May 11, 2021 Planning Commission Agenda Packet with linksCOUNTY 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-2018-12 Association ofApartment Ovvners ofKulana Condominium
Location:|Waipouli,Kawaihau Tax Map Key:|(4)4-4-003:089
st ^ndExtensionRequestNo.(1st,2"'1,etc.)Tentative Approval Granted On:Previous Ext.Expired On:
3rd May 22,2018 May 22,2021
Subdivision Bonded:Yes |^|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 next page...
RECOMMENDATION:Please refer to next page.
MAY O 3 2021
dffPlanner Date
['/]Approved and Recommended
to PIanning Commission
[]Denied
Comments:
V:2018Moster Files Degulotory Subdivisions S-2018-12'Sutitxtension Reques)Extension Report -05.11.2021 KE S-2018-12 AOAO Kulana [undominium.docx
T.1.0.1
rNAr J I 202?
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 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 two (2)lot subdivision.This application was granted
tentative approval by the Planning Commission on May 22,2018 and the Applicant's request is
the third extension ofthe tentative approval.
The subject property is located on the southern side ofHauiki Road in the Kapa'a Homesteads
area.The total area involved is 1 acre within the County Agriculture zoning district and within
the State Land Use Agricultural District.The surrounding parcels are also County zoned
Agriculture and are within the State Land Use Agricultural District.The surrounding agricultural
parcels have been developed as residences.
In further evaluation of the proposed subdivision,the water tank was approved by the County of
Kauai,Planning Commission on March 11,2003 through Class IV Zoning Permit Z-IV-2003-14
and Use Permit U-2003-15.The construction ofthe 250,000 gallon potable water storage tank
was developed primarily to serve the 23 lot Kulana Agricultural Subdivision (S-99-49)located
on the northern side ofHauiki Road,Nonheast ofthe water tank site.Kulana Subdivision
S-2018-12,Sub Extension Ord)
AOAO Kulana Ct.induminium
05.11.2021
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received final approval by the County ot'Kaua'i,Planning Commission on August 24.2004.
Further,this proposed subdivision is being accomplished in conjunction with thc dcvelopment of
K.iilana Subdivision and the Hauiki Road Realignment Subdivision.
As represented by the Applicant,Lot 8-A will be dedicated to the County ofKaua'i.Therefore,
the proposed subdivision is exempt from the "one-time"subdivision limitation for parcels within
the Agriculture District,pursuant to Section 8-8.3(c)ofthe 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,commissioning has been completed on the water
tank as well as for the Phase 1 on-site and off-site water system.In addition,the water tank leak
test and interior coat has been completed.
The Applicant is still working to resolve the required infrastructure improvements associated
with this application and determining the applicable requirements ofthe County ofKaua'i,
Department ofWater (DOW)and Public Works (DPW).The Applicant is also working with the
State Department ofLand and Natural Resources to secure access and utility easements that will
traverse over a State ditch.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 arejustifiable and no problems
are foreseen in granting the extension request.The Departments of Public 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 May 22,2022 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
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-2018-I2;Sub Extension l3rd)
AOAO Kulana Condominium
05 11.2021
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iVtCCORRISTON MlLLER iVtUKAi lACKlNNON LLP
AT-0 R N E Y S A T L A W
Laursl Loo,Partiier
lS@m4l3w.com
March 3,2021
Glenda Nogami-Streufert,Chair
Kauai County Planning Commission
4444 Rice Street,Suite A473
Lihue,Kauai Hl 96766
Attn:Kenny Estes
(via e-mail:KEstes@Kauai.gov)
Re:AOAO Kulana Condominium.S-2018-12
Dear Chair Nogami-Streufert:
Please consider this a request for an extension to file final subdivision maps for the
development referenced above.
The current deadline is May 22,2021.We raspectfully request a year's extension,but
are pleased to be able to share with you a number of areas of substantial progress on
this subdivision.
There has been a completion of "Water Tank Commissioning and Phase 1 On-site and
Off-site Water System,the water tank leak test and interior coated has been completed,
and a number of milestones for disinfection and connections have been completed.
The State Department of Land and Natural Resources has preliminarily approved
access and utility easements,which are now being circulated in the County for
signature.
In conclusion,we request an extension until May 22,2022.
Sincerely,
McComston Miller Mukai MacKinnon LLP
JZrtUt^y^^
LAUREL LOO
Honolulu Office:P.O.Bo^2800 •Honolulu.Hawai'i 96803-2800
Five WaLerfron;P!aza,4ih Flocf •500 Ala Moana Boulevard <Honciulu,Hawai'i 96813
Te!ephone:(808)529-7300 •Fax;(808)524-8293
Kaua';Offlce:4357 R;ce Sirgef,Suiis 102*Lihu'e.Hawai':96756
Tefephont;|8B8)832-2267 •Fax;|8B8)524^293
HAUIKI ROAD g;g,^^
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LOT 8-8
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LAND
SURVEYOR
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Lot 9
T.M.K:(4)4-4-03:90
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THIS WORK WAS PREFARED 6Y ME
OR UNDER MY SUPE:RVS10NGRAPHICSCA
(IN fEET )
1 inch =40 ft.
Signalure
ESAKI SURVEYING Sc.MAPPINC,INC.
EXPIRES:APRIL 30.2018
KULANA WATS TANK SUBUV1SION
SUBDMSION OF LOT 8
INTO LOTS 8-A AND 8-B
Belng portlon Gront 7286 to J.B.Sauza
Being atao portlon of R.P.7373,
LC.A»;8559-B,Ap.42
to wnilam C.Lunalllo
WA1POUU.KAWAIHAU.KAUA],HAWAII
Tax Map Koy (4)4-4-003:089
Owmr.Aaaockrtlon of Apartment Ownera
of Kulana Condomlntum
Date:Fabruory 26,2018
Job Number:17-21 MA
Drawing FIle:17-21 subd.dwg
ESAKI SURVEYING &MAPP1NG,INC.
Civil Engineers -Land Surveyors ~Planners
1610 Holeukono Streel
Llhue,Howol!9676G
S-SO«2-VS
HAVIKIRO'AD
SVBDIVISIbN
S-99-49
KULANA SUBDIVISION
S-W18-12
KULA^A
WrATER TANK
SUBDiriSlON
Kapaa Mjddle Scboo[
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Subdivision S-2018-12 Kulana WaterTank Subdivision
12/03/2020
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.
_____________________________________
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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
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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).
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- 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,
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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
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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.
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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
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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
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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
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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.
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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
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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.
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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
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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.
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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
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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
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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)
aKippa Heiau
2(SIHP Site 13 )
l eKiaua Stream
i au BKleaay
aKaluamakua StremS rWailapa t eamKu Hig wahiohy
ihTo L ue
To Hanalei
NhiihupaKa 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,
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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
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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:
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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
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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
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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 Aupua‘a (adaptedfrom Hammatt and Fol 196).FtKwh k 9
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Project Area
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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
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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
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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)
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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
.6 0 a1 c
in
t
P
e
r
e
e
Coconut
.18ac
N
aaaim
n
eo
.82ac
.37ac
10333
Nt ureKilauea 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
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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
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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
rai
t
o
s
t
r
e
Terraces
continue
to stream
r ive way
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.
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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.
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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.
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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).
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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.
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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
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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 esre2 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
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Figure 21. SIHP Site 2011 Trench-2 south wall profile and view to the east.
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34
0 25 50
Scale in centimeters
Layer II
ayer IL
o kRc
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.
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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
820
Figure 22. SIHP Site 2011 Trench-3 south wall profile and view to southeast.
Layer II
aLyer I
Field 5/6
retaining wall
Field 5/6 dividing wall
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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
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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
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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.
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39
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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
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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.
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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.
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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.
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APPENDIX A
44
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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
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
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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
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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
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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 KA UA '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
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FIFTH CIRCUIT
5CC191000105
09-JUN-2020
03:02 PM
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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
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This notification is being electronically mailed to:
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Teresa S.Tico (haenagirl@gmail.com )
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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 and convey 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-
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STATEOP'^^~
COUNTYQ:-u'('.trfa-*~<-^-')
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)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.
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STATEOP "^'A-
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)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.
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Notaiy Public,in and for Baid County end State.
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|WtfDOCS/l(154/43/WI>K5ffi2JX)CX }-4-
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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
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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
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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
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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
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2 S,
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IXHIBIT B
EXHIBIT 10
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!<-(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
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(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^^
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~(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
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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
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!
BELLES GRAHAM LLP
JONATHAN J.CHUN
4334 Rice Street,Suite 202
Lihue,Kauai,Hawaii 96766-1388
Telephone:(808)245-4705
Attomey for Applicant
KILAUEA OLD MILL,LLC
BEFORE THE PLANNING COMMISSION
OFTHE
COUNTY OF KAUAI
In The Matter OfThe Application
Of
KILAUEA OLD MILL,LLC,for a Use
Permit and Class IV Zoning Pemiit for real
property situated at Kilauea,Kauai,Hawaii,
identified by Kauai Tax Map Key
No.(4)5-2-014:049 containing an area of
20,389 squarefeet.
)USEPERMIT U-2021-
)CLASS IV ZONING PERMIT Z-IV-2021 -
)
APPLICATION;EXfflBITS "A"-"L"
APPLICATION
Comes now KJLAUEA OLD MILL,LLC,Applicant in the above-captioned proceedings,
by and through its undersigned attomey,and hereby submits fhe followmg Application:
(W:/DOCS/25347/2rtV0145705.DOCX )^.i-a
'tlAY 1 1 2021
Ka'aina S.Hull
DirectorofPlanning
COUNTy OF KAUA'I
PLANNING DEPARTMENT
DIRECTOR'S REPORT
Jodi A.Higuchi Sayegusa
Deputy Director ofPLarming
UlCLIQJHANGE
I.SUMMARY
Action Required by
Planning Commission:
Consideration of Class IV Zoning Permit and Use Pemiit,to
allow a commercial kitchen and juice bar operation in the portion
of the Old Mill building and to permit a new Health Club Use in
an existing Warehouse building.
Permit Application Nos.Class FV Zoning Permit Z-rV-2021 -7
UsePennit U-2021-6
Name of AppUcant(s)KILAUEA OLD MILL,LLC.
U.PERMIT INFORMATION
V:\2021 Master Rlffii\Regulatory\Zonirig Permtts\Clais IV\Z-fV.2Q21 -7\Report\R^
MiiLdocx
-I 2.15.21 Z-IV-2021 -7_U-2021 .6_01d.z.o.
NAV 1 1 2021
PERMTTS REQCIRED
^]Use Pennit Pursuant to Articlc 2,Chapter 10 Section 10.-2.4 of the
KCC,1987 as amended,a Use Permit requiied to allow the
health club use.
1I Project Development Use
Permit
11 Variance Permit
1I Special Pcrmit
M Zoning Pennit Class
Kliv
Dm
Pursuant to Section 8-3.1 ofthe KCC,1987,as amended,a
Class rv Zoning Pennit is a procedural requirement in
applying for a Use Permit.
[_]Spedal Management Area
Permit
DUse
Q Minor
AMENDMENTS
[_)Zoning Amendment
I1 General Plan Amendment
Date ofReceipt of Completed
Application:
Date ofDirector's Report:
Date ofPublic Hearing:
Deadline Date for PC to Take Action
(60T"Day):April 24,2021
IU.PROJECTDATA
Januaiy28,2021
Febmaiy 12,2021
MARCH 9,2021
FV.LEGAL REQUIREMENTS
Section 8-3.1(f),KCC:This report is being transmitted to the Applicant and
PIanning Commissioa in order to satisfy the
requirements of Section 8-3.l(f),relating to the
provision of the Planning Director's report and
recommendation on the subject proposal within sixty
(60)days of the filing of a completed application.The
Z-fV-2021-7,U-2021-6;Director's Report
KHaueaOldMUl.U.C.
Fchuaiy 12.2021
a|Page
[_]State Land Use District
Amendment
PROJECT INFORMATION
Parcel Location:The project site is located ,32 miles North off Kilauea Road,0.06 miles
East on Oka street at the intersection of Aalona street.
Tax Map Key(s):(4)5-2-014:049 Area:20,389 s.f.
ZONING &DEVELOPMENT STANDARDS
Zoning:Residential (R-6)
State Land Use District:Urban
General Plan Designation:Neighborhood General
Height Limit:25 feet OR Based Flood Elevation (B.F.E.)plus
15feet
Max.Land Coverage:60%Maximum
Front Setback:lO'-O"
Rear Setback:5'orVitiae wall plate heigbt whichever is greater
Side Setback:5'or '/2 the waU plate height whichevei is greater
Community Plan Area:North Shore Development PIan
Conununity PIan Land Use
Designation:N/A
Deviations or Variances Requested:
application was received on February 23,2021 and the
Applicant,through its authorized agent,was notified
accordingly ofthe Planning Department's intent to
commence pennit processmg.
PublicHearingDate:MARCH9,2021
V.PROJECT DESCRIPTION AND USE
As represented the subject property is [ocated on tax map key (TMK)parcel (4)5-2-
014:049,contauiing 20,389 square feet and has an existing single story warehouse (the"Warehouse")building of 3,600 square feet and a 2,940 square feet building (hereinafter"Old Mill Building".)Both Old Mill Building and Warehouse were constructed prior to the
Kaua'i County Code,Comprehensive Zoning Ordinance (CZO).
1.WAREHOUSE BUILDING:
With Use Permit U-12-79 and Class FV Permit Z-IV-79-17,tbe warehouse building was
granted "light"manufacturing use since it was not a pemussible use withm the
Residendal zoning district.The Plamung Commissiou amended these permits in 1996
to restrict occupant of the warehouse to "low traffic uses",which required seven (7)
parking stalls and aay subsequent use or change in configuration would require
PIanning Commissioa review and approval.Currently,the building is being utilized by
a surfboard manufacturer,storage by an individual tenant,and by the Longman Jiu-
Jitsu Academy.Currently,the "health club"use for the Jiu Jitsu Academy is not an
outright permissible use.
The applicant is seeking permits for the Longman Jiu-Jitsu Academy (Academy)to
operate within the warehouse building.The Longman Jiu Jitsu Academy is a martial
arts school tbat teaches the art of Brazilian Jiu-Jitsu and self-defense.
a.Operation:Classes are held four times a week with moming adult classes from
9:00 a.m.to 10:30 a.m.Monday through Friday,keiki classes ae to be held for ages
four (4)to eight (8)years of age from 3:15 p.m.to 4:05 p.m.Monday through
Thursday,another keiki class is to held for ages nine (9)to fourteen (14)at 4:15
p.m.to 5:15 p.m.Monday through Thursday,evening adult classes are to be held
from 5:30 p.m.to 7:00 p.m.Monday through Friday.There are no classes between
the hours of 10:15 a.m.to 3:15 p.m.
