HomeMy WebLinkAboutFebruary 9,, 2021 Packet PDF Final�,,�•.i;,,.,,' PLANNING COMMISSION
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}} KAAINA S. HULL, CLERK OF COMMISSION
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FRANCIS DEGRACIA, CHAIR
MELVIN CHIBA, VICE CHAIR
ROY HO, MEMBER
REC ED
SUBDIVISION COMMITTEE TELECONFERENCE MEETING NOTICE AND AGENDA
Tuesday, February 09, 2021
8:30 a.m. or shortly thereafter
Microsoft Teams Audio:+ 1 469-848 -0234, Conference ID: 212 932 174#
'21 FEB -1 P 4 "2.7
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f HF t :l, :{T : r:1 EH·X This meeting will be held via Microsoft Teams conferencing only. Members of the public c\!�mrft�dJF. KAUA'! to join this meeting by calling the number above with the conference ID information. You may
testify during the video conference or submit written testimony in advance of the meeting via e-
mail, fax, or mail. To avoid excessive noise/feedback, please mute your microphone except to
testify.
A.CALL TO ORDER
B.ROLL CALL
C.APPROVAL OF AGENDA
D.MINUTES of the meeting(s) of the Subdivision Committee
E.RECEIPT OF ITEMS FOR THE RECORD
F.HEARINGS AND PUBLIC COMMENT The Planning Commission will accept written
testimony for any agenda item herein. Written testimony indicating your 1) name, and if
applicable, your position/title and organization you are representing, and 2) the agenda
item that you are providing comment on, may be submitted in writing to
planningdepartment@kauai.gov or mailed to the County of Kaua'i Planning Department,
4444 Rice Street, Suite 473, Lihu'e, Hawai'i 96766. Written testimony received by the
Planning Department before 9:00 a.m. on Monday, February 08, 2021, will be distributed
to all Planning Commissioners prior to the meeting. Written testimony received after
9:00 a.m. on Monday, February 08, 2021, will be summarized by the Clerk of the
Commission during the meeting and added to the record thereafter.
G.GENERAL BUSINESS MATTERS
H.UNFINISHED BUSINESS
PAGE 2
PLANNING COMMISSION – FEBRUARY 09, 2021
F. HEARINGS AND PUBLIC COMMENT (Cont’d)
3. Continued Public Hearing
4. New Public Hearing
5. All remaining public testimony pursuant to HRS 92 (Sunshine Law)
G. CONSENT CALENDAR
1. Status Reports
2. Director’s Report for Project Scheduled for Agency Hearing
H. EXECUTIVE SESSION
1. Pursuant to Hawai‘i Revised Statutes Section 92-5(a)(2 and 4), the purpose of this
executive session is to discuss matters pertaining to the annual evaluation of the
Planning Director. This session pertains to the evaluation of the Planning Director’s
work performance where consideration of matters affecting pri vacy will be involved.
Further, to consult with legal counsel regarding powers, duties, privileges, and/or
liabilities of the Planning Commission as it relates to the evaluation of the Planning
Director.
I. GENERAL BUSINESS MATTERS
1. Petition to Appeal of the Decision of the Planning Director; Exhibits “1”-“12”; Certificate
of Service by Mauna Kea Trask of Cades Schutte, Attorney for Appellants Charles M.
Somers Trust and West Sunset Phase 1 LLC, in the matter of the Application of Charles
M. Somers Trust and West Sunset Phase 1 LLC appealing Notice of Violation & Order to
Pay Fines executed on December 7, 2020 for properties located at 1957 Kahili Quarry
Road, Kīlauea, HI, Tax Map Key No(s).: (4) 5-2-012:035 & 047, Hanalei District Kahili,
Kīlauea, Kaua‘i, Hawai‘i.
a. Clerk of the Commission’s Recommendation to Refer an Appeal of the Planning
Director’s Decision Related to the Planning Director’s Notice of Violation & Order to
Pay Fines for the illegal development within the Special Management Area of
Kīlauea, Charles M. Somers Trust and West Sunset Phase 1 LLC, Tax Map Key (4) 5-
2-012:35 and 47, Hanalei District Kahili, Kīlauea, Kaua‘i, received on December 28,
2020, for referral to Board and Commissions as Contested Case no. CC-2021-1.
