfon iiKkjdcd,and do notreplace a site survev or legal document descriptions.TTie County of Kauai (County)makes or cxtends no claims,rcpresentations or warranties of any kind,either express or iinplied,inluding,without limitation the implied warranties of merchantabilitv and fitness for a partkular purpose,as to the quality.content,accurac^,currency', oc coinpleteness of the informatton,text,maps,graphics,links and othcr items contained in any of thc GIS data.In no event shal!thc County become liable for any errors or omissions in the GIS,and will notunder a«ycircuwtaiKes be liable for any direct.iitdirect,spedal,incidental,cort&equential,or otlier loss,injury or damage caused by its use or otherwise arising in connection with its use.even if specificaliy advised of the possibility of such toss,injury or cfamage.The data and or functionality on this site may change perfodicaily and without notice.In using the GIS data,users agree to indemnify.defend,and hoM harmless the County for any and all liability of any naturc arising outofor rcsu!ti[ig from the lack of accuracy or correctness of the data,or the use of ttie data. Datecreated:3/29/2021 Last Data Upbaded:3/29/2021 9:08:37 AM Developcd by Schneider GE05PATIAL EXHIBIT11 EXHIBIT 12 o^^ r r ~(Ut(i/,(/^ ^tatp ol nawai i Overview /}<.. Legend Q Parcels Roads Parcel 520120090004 Sltus/Physlcal 2297KAHILIQUARRYRD Total MarketValue (2.378,200 LastZSales ID Acreage 11.36 Class AG Brief Tax Description Address MailingAddress CSDEVELOPMENTLLC 5241ARNOLDAVE MCCLEILANAFBCA 95652 UNIT4 PARADISE ISLAND RANCH CM 1333 TOG/UND 20%INT IN ALL COMMON ELEMENTS (Note'Not to be used on tegal documents) TotafAssessedValue $2,378,200 Date Price Reason Total Exemptions $0 9/8/2020 $2375000 VALID TotalNetTaxable $2,378,200 SALE Value 12/15/2015 $2150000 VALID SALE TlteGeographiclnforniationSysteinsfGtSlmapsanddata are macfe available sotetyfar informationalpurposes.TheGlSdats is nottheoKkialrepresedtatfonofany ofttie informatiort included,and do notreplace a site survey or lega!documentdescriptrans.The County of Kauai (County)makes or cxterKfs no claims,rcprescntattons or warranties of any kind.either express or iniplicd,inluding.without limitatton,the impiied wsrranties of merchantabitity and fitness for a particular purpose,as to the quality,content.accuracY,currenc^, orcompjetenessoftfieinfornnationi6ext,maps,graph(cs,linksandotherite[nscontainedinanyoftheG1S(i3t3.InnoeventshalltheCountybecome liablefcwanyerrorsorotTussions JntheGlS,at)dwillnotunderanydrcumstancesbeliableforanydirect,indirect,specjaI,incidenta),consequenEial,orotherk)SS,i(ijurYordamagecausedbY iK use or othcrwise arising in connection with its use,even if spedfically advjsed of the possibility of such bss,inj'ury or damage.The data and or functionality on this site may change pcriodical^and without itotice.tnusinetheGISdata,usersagreetoiiideiTnifV)defend,andho)dharmlesstheCountyforanyanda)l)iabilityofanynaturearisingoutoforresulti)igfromthelackof accuracy or correctness of the data,or the use of the data. Datccreated:3/2V/2021 Last Data Uptoaded:3/29/2021908:37 AM Devetoped by Schneider QEOSPATIAL EXHIBIT12 EXHIBIT 13 ol\^i r r p~(UUl-,(/,,iitat?ot nawai i Overview 6'^" Legend [_]Parcels Roatis Parcel 520120150003 Situs/Physlcal KILAUEARD TotalMarketValue $445,600 Last2Sales ID Address TotalAssessedValue (445.600 Date Prtee Reason Acreage 1.456 MallingAddress CS DEVELOPMENTLLC TotalExemptlons $0 2/25/2008 $1050000 VALID Class AG 5241ARNOLDAVE TotalNetTaxable $445,600 SALE MCCLELLANAFBCA Value 4/11/2005 $840000 VALID 95652 SALE Brlef Tax Descrlptlon UNIT 3 KILAUEAWATERFALL FARMS CM 3616TOG/UND 20%INT IN ALL COMMON ELEMENTS (Note:Not to be used on legal documents) The Geographic Information Systems (G1S)maps anddata are made avaitable sotely for inforinationalpurposes.The GIS data is not the official representaUon of any of thenm?tio"!r>cludedl and do not rePlace a site survey or legaldoaimentdescriptuns.The County of Kauai (County)makes or exteiids no ctaims.representations or warranties of any kiivi,either express or itiplied,inlucting,without limitation.the implied warranties of merchantabiliFy arri fltness for a particular purpose,as to the quality.contcnt,accuracy.currency. or completencss of the information,text,maps,graphics,liiiks and other items contained in any af the GIS cfata.In no event 5hall the Counfry become liabie for any errors or omi&skias In the GIS,and will notunder any circumstances be liable for any direct,indjrect,speciat,incidental,consequential,or other loss.injury or damage caused by its use or otherwise arising inconnection with its use.even ifspecificalfy advised of the possibility ofsuch loss,inj'ury or dannsge.T^ie data and or functionallty on this site may change periodically and without nofee.In using the GIS data.users agree to indeinnify,defend,and haU harmless the County far any and all liability of any nature arking out ofor resulting fromthe lack of accuracy or correctncss of the data,or the use of the data. Datecreated:3/29/2021 Last Data Upk)aded:3/29/20219.08:37 AM De««k>pedbv^,^^Schneider GEOSPAT1AL EXHIBIT 13 EXHIBIT 14 IN THE CIRCUIT COURT OF THE FIFTH CIRCUIT STATEOFHAWAI'I WEST SUNSET 32 PHASE1 ,LLC; CHARLES SOMERS,as Trustee ofthe Charles Somers Living Trust;and CHARLES SOMERS,Individually, Appellants, V. COUNTY OF KAUA'I PLANNING COMMISSION;COUNTY OF KAUA'I PLANNING DEPARTMENT,by its Director,Ka'aina Hull;MICHAEL KAPLAN,Trustee ofthe Michael A.Kaplan Revocable Trust,dated August 12,1992 as amended and restated by instruiTient dated July 16,2017, Appellees. CIVILN0.5CC191000105 (Administralive Appeal) DECLARATION OF ROHN BOYD DECLARATION OF ROHN BOY D I,ROHN BOYD,declare as follows: I.I am a friend and professional associate ofCharles Somers. 2.I am aware of Mr.Somers concerns regarding the legality ofthe Kaplan development and its negative effects on tlie conservation easement portions of Mr.Somers' property and to Mr.Somers'personal use and enjoyment of the iiatural beauty ofthe Kilauea valley area. 3.I am familiar with the Kaplan properties identit'ied as TMK Nos.(4)5-2- 012:019 ("Parcel 19")and (4)5-2-021:041-0001 (por.)("Parcel 41")(collectively the "Properties")based upon my own personal observations and having taken pictiires of the proyress ofKaplan's development overthe past year. EXHIBIT 14 4.Attached as Exhibit "W"is a true and acciirate picture depicting a ponion of Parcel 19 taken on March 10,2021.This picture shows that Kaplan has installed the roof framing,sheathing and peel and stick membrane on the single family residence being constructed on Parcel 19.This picture shows that the construction and development ofthe house structure exceeds the condition of house as it existed on June 9,2020,as depicted in that certain picture that I took ofthe structure on June 11,2020. 5.Attached as Exhibit "X"are two true and accurate pictures depicting Parcel 41 and Parcel 19.The first was taken on March 10,2021 and the second was taken on March 16, 2021.The first picture shows that significant grading,grubbing and removal oftrees and other materials had occurred on the Properties on the hillside above the structures since I observed and photographed the Properties on June 11,2020.In addition to the extensive grading and grubbing that I observed,the upper middle portion ofthe first picture shows that additional terracing ofthe hillside and a new trail were added since June 11,2020.The second picture shows that additional grading,grubbing and landscaping has been occurring within the historic sites contained in Parcel 41.The grading,grubbing and landscaping is near the unnamed stream that flows into the Kilauea River and it appears that erosion and runoff are emanating from this area into the stream and river. I declare,verify and certify that the foregoing is true and correct. DATED:Lihu'e,Hawai'i,March 18,2021. RQH)^B6yD t-9N^&^^s'w^isfy^wi^fe-^.^' -'::'/'-.^'^^,:.-:/-.^'^^^£'^1^^^.^l^^^>-''^^-i>'3^^.'S^i^^-^^^'^^.-^^"^"^d ^Si^'S*^.- EXHIBIT 15 UAVIDY.1GE (ioVI.HNdliol 1 lAWAtl STATE OF HAWAII DliPAICI'MEN'l'OF LANU AND NA'I'URAL RESODRCES STATE HISTORIC PRESERVATION DIVISION KAKUHIIIEWABUILDING 601 KAMOKILABI.VB..STE555 KAPOLEI.Hl 96707 SU7^N-»li U,CASK tll.MKII.H'.fAM l«IMifl(]t [ANDANDNAniltrtlKI.'il'IWll^ l)MMKSK)M<WWftl)Ktll-<l)IIKU;M.\NMil:MlfJl M.KA 1.1:0 MANUEL IM.IIIITlMKII.Illrt-WAll (t Ay<i''iifKi.>.t)iF)(fl.