Moming adult students has an average of 2-8 students Children are usually dropped
off and picked up by the parents for the keiki classes.The applicant states that the
adult early evening classes have a higher than average attendance.The adult
evening classes start at 5:30 p.m.,at which time the medical building is closed for
business.Parking conflicts aie kept to a minunum between the employees clients
Z-IV-2021-7.U-2B21-6;Dmclor's Repon
Kllmu.OId MiU,LLC.
Fcbniaryl2.2021
3|Page
and the Academy's students.The change in use will not affect the exterior or the
interior of the Warehouse.
2.OLD MILL BUILDING:
The Planning Commission approved the use for a portion of the building tbrough Use
Permit U-2010-7 and Class FV Zoning Permit Z-IV-2010-8 (hereinafter "2010 Pennit")
to allow the operation of a medical facility.In late 2018,a physical therapy and
wellness center opened and operated witliin the aforementioned portion.Condition No.
1.of the 2010 pennit reads:
"/.Theproposed medical facility shall be operated as represented.Any
changes to the operation and/or the respective building structure shall be
reviewed by the Department to determine whether Planning Commission
review and approval is required."
In June 2015,the applicant requested to use the remaining portion of the Old Mill
Building for a variety ofmixed uses.The Planning Department's deteimination dated
November 20,2015 indicated that a new Use Permit and Class FV Zoning Pennit would
be necessary to facilitate tlie operation of a commercial kitchen and juice bar within a
1,000 square foot portion of the Old Mill Building (see Exhibit "H"floor plan).
a.Operation:The commercial kitchen will be used to support local food processing
businesses on the North Shore.The juice bar will be used as a take-out order only
operation and no seating established for dining will be provided.Proposed hours of
operation ofthejuice bar will be Monday through Friday from 7:30 a.m.to 6:00
p.m.and Saturday from 8:00 a.m.to 5:00 p.m.Deliveries of supplies and locally
grown produce for the commercial kitchen and juice bar made by local farmers are
anticipated to be minimal.Most of the renovations will be in the interior of the Old
Mill Building.
VI.APPLICANT'S REASONS/JUSTIFICATION
Please refer to Application.
VII.ADDmONAL FINDINGS
1.The subject property is within KTlauea Town located.38 miles off Kuhio Highway and
.08 miles south of KIIauea Town Center.
2.The State Land Use District (SLUD)designation for Parcel 49 is "Urban"which allows
for uiban growth in a specified area.
Z.[V-2021-7,U-2021-6;Dircctor's Rcport
Kniuca OM Mill,LLC.
Februaiy 12,2021
4|Page
3.The property is situated within the North Shore Plauning area and will be subject to the
objectives and goals ofthe North Shore Development Plan (NSDP),which that includes
the following:
Goal A:To preserve the unique natural beauty of the North Shore Planning area.
Goal B:To preserve the special rural chann of the North Shore Plaiming area.
Goal C:To provide for the safety and welfare of the people,of their property of the
North Shore Plannmg Area.
Goal D:To provide for economic developmeat of the North Shore plaaning 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 tbe North Shore
Plamiing Area.
Goal G:To create a development for evolutionary growth that depends upon a
plannug process whereby coirflicts can be resolved thiough the
establishment of priorities and community participation.
Goal H:To provide for recreational opportunities that are compatible with the unique
qualities and natural features of the North.
4.All proposed improvements or developments are not located within the shoreline
setback area.The proposed development is approximately a mile away from the
shoreline.
5.The subject property is located within Zone "X"of the Federal Emergency
Management Agency Area (FEMA).Flood Insurance Rate Map (FIRM)/FEMA has
identified Zoue "X"areas as outside of the 0.2%annual chance of flooding.In addition,
this area is outside of the Tsunami Evacuation Zone.
6.The topography is relatively flat,and no grading or grubbing of the project aiea will be
done.
7.CZO Development Standaids
The proposed development is subjected to standards prescribed in Sections 8-4.3 and 8-
Z-IV-202I-7,U-2021-^;Director's Report
KBaan Old Mm.U.C.
February 12,2021
5|Page
a.Setback Requirements:Front property line setbacks are lO'-O"with a side and
rear property line setback of five feet (5'-O")or half the distance of the plate height
whichever is greater.
b.Parking Requirements:
1)WAREHOUSE:The off-street parking requirement for the waiehouse building
is one (1)stall per 500 square feet of gross floor area,which calculates to seven
(7)stalls (3,600 s.f./500 s.f.=7.2).The Academy will occupy 1,800 oftotal
square feet of space within the warehouse,1,200 square feet is used for the
actual class instruction and a check in desk area.The remaining 600 square feet
is used for storage area.The Academy's total parking requkement would
require a total offive (5)parking stalls:Four (4)for the work-out area,one (I)
for the storage area.
The total parking stalls required for the warehouse is nine (9)parking stalls:
four (4)for the existing warehouse/Iight industrial use,five (5)for the
Academy.
2)OLD MILL BUILDING:The off-street parking requirement is one (1)stall per
every 200 square feet of net of office space and waiting rooms or other spaces
used by the public for the transaction of business or services,but not less than
two (2)parkuig spaces shall be required.The medical use portion of the Old
Mill Building requires five (5)off-street parking stalls (1,046 s.f./200 net
s.f.=5.23)pursuant to Section 8-6.3(3)(c).The remaimng 1,000 s.f.portion of
the building to be used as a commercial kitchen/juice bar requires a minimum of
four (4)paiking spaces pursuant to Section 8-6.3(3)(a)ofthe KCC.The total
parking space required for the Old MU1 Building is nine (9):five (5)for the
medical use portion,four (4)for the commercial kitchen and juice bar.
The subject property contams a total of 18 existing parking stalls.The applicant will
provide a surplus of four (4)new parking stalls bringing the total to twenty-two (22)
parking stalls.
It is noted within the application that the majority of the students live withia the
KIlauea area and moming/aftemoon keiki classes the students are dropped off and
picked up after classes are done.The highest attendance of the Academy occurs
during the early evening hours when all other businesses are closed for the day.
c.Setback between buildings:The distance between buildings shall be ten (10)feet
muumum.
Z-FV-2021-7,U-2021-6;Director's Report
KBauMOIdMill.LLC.
Febraaiyl2.2021
6|Page
d.Lot Coverage:The subject property has been utilized for commercial puiposes
since the 1940's.Existing lot coverage to date is 17,891 square feet (see Exhibit"G")which calculates to approximately eighty-seven percent (87%)lot coverage.
With the addition of 100 square feet ofpaving for one (1)new parking stall
bringing the new lot coverage to eighty-eight (88%).
8.Building Height
Pursuant to Sec.l0-2.4(e)(l),the North Shore Development Plan (NSDP)allows
structures to be no higher than tweaty-five (25)feet,except as provided under
Ordinance No.416 (Flood Hazard Areas)Section 15-1.5(c)(4)(A)which allows a
structure to be no higher than 25 feet from ground level or base flood elevation plus
fifteen (15)feet,whichever is greater at the site.No new structures are being
proposed with ttus application.
9.Use Peraiit
a.Pursuant to Article 3 of the Coroprehensive Zoning Ordinance (CZO),Chapter 8 of
the Kauai county Code (1987),the purpose ofthe Use Permit Procedure is to assure
the proper integration into the coramunity of uses which may be suitable only in
specific locations of a district,or only under certaiu conditions,or only if tbe uses
aie designed,arranged or conducted in a particular manner,and to prohibit the uses
if proper integration canuot be assured.Section 8-3.2 of the CZO specifies a Use
Pennit may be granted only if the Plamiing Commission finds that the use meets the
following criteria:
1)The use must be a compatible use;
2)The use must not be detrimental to persons or property in the area;
3)The use must not cause substantial environmental consequences;and
4)The use must not be inconsistent with the intent of the Comprehensive Zoning
Ordinance (CZO)and General Plan.
Vm.AGENCY COMMENTS
See attached Exhibit "A"
IX.PRELEVHNARY EVALUATION
In evaluating the Applicant s request to allow the retail sales,art gallery,farm tours,and
community events,the followmg are being considered.
1.General Plan
The proposed development satisfies the following policies of the Geneial Plan,as taken
from Section 1.3 and 1.4:
A.1.3,entitled"VISIONSANDGOALS"
Z-rv-2021-7,U-202I-6;Director's Repon
KIlaneaOMMUI.LLC.
Fcbnnry 12.202]
7|Page
1)Goal #1 "Sustainable Island"-This project will use the existing Warehouse
and Old Mill Building and have minimal impacts to the surrounding areas and
preserving open space.The proposed use assists in the economic and
environmental aspects of the General Plan.
2)Goal #2 "Unique and Beautiful Place"-As represented in the application the
project will not change any natural landscapes or have negative visual impacts
in the suTrounding area.
3)Goal #3 "A Healthy and Resilient People"-The Academy use will promote
physical exercise thiough its martial arts and self-defense classes along with a
strong sense of community to the KTlauea neighborhood area as well as the
Island of Kaua'i.The commercial kitchen/juice bar will support local farmers
and the local food processing business around the North Shore area.
4)Goal #4 "An Equitable PIace,with Opportunity for All"-The proposed
commercial kitchen/juice bar will providejobs up to three (3)full time and
encouraged to hire people within the KBauea area.The commercial kitchen/
juice bai intends to use locally grown produce and support local fanners by
purchasmg their goods.
B.Sectioa 1.4,entitled "POLICIES TO GUIDE GROWTH"
1)Policy #1 "Manage Growth to Preserve Rural Character^-The proposed
Academy and Commercial kitchen/juice bar is within the "Neighborhood
General"designation of the Kaua'i General Plan.It uses existing stmctuTes in
an established urban aiea.
2)Policy #3 "Recognize the Identity of Kaua'i Individual Towns and
Districts -The subject property surrounding area has mixed use of residential
and commercial uses.The Subject property is also walking/bilcing distance to
the KDauea Town Core.
3)Policy #4 "Design Healthy and Complete Neighborhoods"-The proposed
projects will not involve any new stmctures or additions.The subject property is
situated within walking and biking distance to the KIlauea Town Core.As stated
within the application the majority of the Academy's students live within the
KIlauea area.
4)Policy #6 "Reduce the Costs of Living -The proposed projects will provide
commercial opportunities for tourists and residents.The project area is located
close to existing Kilauea's Town Core offering economic growth to surrounding
commercial and business activities.Also,the subject property is in an area that
is easily accessible by walking and biking reducing transportation needs such as
car use.
Z-FV-2021-7,U-202I-6;Dmctor's Rcport
Knaum Old Mill,LLC.
Februaiy 12,2021
8|Page
5)Po]icy#10 Help Business Thrive -Both projects supports small businesses
within the area and support local framers in purchasing locally grown goods.
farmland.
6)Policy#16 "Protect Access to Kaua'i's Treasured Places"-The proposed
projects will have no negative impacts to any public access to streams,
shoreline,trails,recreatiou areas,and places associated with Traditional Native
Hawaiian Cultural Practices.
7)Policy#17 "Nurture our Keiki"-The proposed use of both projects promotes
small business as well as promoting safe recreational and educational areas for
the keiti.The projects will provide a live,work,and play enviionment with the
KHauea community.The subject property is also wiA walking and biking
distance to the ffflauea Town Core reducing the need for travel and commutmg
for these services.
8)Policy#19 "Communicate with Aloha"-The applicant has contacted the
KIlauea Neighborhood Association and scheduled a hearing with The Kaua'i
Planning Commission giving the public opportunity to participate in the local
govemment and plaiming decision making process.
2.North Shore Development Plan Standards
The proposed development is in compliance with the Northshore Development Plan
(NSDP).Both buildings were built prior to the adoption of the CZO and considered"grandfathered"or legally non-coDforming.Although the buildings are non-
confonning,they are within tbe twenty-five (25)feet height limitation.The proposed
uses will provide commercial ecoaomic opportunities as well as be compatible with the
natural surroundings of the area.
3.Native Hawaiian Traditioaal and Cultural Riehts
The applicant is unaware of any aichaeological,cultural,or historical resources on the
surface of the subject property.The nearest historical resource is a historic stone
building approximately 550 feet east ofthe subject property (see Exhibit "L").The
applicant has reached out and identified two (2)community members with historical
and cultural knowledge about the area withm the application.Currently,there are no
known impacts to any Native Hawai'i Traditional and Cultural Practices on the subject
property.The applicant shall inform fhe Planning Department if they receive any
knowledge of or discover any cultural/historical resources.
4.Use Permit
a.Pursuant to Article 3 of the Comprehensive Zoniag Ordinance (CZO),Chapter 8 of
the Kauai county Code (1987),the purpose ofthe Use Permit Procedure is to assuie
the proper integration into the community of uses which may be suitable only in
specific locations of a district,or only under certain conditions,or only if the uses
9|Page
Z.IV-2021 -7,U-2021.6;Director's Rcpon
Kilauea OM Mill,LLC.
February 12.2021
are designed,arranged or conducted in a particular manner,and to prohibit the uses
if proper integration cannot be assured.Section 8-3.2 of the CZO specifies a Use
Permit may be granted only if the Plaiming Commission finds that the use meets the
following criteria:
1)The use must be a compatible use;
2)The use must not be detrimental to persons or property in the area;
3)The use must not cause substantial environmental consequences;and
4)The use must not be inconsistent with the intent of the Comprehensive Zoning
Ordinance (CZO)and General Plan.
b.Based on the foregoing,the following aspects are considered:
1)Compatible Use -The proposed development is designed to be integrated
with the surrounding commercial and residential uses within Kilauea Town.
As noted in the Director's Report,the project site is diiectly adjacent to
commercial and residential projects on all three sides of the project site.
As such,the proposed use is compatible with the surroundmg uses and is not
expected to impact urban activities in the area.
2)The subject proposal has actually been in operation without the proper permits
since 2010.To date,the Department has not received any complaints
conceming the operation of the Long Man Jiu-Jitsu Academy on tfae subject
property.The absence ofany complaints against the Academy's operation by
suirounding neighbors living in or frequenting fhe surrounding area can be
considered demonstrative ofthe operations'corapatibility with the
surrounding area.
X.PRELIMINARY CONCLUSION
Through proper mitigation measures,the proposed development would not have any
detrimental impact to the enviromnent or the surrounding area and is in compliance with
the criteria outlined for the granting of a Use Pennit and Class IV Zoning Permit.
The Applicant should institute the "Best Management Practices"to ensare that the
operation of this facility does not generate impacts that may affect the health,safety,and
welfare of those in the sujTounduig area of the proposal.
In addition,the Applicant should implement to the extent possible sustainable building
techniques and operational methods for the project.