J. COMMUNICATION
PAGE 3
PLANNING COMMISSION – FEBRUARY 09, 2021
K. COMMITTEE REPORTS
1. Subdivision Subdivision Action matters listed in the Subdivision Committee Agenda
(attached)
L. UNFINISHED BUSINESS (For Action)
M. NEW BUSINESS
1. For Action – See Agenda F for Project Descriptions
N. ANNOUNCEMENTS
1. Topics for Future Meetings
2. The following regularly scheduled Planning Commission meeting will be held at 9:00
a.m., or shortly thereafter, on March 09, 2021. The Planning Commission anticipates
meeting via teleconference, but will announce its intended meeting method via an
agenda electronically posted at least six days prior to the meeting date.
O. ADJOURNMENT
EXECUTIVE SESSION: The Commission may go into executive session on an agenda item for
one of the permitted purposes listed in Section 92-5(a) Hawai‘i Revised Statutes (“H.R.S.”),
without noticing the executive session on the agenda where the executive session was not
anticipated in advance. HRS Section 92-7(a). The executive session may only held, however,
upon an affirmative vote of two-thirds of the members present, which must also be the
majority of the members to which the board is entitled. HRS Section 92 -4. The reason for
holding the executive session shall be publicly announced.
NOTE: IF YOU NEED AN AUXILIARY AID/SERVICE, OTHER ACCOMMODATION DUE TO A
DISABILITY, OR AN INTERPRETER FOR NON-ENGLISH SPEAKING PERSONS, PLEASE CONTACT
THE OFFICE OF BOARDS & COMMISSIONS AT (808) 241-4917 OR ASEGRETI@KAUAI.GOV AS
SOON AS POSSIBLE. REQUESTS MADE AS EARLY AS POSSIBLE WILL ALLOW ADEQUATE TIME
TO FULFILL YOUR REQUEST.
UPON REQUEST, THIS NOTICE IS AVAILABLE IN ALTERNATE FORMATS SUCH AS LARGE PRINT,
BRAILLE, OR ELECTRONIC COPY.
PAGE 4
PLANNING COMMISSION – FEBRUARY 09, 2021
SUBDIVISION COMMITTEE TELECONFERENCE MEETING NOTICE AND AGENDA
Tuesday, February 09, 2021
8:30 a.m. or shortly thereafter
Microsoft Teams Audio: + 1 469-848-0234, Conference ID: 212 932 174#
This meeting will be held via Microsoft Teams conferencing only. Members of the public are invited
to join this meeting by calling the number above with the conference ID information. You may
testify during the video conference or submit written testimony in advance of the meeting via e-
mail, fax, or mail. To avoid excessive noise/feedback, please mute your microphone except to
testify.
A. CALL TO ORDER
B. ROLL CALL
C. APPROVAL OF AGENDA
D. MINUTES of the meeting(s) of the Subdivision Committee
E. RECEIPT OF ITEMS FOR THE RECORD
F. HEARINGS AND PUBLIC COMMENT The Planning Commission will accept written
testimony for any agenda item herein. Written testimony indicating your 1) name, and if
applicable, your position/title and organization you are representing, and 2) the agenda
item that you are providing comment on, may be submitted in writing to
planningdepartment@kauai.gov or mailed to the County of Kaua‘i Planning Department,
4444 Rice Street, Suite 473, Līhu‘e, Hawai‘i 96766. Written testimony received by the
Planning Department before 8:30 a.m. on Monday, February 08, 2021, will be distributed
to all Planning Commissioners prior to the meeting. Written testimony received after
8:30 a.m. on Monday, February 08, 2021, will be summarized by the Clerk of the
Commission during the meeting and added to the record thereafter.
G. GENERAL BUSINESS MATTERS
H. UNFINISHED BUSINESS
PLANNING COMMISSION
FRANCIS DEGRACIA, CHAIR
MELVIN CHIBA, VICE CHAIR
ROY HO, MEMBER
KAAINA S. HULL, CLERK OF COMMISSION
PAGE 5
PLANNING COMMISSION – FEBRUARY 09, 2021
I. NEW BUSINESS (For Action)
1. Tentative Subdivision Map Approval
a. Subdivision Application No. S-2021-3
(Allan & Karen Nesbitt, Trust)
Proposed 2-lot Boundary Adjustment
TMKs: (4) 2-3-022: 044 & 045
Kalāheo, Kōloa, Kaua‘i
1) Subdivision Report pertaining to this matter.