>i IIDAIIMIAHDK.I.AHKI.LIU-AIIIW lltlHIAl;()l t'ONVl-YANtl-t CllMMlSSIDHOHWAIIHKI-SOIWrMANAdl-MI.MI t.'tWil-.liVAriDHAMlK'tWilAI.IAWl.S V<»tSI'HVAIHMAWSHt!»IIWVmi tll<V\MI.HI IMilNlilAlXO lt)M.SI[tVANI)WllDI.Il j- hl'i [()HK'lt<l-*il;KVA1K)N KA))IX>I^WI;l*ilANI)Klr*il-KW<'<lM 'i'il()N )ANI> SIAD'I'AHKS IN REPLY REFER TO: LogNo.2019.02548 Doc.No.2003DBOI Archaeology March 6,2020 Ka'aina S.Hutl,Planning Director County ofKaua'i,Planning Depailinent 4444 Rice Slreet,Suite A-473 Lihu'e,Hawai'i 96766 ktlu|t(%k_ayai.ROv DearMr.Hull: SUBJECT:HRS Cliapter 6E-42 Historlc Preservntion Rcview - SMA Permlt;SMA U-2011-1;Clnss IVZoningandUscPcrmil:2011-1; Zoning Permit:Z-177-2020;Building Permit:19-2096, Relocation Permit |ofstructure|;19-2482) Archaeological Prescrvation Ptan for a Portion ofSite 50-30-04-2011 Ktlhili Aliupuii'a,Ko(olau;i District,(sland of Kaua<'i TMK:(4)5-2.021;041 por.Lol 0001] This letter updates the State Historic Preservation Division's (SHPD's)previous review dated January 31,2020 (Log No.2019.02548,Doc.No.2001DB03)for the subjecl permils and llre drafl arcliaeological litled,,'fn /irchaeological Preservafion Planfor a Portion ofS'tte 50-30-04-201!,Kahili Ahufwa'a,Ko'olaiia Di\{ficl,fsfancf ofKuim 'l fTMK (4)S-l-021:0-11-0001/(Kepa'a and Clark,Noveinber 20 19;reviscd January 2020). The remaiiider oftliis letter reniaiiis unchanged with the singie addition ofSHPD's insertion ofseveral paragraphs iiidicating the pian is accepted and that the permit issuance process may procecd. SHPD received the draft preservation plan,aloiig witli copy of SHPD's !etter dated July 24,2012 (Log No. 2011.3284.Doc.No.1206TS13)which slales the following: The portion ofStte 2011 located outside TMK (4)5-2-12:019 is recoinmended for fuilher work,including tlie preservation of a preservation plan.It is proposed that the preservation plan accoinmodate the functional restorafion oftlie irrigation system,wliich \ve support,We conciir with this recommendation and look forward to receiving a preservation pian. SHPD reqiiested revisions to the draft preservation plnn (PP)via einail 011 January 12 and 19,2020 (Susan Lebo [SHPD]to Robcrt Rechtman and Matt Clark [ASM AfflliatesJ)and received a revised pian via email on January 21, 2020 (Matt Clark [ASM AfHliales]to Susan Lebo and David Buckley [SHPD]). ASM Affttiates prepared the preservation plan (PP)on behfilfofthe current landovvners,landowners Michael and Rose Kaplaii,and in accordaiice witli Hawaj'i Administrative Rules (MAR)§13-277-3.The PP states the following: The cuiTent landowners purchased this parcel as part ofa targer property on October (7,2018,anct have initiEited the preparation ofthis Archaeological Preservation Plan in order to satisfy the requirements ofthe SMA &Zoning permits (SMA Permit;SMA U-2011.1,Class IV Zoning and Use Permit:2011-1;Zoning Permit:Z-177-2020;Building Permit:19-2096;Relocalion Permil [ofstructure):19-2482)that wcre issucd to a previous landowner (in 2011),and also to comply with the Depai-tment of Land and Natural Resoiirces- State Historic Preservation Division (DLNR-SHPD)historic preservation commitments for Site 2011 thai vvere agreed to by the prior landowner.No deveiopment activities are currently proposed for the subject parcel. EXHIBIT 15 Mr.Ka'aina S.Hull March 6,2020 Page2 The project proposed by t!ie previous fandowncr,associl^tcd with the perniits identifled above,invofved plaiined construction ofa single-family residence on tlie property.The project area/parcel consists of Unit A ofthe 5-unit Condoininiuni Property Reginie (CPR)known iis Kimolaiia II,aiid Ets associtited easements. Kepa'a and Claik (Jaiiuary 2020)indicate tliat Sitc 2011 consists ofan agrJCLiltiiral complex of69 formerly irrigated, terraccd ficlds (Fields 1 -69)located witliin a roughly 4.5-acre area on a slight to moderate slope above (southeast of) KTiaiiea Strcaiii.Arcliival documeiits siiggest tliat Site 2011 was iised for rice and vegetable cultivation during the late ninetecnth and early twentietii centLiries,and that thy rice fields were built upon an earlier ktiiu and lo'i agricultural systeni tliat was presenl at the lime oftlie Muhele. Cltirk and Rechtinan (2010)coiiducted an arciiaeological inventory survey (AIS)of TMK:(4)5-2-012:019,an 0.735-acre kuleEina parcel.They dociimenled nine fields or portions of fields of Site 2011,which were mapped in detail and subject to backhoe testing.Site 2011 was assessed as signiflcant under Criterion d and recommended tbr no fufther work witliin the subject parcel,SHPD concurred and acccpted the repoft in a letter dated April 5,2010 (LogNo.2010.0523,Doc.No.1003MV03). Siibsequently,Clark et al,(2011)conducted an AIS of approximately roughly 21 acres,belonging to the same landowner,including TMK:(4)5-2-021:041 and portions of TMK:(4)5-2-012:035 and (4)5-2-021:004.They documented an 'mnrai (ditch)and 60 addilional terraced Helds ofSite 2011 within TMK:(4)5-2-021:041.Tl]c Site 2011 were expanded to encompass to include the 'aiwai aiid additional flelds,and the portion ofSite 2011 within TMK:(4)5-2-02 !;041 was recommended for preservation.Ofthe 69 documented fields (Clark and Rechtman 2010, Clark c(al.2011)>65 Helds (17ields 1,4,5,7, 9,iind 10 throiigh 69),along with the 'aiiwai feature,are partially or entirely within TMK:(4)5-2-021:04i.SI-fl:>D concLin'ed with tlie recomineiidation ofpreservation tbr the portion of Sile2011 withinTMK:(4)5-2-021:041-0001 (July 24,2012;Log No.20]1.3284,Doc No.1206TS13,and requested that a preservation plan,accoinmodaling the potential functiona)restoration oFlhe irrigation systein,be prepared for the site. Kapu'a and Clark (2020)jndicate the followlny interim protectioii nieasurcs for Site 2011: (1)No interim protection measures are necessary at this time,as no development is ciirrently proposed. (2)Ifformal development activities that include groiind disturbiince are proposed in the future,tlien inlerim protection measures and procedures will be estabiished and subinitted lo SHPD as an addendum to this |)lEtn prior to the commencement ofthose activities. Kapa'a and Clark (2020)indicate the fbllowing permanent preservation measures for Site 2011: (1)The iandowiiers will impleinent tlie peimanenl preservation ineasures described in this pian and ensure that all requirenients and restriclions associated with the preservation area are incorporated into the property deed.TIiey will also retain the managemcnt responsibilities <^ssociated witli the perpctual prescrvdtion ofSite2011 through tlie permanent preservation measuresoutlined below. (2)Preservation in-place will involve a coinbinatioii of avoidance and protection (conservation), stabilization,and rehabilitation; (3)A legal docuinent describing the boundary ofthe preservation area within the siibject parcel,along with a copy ofthis preservation plan,will be recorded with the Bureau ofConveyances; (4)The permaneiit preservation measures associated with this site are as foilows: a.The landowners are responsible for ensuring compliaiice with all preservation plan provisions, b.A single preservation area will bc established for tlie site,using a biiffer of 10 feet ffom tlie denned edge oftlie reatures (Figure 78).In the soiitlieastern portion ofthe project area,the buffer will tbilow aiong tlie edge oflhe iinnamed streain until the 'aiiwiU'is reached,at which point thc bufTer will follovv along the southern coiitour of the 'aiwtii at a distance of 10 feet until the western corner of tlie project area is reached.At this point,tlie buffer will extend northeast along the boundary of TMK:(4)5-2-012:019 and then along the trorthwestern boundary ofthe current study parcel to its nortliwestern corner.Tlie buffer will continue along the northern boundary ofthe project area until the northeastern-most feature of Site 2011 is reached,at whicli point the biiffer witl resume at a disttinceoflO feet from theedgeoflhe featiires. Mr.Ka'aina S.Hull Mareh 6,2020 I'age 3 c,Any development pennitted within the preservation area will be situated in sucii a way thai ii itvoids jnipacting any ofthe featiires ofSite 2011. d.The hand clearing ofvegetation wilt be allowed,as will ihe removal oflitter in and around the sile. Trees and brush will be ciit by powered hand toois such as cliainsaws and weed eaters to expose underlying terraces,rock wails,and archaeologicEil surface features.Large trees will be left in place or stumped,biit not uprooted diiring this initial phase ofclearing to avoid impacts io features.Goats or