XI.PREL1VHNARY RECOMMENDATION
Z.IV.2021-7,U-2021-6;Director's Repon
KUauea OM MiII,LLC.
FebmaiyI2,2021
10 |P ag e
Based on the foregoing evaluation and conclusion it is hereby recommended CIass IV
Zoning Permit Z-rV-2021-7 and Use Pennit U-2021-6,to be APPROVED.If approved,
the following conditions shall be implemented:
1.The proposed uses and improvements shall be operated and constmcted as
represented.Any changes to said development shall be reviewed by the Planning
Director to determine whether Planning CommissioD review and approval is
wairanted.
2.The Applicant is advised that should any archaeological or historical resources be
discovered during ground disturbing/construction 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 Planning Department at (808)241-4050 to
determine mitigation measures.
3.In oider to minimize adverse impacts on the Federally Listed Tbieatened Species,
Newell's Shearwater and otber 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 upwaid or spotlighting of structures
shall be prohibited.
4.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.
5.An Enviionmental Impact Assessment fee equal to $100 per minimum number of
stalls required shall be due at time of building peraiit application.
6.The Applicant is advised that prior to construction 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).
7.The Applicant shall resolve and comply with the applicable standards and requirements
set forth by the State Health Department,State Historic Preservation Division-DLNR,
and the County Departments of Public Works,Fire,Transportation,and Water.
8.The Plannmg Director reserves the right to increase parking requiiements when
particular uses cause unusual trafBc congestion.Parking spaces shall be used for
parking of employees,customers,students (martial arts school)and business vehicles.
Storage of materials or long-tenn parking of vehicles and/or trash bins in the required
off-street parking stalls is not permitted.
Z-IV-2021-7,U-2021-S;Director's Rcpon
Kniueil OId Mill,LLC.
Februaiy 12,2021
ii|P a g e
9.Prior to commencement of the proposed development,written confirmation of
compliance with the requirements from all reviewing ageacies shall be provided to the
Planning Department.Failure to comply may result in forfeiture of the SMA Permit.
10.To the extent possible within the confmes ofunion requirements and applicable legal
prohibitions against discrimination in employment,the Applicant shall seek to hire
Kauai contiactors as long as they are qualified and reasonably competitive with other
contractors and shall seek to employ residents of Kauai in temporaiy constmction and
permanent resort-related jobs.It is recognized that the Applicant may have to employ
non-Kauai residents for particular skilled jobs where no qualified Kauai residents
possesses such skills.For tbe purposes of this condition,the Commission shall relieve
the Applicant ofthis requirement ifthe Applicant is subjected to anti-competitive
restraints on trade or other monopolistic practices.
11.The Planning 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 the
Planning Department's final recommendation in view ofthe forthcoming public hearing
process scheduled for MARCH 9,2021 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
c.The Applicant's response to stafFs report md recommendation as provided
herein.
By'
ROMIO IDICA
Planner
Approved &Recommended to Commission:
By
KA'AINA S>HULL
Director of Planning
Date:y^-2^2-f
Z-FV-2021-7,U-2021-6;Director's Report
KlliaaOldMIll.LLC.
Fcbnury 12,2021
121Pag e
EXHIBIT "A"
(Agency Comments)
For reference
BAiROfiliSfWTI^ALTK SERVICES
l-::--';^'0"-^.^,iy-
COUNTyOFKAUA'I i-'LANWINS OEP',.
PLANNING DEPARTMENT
4444 RICE STREET,SUTTE A473 LlHU'E,HAWAI1 96766
(808)241.4050 '21 FEB 19 P).-30
FROM:KaainaS.Hull.Director (Romio)D c.r-Janyary 28,2021'fc.iVcL''
SUBJECT:Class IV Zoniag Permit Z-rv-2021-7,Take-out Juice Bar With A Commercial
Kitdien
Tax Map Key:(4)5-2-014:049,KUauea Old MU1,Llc,Applicant
TO:
D
n
D
D
D
u
D
Department ofTraaspottation -STP
DOT-Highway,Kauai(info only)
DOT-Airports,Kauai (info only)
DOT-Haibors,Kauai (info only)
State Department of Health
StateDepartment of Agnculture
State Office ofPlaiming
State DepL ofBus.&Econ.Dev.Tourism
State Land Use Commission
State Historic Preservation Division
DLNR-Land Management
DLNR-Foresty &WUdIife
DLNR-Aquatic Resources
DLNR-OCCL
n
D
D
D
au
Da
D
DPW-Eogineering
DPW-Wastewater
DPW-BuUding
DPW-SolidWaste
Department of Parks &Recreation
Fue-Department
County Housing-Agency
County Econonuc Development
KHPRC
WaterDepartment
Kaua'i Civil Defense
U.S.Postal Department
UH_Sea_Gnmt
County Transportation Ageney
Other:
FOR YOUR COMMENTS (pertaming to your depal(tment):
See comments on attached sheet^
February 11,2021 ^—t
larren T.//Ta
Distrlct En'
iu,Acting Chief
mental Health Program Kauai
This matter is scheduled for a public hearing/before the County of Kauai Plaiming Commission on
3/9/2021 at the Liliue 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 witbin one (1)
mondl from the date of this rcquest,we will assume that there are no objections to this pemiit request.
Mahalo!
Class IV Zoning Permit Application:Z-IV-2021-7
Applicant:Kilauea Old Mlll,LLC
Based on our review of the application,we have the foltowing environmental health
concerns for your conslderatton.
1.The sxisting septic system can continue to be utilized,if wastewater flows do not
exceed 1000gallonsperday.
2.The proposed food services and food establishments shall comply with the
applicabte requirements of Title 1 1,Hawaii Admlnisfrative Rules (HAR),Chapter
11-50,"Food Safety Code'.
3.The proposed food establishment shall be constructed in accordance wfth the
applicable ventilation requirements of Trtto 11,HAR Chapter 11-39,"Air
Conditioning and Ventllating".
4.Noise will be ganerated if remodeling/construction activltles occur.The
applicable maximum permissible sound levels as stated In Tltte 11,(HAR),
Chapter 11-46,"Community Noise Control",shall not be exceeded unless a noise
penntt Is obtained from the State Department of HeaHh (DOH).
5.Temporary fugitive dust emissions could be emltted if remodeling/construction
activfties occur.In accordance with Title 11,HAR,Chapter 11-60.1 "Air Pollution
Control",effective air pollution control measures shall be provided to prevent or
minimize any fugltlve dust emissions caused by construction work from affecting
the surrounding areas.This includes the off-site roadways used to enter/exH the
project.The control measures include but are not limited to the use ofwater
wagons,sprinkler systems,dust fences,etc.
6.If remodeling/constnictfon activities occur,the constructlon waste that is
generated by the project shall be disposed of at a solid waste disposal facility
that compltes with the applicable provisions of Title 11 HAR,Chapter 11 -58.1
"Solki Waste Management Control",the open buming of any of these wastes on
or off slte prohiblted.
Due to the general nature ofthe application submitted,we reserve the right to
imptement future environmental health restrictions when more detailed information is
submitted.
COUNTY OF KAUA'I .
PLANNING DEPARTMENT
4444 R1CE STREET,SUITE A473,LIHU'E,HI 96766
Phone:(808)241-4050
TO:Kaaina S.Hull,Director (Romio)
;yorf,;!,..•,'
WQWW.
SUBJECT:Class FV Zoning Permit Z-IV-2021 -7,Take-out Juice Bar With A Commercial
Kitchen 21 FEB 19 A7:49
Tax Map Key:(4)5-2-014:049,KTlauea Old MiU,Llc,Applicant
PW Bl.21.100
RECEiVLu
TO:
D
D
DiD
D
D
DiD
D
D
Department of Transportation -STP ^
DOT-Highways,Kaua'i (info only)Q
DOT-Airports,Kaua'i (info only)D
DOT-Harbors,Kaua'i (info only)
State Department of Health ||
State Department ofAgriculture
State OfBce ofPlanning [_]
State Dept.ofBus.Econ,Dev.Tourism P1
State Land Use Coinmission Q
State Historic Preservation Division ^
DLNR -Land Managemeat D
DLNR-Porestry&Wildlife D
DLNR -Aquatic Resources [_]
DLNR-OCCL ^
DPW -Wastewater
DPW -Building
DPW -Solid Waste
Department ofParks &Recreation
Fire Department
County Housing Agency
County Economic Developmeat
KHPRC
Water Department
Kaua'i Civil Defense
U.S.Postal Department
UH Sea Grant
County Transportation Agency
Other:
February 4,2021FORYOURCOMMENTS(pertaining to your department):
We have reviewed the subject application to use the vacant area adjacent to the Physical Therapy
and Wellness Center at the Old Mill Building for a commercial kitchen and juice bar.We have
no comments.
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 of Kaua'i,Planning Commission
on 3/9/2021 at the Lihu'e Civic Center,Mo'ikeha Building,Meeting Room 2A-2B,4444 Rice
Street,Llhu'e,Kaua'i,at 9:00 am or soon thereafter.Ifwe do not receive your agency comments
withia 21 days from the date ofthis request,we will assume there are no objections to this permit
request.Mahalo!
Shanlee Jimenez
From:
Sent:
To:
Subject:
Kaaina Hull
Tuesday,March 09,2021 12:38 PM
ShanleeJimenez
FW:I support!!!Longman Jiu-Jitsu.
From:Genna Wolkon <genna@kauaifarmacy.com>
Sent:Tuesday,March 09,2021 8:18 AM
To:Kaaina Hull <khull@kauai.gov>
Subject:1 support!!!Longman Jiu-Jitsu.
CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even if the
sender is known to you unless it is something you were expecting.
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HA?1 1 2021
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3/8/21
SUPPORT!!!
To whom it concerns:
My name is Genna Wolkon,owner of Kauai Farmacy in Kilauea.It has come to my attention that Mr.Ewald's Longman
Jiu-Jitsu Martial Arts Dojo is under consideration for a special use permit.1 have three children that started attending
Mr.Ewald's classes early this year and 1 would like to formally on-the-record attest to the positive changes 1 have seen
since attending.Their confidence,self-reliance and personal growth both physically and emotionally has been
considerable!!!
Longman Jiu-Jitsu is more than a typical martial arts studio.It is a communal staple of Kilauea and a safe haven for
children and adults to direct their focus on self-evolution for positive contribution to our local community.
Mr.Ewald strongly encourages and embodies honesty,good values and instills righteousness through valuable
monologues in each lesson he teaches.He is an employer/a family man and a strong community leader.We are
honored to have him mentor our children,and 1 am positive you will find an astounding majority in favor of his health
and wellness contributions to our north shore local community.
We encourage you to decide in his favor so he may continue to be of great service to our children and community.He
and the local Ohana are most deserving of a shared space to practice this art and would be most appreciative of your
support.
Mahalo Nui loa for your consideration on this matter.
Mahalo Nui loa and sincere gratitude for hearing my testimony.
Genna Wolkon
Kilauea Resident
OwnerofKauai Farmacy
Parent of three Longman Jiu-Jitsu students in Kilauea.
GENNAWOLKON
KauaiFarmacy.com
Shanlee Jimenez
From:
Sent:
To:
Subject:
Kaaina Hull
Tuesday,March 09,2021 12:26 PM
ShanleeJimenez
FW:Kilauea Old Mill permit application
From:Kyle Casey <kc.sproutscout@gmail.com>
Sent:Tuesday,March 09,2021 12:05 PM
To:Kaaina Hull <khull@kauai.gov>
Subject:Kilauea Old Mill permit application
CAUTION:This email originated from outside the County of Kauai.Do not dick links or open attachments even ifthe
sender is known to you unless it is something you were expecting.
1 Supportthe approval ofthe Kilauea old mill application forspecial use permits.There iscommercial useon both sides
of this property so there is no reason to address this claim that it would take away from housing needs.Our community
will be greatly benefited by the continued effort and leadership of Professor Bruno Ewald and his mission to help people
andfamiliesthroughjiujitsu.I have been attendingclassesforalmostSyears at longmanJiu-Jitsu and can happily
provide testimony to the positive impact Martial arts can have on your life.That being said longman jiu jitsu is more than
justa martial arts academy.The lessons beingtaughtthere applyto lifeon and offthe mats.Professor Bruno creates a
safe environment for children and young adults who may not have a great situation at home and is consistently involved
in helping his community in any way needed.I'm hoping that the County will support this application as well as any
future permits that can expand the reach of Longman Jiu Jitsu on our island of Kauai.
Mahalo
Kyle Casey
kc.sproutscout@gmail.com
Hanalei Hawaii
6(.-2..^.^
MAY1 1
Shanlee Jimenez
From:
Sent:
To:
Subject:
Kaaina Hull
Tuesday,March 09,2021 12:27 PM
ShanleeJimenez
FW:Kilauea Old Mill Application for Use Permit
From:Evan Daniells <edaniells@kauai.gov>
Sent:Tuesday,March 09,2021 10:19 AM
To:Kaaina Hull <khull@kauai.gov>
Subject:Kilauea Old Mill Application for Use Permit
DearSir or Madam
Aloha,my name is Evan Daniells.
I am writing to express my support for the approval ofthe Kilauea Old Mill application for use under Longman Jiu Jitsu.I'd also like to briefly
discuss the positive impact this institution has had on not j'ust myself,but the community as a whole.I'm originally from Kauai and grew up
on the north shore in Hanalei.1 still live in Hanalei and I work fufl time for the county as a lifeguard,predominantly here in the north
district.1 ve known Bruno Ewald and his family since 1 was born and have always had the utmost respect for them.1 started training at
Longman about a year and a half ago and I can't begin to explain the benefits it has had on my life.1 strongly believe that Jiu Jitsu plays a
huge role in building the core virtues required to create outstanding members of society;and Longman Jiu Jitsu is our vessel for that.Bruno
regularly stresses that what you leam in class and the belt you earn transfates far beyond the dojo and should be demonstrated in your
daily life aswell.Confidence/respect,humility,patience and understandingarejust a few ofthe manycharacterbuildingtraitsthatare
fortified at Longman in both the kids and adult classes.I believe this in tum molds the students into respectful individuals who play a
positive rofe in our community throughout their entire lives.1 hope this letter can aid in reinforcing the necessity for this institution and
stress its importance within our community.
Mahaloforyourtime.
Evan Daniells
E d a niells@kauai.gov
808 652 7867
6.<2-.^.5.
MMn 2021
Shanlee Jimenez
From:
Sent:
To:
Subject:
Kaaina Hull
Tuesday,March 09,2021 12:27 PM
Shanlee Jimenez
FW:Kilauea Old Mill Application for Use Permit
From:Eunice Sagucio <euniceps46@hotmail.com>
Sent:Tuesday,March 09,2021 9:49 AM
To:Kaaina Hull <khull@kauai.gov>
Cc:Longman Jiu-jitsu <longmanjiujitsu@gmail.com>
Subject:Kilauea Old Mill Application for Use Permit
CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments even if the
sender is known to you unless it is something you were expecting.