2. Tentative Subdivision Extension Request
a. Subdivision Application No. S-2019-8
(Stephanie Fernandes)
Proposed 5-lot Subdivision
TMK: (4) 4-2-005: 044
Wailua, Kawaihau, Kaua‘i
1) Subdivision Report pertaining to this matter.
3. Final Subdivision Map Approval
a. Subdivision Application No. S-2019-1
(Alexander & Vivian Youn, Trust)
Proposed 8-lot Subdivision
TMK: (4) 4-2-003: 023
Wailua, Kawaihau, Kaua‘i
1) Subdivision Report pertaining to this matter.
4. Recertification of Final Map Approval
a. Subdivision Application No. S-2007-1
(State of Hawai‘i – DOT)
Kaumuali‘i Highway Widening – Phase I
TMK: Various Parcels
Līhu‘e, Kaua‘i
1) Subdivision Report pertaining to this matter.
J. ADJOURNMENT
PAGE 6
PLANNING COMMISSION – FEBRUARY 09, 2021
NOTE: IF YOU NEED AN AUXILIARY AID/SERVICE, OTHER ACCOMMODATION DUE TO A
DISABILITY, OR AN INTERPRETER FOR NON-ENGLISH SPEAKING PERSONS, PLEASE CONTACT
THE OFFICE OF BOARDS & COMMISSIONS AT (808) 241-4917 OR ASEGRETI@KAUAI.GOV AS
SOON AS POSSIBLE. REQUESTS MADE AS EARLY AS POSSIBLE WILL ALLOW ADEQUATE TIME
TO FULFILL YOUR REQUEST.
UPON REQUEST, THIS NOTICE IS AVAILABLE IN ALTERNATE FORMATS SUCH AS LARGE PRINT,
BRAILLE, OR ELECTRONIC COPY.
PAGE 7
PLANNING COMMISSION – FEBRUARY 09, 2021
Pursuant to Section 8-27.8 (6) of the Kaua‘i County Code (1987), as amended, the following
shoreline setback determinations by the Director are disclosed for purposes of public
notification.
February 09, 2021
SHORELINE SETBACK DETERMINATIONS
Application
No.
Name of Applicant(s) Property I.D.
(Tax Map Key)
Location Reasons
SSD-2021-23
Kaua‘i Marriott
Ownership
3-5-002:002
Līhu‘e
Replacement of slider
doors for forty-eight (48)
units
SSD-2021-24
Frederick Berg 1-3-003:020 0002 Kekaha
Interior alteration
SSD-2021-25 Blue Sky
Construction, INC.
2-8-017:026 0150 Kōloa Interior renovation
SSD-2021-26 Kaua‘i Beach Villas 3-7-003:014 Līhu‘e Concrete repair, deck
railing replacement
SSD-2021-27 Nihi Kai Villas 2-8-019:022 Po‘ipū Re-roof and repairs to BBQ
Pavilion
CADES SCHUTTE
A Limited Liability Law Partnership
MAUNA KEA TRASK 8418-0
3135 Akahi Street, Suite A
Lihue, Hawai`i 96766
Telephone: (808) 521-9297
Fax: (8080 540-5015
Attorney for Appellants
CHARLES M. SOMERS TRUST and
WEST SUNSET PHASE I LLC
BEFORE THE PLANNING COMMISSION
OF THE
COUNTY OF KAUA`I
In the Matter of the Application
of
CHARLES M. SOMERS TRUST and
WEST SUNSET PHASE I LLC appealing
Notice of Violation & Order To Pay Fines
executed on December 7, 2020 for properties
located at 1957 Kahili Quarry Road, Kilauea, HI
Tax Map Key No(s).: (4) 5-2-012:035 & 047
Hanalei District Kahili, Kilauea, Kauai, Hawai`i.