other ungLilates may also be used,in confined,controlled ai-eEts to help to remove vegelation and iinprove soils.Green waste will be composted and managed on sile in areas vvliere no damage will result to underlying archaeological featiires. e.Landscape maintenance in larger areas,may include the use mechanical clearance of vegetatioii, pfoviding that doing so poses no risk orphysical impacts to any oflhe featiires thereby diminishing tlieir physical and/or visiial integrity.Use of a bobcat,backhoe or similar machinery is also pennissibie to mobilixe &manage green waste under the same stipulatioii.Wood chipping equipment can be iiscd to breakdown sinailer diEimeter brush,and a bobcat,backhoe or siiniliir ln(^clunel·y can be used to reinove large tree stumps in terraced fields,In soine instances,a stunip grinder inay also be utilized,biit stumps that are growing in close proximity to rock walls and/or other arcliaeological features must be left in place Eftheir reinoval would irreparably damage the feature.In siich cases,copper spikcs or other non-toxic agents could be used to kill the root systeins, and stiimps would be ailowed to decoinpose over time.Every effort will be made to protect arcliaeological fealures,riparinn arcas and natural resourees frorn damage.The use of any heavy eqiiipment will be undertaken with great care so as to mitiimize impacts.When necessai'y,earthen ranips will be built to bn'dge over existing rock walls,creating avenues for machinery to pass ihi'OLigh.As unwanted brush within the project area is removed,the landowners may reestablish agriciilturEil practices within the field system or create maintaincd fawns with ornamcntal landscaping as tliey see f1t. f.The landowners will maintain the visual and stnicturEit integrity of the features through sile stabilization (e.g.repair and reslacking rock walls),This will be accomplished by pefiodically inspecting the rock walt features. i.Ifthe condition ofany ofthe features are found to have deterioratcd between inspections,then the landowner is responsible for carefully stabiiizing the impacted features in the least invasive manner possible,Lising originsl materiais and construction methods in stich a wny that preservcs the original characterofthe deteriorated feature and the overall integrity ofthe site. ii.Aiiy significanl iinpacts to Site 2011 will be immediatefy reported to SHPD,who in coiijunctioii with (he landowner,will assess the condition ofinorc severely iinpacted teatures and conceptualize an appropriafe plan for mitigation. g.As this is private property,no visunl inarkers are proposed for the permanent preservation biiffers, and the site wiii not be identified by signage or interpreted.Additionally,because tlie preservation site was not assessed as significant under Criterioii e,no special provisions for access to the sile,or possible use ofthc site for cultural practices,are inciuded 111 the cut'rent plan.In accordance witli HAR §13-277-6(8),upon request to thc landowner,SHPD shall be afforded reasoniible access for inspection to eiisure coinpiinnce with Ihis preservalion plan. h,SHPD sliall be consulted regarding futiire permitting so that the historic preservation review process can properly continue in accordance with IfAR §13-284. 'I'lie PP inects the niiniinum requireinents ofHAR §13-277.It is acccptcd.PIease send two hard copies ot'the PP, cleiirly marked FINAL,along with a copy ofthis tetter and a text-searchable PDF version ofthe plan to the Kapotei SI-IPD ot'ltce,attcntion SHPU Library,Additionaily,send a digital copy ofthe PP to JchiiEi.k.soares@hawaii.gov. SIIPD hcreby iiotiHcs the County that the preservation plan has been accepted,and the penmt issuance process may proceed,SHPD requests the opportunity to revicw any future projects proposed invoiving groiind disturbing activilies and to receiving written and photographic documentation ifany future site stabilization work is proposed pnor to initiation. l^lease contact Sussn A,Lebo,Archaeology Branch Chief,at (808)692-80)9 or at Siisan.A.Lebo(%hawaii.goY or David Buckley,Kauai Lead Archaeologist,at(808)462-3225,or at pavid.Buckley^hawaiLfioy for any questions regardiiiglhis letter. Mi.Ka'aina S.Hull Marcli 6,2020 Page 4 Mff'J)oii/iisr Alaii S.Downcr,PhD Adininistrator.State Historic Preservation Division Deputy Stitte Hjstoric Preservation Of'flcer cc:Michael Kaplan,inkapJanfrtijEikeshoreleiirnin^.com Kose Kaplan,rosecontreras(%mac.co(ii Morgan Bowen,aiimlhoyse@email.com Bob Rechtmaii,ASM Affiliates.brechtnnajifftiasmaffliiates.com Matt Ctark,ASM Af'liliates,inc]ark(%asni_affiliates,com BEFORE THE PLANNING COMMISSION OFTHE COUNTY OF KAUA'I In the Matter ofthe Application Of MICHAEL KAPLAN,Trustee ofthe Michael A. Kaplan Revocable Trust,date August 12,1992 as amended and restated by instrument dated July 16,2017,affecting real property located at Kahili Ahupua'a,Hanalei,Island and County of Kauai,State ofHawaii,more particularly identified asTax KeyNo.(4)5-2-012:019,and containing an area of 32,034 sq.ft.,more or less, USE PERMIT N0.U-2021-7;CLASS IV ZONING PERMIT N0.Z-IV-2021-8 CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a copy ofthe foregoing document was served by U.S.Certified Mail,postage prepaid,on the following: KA'AINA S.HULL Planning Director Planning Department CountyofKaua'i 4444 Rice Street,Suite A473 Lihue,Hawai'i 96766 SECRETARY OF THE KAUAI PLANNING COMMISSION LAUREL LOO,Esq. MCCORRISTON MILLER MUKAI MACKINNON 4357 Rice Street,Suite 102 Lihu'e,Kauai,Hawaii 96766 Attomeys for APPLICANT MICHAEL KAPLAN,Trustee ofthe Michael A.Kaplan Revocable Trust DATED:Lihu'e,Hawaii,April5,2021. CADES SCHUTTE LLP MAUNXXEA" Attomey for Petitioners-Interveners WEST SUNSET 32 PHASE 1,LLC; CHARLES SOMERS,as Trustee ofthe Charles Somers Living Trust; CS DEVELOPMENT LLC; and CHARLES SOMERS,Individually 1003 Bishop Street,Suite 2300 Honolulu,HI 96813 Phone 808.^24^644 Fmc 808.1-99.1881 info@bfrhawaii.com •\Li/'v C.'fi!~i^i!\i/!"n Bronster Fujichaku Bobbins ATTO R N EYS A 7 A W April6,2021 VIA FACSIMILE and U.S.MAIL Ms.DonnaApisa,Chair County of Kauai Planning Commission 4444 Rice Street,Suite A473 Lihue,Kauai,Hawai'i 96766 Re:In the Matter of the Applicadon of MICHAEL KAPLAN,Tmstee of the Michael A.Kaplan Revocable Trust,date August 12,1992 as amended and restated by instrument dated July 16,2017, affecting real property located at Kahili Ahupua a,Hanalei,Island and County of Kauai,State of Hawaii,more particularly identified as Tax Key No.(4)5-2-012:019,and containing an area of 32,034 sq.ft.,more or less Dear Ms.Apisa, This letter is to inform the Commission that the Applicant,Michael A. Kaplan,will submit a written opposition to the Petition for Intervention filed by West Sunset 32 Phase 1 ,LLC,Charles Soraers,as Trustee of the Charles Somers Living Trust,CS Development LLC,and Charles Somers,Individually. The opposition will be filed by 5:00 p.m.on Friday,April9,2021. Should you have any questions or require additional informadon,please contact me. Respectfully, /s/Rex Y.Fujichaku RexY.Fujichaku cc:Laurel Loo,Esq. Mauna Kea Trask,Esq. Chris Donahoe,Esq.1=.^lc.^ ;1 3 2021 Ka'aina S.Hull Director of PIanning I.SUMMARY COUNTY OF KAUA'I PLANNING DEPARTMENT DIRECTOR'S REPORT Jodi A.Higuchi Sayegusa Deputy Director of Planning Action Required by PIanning Commission: Consideration of Shoreline Setback Variance Permit to allow the constmction of a fence within the Shoreline Setback Area. Permit Application Nos.Shoreline Setback Variance Permit SSV-2021-1 Special Management Area Minor Permit SMA(M)-2021-15 (Transmitted to Commission for Informational Purposes) Name of Applicant(s)AOAO MAKAHUENA AT PO 'IPU II.PERMIT INFORMATION F.