Aloha,
I SUPPORT the approval of the Kilauea Old Mill Application
because my eldest child attends Jiu Jitsu class there,and my
youngest will be attending there in the future.This is her
daily activity after school and during school break and it
teaches her a lot of values,self-confidence,friendships,and
family.
When I see you closing the dojo,I feel sad.I need you to
know how helpful Bruno and his whole Jiu Jitsu academy has been
for our community and children's well-being.Would you be
willing to reconsider to keep our dojo open for the sake of our
children and our community?
Thank you for your understanding.Have a wonderful and blessed
day!
Mahalo,
Eunice
Eunice Sagucio
Kilauea,Kauai
Telf:(808)212-8964
euniceps46_@hotmail,com
a'»..«.>v.
NAY 1 1 2021
Shanlee Jimenez
From:
Sent:
To:
Subject:
Importance:
Kaaina Hull
Tuesday,March 09,2021 12:27 PM
Shanleejimenez
FW:1 SUPPORT Kilauea Old Mill Application for Use Permit
High
From:RYAN SIEBRING <siebring@me.com>
Sent:Tuesday,March 09,2021 9:08 AM
To:Kaaina Hull <khull@kauai.gov>
Subject:Fwd:1 SUPPORT Kilauea Old Mill Application for Use Permit
Importance:High
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.
Don't see my email on the messages?Re sending..
RYAN SIEBRING
siebrina@me.com
Q.^.°<^
NAY 1 1 2021
„MEMBER
SUBEO':2'°*AdrfitiBn tu tfie Ptannine Co'ramlssEon
2.Naw Aaencv Hearina
Kitauea Old MTU,U.C
53.l.etter (3/8/2021)from
letter (3/8/2021)froffl
tetter (3^8/2021}from
faehalf rfJim and;Sfaelly Speneer.
er,Kaua'i
Letter (3/S/20Z1}
50.Letter (3/8/2021)from
Begin forwarded message:
From:Ryan Siebring |North Shore Preserve <rsiebrina@northshofeDresen/e.com>
Subject:1 SUPPORT Kilauea Old Mill Application for Use Permit
Date:March 7,2021 at 12:02:52 PM HST
To:KHytj@l
Aloha Kauai Planning Commission,
1 supportthe approval ofthe Kilauea Old MillApplication!
Myself and my 3 young children attend the Jiu Jitsu academy for mental &physical health.We have
attended for the last 8 years.
I've been a resident of Kilauea since the early 80's and feel blessed to have such a positive program in
our neighborhood.This academytakes in abused children,people addicted to drugs,and many others
with strugles and challenges.The program teaches them structure and gives them tools to live a more
positive life.s•C't "•«.!
There is EOnvnerejaiase on bothsidesofthis propertyand ithas been usedforthispurpusesince long
before Iwasborn.Asa kid,we usedtoeatatJauqes Bakeryandthen Road runner Cafe as a teenager.
The community needs and benefits immensely from the services provided at the Kilauea Old Mill.
With respect &aloha,
Ryan
Ryan Siebring
808-225-1552
rsiebring@northshorepreserve.com
Kilauea Hawaii
Sent:
Planning Department
Friday,April 16,2021 2:32 PM
Kaaina Hull
Dale Cua;Shanlee Jimenez
FW:Class IV Zoning Permit Z-IV-2021-7
From:William Perri <stasiamo@msn.com>
Sent:Friday,April 16,2021 2:20 PM
To:Planning Department <planningdepartment@kauai.gov>
Cc:Michael Kline <mikekline999(5)msn.com>;Michael Foley <kerryhi@hotmail.com>
Subject:Class IV Zoning Permit Z-IV-2021-7
CAUTION:This email originated from outside the County of Kauai.Do not click links or open attachments
even if the sender is known to you unless it is something you were expectmg.
County of Kauai PlanningCommission
4444 Rice Street
Suite A473
Lihue,Hawaii 96766
To Whom It May Concern:
1 am writing in reference to the Class IV Zoning permit Z-IV-2021-7 and use permit D-2021-6 to allow operation
of an athletic health club within an existing warehouse building and operation of a commercial kitchen and
retail business within the existing Old Mill Building on a parcel situated at the Oka Street/Aalona Street
intersection in Kilauea town,further identified as 2430-A Oka Street,Tax Map Key:5-2-014:049,and
containing a total area of 20,389 sq.ft.
For several reasons,1 need to express concern about this proposal:
1)The traffic and parking on our street (Aalona cul-de-sac)is already overburdened due to the medical clinics
and the pharmacy in dose proximity.There are cars parked up and down Aalona,and on both sides of Oka,
both in front of the pharmacy and the Old Mill building.There does not appear to be sufficient parking for
another business there.Already,it is quite dangerous for us to turn either left or right onto Oka because of the
parked cars blocking our view.Hopefully,this will not,eventually,lead to an accident.Both an athletic club
and a juice bar will only add to the traffic and parking congestion.
2)I am concerned about noise that any new business might cause.1 live directly behind the warehouse.
30 A new athletic club will be moving across Kilauea Road into the new Kilauea shopping complex soon.This js
ideal because they have sufficient parking and it does not interfere in a residential area.So,why is there a
need for another one at this warehouse?
Thankyouforyourconsideration ofthese matters.
Sincerely,
William D.Perri
4275 Aalona St.
Kilauea,Hl 96754
Ka'aina S.Hull
Director of Plamiing
Jodi A.Higuchi-Sayegusa
Deputy Director of Planning
COUNTY OF KAUA'I
PLANNING DEPARTMENT
SUPPLEMENT #1 TO
PLANNING DIRECTOR'S REPORT
RE:Class IV Zoning Pemiit Z-FV-2021-7
USE Peimit U-2021-6
APPLICANT:KHauea Old Mill,LLC
ADDmONAL FWDINGS
Attached for the Planning Commission's reference is supplemental mfonnation as follows:
•Department of Public Works-Engineering Division,Michael Moule additional
comments,email received April 29,2021
By ->-<.
Romio Idica
StaffPlanner
Ka'ama S.Hull
Director of Planning
Date:^^/2^(
Class IV Zoning Fermit Z-IV-2021-7,USE Pcrmit U-2021-6
Supplement #1 to Director's Report
KBauea Old MiU,LLC
04.30.21
^l.^r
NAV 1 1 2021
Romio Idica
From:
Sent:
To:
Cc:
Subject:
Michael Moule
Thursday,April 29,2021 5:06 PM
Kaaina Hull
Romio Idica
RE:Class IV Zoning Permit Z-IV-20Z1-6,Old Kilauea Mill Application
Kaaina,
After getting some better measurements,1 think that it would be possible to allow parking spaces19,20,and 21,with a
couple of conditions.We have the following comments.
Parking spaces 19,20,and 21 shall be marked for compact parking,so that the parked vehicles can fit within the
private property.A driveway approach meeting County standards must be provided for access to parking spaces
19,20,and 21.Priorto construction ofthe drivewayapproach,theapplicantmustapplyforand obtain a
driveway permit from the Engineering Division.
-Michael
Michael Moule,PE,PTOE
Chief of Englneering
County of Kaua'i
Department of Public Works
4444 Rice Street,Suite 175
Llhu'e,Hl 9S7S6
1808)241-4S91 tel
(808)241-6609fax
mmoule@>kguai.QOV
Ka'aina S.Hull
Director of Planning
I.SUMMARY
Action Required by
Planning Commission:
Jodi A.Higuchi Sayegusa
Deputy Director of Planning
COUNTY OF KAUA'I
PLANNING DEPARTMENT
DIRECTOR'S REPORT
Consideration ofApplicant's request to AMEND the site plan and
Condition No.20 of the Special Permit approved by the Planning
Commission on April 11,2012 to pemiit the operation of a non-
cottfonning transient vacation rental use within the State Land
Use "Agricultural"District.
Permit Application Nos.Special Permit SP2012-25 for TVRNCU #4243
Name of Applicant(s)JEFFREY AYEROFF and MARTY LONGBINE
lan K.Jung,Esq.,Agent for Applicants
II.PERMIT INFORMATION
2021'
PERMTTS REQUIRED
Use Permit
Project Development Use
Permit
Variance Permit
Special Permit Special Permit required pursuant to Chapter 205 of Hawaii
Revised Statutes and Chapter 13 ofthe Rules ofPractice
and Procedures of the Planning Commission for the non-
conforming transient vacation rental use within the State
Land Use Commission "Agricultural"District.
Zoning Permit Class
rv
m
Special Management Area
Permit
DUse
Minor
AMENDMENTS
[_]Zoning Amendment
Date of Receipt of Completed N/A
Application:
Date of Director s Report:
Date ofPublic Hearing:
Deadline Date for PC to Take Action
(60 Day):
III.PROJECTDATA
April13,2021
N/A
N/A
IV.LEGAL REQUIREMENTS
2 [Page
AmendSpedal Permit SP-2012-25;Director's Reporl-
AYEROFF/LONGBINE
5.11.2021
I1 General Plan Amendment
Q State Land Use District
Amendment
PROJECTINFORAMTION
Parcel Location:Kalihikai (Anmi),makai of Anini Road,approximately 600 ft south of
the Anini Beach Park.
Tax Map Key(s):5-3-004:18 Area:11,451 sq.ft.
ZONING &DEVELOPMENT STANDARDS
Zoning:Agriculture District "A"
State Land Use District:Agricultural
General Plan Designation:Agriculture
Height Limit:25 feet
Max.Land Coverage:60%ofLotAiea
Parking Requirement:2 stalls on-site
Front Setback:10 feet
Rear Setback:10 feet
Side Setback:5 feet OR l/z wall plate height
Community Plan Area:North Shore Planning Area (NSPA)
Community Plan Land Use
Designation:
NA.
Deviations or Variances Requested:NA.
Section 8-3.1(f),KCC:N/A
Commission Meeting Date:MAY 11,2021
V.PROJECT DESCMPTION AND USE
BACKGROUND
The Planning Commission approved the subject Special Pennit on April 11,2012 for the
operation of a non-confomiing transient vacation rental use in the State Land Use
"Agricultural"District.TVRNCU #4243 was assigned to the single family residence
subject of the application.
However,prior to said action by the Commission,a field inspection of the property
revealed the use of an approved workshop as a guest cottage,with no conversion permit
having been approved.The applicant at that time successfully converted the interior of the
stmcture back to a workshop prior to consideration by the Planning Commission.
Condition #20 was inserted on the pemiit to prevent use and conversion of the structure to
residential or vacation rental use unless authorized by the Commission.
The applicant has been timely with his annual renewals of the TVR.
SEE Exhibit 1,StaffReport for SP-2012-25
SEE Exhibit 2,site location
SEE Exhibit 3,plot plan
SEE Exhibit 4,Approval letter for SP-2012-25
VI.APPLICANT'S REASONS/JUSTIFICATION
REQUEST
The property does qualify for a 500 sq.ft.guest house,so the conversion of the workshop to
a Guest House is reasonable,provided it not be advertised nor used in conjunction with the
vacation rental use of the main house.A condition of acknowledgment of this limitation,
by the applicants,is also appropriate.
The requested minor renovations to the main house is reasonable as no additional bedrooms
are being added.
VII.PRELIMINARYEVALUATION
In considering the Applicant's request,it is noted that:
•the property qualifies for a Guest House;
•the requirement for annual renewal of fhe transient vacation rental has been
complied with;
•no complaint from neighbors have ever been received by the Department relative
to the transient vacation rental use of the property;and
•the proposed renovations to the main house are acceptable and reasonable as no
additional bediooms are being added.
Staff does not anticipate any problems in granting the Applicant's request provided a
condition of approval is included to prevent usage of the Guest House for vacation rental
purposes.
Amend Special Permrt SP-2012-25;Director'S Report
AYEROFF/LONGBINE
5.11.2021
3|Page
VIII.PRELMINARY RECOMMENDATION
It is recommended that the Commission approve the requested reconfiguration of the
floor plan,and approve the conversion of the workshop to a guest house.Furthermore,
Condition No.20 of Special Pennit SP-2012-25 be amended to read as follows:
"20.The [workshop/storage]Guest House structure shall not be used nor
be advertised for transient vacation rental [or residential]puq?oses
at any time.Prior to the annual renewal of this permit,applicant
shall arrange with the Planning Department for an inspection of the
structure.
Furthennore,the Applicant is advised that all applicable conditions of approval shall
remain in effect.
*NOTE:Material to be deleted in bracketSASnd uew material is underlined.
By
3L L.LAURETA
g Program Manager,Enforcement
Approved &Recommended to Commission:
By
Date
KA'AINA S^HBLL
Director of Plannmg
:(T/^ll^u
AmendSpedalPermitSP-2012-25;Director's Report
AYEROFF/LONGBiNE
5.n.2021
4|Page
DEREK S.K.KAWAKAMI.MAYOR
MICHAELA.DAHILIG,MANAGiNG DIRECTOR
WASTEWATER MANAGEMENT DIVISION
DEPARTMENT OF PUBLIC WORKS
TROY K.TANIGAWA,P.E.,ACTING COUNTY ENGINEER
MICHAEL H.TRESLER,ACTING DEPUTY COUNTY ENGINEER
March31,2021
Mr.Ka'aina Hull
Dlrector,County of Kaua i Planning Department
4444 Rice Street,Suite A473
LThu'e Hl,96766
Subject:Waimea Wastewater Treatment Plant (WWTP)
Class IV Zoning Permit Z-IV-2010-145
Use Permit U-2010-12
Special PermitSP-2010-2
Tax Map Key 1-2-006:036 Waimea,Kaua'i
DearMr.Hull:
Please accept this letter as the County of Kaua i Department of Public Works (DPW)Wastewater
Management Division s (WMD)request to be placed on the Planning Commission s May 11,2021
agenda.We request the opportunityto appear before the CommissJon to request an amendment to the
March 23,2010 Class IV Zoning Permit to inctude the planned irrigation water storage tank,pump
station,and pipeline distribution system forthe reuse of R-l quafity recycled water in Waimea Town.
The March 23,2010 Class IV Zoning Permit is attached for your convenience.We would like to present
the proposed project and answer any questions the Commissioners might have.
Project Background:
In 2010,the Commission approved the project to construct and operate upgrades at the Waimea WWTP
to provide additional treatment capacity,effluent filtration and disinfection to achieve the production of
R-l recycled water (the highest quality of recycled water).The proposed project would establish a
recycled water storage and distribution system for the Waimea WWTP.To do so,the project proposes
the construction and operation of a 402,000-gallon storage tank,a recycled water pump station/
rehabilitation of an existing recycled water pipeline and the construction of a new recycled water
pipeline to distribute R-l recycled water to the Waimea Athletic Field,Waimea Canyon Middle School
and other future end-users in Waimea Town.The WMD has completed an Environmental Assessment
for this planned project dated July 11,2016,which is attached for your convenience.