PETITION TO APPEAL OF THE
DECISION OF THE PLANNING
DIRECTOR;
EXHIBITS “1” - “12”;
CERTIFICATE OF SERVICE
Planning Commission Hearing:
Date: ___________________
Time: ___________________
Place: ___________________
PETITION TO APPEAL OF THE DECISION OF THE PLANNING DIRECTOR
Notice is hereby given that the Appellants, CHARLES M. SOMERS TRUST and WEST
SUNSET PHASE I LLC, (collectively “Appellants”), by and through their undersigned counsel,
pursuant to Chapters 6 and 9, et seq., of the Rules of Practice and Procedure of the Planning
Commission (“Planning Commission Rules”), and the County of Kaua’i Special Management
Area Rules and Regulations (“SMA Rules”) Section 13.0, hereby appeals the decision of the
Planning Director as set forth in his letter executed on December 7, 2020 (the “Notice &
Order”), a copy of which is attached hereto and incorporated herein as Exhibit “1”.
2
Appellants state as follows:
I. Name, Address and Telephone Number of the Appellants.
As stated above, Appellants are the CHARLES M. SOMERS TRUST and WEST
SUNSET PHASE I LLC. Appellants may be contacted via undersigned counsel at the following
address and telephone number: 3135 Akahi Street, Suite A Lihue, HI 96766; Phone
(808) 521-9297.
II. Identification of the Property and Appellants Interest Therein.
Appellants are the owners of the fee simple interest in that certain parcel of real property
located at 1957 Kahili Quarry Road, Kilauea, HI 96754 and further identified as Tax Map Key
(4) 5-2-012:035 (“Parcel 35”). See, Exhibit “2.” Appellants are also the fee owners of that
certain parcel of real property identified as Tax Map Key (4) 5-2-004:047, also known as Kahili
Quarry Road (hereinafter “Kahili Quarry Road”). See, Exhibit “3.” Parcel 35 and Kahili
Quarry Road are referred herein collectively as the “Subject Properties.”
Parcel 35 is approximately 162 acres. See Exhibit “2.” Parcel 35 is generally divided
into the following three sub-areas: (1) Conservation Easement No. 1 (“C-1”) totaling 80.1 acres;
(2) Conservation easement No. 2 (“C-2”) totaling 69.3 acres; and (3) a Building Envelope
totaling approximately 12.6 acres. See Exhibit “4.” Parcel 35 is improved with a farm dwelling
(hereinafter “house”) as authorized by Special Management Area Use Permit SMA (U)-2008-5,
Use Permit (U)-20008-5; and Class IV Zoning Permit Z-V-2008-6 (the “Master Permit”), as
amended, attached hereto as Exhibit “5.”
Kahili Quarry Road is a private road located on Unit B of the Seacliff Gardens
Condominium (“Unit B”), Lot 26-B (Seacliff Plantation at Kilauea Bay Subdivision). The
3
County of Kauai (“County”) has been granted an easement (“County Easement”) for public
access purposes over Kahili Quarry Road. See, Exhibit “6.”
The area of the Subject Properties that is the focus of this appeal is located within the
State Land Use Agricultural “A” District, General Plan Natural Land Use Designation, and the
Comprehensive Zoning Ordinance (“CZO”) of the County of Kauai Open District and Special
Treatment - Resource District (O/ST-R). Additionally, the relevant areas of the Subject
Properties, for the purpose of this appeal, are within the County Special Management Area
(“SMA”).
III. The Particular Provisions of the Regulations in Question.
According to the Notice & Order, the particular provisions of the regulations in question
are Hawaii Revised Statues (“HRS”) §205A-28 and Special Management Area Rules and
Regulations (SMA Rules) Section 1.4 (F) and Section 5.0.
IV. Facts.
Appellants did not violate HRS §205A-28, SMA Rules Section 1.4 (F) or SMA Rule
Section 5.0. The work performed in this case was allowed and/or required under the Master
Permit, as amended, issued by the Planning Commission of the County of Kauai (“Planning
Commission”), was lawfully conducted pursuant to Mayor Kawakami’s Emergency
Proclamation dated April 1, 2020, or in the alternative did not qualify as “Development”
pursuant to HRS § 205A-22 and SMA Rule 1.4 (F) (2) & (3).