^.A L V:\2021 Master FNes\Regulaf-ory\Shorelme Relared Approvals\SSVs\SSV-202 1 -1 \Report\ReporT-1 3.23.21 _SSV-2021 -I _Makahuena.docx'^1 3 202? PERMTTS REQUIRED Q Use Pennit 1]Project Development Use Permit Variance Permit Per Section 8-27.7 ofthe CZO,a Shoreline Setback Variance is necessary as the proposal is not generally pennitted within the shoreline setback area. Special Permit I1 Zoning Permit Class DIV D iii ^O Special Management Area Permit QUse Minor Pursuant to Section 8.0 of the County of Kaua'i Special Management Area (SMA)Rules and Regulations,as amended,a Special Management Area Minor Permit is required for any development,structure,or activity within the Special Management Area that does not exceed $500,000;and which has no substantial adverse enviionmental or ecological effect,taking into account potential cumulative effects.As represented,the estimated constmction costs associated with this project is $425,000. Therefore,an SMA minor permit is required because the project cost does not exceed $500,000. Date of Receipt of Completed Application: Date ofDirector's Report: Date ofPubIic Hearing: Deadline Date for PC to Take Action (60 Day):May 21,2021 III.PROJECTDATA February 18,2021 March 23,2021 APRIL 13,2021 SSV-2021-1;Director's Report AOAO Makahuena of Po'ipu M.1rch23,2021 a|Page AMENDMENTS [_|Zoning Amendment [_]General Plan Amendment I1 State Land Use District Amendment PROJECT INFORMATION Parcel Location:The project site is located on Pe'e Road approximately half-mile east from Po'ipu Beach Park and approximately 1 mile west from The Grand Hyatt Kaua'i Resort and Spa. Tax Map Key(s):(4)2-8-020:003 Area:3.867 acres ZONING &DEVELOPMENT STANDARDS Zoning:Resort (RR-20) State Land Use District:Urban General Plan Designation:Resort Height Limit:Four (4)stories or Forty (40)feet maximum Max.Land Coverage:50%maximum Front Setback:lO'-O" Rear Setback:5'or */2 the wall plate height whichever is greater Side Setback:5'or '/2 the wall plate height whichever is greater Community Plan Area:South Kaua'i Community Plan Community PIan Land Use Designation:N/A Deviations or Variances Requested:To constmct a fence within the shoreline setback area. IV.LEGAL REQUIREMENTS Section 8-27.9(C),KCC:Except as otherwise provided in this Section,all applications for variances shall be heard,noticed,and processed as public hearing matters.Not less than thirty (30)calendar days before the public hearing date,the applicant for a variance shall mail notices of public hearing by certified or registered mail,postage prepaid, to owners of real property which abut the parcel that is the subject of the application.Not less than thirty (30) days prior to the public hearing date,the Director shall publish a notice of hearing once in a newspaper that is printed and issued at least twice weekly in the County and which is generally circulated throughout the County.The notice shall state the nature of the proposed development,the date,time,and place of the hearing, and all other matters required by law. PubUc Hearing Date:APRIL 13,2021 V.PROJECT DESCRIPTION AND USE The applicant is proposing to constmct a six (6)foot high perimeter fencing project along the east and west sides of the subject property,coustmct two (2)sections of four (4)feet high fences along the cliff side on the southem (makai)portion of the subject property,and a four (4)to six (6)foot fence along three (3)sides of an existing single-family dwelling. The proposed fence on the eastem portion of the property will be approximately six hundred fifty-thiee (653)linear feet and two hundred fifty-three (253)linear feet on the west side.Along the makai portion of the subject property,the two (2)four(4)foot high sections will have a length of approximately one hundred fifty-four (154)and one hundred sixty (160)linear feet.The fencing along the existing single-family dwelling has a length of approximately one hundred seventy-six (176)feet (refer to Exhibit "D-1"of the Application).The proposed fencing design would be a colonial alummum style with nan-ow balusters between top and bottom rails (refer to Exhibit "D-2"of Application). VI.APPLICANT'S REASONS/JUSTIFICATION The proposed fencing along the eastem and westem boundaries of the property is to replace an existing chain link fence and to clearly define property lines.The makai portion ofthe fencing is designed to protect owners,guests,and members of the public from possible fall hazards along the steep rocky shoreline cliffs. VII.ADDITIONAL FINDINGS SSV-2021-1;Du-ector's Report AOAO Makahueaa ofPo'ipu March23,202I 3|Page 1.The project location is located in Po'ipu,Kaua'i,Hawai'i and is identified as Tax Map Key number (4)2-8-020:003 (see Exhibit "C-l"). 2.The State Land Use District (SLUD)designation for Parcel 13 is "Urban"which allows for urban growth in a specified area. 3.The subject property is within the South Kauai Commimity Plan (SKCP)and should comply with the plaiming vision and of the South Kauai area.The applicable vision and goals taken from the SKCP reads: (c)"Visionfor Po'ipu.Po'ipii will be a world-class,sustainable resort destination,serving residents and visitors alike,developed responsibly,with clean,healthy beaches and ocean environments, welcoming parks,and preserved heritage resources,allwell- connected and accessible to everyone . 4.The subject property consists of a rocky shoreline directly abutting the ocean and is within five hundred (500)feet of the shoreline.Minor structures such as fences are allowed within the setback area as long as it is located more than forty (40)feet from the shoreline (Sec 8-27.2 and Sec 8-27.7).Portions of any fencing within the forty (40) feet setback requires a Shoreline Setback Vaiiance (SSV).The applicant prepared and received approval of the Final Environmental Assessment (FEA)and obtained a Finding ofNo Significant Impact (FONSI).In conjunction with the FEA and FONSI, the applicant has received approval of the Certified Shoreline Survey Map that is identified as File No.KA-433,dated April 17,2019 (see Exhibit "E-l"of Application). 5.The proposed development is located within Zone "VE",Zone "AE",Zone "XS"and Zone "X"of the Federal Emergency Management Agency Area (FEMA)Flood Insurance Rate Map (FRM)/FEMA.The proposed fencing is located within Zone "XS".FIRM/FEMA has identified "XS"areas of 0.2%annual chance of flood;areas of 1%annual chance flood with average depths of less than 1 foot or with drainage areas less than 1 square mile;and areas protected by levees from 1 %annual chance flood.In addition,this area is situated within a Tsunami Evacuation Zone. 6.Special Management Area (SMA) In addressiag the issues of the Special Management Area and its objectives and policies,the following aspects will be considered and evaluated: Pursuant to Section 8.0 of the County of Kaua'i Special Management Area (SMA) Rules and Regulations,as amended,a Special Management Area Minor Permit is required for any development,structure,or activity within the Special Management Area that does not exceed $500,000;and which has no substantial adverse environmental or ecological effect,tali.ing into account potential cumulative effects. SSV-2021-1;Director's Report AOAO Makahuena of Po'ipu March 23,2021 4|Page As represented,the estimated construction costs associated with this project is approximately $48,855.92.Therefore,an SMA minor permit is required because the project cost does not exceed $500,000.The project is being reviewed under SMA Minor Permit number SMA(M)-2021-12. 7.Shoreline Setback Variance A shoreline setback area variance may be considered for a structure otherwise prohibited by Article 27 of the Kaua'i County Code (KCC),Comprehensive Zoning Ordinance (CZO),if fhe Commission finds in writing,based on the record presented, that the proposed stmcture meets those standards established under Section 8-3.3 and it is necessary for or ancillary to: a.Cultivation of crops; b.Aquaculture; c.Landscaping; d.Drainage; e.Boating,maritime,or water sports recreational facilities; f.Stmctures by public agencies or public utilities regulated under HRS Chapter 269; g.Private and public structures that are clearly in the public interests; h.Private and public structures [which]that will neither adversely affect beach processes nor artificially fix the shoreline; i.Private and public structures that may artificially fix the shoreline but not adversely affect beach processes; j.The Commission may consider granting a variance for the protection of a dwelling unit or public infrastructure; k.Constmction of a new dwellmg unit. 1.Rebuilding of an existing dwelling unit 8.CZO Development Standards The proposed development is subjected to standards prescribed in Sections 8-4.3(4). a.Setback Requirements:No eave,roof overhang,or other appurtenance to a building,other than a fence under six (6)feet m height,shall project into any setback more than one-half (1/2)the distance of the setback,or four (4)feet, SSV-2021-1;Director'a Report AOAO Makahuena of Po'ipu March23,202I whichever is less.The proposed fence will be at four (4)feet to a maximum of six (6)feet high. (d)AGENCY COMMENTS See attached Exhibit "A" (e)PRELIMINARY EVALUATION In evaluating the Applicant's request to allow the coustmction of a perimeter fence along the east and westsides of the property and fencing along the makai portion of the property placed less than forty (40)feet away &om the shoreline. 