The following conditions in the Commission's March 23,2010 approval letter will be complied with
duringthis project:
1.The proposed structures and facilities shall be constructed as represented.Any changes to said
structures and/or facilities shall be reviewed by the Planning Department to determine whether
Planning Commission review and approval is required.
4444 Rice Slreet,Suite 500 •Lihu'e,Hawai'i 96766 •(808)241-4082 (bl •(808)241-6589(0
An Equa)Opportunity Employer J./2..
NAY 1 1 2021
2.The applicant shall comply with the requirements of the State Department of Health,the
County's Fire Department,the Department of Public Works,as well as any other applicable
government agencles.
3.The Applicant shall develop and utilize Best Management Practices (BMPs)during all phases of
development in orderto minimize erosion,dust,and sedimentation impacts ofthe project to
abutting properties.
4.In orderto minimize adverse impacts on the Federally Listed Threatened Species,Newell's
Shearwater and other seabirds,all external lighting shall only be the following types:shielded
lights,cut-off luminaries,or indirect lighting.
5.Spotlights aimed upward or spotlighting of structures,landscaping,or the ocean shall be
prohibited.
6.The Planning 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 approvat not be complied with or
beviolated.
7.The applicant is advised that additional government agency conditions may be imposed.It shall
be the applicant's responsibility to resolve those conditions with the respective agencies.
Thank you for your time and consideration.We look forward to additional dialogue at the meeting on
May11,2021.
Verytrulyyours,
Jason Kaqimoto Kagimou
Date:2021,03.31 15:43:51 -10'00'
Jason Kagimoto,Chief
Wastewater Management Division
Enclosures
Exhibit A-Project Site Plan
Exhibit B -Planning Commission Approval Letter
Exhibit C -Final Environmental Assessment
Attachment A
Project Site Plan
FOR EFRUENT PUMP STATION IMPROVEMmrS.
SEE ORAWNGS M-2 TO M-i
2gni'ir-^^4-12-7-i)---:.-.-
C8?SS'icCE"TER^» <.
OfWWING C-l)
WOBKMAN5KIP WD MATERIALS WW.CONFORM TO THE eUILDING CODE OF rHE
COUNtY W KAUAI (AMENOEO IBC.2006 EOiTtOM).HOWEVER.»IHEBE REFERENCE
IS MADE TO PERFOKU-'NCE CONFCmMINC I'0 OTHEft STANBAflBS THE MORE
STRINCENT SHALL APPLY.
IHE CONDiACTCfi SHALL COMPARE ALL THE CONTRACT OOCUMENTS WW EnCH
OfflER AMD REPOBT IN WRniNC;TO THE OfFICER-IN-CHiUiCE <LL
INCON3STENCIES *ND OUISaONS.
IWE COtlTRACTOn SHAI.L TAKE F1ELO MEASUBEMENTS AND VERIPf FIELD
CtMDniONS ANC SHAU.COMPARE 5UCH FIELO MEASUREMENTS ftND CONOIIIOKS
WITH ffl£ORAWNCS BEFCHE COMMENCING WORK.REPOSr IN WRD1NC TO rtiE
OfFICER-IN-CHASCE *U-INCONSISTENCIES *NO CUISSIONS.
THE CONTRACTOR SHALL BE RESPON318LE rOft MEIHOOS Of CONSIRUCT10W.
WORKMANSHIP ANO JOB SAFETY.THE CONTTi/lCTOR SHAU.PROVIDE TEMPORMiY
SHOSINC *NO BBnCINC «S REOUIREB FOfl STASIUTf DF STKUCrURAL MEMBERS
AND SVSTEWS.
CONSTRUCT10N LOADINC SHM-L NOT EXCEEO OESIGN UVE LOAO UNLESS SPEaAL
SHORING IS PROVIDED.ALLOWABLE LOAOS SMAU.BE REOUCED IW AREAS WHERE
[H£STRUCTURE M*S (ilOT A1IAINED FULL DESIGN SIREMCTH.
THE CONrRACIOB SH/iUL BE RESPONaBLE FOR PROTICI10N CF ME ADJACENT
PROPERTiES.SIRUCTUKES,SIREETS ANO UIILITIES OURIKG TME COWSTRUCTIOM
PERIOD.
FOUNOAT10N OESIOI CRITERIA SHALL CE eAMO ON REPOflT GEOIECHNICAL
INVESnCATION.PROPOSED SECYCLEO WATER STOfiAGE TAWK.WAIME*WASIEWATER
TOEArMENT PLAtir.WAIMEA,KAUAI,HAWWI.TMK'(+)1-2-[)06:OJ6 &037
PREPAREO Bf SHINSATO EMCINEERING.INC.AWO DATED FEBRUART 5,2019.
CONTRACTOff SHALL PROMOE FOfl BESIt-W *NO INS TA1.LA noN OF ALL
[mDEKpiNNiwe,cfiiaetNc,SWEETINI;,AWB SHORINC NECESSARf 10 PRESERVE
EXCAVAT10NS ftND EAHTH BANKS.
OURING CONSTRUCTItW,DRAINftGE SHAUL BE PROVIOED TO UIMJMIZE FWIOIMC OF
WATER AOJACENT TO OR ON FOUNDAnON *ND PAVEMENT AflEAS.PONDEO
AREAS SHALL BE ORAINEO IMMEOIAITLT.
OEEP FOUNO*nONS
THE INSIAULAnoN OF CMSSCN FOUNOATIONS MLL REQUIfiE CASIMC TO
UINIMIZE CAVE-INS OF ME OR1U.EO HOLO.
b.TREMIE CONCREIE WLL BE HEaUIREO,
CONIHACTOR SHALL PBOVIDE FOR DISPOML OF SPCNLS AND SOIL CUTIINCS
OURINC CAISSON INSTALLAIION.
2.CONCRETE SH<LL BE RECULAR WEICHT HARC ROCK CONCRETE IIND 5HM.L HAVE
A MINIMUU 2fl DAT COMPSESSIVE SIRENCTK OF +.000 PSI.COMCflETE MIX SHALL
INCLUOE 9UW FUME.
i.UAX1MUM WATER 10 CEMENT1T10US MATEBIALS RAI10 SHALL BE 0.40.
QtlCRETC MASBNRY UNITS (CMUl:
I.CONCRETE MASONRf UNIT5 SHALL B£MED<UM WICHT HOLLOW LOAB-BEARINC
UNITS CONFQRMING TO ASFM C90 AND Ml^VE A MINIMUM COMPRESSIVE STBEMCTH
W 1.900 PSI.
+.AU.CELLS AND BONO COURSES SH/ILL SE SOUU ORCUIED.
5.WHEN CROUI1NG tS STOPPEO FOR ONE HOUR OR LON6ER.HWIZONTAl
COMSIRUCDON JOINTS SHALL 8E FORUEO BY srOPPING THE GBOUT POUR 1-1/2
IWCHES 6ELOW THE TOP OF THE UPPERMOSr UNIT.
Wi MNK f.W WWK ANCHOSACE SHOWN ON TIESE BRAmNCS 15 CONCEPnjAL.
IHE TAWK UANUFACTURER/ERECTOB SHALL PROVIDE A mUPlETE MNK WTH
ANCHORACE TO THE CONCRETE FOUNOATION.ME TAWK SHALL IrlCLUOE.SUT
N01 8£UMITIO TO,IHE TANK ROOF.MNK SHELL.L^ODEB.RAILlNGS,SAFEn-
CABtE.VENT.ACCESS HATCH.MANWAT,INLET.OUTLET,OVERFtOW.WASMOUT,
LEVEL CAUOE BO/lRO.AND CAIHODIC PROTECT10N.
BASIC WNB SPEEO-'OS MPH
EXPOSUBE C
TOPOCRAPHIC FACTOR K;t=1.5
DIRECnONALITY FACTCfi Kil=0.75
QCCUCMCf CAIECORT II
IMFOFTANCE FACTOR 1=1.0
SEISM1C
5sa0.tB7
S1 =0.054
SITE CLASS O
d.OCCUPAMCy CATIGOBT II
IMPOSMKE FACTOfi 1=1.0
f.SEISMIC DESIGN CAfECORY B
DEEP FOUNDATIOMS
END 8EAR1NG ON VNBERLY1N6 eASALDC FiOCK M.WO PSf
b.SKIN FRICnoN BaOW LIPPER SOIL LATEB 2.500 PSf
ENO BEARIMC AWO SKIN FRICTION MAY BE COUBINEO
d.PILE LGAD TTST 290 K1PS
SPECIAL INSPECTION:
1.CONTRACTOH SHALL 6£RE5FONSIBLE FOfl ENSURINS THAT SPECIAL INSPECT10N
OF POBT10NS Cf WE WOtiK,AS REOUIREB BT FHE BUILCING COBE OF IHE
COUNrf OF KAUAI.SE MADE AT THE APPROPRIATC T1ME.THE CONTTiACTOR
SHALL SVE nUELY WOT1CE Of WHEM AND WHERE INSPECT10NS ARE TO B£UAOE
AND PROMOE ACCESS FOfl THE INSPECiaR.THE CONIRACTOB SMAL1.COIIRECT
OEFECnvE WORK AT N0 AOnilONAI.COSI 10 ItiE COUNTY ANO PAT FOR
RE-INSPECTION.
2.[HE FOLLOWNC 5TRUCTURM-WORK REOUIRES SPECIAL INSPEC110N:
CONCRETE
b.BOLTS INSTULED IN CONCRETE
REINFORCINC STEEL
d.HICH SIHEhlCIH BOLI1NG
STRUCIUBAL MASONRY
DRILLEB CAISSONS
REINFORCIMG BARS,AMCHOR SOL1S.INSCItlS.AWO OIHER IIEMS TO BE CAST IM
IHE CONCRETC SMALt BE SECUREO IN POSITIOW PR10R TO PLACEMENT Of
CONCRETC.
t.REINFORQNC STCEt SHALL 8E OEFORUEO BARS CONFORUIMG TO ASTU A615.
CRAOE 60.
2.WELOED MRE FAefflC SMALL COWFOKM TO nSTM A1064.GALVANIZEO.
;.CLEAf)CONCKEIi:COV£R FOR REINFORCINC BAKS SHAU.BE nS FOU.OWS,UNLESS
07HERW3E NOTED;
FOOI1NCS.GRADE BEAMS.ETC.CAST ACAlMST EARTH j'
b.FOOI1NCS.GRADE BEAMS.ETC.FOBktED WIO EXPCKEO
TO EARTH Of!WEATHER Z'
STRUCIURAL SLAS5 1-1/;"
4.CLEAR DISTANCE BEnEEN THE SURFACE OF *8AR AND ANY SURFACE OF f.
MASONRV UNIT SHUL 6E NOT LESS THAN 1/3 1NCM.UMLESS OWERWISE NOTCO.
5.RONFORCINC STEEL SHAli BE SPLICECI WHtKt INDICATED ON PLAN3.PROVIOE
UP SPLtCE I.EMCTW OF +8 BAR OIAMETERi.UNLESS OTHERMSE MOIEO.
6.UECHANICAL SPUCE CONNECTORS SHUL DEVELOP IM TtllSIOW 1S5 PERC£N[OF
TtiE SPECinEB MIWIMUM TIEf.O SIRENSW CF REINFORCINC BARS.
?.BAR BENOS AND HOOKS SHALL BE •ST/INDARO HOOKS"IN ACCOROANCE 'MIH *a
J1B,
6.EPOXY SHALL BE 31MPSQN SET-3C HICti STOEMCTH EPOXY ADHESIVE AS
MlWUFACTUBEO 8f SIMPSOW SIRONC T1E CO..INC.OR APPROVEO EUUAL.
INSTALL PER M/INUFACIURER'S PRINTED INSIALLAnON INSTIIUCT10NE.
ME IANK.TANK AMChlORACE.ANO LAODEK PlAffOSM SHALL B£OESIGNEO SY A
SIRUCIURM,ENGINEER UCENSED TO PRACnCT IN THE STATE UF HAWII.DESICN
FW THE TANK.TANK ANCMORAGE.AND LAOOER PLATFORM SMALt BE 8ASEO OW
THE 'BESICN CRITIRIA"ON THIS SHEET »NB IHE SPECIFICAriONS.
•^^f
SffttCVWSi rrtntown
CENERAL NOTES
S-1
59'-0" NK SIAB
ORAIN LINE-
R-1 WAFER LNE [)•
CONCRETE CAISSON
(16 AT CSAOE BEAM
EQUAL SPACIMC)
;ONCnETE CWSSON
(^;AT TANK SLAB]
TANK FOUNOATION PLAN
SCftLE;1/8"-I'-a"
IANK FOlJNOATION NOTES-
I,TAklK SLAB CAtSSON LOCAT10HS *R£
SIUUIETRICW.A60UT CENTEB OF TANK ANO
CENIER OF MNK SIA8
;.FOR 1EST P!LE LOUI)C*t,5£E QVIL DliAWNCS
FtOOF VENT'
OvElfflOW-
TANK ROOF PLAN
SCALE:1/8'•I'-O'
SCALE IN FEET -<L'A«.
MKE ASSOCIATES LLC
TANKFOUNDATION
AND ROOF PLANS
S-2
ALUM1NUM
OOME BOOF
IMTK KVNAR
RMSH-
CLASS FU5ED
TO STEEL
MNK SHELL
COBM.I BLUE
EXTERIW
WMTi WTERI
TANK ELEVATION
sc;*t£;t/a"-I'-o"
R-l WAIER LNE
LADDER PLATFORM PLAN
s-i /sciu,)/a"=r-o A/ift.
MKE ASSOOATES U.C
TANKELEVATION
S-3
Attachment B
Planning Commission Approval Letter
BERNARD P.CARVALHO
MAYOR
GARY K.HEU
ADMINISTRATIVE ASSISTANT
IAN K.COSTA
DIRECTOR OF PLANNING
IMAIKALANI P.AlU
DEPUFI'D1RECTOR OF PLANNING
COUNTY OF KAUA'I
PLANNING DEPARTMENT
4444 RICE STREET
KAPULE BUILDINO,SUITE A473
LIHU'E,KAUA'I,HAWAI'I 96766-1326
TEL (808)241-4077 FAX (808)241-6689
March23,2010
Briant Construction
For County ofKaua'i,Department ofPublic Works
3560KoloaRoad
Koloa,HI 96741
Subject:Class IV Zoning Pennit Z-IV-2010-14
UsePermit U-2010-12
Special Pemiit SP-2010-2
Tax Map Key 1-2-006:036,037,009;Waimea,Kaua'i
At its meeting held on March 23,2010,the Planning Commission approved the subject pennits
for the County ofKaua'i Wastewater Division to construct and operate capacity and filtration and
disinfection system upgrades at the Waimea Wastewater Treatment Plant subject to the following
conditions:
1.The proposed structures and facilities shall be constructed as represented.Any
changes to said structures and/or facilities shall be reviewed by the Department to
determine whether PIanning Commission review and approval is required.