The Planning Commission approved the development of the Subject Properties pursuant
to the Planning Commission’s Findings of Fact, Conclusions of Law, Decision and Order entered
on October 2, 2008. See, Exhibit “5.” The Master Permit allowed Appellants to construct a
single family residence/farm dwelling unit, the driveway accessory to the Main House;
4
Landscaping; Site Grading for the Main House and driveways; Preservation of Historic Sites;
utilities; Well and Tank; and improvements to Kahili Quarry Road. The Master Permit included
eighteen (18) conditions of approval (“Conditions”).
Master Permit Condition twelve (12) required Appellants to provide roadway
improvements to Kahili Quarry Road. According to Condition 12, “[s]aid roadway
improvements should include clearing and drainage improvements [.]” Additionally, Condition
12 also provides that Appellants “shall maintain this road-right-of-way.” Appellants have been
maintaining the roadway as required by the Master Permit so that it is passable. See, Exhibit “7”
at 8.
On March 27, 2020, a heavy rain event (the “March 2020 Flood”) caused excessive
flooding on Kauai and caused substantial damage to a portion of Kahili Quarry Road,
specifically the culvert structure located near the northern end of the road. See, Exhibit “7” at 8.
The preliminary cost of reconstructing the culvert and road has been estimated to be
approximately $220,000.00. Id. Appellants are currently assessing how this situation might be
remedied and have been meeting with the County and the Community in this regard. Id.
As a result of the March 2020 Flood, Mayor Kawakami issued an Emergency
Proclamation on April 1, 2020 (the “Emergency Proclamation”). See, Exhibit “8.” In the
Emergency Proclamation, Mayor Kawakami suspended any county law that impedes or tends to
impede or be detrimental to the expeditious and efficient execution of, or to conflict with,
emergency functions[.]” Id. at 3. Additionally, Mayor Kawakami required any person owning,
controlling, or operating a critical infrastructure facility as identified by the Mayor, to protect and
safeguard the property or key resources, or to provide for such protection and safeguarding.” Id.
at 3.
5
On April 3, 2020, undersigned counsel emailed various County officials including Mayor
Kawakami, Managing Director Michael A. Dahilig, County Attorney Matthew Bracken, Mayor’s
Chief of Staff Sarah Blane and the Administrator of the Kauai Emergency Management Agency
Elton Ushio requesting they confirm that Kahili Quarry Road qualifies as “critical infrastructure”
under the Emergency Proclamation and that measures may be taken under HRS 127A-12(c)(11)
concerning the protecting and safeguarding of the same. See, Exhibit “9” at 2. On that same day
Mr. Bracken indicated that the aforesaid County officials agreed that Kahili Quarry Road
qualifies as critical infrastructure, and on April 4, 2020 Mr. Dahilig concurred. Id. at 1.
Despite the best efforts of Appellants, the County and the community, work to repair the
roadway has not yet commenced and the administrative review process with the Federal
Emergency Management Agency (“FEMA”) has been slow going. On or about August 24,
2020, the County provided Appellants and the community a copy of the FEMA Preliminary
Damage Assessment Site Estimate, which is part of the FEMA review process. See, Exhibit
“10.” In the meantime that portion of Kahili Quarry Road above the culvert continues to erode
and is currently on the verge of collapse.
As a result of the destruction of the culvert and the continued roadway erosion, rocks and
soil accumulated at the base of the roadway culvert blocking the preexisting drainage
way/channel that lead the water flowing from the culvert toward the nearby Kilauea River. This
blocked drainage way created ponding at the base of the roadway contributing to its further
collapse and caused an overgrowth of guinea grass which prevented the ponding water from
flowing away from the base of Kahili Quarry Road. See Exhibit “11.”
In order to comply with the requirement of Condition 12 of the Master Permit to
“maintain the road right-of-way” including “clearing and drainage improvements” and per the
6
requirements of the Emergency Proclamation concerning the protection and safeguarding of
critical infrastructure, on or about early September 2020, Appellants’ property manager William
Scannell cleared the pre-existing drainage way/channel of dirt and rock debris caused by the
March 2020 Flood in order to prevent further undermining of the structural integrity of the
roadway and cleared out the guinea grass that was choking the area and preventing the outflow
of water from the base of Kahili Quarry Road. See Exhibit “12.” The amount of soil removed
from the pre-existing channel/drainage way did not alter the general drainage pattern to the
detriment of abutting properties, did not exceed one hundred (100) cubic yards of material, and
did not exceed five (5) feet in vertical height or depth at its deepest point. At no point did Mr.