1.General Plan The subject property is designated "Resort"within the County ofKaua'i's General Plan.The fencing project will provide safety for residents as well as the public who use the rocky shoreline for recreational or nature observing purposes. 2.South Kaua'i Communitv Plan The proposed fencing will not conflict with the planning goals and objectives for the South Kaua'i area (see Sec.10-6.19(a)(b)(c)ofthe KCC,CZO). 3.N^tiye Hawaiian Traditional &Cultural Rights The Final Environmental Assessment reached out to thiee cultural experts familiar with the area,to ensure the protection of traditional and customary rights to the property. The cultural practitioners have identified the cultural and gathering practices of pole fishing along the rocky shoreline.Any cultural or historic resources have been long ago been destroyed.The mterior portion of the property is not used for any cultural, religious,or gathering purposes.A list of the community members with cultural knowledge of the area are listed within the application (See Section 14,page 23 of the application). 4.Shoreline Setback Variance In evaluating the proposed development,Section 8-27.10(b)ofthe CZO states that a stmcture may be considered for a variance upon grdunds of hardship if: (1)The applicant would be deprived of all reasonable use of the land if required to fully comply with the provisions of the provisions of this Article; (2)The applicant's proposal is due to unique circumstances and does not draw into question the reasonableness of the provisions of this Article;and (3)The proposal is the best practicable altemative which best conforms to the purpose of the provisions of this Article." SSV-202I-l;Director'sReport AOAO Makahuena ofPo'ipu March 23,2021 6|Page One of the criteria of approval of a variance as mentioned Section 8-27.10(a)(7)of the CZO reads,"a shoreline setback variance may be considered for a structure otherwise prohibited by this Article,if the Commission finds in writing,based on the record presented,that the proposed stmcture meets those standards established under Section 8-3.3 and is necessary for or ancillary to: (7)Private and public stmctures that are clearlv in the public's interest" In consideration of the foregoing standard,it is noted that a fence is classified as a minor stmcture and is generally pennitted within the shoreline setback area as long as it is located more than forty (40)feet from the shoreline (Sec 8-27.2 and Sec 8-27.7).The proposed variance applies only to portions of the fence that is being proposed makai of the property and less than forty (40)feet away from the shoreline.These portions of fencing will be constructed on a naturally occurring rocky shoreline.The non-eroding basalt cliffs has an average height of thirty-eight (38)above mean sea level (MSL).The proposed fencing along the east and westsides will be in compliance with the County of Kaua'i Shoreline Setback Ordinance and Comprehensive Zoning Ordinance development standards. (f)PRELIMINARY CONCLUSION Based on the foregoing findings and evaluation,it is concluded that through proper mitigative measures,the proposed development would not have any detrimental impact to the envirorunent or the surroundiag area and is in compliance with the criteria outlined for the granting of a Shoreline Setback Variance. The Applicant should institute the "Best Management Practices"to ensure that the operation of this facility does not generate impacts that may affect the health,safety,and welfare of those in the surrounding area of the proposal. The Applicant shall implement to the extent possible sustainable building techniques and operational methods for the project. In addition,the proposed development complies with the policies and guidelines of the Special Management Area Rules and Regulations in that: 1.The development will not have any substantial adverse environmental or ecological effect. 2.The development is consistent with the objectives/goals/policies of the County General Plan,the Comprehensive Zoning Ordinance,and other applicable ordmances. Furthermore,the proposal DOES NOT: 7|Page SSV-2021-1;Director's Report AOAO Makahuena ofPo'ipu March 23,2021 a.involve dredging,filliug,or otherwise altering any bay,estuary,salt marsh,river mouth,slough or lagoon; b.reduce the size of any beach or other area usable for public recreation; c.reduce or impose restrictions upon public access to tidal and submerged lands, beaches,rivers or streams within the special management area;and d.adversely affect water quality,existmg areas of open water free of visible structures,existing and potential fisheries and fishing grounds,wildlife habitats, estuarine sanctuaries or existing agricultural uses of land. (g)PRELMINARY RECOMMENDATION Based on the foregoing evaluation and conclusion it is hereby recommended Shoreline Setback Variance SSV-2021-1 to be APPROVED and that the proposed uses and improvements shall be operated and constructed as represented.Any changes to said development shall be reviewed by the Planning Director to determine whether Planning Commission review and approval is warranted.If approved,the following conditions shall be imposed: 1.The applicant will maintain and require safe lateral access to and along the shoreline for public use or adequately compensate for its loss. 2.The applicant will minimize and mitigate risk of adverse impacts on beach processes and neighboring properties. 3.The applicant will minimize and mitigate risk of structuies failing and becoming loose rocks or mbble on public property;and minimize adverse impacts on public views to, from,and along the shoreline;and comply with County Code provisions relating to flood plain management,Chapter 15,Article 1,Kaua'i County Code 1987,as amended, and Drainage,Chapter 22,Article 16,Kaua'i County Code 1987,as amended, respectively. 4.Any structure approved within the shoreline setback area by variance shall not be eligible for protection by shoreline hardening during the life of the stmcture,and this limitation and the fact that the structure does not meet setback requirements under Section 8-27.3 and could be subject to coastal erosion and high wave action shall be written into a unilateral agreement that is recorded by the Bureau of Conveyances of Land Court,as the case may be.A copy of the unilateral agreement shall be submitted to the Planning Department prior to the issuance of the required zoning and/or shoreline setback variance.Failure of the grantor to record these deed restrictions shall constitute a violation of this section and the grantor shall be subject to the penalties set forth in Chapter 8,Article 27 of the KCC,CZO. SSV-2021-1;Director's Report AOAO Makahuena of Po'ipu March23,2021 8|Page 5.For any structure approved within the shoreline setback area by variance,the applicant shall agree in writing that the applicant,its successors,and permitted assigns shall defend,indemnify and hold the County of Kaua i harmless from and against any and all loss,liability,claim,or demand arising out of damages to said stmcture and this indemnificadon shall be included in the unilateral agreement requiied above. 6.The Applicant is advised that should any archaeological or historical resources be discovered during ground disturbing/constmction work,all work in the area of the archaeological/historical findings shall immediately cease and the Applicant shall contact the State Department of Land and Natural Resources,Historic Preservation Division at (808)692-8015 and the Plaiming Department at (808)241-4050 to detennine mitigation measures. 7.In order to minimize adverse impacts on the Federally Listed Threatened Species, Newell's Shearwater and other seabirds,if extemal lighting is to be used in connection with the proposed project,all extemal lighting shall be only of the following types: downward-facing,shielded lights.Spotlights aimed upward or spotlighting of stmctures shall be prohibited. 8.The Applicant shall develop and utilize Best Management Practices (B.M.P's)during all phases of development in order to minimize erosion,dust,and sedimentation impacts of the project to abutting properties. 