2.The applicant shall comply with the requirements ofthe State Department of
Health,the County's Fire Department,the Department ofWater,and the
Depariment ofPublic Works,as well as any other applicable govemment
agencies.
3.The Applicant shall develop and utilize Best Management Practices (B.M.P.'s)
during all phases ofdevelopment in order to minimize erosion,dust,and
sedimentation impacts ofthe project to abutting properties.
4.In order to minimize adverse impacts on the Federally Listed Threatened Species,
Newell's Shearwater and other seabirds,all extemal lighting shall be only ofthe
following types:shielded lights,cut-off luminaries,or indirect lighting.
Spotlights aimed upward or spotlighting of structures,landscaping,or the ocean
shall be prohibited.
5.The Planning.Coiiunission 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 peimits through the proper procedures should conditions
of approval not be complied with or be violated.
6.The applicant is advised that additional govemment agency conditions may be
imposed.It shall be the applicant's responsibility to resolve those conditions with
the respective agencies.
Please find attached reviewing agencies'comments and/or conditions ofapproval.
_a.
;os(a
Director ofPlanning
c:Public Works Department
Water Department
State Department ofHealth
State Historic Preservation Division
Fire Department
Finance Department -Real Property Division
Waimea Wastewater Treatment Plant Upgrades
Approval Letter
Class IV Zoning Pennit Z-IV-2010-14
Mareh23,2010
Attachment C
Final Environmental Assessment Report
FINAL ENVIRONMENTALASSESSMENT
FINDING OF N0 SIGNIFICANT IMPACT
WAIMEAWASTEWATER TREATMENT PLANT R-1
RECYCLED WATER DISTRIBUTION SYSTEM
District of Waimea,Island of Kaua'i,State of Hawai'i
Tax Map Key:(4)1-2-006:036,009 (por.)
Prepared For:
COUNTY OF KAUA'I
DEPARTMENT OF PUBLIC WORKS
WASTEWATER MANAGEMENT DIVISION
KENNEDY/JENKS CONSULTANTS
Prepared By:
WILSON OKAMOTO CORPORATION July2016
Waimea WWTP R-1 Recycled Water
Distribution System Flnal Environmental Assessmenf
PREFACE
This BraS Final Environmental Assessment (EA)/Findinq of No Sianificant Impact (FONSI)
is prepared pursuant to Chapter 343,Hawai'i Revised Statutes (HRS),and Title 11,Chapter
200,Hawai'i Administrative Rules (HAR),State Department of Health.Proposed is an
agency action by the County of Kaua'i Department of Public Works (DPW)Division of
Wastewater Management (DWM)to install an R-1 recycled water distribution system on the
existing site of the Waimea Wastewater Treatment Plant (WWTP}and on portions of an
existing easement located in the Waimea District,Island of Kaua'i,Hawai'i.The purpose of
the proposed system is to provide the Waimea community with an effective means to store
and distribute R-1 recycled water in order to manage wastewater disposal and reduce
potable water usage.
Construction of the system would involve installing a 400,000 gallon R-1 recycled water
storage tank,and a R-1 recycled water pump station on the existing WWTP site.Associated
improvements involve replacing a portion of the existing pipeline and adding new service
laterals and water meters to connect to customer property.The project requires the use of
County funds and lands;therefore,the project is subject to the State environmental review
process.This EA is proDOsing a Findina of No Sianificant Impact (FONSI)as no sianificant
jmpacts are anticipated as a result of implementing the proposed proiect.
Construction of this project will also be funded possibly by Federal grant funds through the
Environmental Protection Agency as well as State or Federal Water Pollutipn Control
Revolving Fund monies under the jurisdiction of the State Department of Health (DOhl).
Separate environmental review documentation will be prepared for the proposed project to
satisfy the requirements of the National Environmental Policy Act (NEPA)of 1969,as
amended,(Pub.L.91-190,42 U.S.Code 4321-4347),Council on Environmental Quality
(CEQ)Regulations for Implementing the Procedural Provisions of NEPA,(40 Code of
Federal Regulations 1500-1508),and 23 Code of Federal Regulations Part 771,
Environmental Impact and Related Procedures.It is anticipated that categorical exclusion
documentation will be prepared to comply with Federal environmental review requirements.
p-1
Waimea WWTP R-1 Recycled Water
Distribution Sysfem Final Environmental Assessment
Proposing Agency:
Approving Agency:
Location:
Tax Map Keys (TMKs):
Recorded Fee Owners:
Existing Use:
State Land Use
Classification:
CountyZoning:
Special Management
Area (SMA):
Proposed Action:
SUMMARY
County of Kaua'i
Department of Public Works
Division of Wastewater Management
4444 Rice Street,Suite 500
LThu'e,Island of Kaua'i,Hawai'i 96766
County of Kaua'i
Department of Public Works
4444 Rice Street,Suite 275
LThu'e,Island ofKaua'i,Hawai'i 96766
Waimea Ahupua'a,Kona District,Island ofKaua'i,Hawai'i
(4)1-2-006:036,009 (por.)
County of Kaua'i
(TMK:(4)1-2-006:036)
Mauka Villages Condominium
(TMK:(4)1-2-006:009)
Wastewater treatment plant,passive open space.
Agricultural District
Agriculture District
Proposed action not located within the SMA
In order to provide the Waimea community with an effective
means to store and distribute R-1 recycled water,the County of
Kaua'i Department of Public Works (DPW)Division of
Wastewater Management (DWM)proposes to install an R-1
recycled water distribution system.Construction ofthe system
would involve installing a 400,000 R-1 gallon recycled water
storage tank,and a R-1 recycled water pump station on the
existing WWTP site.The storage tank will be 55 feet in
diameter and 25 feet in height and located in the southeast
corner of the WWTP site in an area currently graded,grassed,
and mowed.The water pump will be located adjacent to the
tank and would be a maximum of 44 inches by 44 inches and
60 inches in height.
S-1
Waimea WWTP R-1 Recycled Water
Distribution System Final Environmental Assessment
Impacts:
Anticipatod
Determination:
Permits &Approvals
Which May Be Required:
Associated improvements involve replacing a portion ofthe
existing pipeline and adding new service laterals and water
meters to connect to customer property.The approximately
1,950 foot distribution line will be located within an existing
sewer easement and will provide R-1 recycled water for
irrigation to Waimea Canyon Middle School (WCMS)and
Waimea Athletic Field.
This Bfaft Final EA has been prepared to satisfy the
requirements of Chapter 343,HRS,and Title 11,Chapter 200,
HAR,State Department of Health,since County lands and
funds will be used for the design and construction of the
proposed improvements.
Construction of this project will also be funded possibly by
Federal grant funds through the Environmental Protection
Agency as well as State or Federal Water Pollution Control
Revolving Fund monies under the jurisdiction of the State
Department of Health.Separate environmental review
documentation will be prepared for the proposed project to
satisfy the requirements of the National Environmental Policy
Act(NEPA)of1969,asamended,(Pub.L.91-190,42 U.S.
Code 4321-4347),Council on Environmental Quality (CEQ)
Regulations for Implementing the Procedural Provisions of
NEPA,(40 Code of Federal Regulations 1500-1508),and 23
Code of Federal Regulations Part 771,Environmental Impact
and Related Procedures.
No significant adverse impacts are anticipated from the
construction and operation of the proposed improvements.
Construction activities are anticipated to have short-term noise
and air quality impacts in the surrounding area.Construction
impacts will be minimized by using best management practices
(BMPs)and by adhering to applicable State Department of
Health rules.No significant adverse long-term environmental
or community impacts in the vicinity of the project site are
anticipated.
Finding of No Significant Impact (FONSI)
Federal
Department of the Army
•Section 404_Permit
S-2
Waimea WWTP R-1 Recycled Water
Distribution System Final Environmental Assessment
Environmental Protection Agency (EPA)
•National Environmental Policy Act (NEPA)Categorical
Exclusion
U.S.Fish &Wildlife Services
•Section 7 ofthe Endangered Species Act
State of Hawai'i
Department of Health
•Section 401 Water Qualitv Certification
•National Pollutant Discharge Elimination System
(NPDES)Permit Form C (Stormwater Associated with
Construction)
Office of Planning
•Coastal Zone Management (CZM)Federal Consistency
Certification
Department of Transportation
•Oversize/Overweight Load Permit
State Historic Preservation Department
«Section 106 ofthe National Historic Preservation Act
•Chapter 6E,HRS
Agencies Consulted
In Pre-Assessment
Process:
Countv of Kaua'i
Department of Public Works
•Grubbing and Grading Permit
•Building Permit
Federal
U.S.Army Corps of Engineers,Regulatory Branch
State of Hawai'i
Department of Accounting and General Services
Department of Business,Economic Development &Tourism
Department of Business,Economic Development &Tourism,
Office of Planning
Department of Education (DOE)
Department of Health (DOH)
Department of Health,Office of Environmental Quality Control
S-3
Waimea WWTP R-1 Recycled Water
Distribution System Final Environmental Assessment
Department of Health,Environmental Management Division
Department of Health,Environmental Planning Office
Department of Health,Clean Water Branch
Department of Health,Wastewater Branch
Department of Land and Natural Resources (DLNR)
Department of Land and Natural Resources,Engineering
Division
Department of Land and Natural Resources,Land Division
Department of Land and Natural Resources,Historic
Preservation Division
Department of Transportation (DOT)
Office of Hawaiian Affairs (OHA)
Countv of Kaua'i
Department of Planning
Department of Public Works (DPW)
Department ofWater (KDOW)
Department of Parks and Recreation
Others
KTkTaola Land Company,Ltd.
West Kaua'i Business and Professional Association
Draft Environmental
Assessment
Consultation:The Draft Environmental Assessment_for the Waimea
Wastewater Treatment Plant R-1 Recycled Water
Distribution System was published in the Office of
Environmental Quality Control Environmental Notice of
Mav23.2016.Publication initiated a 30-dav public review
period endina on June 23,2016._Comments were
received from the Department of Healfh Environmental
Plannina Office,Office of Environjnenta]Qualitv Control
and KTkTaola Land Companv.
S-4
Waimea WWTP R-1 Recycled Water
Distribution System Final Environmental Assessment
1.INTRODUCTION
1.1 Project Background
This Environmental Assessment (EA)is prepared pursuant to Chapter 343,Hawai'i Revised
Statutes (HRS)and Title 11,Chapter 200,Hawai'i Administrative Rules (HAR)and will
assess the impacts related to the installation of an R-1 recycled water distribution system
and associated improvements.
The County of Kaua'i Department of Public Works (DPW)Division of Wastewater
Management (DWM)proposes to install an R-1 recycled water distribution system in
Waimea,Kaua'i (TMK)No.(4)1-2-006:036,009 (por.)(See Figure 1-1).The system would
include a 400,000 gallon recycled water storage tank and a recycled water pump station
located on the site of the Waimea Wastewater Treatment Plant (WWTP).Distribution lines
would extend from the WWTP site providing R-1 recycled water to users in the Waimea area.
The project is intended to promote and further encourage the use of R-1 recycled water for a
broad range of uses within the Waimea area.
The Waimea WWTP was first built in the early 1970's and reached near capacity in the
1990's,restricting development in the Waimea area.The Waimea WWTP was upgraded in
2011 in accordance with the County's Facility Plan.The plant capacity was increased from
300,000 gallons per day (GPD)to 700,000 GPD adding treatment processes such as a
membrane bioreactor,a mixed bed biofilm reactor and other similar processes.A second
back up injection well was also added in the event of need.
The quality of the effluent was also upgraded from R-2 recycled water to R-1 recycled water
to allow for greater flexibility in reuse of the effluent.R-1 recycled water is the highest level,
as defined in the State of Hawai'i,Department of Health,Guideline for fhe Treatment and
Use of Recycled Water (May 15,2002).The improved water quality poses less of a safety
risk to the public and allows for broader reuse applications,such as for industrial use,
landscaping,crop and open space irrigation.A full list of applications can be found within the
aforementioned guidelines.
Statewide efforts to manage and preserve potable water resources have included water
reuse.Water reuse has been practiced for many years in Hawai'i and has gradually
increased after the Department of Health (DOH)developed Hawai'i's first reuse guidelines in
1993.Since then,recycled water has become more of a viable solution for both water supply
and wastewater disposal concerns.The County of Kaua'i has the highest percentage of
recycled water used in the State of Hawai'i,due in part to proximity of its users.The
proposed project will help to continue this trend and support efforts to manage and preserve
potable water resources.
1.2 Proj'ect Need
The purpose of the proposed system is to provide the Waimea community with an effective
means to store and distribute R-1 recycled water in order to manage wastewater disposal
and reduce potable water usage.The recycled water would be available to current and
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LOCATION MAP
WMMEA WAS7EWKTER TREATMENT PLANT
R-1 RECYCLED WATER DISTRIBUTION SYSTEM
Waimea WWTP R-1 Recycled Water
Distribution System Final Environmental Assessment
prospective customers that are in close proximity to the Waimea WWTP and can be used for
a broad range of use applications,including irrigation of parks,schools,and commercial
properties.The expanded use of R-1 recycled water would help contribute to the County's
efforts towards more sustainable water resource management.
1.3 Existing Uses
The Waimea WWTP is a public facility and is located in an agriculturally designated area.
The WWTP provides wastewater collection and treatment for the surrounding Waimea
community,including residents and businesses.Facility activities include wastewater intake,
wastewater treatment,regular monitoring,recycled water conveyance,and backup.effluent
disposal.The R-1 recycled water storage tank and R-1 recycled water pump station will be
located within the grounds of the existing WWTP facility.The proposed project site is located
in a flat,grassy area in the southeast corner ofthe property (See Figure 1-2).The proposed
distribution line would be installed within an existing easement that is currently being used for
the same purpose.
Currently,all recycled water is conveyed to the KTkTaola Irrigation Company (KIC)open
storage reservoir where it is mixed with stored surface water;this is the primary effluent
disposal method.The mixed water is left to evaporate through natural processes.The
backup disposal alternative for excess recycled water and/or off-spec effluent consists of two
(2)injection wells that are located adjacent to Kaumuali'i Highway (TMK:(4)1-2-006:037,Lot
13-C).Conveyance of the recycled water is done using existing pumps and a 10-inch
transite transmission pipeline.