Scannell perform any grading, either cut or fill, along the toe of the slope adjacent and parallel to
Kahili Quarry Road, nor did he alter in anyway the drainage outflow of the drainage culvert.
Upon clearing the drainage way, Mr. Scannell spread the soil on top of existing grass in a small
confined area at the base of the drainage culvert.
V. The Action of the Director.
On December 7, 2020, the Planning Director (the “Director”) issued Appellants a Notice
of Violation & Order to Pay Fines for the activity of “grading, both cut and fill of materials,
along the toe of the slope adjacent and parallel to Kahili Quarry Road for the purpose of altering
drainage outflow of an upslope drainage culvert.” See, Exhibit “1.” According to the Director,
this activity is considered to be “development” pursuant to SMA Section 1.4 (F) (2), and this
activity without an SMA permit is a violation of HRS §205A-28 and SMA Section 5.0,
“Developments proposed within the Special Management Area subject to review.” Id.
VI. Reasons for the Appeal.
Appellants appeal the Director’s decision for the following reasons:
7
1. The actions taken by Appellants were authorized and required under Condition 12
of the Master Permit to improve and maintain Kahili Quarry Road including clearing and
drainage improvements.
2. The actions taken by Appellants were authorized and required by Mayor
Kawakami’s Emergency Proclamation suspending any county law that impedes or tends to
impede or be detrimental to the expeditious and efficient execution of, or conflicts with,
emergency functions, and requiring any person owning, controlling or operating critical
infrastructure to protect and safeguard the same.
3. HRS § 205A-22 and SMA Rule 1.4 (F) (2) & (3) of the SMA Rules and
Regulations of the County of Kauai specifically provides that development does not include
“repair or maintenance of roads and highways within existing rights-of-way,” or “routine
maintenance dredging of existing streams, channels and drainage ways.”
4. At no time have Appellants knowingly or intentionally avoided contacting or
informing any governmental agencies responsible for the work performed as described above.
5. The evidence in this case supports the finding that the work required to prevent
further destruction of Kahili Quarry Road is authorized under the Master Permit, the Mayor’s
Emergency Proclamation and is not a development pursuant to HRS 205A-22 and SMA Rule
1.4 ((f) (2) & (3).
6. The evidence in this case supports the finding that the work performed by
Appellants was exempt from the County’s Grading, Grubbing and Stockpiling ordinance
pursuant to Kauai County Code (“KCC”) Section 22-7.6 (f).
7. The Planning Department’s December 7, 2020 Notice of Violation and Order To
Pay Fines fining the Appellant $15,000.00 is: contrary to the County’s statutory or constitutional
authority in violation of HRS Section 9 l-l 4(g)(l ); in excess of the statutory authority or
jurisdiction of the County in violation of HRS Section 91-14(g)(2); made upon unlawful
procedure in violation of HRS Section 91-l 4(g)(3); affected by error oflaw in violation of
HRS Section 91-14(g)(4); clearly erroneous in view of the reliable, probative, and substantial
evidence on the whole record in violation of HRS Section 91-14(g)(5); or arbitrary, capricious or
characterized by abuse of discretion or clearly unwarranted exercise of discretion in violation of
HRS Section 91-14(g)(6).
WHEREFORE, Appellants pray that the Planning Commission:
A. Reverse and set aside the Planning Director's December 7, 2020 letter fining
Appellant;
B. Determine that Appellant is not in violation of either the CZO or the SMA Rules
and Regulations; and
C. Grant such fu1iher relief as may be just.
DATED: Lihu'e, Hawai'i, December 28, 2020.