9.The Applicant is advised that prior to constmction and/or use,additional govemment agency conditions may be imposed.It shall be the Applicant's responsibility to resolve those conditions with the respective agency(ies). 10.The Applicant shall resolve and comply with the applicable standards and requiiements set forth by the State Health Department,State Historic Preservation Division-DLNR, and the County Departments of Public Works,Fire,Transportation,and Water. 11.The PIanning Commission reserves the right to revise,add,or delete conditions of approval in order to address or mitigate unforeseen impacts the project may,create,or to revoke the permits through the proper procedures should conditions of approval not be complied with or be violated. The Plamiing Commission is further advised that this report does not represent fhe Plannmg Department's final recommendation in view ofthe forthcoming public hearing process scheduled for APRIL 13,2021 whereby the entire record should be considered prior to decision-making. The entire record should include but not be limited to: a.Pending govemment agency comments; b.Testimony from the general public and interested others;and SSV-2021-1;Director's Report AOAO Makahueaa ofPo'ipu March 23,2021 9|Pag e c.The Applicant's response to staff's report and recommendation as provided herein. By ROMIO IDICA Planner Approved &Recommended to Comraission: Date KA'AINA 3.HULL Director ofPlanning :^fvi 7^-fU SSV-202I-I;DiTector'sReport AOAO Makahuena ofPo'ipu March23,2021 io|P ag e EXHIBIT"A" (Agency Comments) For reference ss ENfflRONMENTAL lir KA'I; COIJNTY HF KAI.IAI '21 W 17 P 2:06COUNTYOFKAUA-I PLANNING DEPARTMENT 4444 RICE STREET,SUITE A473 LlHU'E,HAWAl'I tW^i^,i r nc n"^ 08)'24ll4050'u l""""""r'T"!WN,NG DEPT FROM:Kaaina S.Hull,Director (Romio)February 18,2021 SUBJECT:Shoreline Setback Variance Permit SSV-2021-1,Fence Tax Map Key:(4)2-8-020:003,Aoao Makahuena At Poipu,Applicant TO: Department of Transportation -STP DPW-Engineering n DOT-Highway,Kauai(info only)D DPW-Wastewater D DOT-Airports,Kauai (info only)DPW-Building D DOT-Harbors,Kauai (info only)D DPW-SolidWaste State Department of Health D Department of Parks &RecreationaStateDepartmentofAgricultureFire-Department D State Office of PIanning County Housing-Agency D State Dept.ofBus.&Econ.Dev.Tourism D County Economic Development D State Land Use Commission KHPRC State Historic Preservation Division Water DepartmentaDLNR-Land Management D Kaua'i Civil Defense DLNR-Foresty &Wildlife D U.S.Postal Department DLNR-Aquatic Resources UH_Sea_Grant D DLNR-OCCL County Transportation Agency Other: FOR YOUR COMMENTS (pertaining to your departmeat): See comments on attached sheet. March 12,2021 '^•-^l^^'^f /Darren T^mejtezu,Ac/t<(i.ng Chief District Environmerttal Health Office Kauai This matter is scheduled for a public hearing before the County of Kauai Planning Commission on 4/13/2021 at the Lihue Civic Center,Moikeha Building,Meeting Room 2A-2B,4444 Rice Street, Lihue,Kauai,at 9:00 am or soon thereafter.If we do not receive your agency comments within one (1 ) month from the date ofthis request,we will assume that there are no objections to this permit request. Mahalo! Shoreline Setback Variance:SSV -2021-1 Applicant:Aoao Makahuena at Poipu Based on our review ofthe application,we have the following environmental health concern for your consideration at this time. 1.Noise will be generated during the site preparation and construction phases of this project.The applicable maximum permissible sound levels as stated in Title 11,HAR,Chapter 11-46,"Community Noise Control"shall not be exceeded unless a noise permit is obtained from the State Department of Health (DOH). 2.Temporary fugitive dust emissions could be emitted when the project site is prepared for construction and when construction activities occur.In accordance with Title 11,HAR,Chapter 11-60.1,"Air Pollution Control",effective air pollution control measures shall be provided to minimize or prevent any fugitive dust emissions caused by the construction work from affecting the surrounding areas. This includes the off-site roadways used to enter/exit the project.The control measures include but are not limited to the use of water wagons,sprinkler systems,dust fences,etc. 3.In accordance with Title 11,HAR,Chapter 11 -58.1,entitled "Solid Waste Management Control",the grubbed material and construction waste that is generated by the project shall be either recycled or disposed of at a solid waste disposal facility that complies with the DOH.The open burning of any of these wastes on or off site is prohibited. Due to the general nature of the application submitted,we reserve the right to implement future environmental health restrictions when more detailed information is submitted. hAR COUNTYOFKAUA'I PLANNING DEPARTMENT 4444 RICE STREET,SUITE A473 LIHU'E,HAWAI'I 96766 (808)241-4050 1ft")&.Vfc { FROM:Kaaina S.Hull,Diiector (Roinio)Febmary 18:2021 SUBJECT: TO: Shoreline Setback Variance Pemiit SSV-2021-1,Fence Tax Map Key:(4)2-8-020:003,Aoao Makahuena AtPoipu,Applicant FOR YOUR COMMENTS (pertaining to your department): Fire emergency response unaffected by change.Appears to enhance guest safety. This matter is scheduled for a public hearing before the County of Kauai Plamnng Commission on 4/13/2021 at the Lihue Civic Center,M'oikeha Building,Meeting Room 2A-2B,4444 Rice Street, Lihue,Kauai,at 9:00 am or soon thereafter.If we do not receive your agency comments within one (1) month from the date of this request,we will assume that there are no objections to this permit request. Mahalo! s Department of Transportation -STP DPW-Engineering"D: DOT-Highway,Kauai(urfo only) ~D DPW-Wastewater DOT-Airports,Kauai (info only) ~s DPW-BuUding~D DOT-Harbors,Kauai (info only)s DPW-SolidWaste State Department of Healfh ~0 Department of Parks &RecreationsStateDepartmentofAgriculture^Fire-DepartmentsStateOfRceofPlanning^County Housing-AgencysStateDept.ofBus.&Econ,Dev.Tourism ~D County Economic Development~0 State Land Use Commission ~D- KHPRC~w State Historic Preservation Division ~w Water Department~u DLNR-Land Manageinent 3 Kaua'i Civil Defense-D- DLNR-Foresty &Wildlife s U.S.Postal DepartmentsDLNR-Aquatic Resources 'W UH_Sea_Grant~D DLNR-OCCL 'W County Transportation Agency ^Other: COUNTYOFKAUA'I PLANN'NG DEP'., PLANNTOG DEPARTMENT 4444 RICE STREET,SUTTE A473 LlHU'E,HAWAI'I 96766 (808)241.4050 21 R-9 02:52 FROM:Kaaina S.Hull,Director (Romio)n,-.^?ebrusiry,18,2021fcsvcu SUBJECT:Shoreline Setback Variance Pemiit SSV-2021-1,Fence Tax Map Key:(4)2-8-020:003,Aoao Makahuena At Poipu,Applicant TO: Department of Transportation -STP DPW-Engineering D DOT-Highway,Kauai(info only)a DPW-WastewaternDOT-Airports,Kauai (info only)D DPW-Building D DOT-Harbois,Kauai (info only)a DPW-SoIidWaste State Departmeut of Health a Department of Parks Sc:Recreation D State Department ofAgriculture Fire-Department D State OfRce ofPlanning County Housing-Ageucy D State Dept.ofBus.&Econ.Dev.Tourism D County Economic Development D State Land Use Commission KHPRC State Historic Preservation Division Water DepartmentuDLNR-Land Management D Kaua'i Civil Defense D DLNR-Foresty &Wildlife D U.S.Postal DepartmentaDLNR-Aquatic Resources UH_Sea_Grant D DLNR-OCCL County Transportation Agency D Other: FOR YOUR COMMENTS (pertaining to your department): 3lce.\-^o-^ CTTt ^ft^(00 ^»(LW€^-Cor'-l^ei^'t *?<2^TictV.'^H(MS»<ju>^ T o<^ '^u>3202)T-a%^ This matter is scheduled for a public hearing before the County dTKauai Plamiing Commission on 4/13/2021 at the Lihue Civic Center,Moikeha Building,Meeting Room 2A-2B,4444 Rice Street, Libue,Kauai,at 9:00 am or soon thereafter.If we do not receive your agency comments within one (1) month from the date ofthis request,we wiU assume that there are no objections to this permit request. Mahalo! Shanlee Jimenez From: Sent: To: Subject: Planning Department Wednesday,April 07,2021 10:42 AM ShanleeJimenez FW:SSV-2021-1 DEFER 1661 Pe'e Rd —-OriginalMessage-— From:Roslyn Cummings <roslyncummings@ymail.com> Sent:Wednesday,April 7,2021 10:40 AM To:Planning Department <planningdepartment@kauai.gov> Subject:SSV-2021-1 DEFER 1661 Pe'e Rd CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even ifthe sender is known to you unless it is something you were expecting. The question I'd like to start of with is-Is this for the benefit of public access or to keep people from access of known native fishing grounds? Who benefits?The property owners.Vacationers.Part time residents? orlongtime residents been here over 30 years enjoying the natural landscape?Seems liketo methatmanyoftimes with these projects the County of Kauai planning department has no problem with these permits. Yet,there are laws that protect already known shoreline access.Especially if it benefits the native Hawaiian Population. 