1.4 Surrounding Uses
The WWTP is located at least 650 feet north of the Kaumuali'i Highway,the main arterial
coastal highway,and is a fair distance from existing developed areas.A surrounding
network of unpaved roads and irrigation ditches in the immediate area are remnants of
previous land use for sugar cane cultivation.With the cessation of sugar operations years
ago,the land surrounding the WWTP remained vacant and/or leased for agricultural use.
Other nearby land uses includes public facilities,open space,residential development,parks
and a resort.The Waimea Plantation Cottages,KTkTaola Baseyard,ranch,and scattered
residential development are located makai of the highway in the general vicinity.Located
approximately 1,100 feet to the east of the WWTP is Waimea Canyon Middle School
(WCMS)and Waimea Athletic Field.Single family residences in Waimea Town are located
approximately 1,400 feet to the northeast of the WWTP.The open storage reservoirs are
located nearby single family residences and are approximately 2,200 feet away from the
WWTP facility (See Figure 1-3).
1-3
Views of Storage Tank Site near Southeast Corner of WWTP
(Photosdated 3/1/2016)
Looking North
Looking Northeast
Looking East
FIGURE 1-2
PHOTO OF STORAGE TANK SITE
WMN\Eh Wf^SJEWKTER TREATMENT PLANT
R-1 RECYCLED WATER DISTRIBUTION SYSTEM
FIGURE 1-3
SURROUNDING USES
WMMEA W^S^EW^JER TREATMENT PLANT
R-1 RECYCLED WATER DISTRIBUTION SYSTEM
Waimea WWTP R-1 Recycled Water
Distribution System Final Environmental Assessment
(This page intentionally left blank)
1-6
Waimea WWTP R-1 Recycled Water
Distribution System Final Environmental Assessment
2.PROPOSED ACTION
2.1 Project Description
The Proposed Action,by the County of Kaua'i's DWM,is to install an R-1 recycled water
distribution system,consisting of a 400,000 gallon recycled water storage tank,a recycled
water pump station,a distribution line,laterals,and water meters on the existing site of the
WWTP and on portions of an existing sewer easement in Waimea,Kaua'i.The Waimea
WWTP site (TMK No.(4)1-2-006:036)is owned and operated by the County of Kaua'i.The
distribution line extends through an existing sewer easement located within a portion of
property (TMK No.(4)1-2-006:009)owned by the Mauka Village Condominium.See Figure
2-1.
The proposed distribution system would collect and store any R-1 recycled water produced
by the WWTP on-site and then distribute the recycled water to customers for use.
The proposed storage tank will be 55 feet in diameter and 25 feet in height located in the
southeast corner of the WWTP site.The tank would be of glass-fused-to-steel construction
with a geodesic dome cover.The proposed site for the recycled water storage tank is a
portion of grassy,open space currently maintained by the WWTP staff.Since the current
average of R-1 recycled water production is 180,000 GPD,a 400,000 gallon tank would
provide two (2)days'worth of storage to account for varying recycled water production by the
WWTP and usage by the customers.See Figure 2-2.
The pump station is proposed to occupy a maximum of 44 inches by 44 inches in area and
reach 60 inches in height.The pump station will be located adjacent to the tank.The pump
station will regulate water pressure on the distribution system to a setpoint that is 10 pounds
per square inch (psi)lower than the potable water distribution system.
The proposed distribution line will follow the existing pipeline alignment.A portion,
approximately 1,700 feet,ofthe existing 10-inch transmission pipeline will be either replaced
in the same pipeline trench with a Polyvinyl chloride (PVC)pipe or relined using Cured in
Place Pipe (CIPP)technology.This portion extends in an easterly direction approximately
1,100 feet from the WWTP,then turns in a northeasterly direction approximately 600 feet to
provide a connection with the WCMS.At the eastern end of the 1,100 foot segment adjacent
to the WCMS,another portion of the distribution line extends southwesterly approximately
250 feet within an existing sanitary sewer easement adjacent to the Waimea Athletic Field.
Connections to WCMS and Waimea Athletic Field,which will allow R-1 recycled water to be
used for irrigation at both facilities,will be provided by the new distribution line.
Service laterals and water meters will be installed to connect and meter recycled water to
each customer property.Each customer's private irrigation systems after the recycled water
meter will be owned and maintained by the customer.The recycled water user
responsibilities will be driven by WMD Rules and the State DOH Water Reuse Guidelines.
Key responsibilities include complete disconnection of the recycled water system from the
customer's potable water system,training of employees,maintenance of recycled water use
logs,and annual reporting to the DOH.
2-f
Source:County of Kauai
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FIGURE 2-2
WAIMEAWASTEWATER TREATMENT PLANT
WAIMEA WASTEWATER TREATMENT PLANT
R-1 RECYCLED WATER DISTRIBUTION SYSTEM
Waimea WWTP R-1 Recycled Water
Distribution System Final Environmental Assessment
The section of the existing transmission pipeline which extends beyond the WCMS up to the
existing reservoirs will be abandoned.The existing KIC open storage reservoirs will be
disconnected from the DWM's recycled water system and future use of the reservoirs will be
under the discretion of the landowner,KTkTaola Land Company.
Future demand for recycled water is estimated to increase in Waimea due to projected
population growth and planned residential and commercial development in the area.An
expansion of the distribution system could occur at a later date to accommodate the
additional growth and an increase in wastewater flows to the Waimea WWTP.The intent is
to develop the recycled water distribution system in phases based on available recycled
water.The first phase would include the WCMS and the Waimea Athletic Field.These
customers were selected based on the greatest benefit to the community and the close
proximity to the Waimea WWTP.Potential future customers include the Kaua'i Veterans
Memorial Hospital and Waimea Plantation Cottages.The implementation of future phases
will be dependent on availability of additional recycled water which is tied to new wastewater
connections to the Waimea WWTP.Since details are unknown at this time,a separate
environmental review will be completed for expansion as more information becomes
available.
2.2 Project Cost and Schedule
Construction ofthe proposed project is anticipated to commence as soon as the 4 quarter of
2016,with completion approximately 12 months later.The project cost is estimated at $4.51
million.The accuracy of the projected cost is based on the level of detail known about the
project at the time and cost estimates could be revised as more detailed information
becomes available.
2-4
Ka'aina S.Hull
Director ol Planning
Jodi A.IIiguchi Sayegusa
Deputy Direclor ofPlanning
I.SUMMARY
Action Required by
Planning Commission:
Pcrmit Application Nos.
Name ofApplicant(s)
COUNTY OF KAUA'I
PLANNING DEPARTMENT
DIRECTOR'SREPORT
Consideration ofApplicant's request to AMEND Class IV
Zoning Permit,Use Permit,and Special Permit to allow
construction of a new 400,000-gallon storage tank and
improvements to the existing distribution system.
Class IV Zoning Permit Z-IV-2010-14
UsePermit U-2010-12
SpecialPermitSP-2010-2
COUNTY OF KAUA'I
Dept.ofPublic Works,Wastewater Management Division
II.PERMIT INFORMATION
3'.i.4
'MAri 12021
PERMITS REQUIRED
Use Permit A Use Permit was required as the proposed project was not
a permitted use within the Agriculture (A)zoning district.
11 Project Devclopmcnt Use
Permit
Variance Pcrmit
Special Permit 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
Pursuant 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 Management Arca
Permit
Use
Minor
AMENDMENTS
1I Zoning Amendment
Date of Receipt of Complctcd
Application:
Datc ofDircctor's Report:
Date ofPublic Hearing;
Deadlinc Datc for PC to Take Action
(60T"Day):
III.PROJECTDATA
Marchl5,2021
May 11,2021
MAY 11,2021
Not Applicable
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
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
2|P ag e
Z-IV-2010-14,U-2010-12,SP-2010-2;Director's Repori (Project Amendment)
COK DPW,Wastewater Div.
04.26.2021
General Plan Amcndmcnt
\Z\Statc Land Usc District
Amcndment
PROJECT INFORAMTION
Parcel Location:Waimea.The project site involves the existing Waimea Wastewater
Treatment Plant facility,approximately half-mile west of the Huakai
Road/Kaumuali'i Highway intersection.
Tax Map Key(s):1-2-006:009 (Portion),036 Area:4 acres
ZONING &DEVELOPMENT STANDARDS
Zoning:Agriculture
State Land Use District:Agricultural
Gcneral Plan Designation:Natural
Height Limit:50 feet
Max.Land Coveragc:N/A
Parking Requirement:Not Applicable
Front Setback:lOfeet
Rear Setback:5 feet OR Vi Wall Plate Height
Side Setback:5 feet OR '/2 Wall Plate Height
Community Plan Arca:West Kaua'i Community Plan
Community Plan Land Use
Designation:
N/A
Dcviations orVariances Rcquestcd:NA.
V.PROJECT DESCRIPTION AND USE
1.BACKGROUND
The subject peiTnits involved the construction and operation ofsystem improvements to
the existing wastewater treatment plant facility in Waimea.The improvements were
necessary to increase the capacity from 300,000 gallons per day (gpd)to 700,000 gpd,
and to comply with the State Department ofHealth's effluents standards for recycled
water.The objective ofthe improvements was to upgrade the treatment plant's effluent
water to "R-l"quality.These permits were initially approved by the Plaiming
Commission on March 23,2010.
The project involved improvements to the existing treatment plant,access road,
isolation ditch,injection wells,new monitoring wells,and associated onsite grading
work to address potential flooding.
VI.APPLICANT'S REASONS/JUSTIFICATION
1.Request
In keeping with the project s objective,the Applicant is seeking an amendment to the
project to allow construction ofa new 400,000-gallon storage tank,recycled water
pump station,and improvements to the distribution lines.A Final Environment
Assessment report was prepared to address the proposed improvements and it obtained
a FONSI (Finding ofNo Significant Impact)in 2016.
As represented,the proposed improvements to the WWTP will be located at the
southeastern portion ofthe lot,within an open area.The steel storage tank will be 55
feet in diameter and 25 feet in height.The pump station measures approximately 44
inches by 44 inches and 60 inches in height and located adjacent to the tank.
The cun'ent average ofR-1 recycled water production is 180,000 gpd and the new tank
would provide two (2)days'worth ofstorage.The pump station regulates water
pressure on the distribution system.
The description andjustification for these improvements is contained in the Applicant s
correspondence to the department dated March 31,2021,and more specifically,Section
2.1 ofthe Final Environmental Assessment.
3|Page
Z-IV-2010-14,U-2010-12,SP-2010-2;Director'sReport (Project Amendment)
COK DPW,Wastewoter Div.
04.26.2021
March 15,2021 and the Applicant,through its
authorized agent,was notified accordingly of the
Planning Department's intent to commence
permit processing.
Commission Mceting Date:MAY 11,2021
VII.FINDINGS
1.Project Site &Surroundings
The Waimea Wastewater Treatment PIant (WWTP)is a public facility and located in an
agriculturally designated area.The WWTP provides wastewater collection and
treatment for the surrounding Waimea community.The facility activities include
wastewater intake,wastewater treatment,regular monitoring,recycled water
conveyance,and backup etfluent disposal.The WWTP is located approximately 650
feet mauka ofKaumuali'i Highway and about 1,200 feet west ofthe Waimea Canyon
Middle School campus/Waimea Athletic Fields.
The project site as well as the sun'ounding property is zoned Agriculture District (A).
The nearest residence is approximately 1,500 feet northeast ofthe site.
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 an unimproved "field road"connecting
into the highway.Kaumuali'i Highway is a State roadway with a 80 feet wide right-of-
way that can accommodate two-way vehicular traffic.As previously mentioned,the
project is located approximately a half-mile west ofthe Huakai Road/Kaumuali'i
Highway intersection.
VIII.PUELIMINARY EVALUATION
In evaluating the Applicant's development proposal,the following aspects are being
considered:
1.General Plan
a.The County General Plan (2018)acts as an over-arching values 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 Wastewater discusses the need
for sustainable growth by providing safe and sanitary wastewater disposal solutions
for growing areas and converting communities offofcesspools that create
environmental pollution and potential health hazards.The wastewater treatment
plant presently services the Waimea community,and the plan recognizes the
potential growth for this area.The plan recognizes water recycling as a sustainable
approach to wastewater management.It decreases the diversion of water from
sensitive systems such as the aquifer or streams and also decreases discharge into
the ocean.When adequately treated,recycled water can be used for a variety of
water needs such as agriculture and landscaping.
4 1 P age
Z-IV-2010-14,U-2010-12,SP-2010-2;Director's Report (Project Amendment)
COK DPW,Wostewoter Div.
04.26.2021
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 ofa healthier community,and preservation
ofthe island s beauty.
2.Native Hawaiian Traditional and Cultural Rights
The site was originally owned by KTkTaola Land Company and has been used for
cultivation ofsugar cane from the 1850's.The site was acquired by the County in the
early 1970's and the existing WWTP and pump station was completed in 1972.In the
170-year history ofthe parcel,it was under intensive agricultural cultivation.As such,
there was no need for an archaeological inventory survey report.The Final EA revealed
that prior heavy agriculture grading of the landscape in this area redirected non-
peremiial stream channels originating in the uplands into the in'igation ditches.When
the property was being utilized for agricultural purposes,the ditches provided water for
the open fun'ow-type ofirrigation used for sugar can cultivation.The ditches existing
today and are being utilized by farm for irrigation.
The recent improvements to the WWTP in 2010 resulted in no inadvertent discoveries
and there were no kiiown impacts to any Native Hawai'i Traditional and Cultural
Practices on the subject property.However,the Applicant should inform the Planning
Department ifthey receive any knowledge ofor discover any cultural/historical
resources.
3.Use &Special Permit Criteria
Since obtaining approval by the Planning Commission in 2010,the department has not
received any complaints regarding the recycling operation.The Applicant has
demonstrated to be compatible with the sun'ounding 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 noted that this project is subject to the conditions
previously imposed with the foregoing permits and that they remain in effect.
Furthermore,the project site shall continue to be utilized as a wastewater treatment
plant facility as originally represented and approved.Any expansion or deviation from
the wastewater treatment plant 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.
5|Page
Z-IV-2010-14,U-2010-12.SP-2010-2;Director's Report (Project Amendment)
COK DPW,Wostewater Div.
04.26.2021
IX.PRELMINARY RECOMMENDATION
Based on the foregoing,it is recommended that the Commission APPROVE the proposed
development involving the construction ofanew 400,000-gallon storage tank,recycled
water pump station,and improvements to the existing distribution system.
Furthermore,the Applicant is advised that all applicable conditions ofapproval shall
remain in effect.