1 defer this project in protection of access to Klein ancient trails.... 1 mean that whole area was part of an old fishing village it is also adjacent to burials of very important ali'i nui. Aloha No, Roslyn Sentfrom my iPhone fr-Z.0.42 ;1 3 2021 KPAR-8-1.5 DEFINITIONS.COMPREHENSIVE ZONING ORDINANCE GUEST HOUSE AUTHORITK: PURSUANT TO Article XIV section 14.03.E of the Kauai County Charter the Planning Commjssion ofthe County of Kaua'i adopts the following administratlve rules pertaining to the responsibility of the DepartmenttoimplementandenforceChapterS,SectionS-1.5oftheKaua'iCountyCode,1987 as amended,concerning the definition of "Guest House." DEFINITION: Section 8-1.5 of the Kauai County Code,1987 as amended,deflnes Guest House to mean "a buildlng with a floor area of no more than five hundred (500)square feet,may contarn a kltchen,and is used for dwelling purposes by guests,tenants,or owner(s).A guest house shall not be used for a transient vacation rental (TVR)or homestay operation within or outside ofthe visitor destination area (VDA). FINDINGS: In implementlng the deflnition of a "Guest House",there is a need to clarify whether or not the structure may be attached to a single family residence,detached from a single family residence,within a multifamily residence,or accompanied by an accessory structure (i.e.Garage). RULE: DEVELOPMENTAL STANDARDS 1.The maximum floor area for a guest house is five hundred (500)square feet. 2.The total floor area for a guest house shall be the sum of the horizontal areas of each floor of a building,measured from the interior faces of the exterior walls.The total floor areas shall include enclosed attached accessory structure such as garages or storage areas.Unenclosed attached strurtures,such as breezeways,lanais,or porches shall be excluded. 3.The guest house may be detached from a single-family residence or multi-family residence. 4.The guest house may be attached to a single-family dwelling unit or multi-family unit(s). When the guest house is attached to a single-family dwelling unit or multi-family dwellingunit(s),theenclosedandunendosedfloorarea5ofthedwellingunit(s)shallnot be counted in the calculation ofthe maximum five hundred (500)square feet offloor area for the respective guest house. F.^-^ ^PR 1 3 2Q21 5.When attached to another dwelling unit(s),the guest house shall have its own separate extenor access. 6.When proposed with a kitchen in the State Land Use Agriculture,the guest house application shall require an executed Farm Dwelling Agreement ,t-<h>.v'"" ,t"\~-w'*,.•^'^ Sherman Shiraishi Mia R.Shiraishi SHERMAN SHIRAISHI ATTORNEY AT LAW A LAW CORPORATION 2403 Ulu Maika Street Lihue,Kauai,Hawaii 96766-1355/-„,,.,., Telephone:(808)245-3361 Facsimile:(806^-0486" shermshir@hawaii.rr.com mia.shiraishi@gmail.com KWM February 19,2021 21 FEB22 P2:13 KA'AINAS.HULL KAUAI COUNTY PLANNING DEPT 4444 RICE ST,STE A473 LIHUEHI 96766 ^°i ::''~i . i/C.i » Re:Gather Federal Credit Union;TMK (4)5-2-5-23 (por),Kilauea. Class IV Zoning Permit Z-IV-2020-1 ; Use Permit U-2020-1 Aloha Ka'aina: By letter dated August 20,2019 from you,in your capacity as the Planning Commission Clerk,Gather Federal Credit Union was advised ofthe permit approvals for the construction of a new branch office building in Kilauea.A deadline of one year from the date of approval to commence substantial construction was imposed. The Credit Union is anxious to start construction of its Kilauea branch office,but has been prevented from doing so for reasons beyond its control as explained below. The Credit Union respectfully requests an extension oftime to commence substantial construction for the following reasons: 1.The Credit Union did not own the underlying property at the time of its application for use and zoning permits and permission was granted from the landowner to proceed with its application.The Credit Union's application for zoning and use permits was planned to coincide with the owner's pending subdivision application ofthe underlying property.The subdivision application is identified as S-2018-15,Kilauea Ohana Plateau LLC.Even though Kilauea Ohana Plateau's subdivision application was filed prior to the Credit Union's application for use and zoning permits,Kilauea Ohana Plateau encountered numerous delays in obtaining final subdivision approval,which in turn prevented the conveyance ofthe lot to the Credit Union. 2.Although S-2018-15 has recently obtained final subdivision approval, Kilauea Ohana Plateau is unable to convey marketable title to the Credit Union because the subdivided lot lacks access to a public roadway.Kilauea Ohana Plateau does not own the roadway,Ala Mahana Parkway.The owner of Ala Mahana Parkway has failed to dedicate the roadway to the County although it is legally obligated to do so. I have been informed that the deed to the roadway has only recently been signed and will be processed with the County. 1.1. APR 1 3 2021 The title insurance company is unable to insure access to the Credit Union's lot until the roadway dedication deed is recorded in the Bureau of Conveyances.This has delayed the closing of the sale. 3.The architect for the project has been unable to finalize the plans for the Credit Union's building until the subdivision obtained final approval.Drainage and soils studies are currently underway in connection with the submittal of an application for building permit.The architect has been instructed to finalize the building plans for approval. 4.Once we finalize the building plans and submit an application for a building permit,we anticipate further delays due to the current COVID situation. In view of the foregoing,an extension of time of 2 years to commence substantial construction activities is hereby requested. If you have any questions,please feel free to contact me. Yours very truly, ^^A^L^ SHERMAN SHIRAISHI c:Client Ka'aina S.Hull Director of Planning COUNTY OF KAUA'I PLANNING DEPARTMENT DIRECTOR'S REPORT Jodi A.Higuchi Sayegusa Deputy Director ofPlanning I.SUMMARY Action Required by Planning Commission: Consideration ofApplicant's request to AMEND Condition No. of the Use Permit and Class IV Zoning Permit to allow completion ofthe project. Permit Application Nos.Class IV Zoning Permit Z-IV-2020-1 UsePermit 2020-1 Name of Applicant(s)GATHER FEDERAL CREDIT UNION Shemian Shiraishi,Esq.,Agent for Applicant II.PERMIT INFORMATION iwsffimaiawoj Use Permit A Use Permit was necessary since the proposed development is not a permitted use within the Residential (R-6)zoning district. I1 Project Development Use Permit I[Variance Permit Special Permit Zoning Permit Class rv III Pursuairt to Section 8-8.4 ofthe KCC,1987,as amended,a Class IV Zoning Permit was a procedural requirement for obtaining a Use Permit in the Residential (R-6)Zoning District. Special Management Area Permit DUse D Minor AMENDMENTS Zoning Amendment I1 General Plan Amendment [_]State Land Use District Amendment 1.1.