By
DALE A.O.UA
Planner
Approved &Recommended to Commission:
Date:
KA'
Director of Planning
^u
^
6 |P a ge
Z-IV-2010-14,U-2010-12,SP-2010-2;Diredor's Report (Project Amendment]
COK DPW.Waslewater Div.
04.26.2021
EXHIBIT"A"
(Agency Comments)
For reference
TO:
COUNTYOFKAUA'I
PLANNING DEPARTMENT
4444 RICE STREET,SUITE A473,LIHU'E,HI 96766
Phone:(808)241-4050 ...,,.
PLANNIN6DJ-:
Kaaina S.Hull,Director (Dale)April7,2021
SUBJECT:Class IV Zoning Permit Z-IV-2010-14,Use Pen^t U-fil(B$-72,[^pecfal Permit
SP-2010-2,Storage Tank,Recycled Water Pump Station,Rehabilitation OfAn
Existing Recycled Water Pipeline,And Construction OfNew Recycled Water
Pipeline RECL.,,
Tax Map ICey:(4)1-2-006:036,County OfKaua'i -Dpw,Applicant
TO:
Department ofTransportation -STP ^
Q DOT-Highways,Kaua'i (info only)Q
DOT-Aifports,Kaua'i (info only)
I]DOT-Harbors,Kaua'i (info only)
State Department of Health F]
State Department of Agriculture
Q State Office of Planning
I1 State Dept.ofBus.Econ,Dev.Tourism ||
State Land Use Commission ||
S\State Historic Preservation Division
[_]DLNR -Land Managementa DLNR -Forestry &Wildlife F]
DLNR -Aquatic Resources ||
Cl DLNR -OCCL
FOR YOUR COMMENTS (pertaining to your department):
PW 04.21.045
DPW -EngU .e4tlg
DPW -Wastewater
DPW -Building
DPW -Solid Waste
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:
April26,2021
We have reviewed the subject application for a storage tank,a recycled water pump station,
rehabilitation ofan existing recycled water pipeline,and construction ofa new recycled water
pipeline at TMK:(4)1-2-006:036 for the County ofKaua'i -DPW.We offer the following
comments.
1.Based on panel number 1500020258G ofthe Flood Insurance Rate Maps (FIRM)dated
February 26,2021,the subject property is located in a Special Flood Hazard Area
(SFHA)Zone AH.The proposed improvements will need to comply with the County's
Floodplain Management Ordinance No.83 1.
2.A grading and/or grubbing permit in compliance with the County's Sediment and Erosion
Control Ordinance No.808 may be required ifthe work area exceeds one (1)acre and/or
grading involving excavation or embankment or combination thereof exceeds 1 00 cubic
yards.The Sediment and Erosion Control Ordinance also allows for work within a"govemment controlled area"to be exempt from the pennit requirements.
3.Proposed improvements shall be designed in compliance with the Stomi Watcr Runoff
System Manual,July 2001.
Coi-i;.yoi'i<;'.t.^.
PLANNINGDEP"..
21 APR2Z A 8:13
RECEIVED
COUNTY OF KAUA'I
PLANNING DEPARTMENT
4444 RICE STREET,SUITE A473 LlHU'E,HAWAI'I 96766
(808)241-4050
APR -8 2021
CountyofKauai
Transportation Agency
(Dale)April7,2021^.FROM:Kaaina S.Hull,Director
SUBJECT:Class IV Zoning Permit Z-IV-2010-14,Use Permit U-2010-12,Special Permit
SP-2010-2,Storage Tank,Recycled Water Pump Station,Rehabilitation Of An
Existing Recycled Water Pipeline,And Construction Of New Recycled Water
Pipeline
Tax Map Key:(4)1-2-006:036,County OfKaua'i -Dpw,Applicant
TO:
D Department of Transportation -STP DPW-Engineering
D DOT-Highway,Kauai(info only)D DPW-Wastewater
DOT-Airports,Kauai (info only)DPW-Building
D DOT-Harbors,Kauai (info only)D DPW-SolidWaste
State Depanment of Health D Department of Parks &Recreation
State Depanment of Agriculture Fire-Department
a State Office ofPlanning County Housing-Agency
State Dept.ofBus.&Econ.Dev.Tourism County Economic Development
D State Land Use Commission KHPRC
State Historic Preservation Division Water Department
DLNR-Land Management Kaua'i Civi]Defense
D DLNR-Foresty &Wildlife U.S.Postal Department
DLNR-Aquatic Resources a UHSea Grant
a DLNR-OCCL County Transponation Agency
Other:
FOR YOUR COMMENTS (pertaining to your department):
^•2.1-Zo^
^^(^o F^^/THC(Z-Oi>^r-^*^^T^^(^oTe~C7.
This matter is scheduled for a public hearing before the County ofKauai Planning Commission on
5/11/2021 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 by May 4,202 1,
we will assume that there are no objections to this permit request.Mahalo!
RECEIVED
COUNTY OF KAUAI
•21 HSY -3 P 1 '-^
AP.q I ?^3)
COUNTY OF KAUA'I ENVIRONMENTAL HEALTH SERVICES
PLANNING DEPARTMENT
PLANNIHG DB^.RICESTREET,SUITEA473LiHU'E,HAWAI'I 96766
(808)241-4050
FROM:KaainaS.Hull,Director (Dale)April7,2021
SUBJECT:Class IV Zoning Permit Z-IV-2010-14,Use Permit U-2010-12,Special Permit
SP-2010-2,Storage Tank,Recycled Water Pump Station,Rehabilitation OfAn
Existing Recycled Water Pipeline,And Construction Of New Recycled Water
Pipeline
Tax Map Key:(4)1-2-006:036,County Of Kaua'i -Dpw,Applicant
TO:
Department of Transportation -STP DPW-Engineering
a DOT-Highway,Kauai(info only)D DPW-Wastewater
DOT-Airports,Kauai (info only)DPW-Building
DOT-Harbors,Kauai (info only)DPW-SolidWaste
State Department of Health D Department of Parks &Recreation
State Department of Agriculture Fire-Department
a State Office of Planning County Housing-Agency
State Dept.ofBus.&Econ.Dev.Tourism a County Economic Development
D State Land Use Commission KHPRC
State Historic Preservation Division Water Department
DLNR-Land Management D Kaua'i Civil Defense
DLNR-Foresty &Wildlife a U.S.Postal Department
a DLNR-Aquatic Resources UH_Sea_Grant
DLNR-OCCL County Transportation Agency
Other:
FOR YOUR COMMENTS (penaining to your department):
See comments on attached sheet.
April 30,2021 ^»w-
Darre^Tamel^zu,Acting Chief
Distlfict En^ikronmental Health Office Kauai
This matter is scheduled for a public hearing before the County of Kailai Planning Commission on
5/11/2021 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 by May 4,202 1,
we will assume that there are no objections to this permit request.Mahalo'
Class IV Zoning Permit Application:Z-IV-2010-14
Use Permit:U-2010-12
Special Permit:SP-2010-2
Applicant:County of Kauai-Dpw
Based on our review of the application,we offer the following environmental
health concerns for your consideration.
1.Noise will be generated during the construction and demolition phase of
this project.The applicable maximum permissible sound levels as stated
in Title 11,Hawaii Administrative Rules,Chapter 1 1-46,"Community
Noise Control"shall not be exceeded unless a noise permit is obtained
from the Department of Health.
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 ,Hawaii Administrative Rules Chapter 11 -60.1
"Air Pollution Control",effective air pollution control measures shall be
provided to prevent or minimize any fugitive dust emissions caused by
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.The construction waste that is be generated by the project shall be
disposed of at a solid waste disposal facility that complies with the
applicable provisions of Title 11,HAR,Chapter 11-58.1 "Solid Waste
Management Control",the open burning of any of these wastes on or off
site prohibited.
4.The Department of Health (DOH),Clean Water Branch (CWB),
acknowledges receipt of your letter,dated December 12,2016,requesting
comments on your project.The DOH-CWB has reviewed the subject
document and offers these comments.Please note that our review is
based solely on the information provided in the subject document and its
compliance with the Hawaii Administrative Rules (HAR),Chapters 11-54
and 11-55.You may be responsible for fulfilling additional requirements
related to our program.We recommend that you also read our standard
comments on our website at:
hnp://health.hawaii.aov/eDO/files/2013/05/Clean-Water-Branch-Std-
Comments.pdf
I.Any project and its potential impacts to State waters must meet the
following criteria:
6.
7.
a.Antidegradation policy (HAR,Section 11-54-1.1),which requires that the
existing uses and the level of water quality necessary to protect the
existing uses of the receiving State water be maintained and protected.
b.Designated uses (HAR,Section 11-54-3),as determined by the
classification of the receiving State waters.
c.Water quality criteria (HAR,Sections 11 -54-4 through 11 -54-8).
You may be required to obtain National Pollutant Discharge Elimination
System (NPDES)permit coverage for discharges of wastewater,including
storm water runoff,into State surface waters (HAR,Chapter 1 1 -55).
For NPDES general permit coverage,a Notice of Intent (N01)form must be
submitted at least 30 calendar days before the commencement of the
discharge.An application for a NPDES individual permit must be submitted
at least 180 calendar days before the commencement of the discharge.To
request NPDES permit coverage,you must submit the applicable form
("CWB Individual NPDES Form"or "CWB N01 Form")through the e-
Permitting Portal and the hard copy certification statement with the
respective filing fee ($1,000 for an individual NPDES permit or $500 for a
Notice of General Permit Coverage).Please open the e-Permitting Portal
website located at:httDS://eha-cloud.doh.hawaii.aov/eDermit/.You will be
asked to do a one-time registration to obtain your login and password.After
you register,click on the Application Finder tool and locate the appropriate
form.Follow the instructions to complete and submit the form.
If your project involves work in,over,or under waters of the United States,
it is highly recommended that you contact the Army Corp of Engineers,
Regulatory Branch (Tel:835-4303)regarding their permitting
requirements.
Pursuant to Federal Water Pollution Control Act [commonly known as the"Clean WaterAct"(CWA)],Paragraph 401(a)(1),a Section 401 Water
Quality Certification (WQC)is required for "[a]ny applicant for Federal
license or permit to conduct any activity including,but not limited to,the
construction or operation of facilities,which may result in any discharge
into the navigable waters..."(emphasis added).The term "discharge"is
defined in CWA,Subsections 502(16),502(12),and 502(6);
Title 40 of the Code of Federal Regulations,Section 122.2;and Hawaii
Administrative Rules (HAR),Chapter 11-54.
Please note that all discharges related to the project construction or
operation activities,whether or not NPDES permit coverage and/or
Section 401 WQC are required,must comply with the State's Water
Quality Standards.Noncompliance with water quality requirements
contained in HAR,Chapter 11-54,and/or permitting requirements,
specified in HAR,Chapter 1 1 -55,may be subject to penalties of $25,000
per day per violation.
8.It is the State's position that all projects must reduce,reuse,and recycle to
protect,restore,and sustain water quality and beneficial uses of State
waters.Project planning should:
a.Treat storm water as a resource to be protected by integrating it into
project planning and permitting.Storm water has long been recognized as
a source of irrigation that will not deplete potable water resources.What is
often overlooked is that storm water recharges ground water supplies and
feeds streams and estuaries;to ensure that these water cycles are not
disrupted,storm water cannot be relegated as a waste product of
impervious surfaces.Any project planning must recognize storm water as
an asset that sustains and protects natural ecosystems and traditional
beneficial uses of State waters,like community beautification,beach
going,swimming,and fishing.The approaches necessary to do so,
including low impact development methods or ecological bioengineering of
drainage ways must be identified in the planning stages to allow designers
opportunity to include those approaches up front,prior to seeking zoning,
construction,or building permits.
b.Clearly articulate the State's position on water quality and the beneficial
uses of State waters.The plan should include statements regarding the
implementation of methods to conserve natural resources (e.g.minimizing
potable water for irrigation,gray water re-use options,energy conservation
through smart design)and improve water quality.
c.Consider storm water Best Management Practice (BMP)approaches that
minimize the use of potable water for irrigation through storm water
storage and reuse,percolate storm water to recharge groundwater to
revitalize natural hydrology,and treat storm water which is to be
discharged.
d.Consider the use of green building practices,such as pervious pavement
and landscaping with native vegetation,to improve water quality by
reducing excessive runoff and the need for excessive fertilization,
respectively.
e.Identify opportunities for retrofitting or bio-engineering existing storm water
infrastructure to restore ecological function while maintaining,or even
enhancing,hydraulic capacity.Particular consideration should be given to
areas prone to flooding,or where the infrastructure is aged and will need
to be rehabilitated.
If you have any questions,please visit our website
at:httD://health.hawaii.aov/cwb/,or contact the Engineering Section,CWB,
at (808)586-4309.
BMP comments
Effective site-specific Best Management Practice measures shall be
implemented to confine and isolate the construction site/activities;
minimize the potential adverse impacts to the adjacent receiving State
waters;and to ensure the projects'associated discharges will comply with
the applicable requirements of Title 11,HAR Chapter 11 -54 "Water Quality
Standards"requirements and HAR Chapter 342D.
9.National Pollutant Discharge Elimination System (NPDES)permit
coverage is required for pollutant discharges into State surface waters and
for certain situations involving storm water (HAR,Chapter 11-55).
a.Discharges into Class 2 or Class A State waters can be covered under an
NPDES general permit only if all of the NPDES general permit
requirements are met.Please see the DOH-CWB website
(httD://health.hawaii.aov/cwb/)for the NPDES general permits and
instructions to request coverage.
b.All other discharges into State surface waters (including discharges from
Concentrated Animal Feeding Operations)and discharges into Class 1 or
Class AA State waters require an NPDES individual permit.To request
NPDES individual permit coverage,please see the DOH-CWB forms
website located at:httD://health.hawaii.aov/cwb/site-map/clean-water-
branch-home-page/forms/
c.NPDES permit coverage for storm water associated with construction
activities is required if your project will result in the disturbance of one (1)
acre or more of total land area.The total land area includes a contiguous
area where multiple separate and distinct construction activities may be
taking place at different times on different schedules under a larger
common plan of development or sale.NPDES permit coverage is
required before the start of the construction activities.
Land disturbance includes,but is not limited to clearing,grading,grubbing,
uprooting of vegetation,demolition (even if leaving foundation slab),
staging,stockpiling,excavation into pavement areas which go down to the
base course,and storage areas (including areas on the roadway to park
equipment if these areas are blocked off from public usage,grassed
areas,or bare ground).
10.Please note that all discharges related to the project construction or
operation activities,whether or not NPDES permit coverage and/or
Section 401 WQC are required,must comply with the State's Water
Quality Standards.Noncompliance with water quality requirements
contained in HAR,Chapter 11-54,and/or permitting requirements,
specified in HAR,Chapter 1 1 -55,may be subject to penalties of $25,000
per day per violation.
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.