«'APR13 2021 Date ofReceipt ofCompleted Application: Date ofDirector's Report: Date of Public Hearing: Deadline Date for PC to Take Action (60THDay): III.PROJECTDATA N/A April 13,2021 N/A N/A 5PK©.Bi|F::BI®iOIVUiatfi»fe Parcel Location:The project site is located immediately across the KIlauea Post Office facility and immediately adjacent to the Kflauea Lighthouse Shopping Center in KTlauea Town Tax Map Key(s):5-2-005:023 (Portion)Area:|Por.of 179.439 acres ZONING &DEVELOPMENT STANDARDS Zoning:Residential (R-6) State Land Use District:Urban General PIan Designation:Neighborhood General Height Limit:25 feet Max.Land Coverage:60%ofLotArea Parking Requirement:Fifteen (15)off-street parking spaces minimum; 1 stall per 200 SF office space 2,950 SF net office space Front Setback:lOfeet Rear Setback:lOfeet Side Setback:5 feet OR IA wall plate height Community Plan Area:North Shore Planning Area (NSPA) Community Plan Land Use Designation: NA. Deviations or Variances Requested:NA. IV.LEGAL REQUIREMENTS 2 |P ag e. Z-IV-2020-t,U-2020-1 ;Director'sReport[)"E>!tl GATHER FCU 3.17.2021 Section 8-3.1(f),KCC:N/A Commission Meeting Date:APRIL 13,2021 V.PROJECT DESCRIPTION AND USE BACKGROUND The project involves the construction ofanew branch office to accommodate membership growth and serve the banking needs ofnorth shore residents.The area ofthe proposed office building will be approximately 3,440 SF in size (68'X 46 )featuring teller stations for both walk-in and drive-thm customers,offices and storage.The development also includes constmction of an interior driveway connecting into Ala Mahana Parkway,a parking lot containing 19 stalls,and a large capacity wastewater treatment system. At the time this application was considered before the Plamiing Commission,there was a pending subdivision application (S-2018-5)involving a total of 10-lots that included the project site,other newly created lots,and roadways providing access to the project.The subdivision has obtained Planning Commission approval on September 8,2020. The subject pemiits were approved by the Planmng Commission on August13,2019.A condition ofthe permit required the Applicant to complete the project within five (5)years from fhe date ofapproval ofthe subject permits.As originally approved,Condition No.8 reads: "8.The Applicant shall substantially commence construction ofthe project within one (1)yearfrom the date offull approval,andshall complete construction withinfive (5)yearsfrom the date ofapproval ofthe subj'ect permits VI.APPLICANT'S REASONS/JUSTIFICATION REOUEST As represented in the correspondence,the Applicant is seeking additional time to commence with the construction ofthe project and the basis ofthe extension request is contained their correspondence dated February 19,2021. In order to accommodate the time extension,it is necessary to amend Condition No.8 to allow a reasonable period to accommodate the construction activities for the proposed branch office facility. VII.PRELIMINARY EVALUATION In considering the Applicant's request,it should be noted that the project hinges on the subdivision that created the subject parcel as well as several other lots in this area.As previously mentioned,the subdivision was considered through Subdivision Application No.S-2018-5 that recently received approval by the Planning Commission. In the process of obtaining approval by the various govermnent agencies,the Applicant elected to bond tbe construction ofthe infrastmcture improvements for the subdivision.It is further noted that the improvements have not been completed and they involve drainage, 3|Page Z-IV-2020-1,u-2020-1;Director's Report [I3'Eri) GATHER FCU 3.17.2021 utilities,and the roadways leading up to this facility.Additionally,the roadways are intended to be conveyed to the County once they are completed and inspected by the appropnate agencies. Based on the circumstances involving this development,the Applicant's reasons to allow a time extension arejustifiable and no problems are foreseen in granting the Applicant's request. Finally,the department believes that an amendment to Condition No.8 is necessary to allow the subdivision infrastructure improvements to be completed in order to commence with the construction ofthis branch facility. VIII.PRELMINARY RECOMMENDATION It is recommended that the Commission approve the extension oftime to allow the completion ofthe multi-family development ofthe project and that the Applicant be subjected to the applicable requirements.Furthermore,Condition No.8 ofUse Permit U- 2021-1,and Class IV Zoning Permit Z-IV-2021-1 be amended to read as follows: 8.The Applicant shall substantially commence construction ofthe project no later than Aueust 13.2022 [within one (1)ycar from the date offull approval]and shall complete construction by August 13. 2024 [within 5 years from tho datc ofapproval ofthc subject Furthermore,the Applicant is advised that all applicable conditions of approval shall remain in effect. *NOTE:Material to be deleted in brackets &strikethrough,and new material is underlined. DALEA.JCUA Planner Approved &Recommended to Commission: |S.HULL Director of Planning Date:^-/IS./>M Z-IV-2020-1,U-2020-1;Director's Report (I"Ext) GATHER FCU 3.17.2021 4 1 P age From 1.877.233.,3g39^onftug.l9 ;l4;;4&:14.2!}19;PDT Page 2 ofl:3: Yoshlto l-'Hote Qery\Siaich Jeremy Burns Gsty Padieco Biii Ciiase Adam Hadley Stsphonie Brown Thomas Daubert Adam Hadley Mlke Latif Charlfe Martfn Don McCormell Jim O'Connor Ran Pati! August3,2013 :::., Sean Mahpney,Chaif : Kaua'i Planning Comnilsston Kaua'i Planning Department 4444 Rice St.,Suite A473 Uhu'e,Hl 36766 RE:Class 4V Zoning Permit Z- newbtanch offlce builillng witKln KTIaueaTown. w--2020-1 anctUse Permlt U-20.20-1 to.construct a arjd t(5S)i:Ia d s^ite improvernsnlS on prpperty DeatPIanning Chairman IV]?haney:and Members^ofthe Pl?nnirig Commlssion; At the KFIauea Neighborhood^Association (KNA)meeting ofAugust 6,2019,Gather Federal Credit Union presented Its prdposdl to build a;new branchfadlityin order to.tietter service Its 2700 North Shore membert.Gather's President and CEOTess Shlmabukuro,arcHitert Mark Ventura,and attorney Sherman Shlralshi shared information,,site piansand answered questfons..,:^'^1 :I ,-;i^.1 i'.••,':ii.ltiNli 'l'! The^proposed project -a Bna story 3,400 s^ftaot building,wfitH 20 fiarklng Aajfe AT|>4 and a drive through window-has afide member support.The Board:wasgiven a petttittn tvlth over 1516 signatures.Sevaral residents,aswell as Gary Pactieco,KNA treasure and.lbng- tlme Gather memben Stephertle Brown,whp Is a KNA board member and Gather ?ta(fer, endprsedtheprqject.'^••''::!,'•l|i' Nelghbors from theTltcomb i'esldentlal subdivlslon also attended.Three spolse expresslng several eoncerns:They,had ncj?been notified cr had ohly (esently fOund ou^abflut ttie project.Theyhadassumedth^tthelanawBsintheagricultural district.(The:existet)ceofan acrtofurbanzoned(andonttie:edgeofTh<IK:5-Z-005:023hadbeensurprlsingand:;; disconcertlng to the KNA as uffill.)Havlng ^tperienced mdre than three years of constructlon noise,dust and even,In one instance,structural damage frotn the development ofthe adjacent Kilauea Lighthouse Shopping Center,nelghbors wefe exasperated tp have t;p face more nea.rby conrtructiori.They are concerned sboui futyre:ongolhg disturbances irom the bank's nlghttime securlty llghts and 24-hour use ofthe ATM;The Board waspleased'to learn that Gather had begun to meet with some neighbors to address these issues. Gathens a respected andvaiij^d comraunity instltutlon attdwe want a brgrtch here»n KTIauea.However,the Board also empathbeswith the rieighbors'concerns,ThaFefo|'e,the Board voted to support thls project,subj'eiit to the following conifltlons:i r PO Box 2S3,Kilauea,Kaua'il Hawn 9675B :>www,kn3^uaf.org j joekii^uegQgiTiaii.com pfee us cn iPac^booft.:Fac^OGi^COffi/Eina.kayai' From 1.877.233.3839 Mon AugilS).14:4S:14 2019 !PDT Page 3 pf 3 1.Gather must contlnue to work with nearbv nelghbors 80 dev^Iop 1)cqnstructiop ph^se protoeols that protect murningsleep and late aftarnnon aBdevaning qulet and 2)tq dasign the lacation and forrn ofawalJ btitiyeen this pi'operty and the Titcombheighbo.r^(The wall of the shopping center is not wha(was expected l.e."a green or'uegetated wal]",;is , unattractive,doesnotbuffer;dy5t|aFt^ors^u|nd.).^,...;|;::^H;!;^ 2.To balanee resldential llfejwith Eaj'rii'nerciat Bpe|rattons,the AtlWmachihe shoultllnct !' operate after 10 pm,resyming;at|pichaps|6 art,(n'heisho(ipir(giCenter businesseswlll not be operatlng past 10 pm.)'!;.^|:!::'•'' 3.Alloutsldelights,includlngsecurityllghts,tnustbedouinshadedtoprptectneighbors' need to sleep,our area shearwat^s,pf coui'se,|as well as resldsnts'enjoyment of darl<.:| skies.llghtsshouIdnotlaetHejne^.bluetlritedLEiDvariety,,-;,j:;':'.1';S Meetlng participants asked whether a driifei-through wlndow was definltely needed?The Ala Namahana Parkwayfextension of KenekehRpad)isiaiready heavUy traffi(,ked.Tftere is an,,,,;; undevelopedhalf-acreresidentiaftotnbrthofthEpropBsedliank.MihjinizingthenumbeHof'is driveways on the road,particularlyinthe!!/i(ihltyq(thqpbstpffice,wpD|d;help.i ;,i,;;!Si •':i^'.'.^;^•-•;'-:'^-:-^.^..r.:::."-.'•'•I: The KNAwould like Gather to return tB aifuture KNA ijneetlng wltll an Updatelabout Itow thgt^ diaioguewith neighbors has proceeded a|n<SlwhaE?greements hsv^foe^n reached. Thank you to •the|CommisslonersafldP|anhih6 Departn|ientfdr yoUriatt^htian qnd servl(:6, 'li r .).,i ,'•^!':'::i Respectfulfy, YdShKo L'Hote President "I PO B(»t283,KBauea,Kaysl;.Hawai't 96754 www.kna-k^uai.oris [joekilEtuea@gmaiI.com Like us on Facebook:FaGebodk.comAna.i<atjai