CADES SCHUTTE LLP
MAUNA KEA TRASK
Attorney for Petitioners
CHARLES M. SOMERS TRUST and
WEST SUNSET PHASE I LLC
8
EXHIBIT 1
DEPARTMENT OF PLANNING
THE COUNTY OJI KAUA'I
DEREK S. K. KAWAKAMI, MAYOR
MICHAEL A, DAHILIG, MANAGING DIRECTOR
KA'AJNA S. HULL
DIRECfOR
JODI A. HIGUCHI SA YEGUSA
DEPUTY DIRECrQR
NOTICE Of VIOLATION & ORDER TO PAY FINES
DECO 7 2020
VIA CERTIFIED MAIL
SOMERS, CHARLES M TRUST
C/O B & Z PROPERTIES
5241 Arnold Ave
MCCLELLAN AF'B, CA 95652
SUBJECT: ILLEGAL DEVELOPMENT WITHIN THE SMA DISTRICT & FAILURE
TO SECURE REQUIRED SMA PERMIT DETERMINATION ON:
1957 Kahili Quarry Road, KILAUEA, HI
TMK: (4) 5-2-012:035 Hanalei .District
Kahili, Kilauea, Kauai, Hawaii.
On September 21, 2020, the Planning Department inspected the subject property regarding violations
on the subject property. To date, (November 23, 2020), the Plruming Department has verified
violations of the Hawai'i Revist:d Statutes §205A and the Special Management Area Rules and
Regulations, as follows:
HAWAI'l REVISED STATUTES (HRS) §205A-28
Permit required for development. No development shall be allowed in any county
within the .5pecial management area without obtaining a permit in accordance with
this part.
SPECIAL MANAGEMENT AREA (SMA) RULES AND REGULATIONS
Section 1.4 (F):
"Development" means any of the uses, activities or operations on land or in or under
water within a Special Management Area that are included below:
(2) Grading, removing, dredging, mining, or the extraction of any materials;
Section 5.0 DEVELOPMENTS PROPOSED WITHIN THE SPECIAL
MANAGEMENT AREA SUBJECT TO REVIEW
Any use, activity, or operation proposed within the Special Management Area defined
as "development" pursuant to Section 1.4 [FJ above shall be subject to the review of
the Director, Planning Department, and Planning Commission under these Rules and
Regulations ...
www .kauai.gov
4444 Rice Street Suite A473 • LThu'e, Hawai'i 96766 • (808) 241-4050 (b) • (808) 241-6699 (f)
An Equal Opportunity Employer
EXHIBIT 1
Notice of Violation and
Order to Pay Fines
TMK: 5-2-012: 035(4) 5-2-012:035
Page 2
VIOLATIONS:
The activity of grading, both cut and fill of materials, along the toe of the slope adjacent and
parallel to Kahili Quarry Road for the purposes of altering drainage outflow of an upslope
drainage culvert is considered to be "development" pursuant to SMA Section 1.4(F)(2). This
activity without an SMA permit is a violation of HRS §205A-28 and SMA Section 5.0,
"DEVELOPMENTS PROPOSED WI11-IIN THE SPECIAL MANAGEMENT AREA SUBJECT
TO REVIEW."
ORDER:
Pursuant to HRS §205A-32 and SMA Rules and Regulations Section 13.0, you are hereby ordered
to comply with the following requirements:
a. Cease and desist the unpermittecl activity immediately.
b. Provide Best Management Practices (BMP's) in all areas of the noted development
prone to erosion as may be prudent to mitigate sediment runoff onto near Kilauea
Stream and coastal shore areas.
c. Within thirty (30) days from date of Notice, provide the Depa1iment with a ce1iified
survey reflecting all development conducted on subject prope1iy associated with the subject
area. Such survey shall identify location of all cut and fill limits along with location of
newly excavated drainage ditches developed in conjunction with the drainage channeling.
d. Within sLxty (90) days from date of Notice, provide the Department with required SMA
Assessment Application to address the noted development of the new drainage
channeling. The application shall include engineering plans equivalent to an NOI Grading
Permit Application with delineation of existing contour cuts/fills, proposed finish graded
areas along with cubic yardage calculations Plans shall encompass the proposed finished
ditch channeling contours to the Kilauea Stream bank and a design to mitigate sediment
entering Kilauea Stream.
e. Pay a civil fine of Fifteen Thousand dollars ($15,000.00) for the above noted
violation.
f. In addition, you will be required to pay a civil fine up to ten thousand dollars
($10,000.00) per day for each day in which the violation persists from the date of this
Notice should any timelinc requirement be violated.
Notice of Violation and
Order to Pay Fines
TMK: 5-2-012: 035(4) 5-2-012:035
Page 3
Payment of the $15,000.00 civil fine is due to the Planning Depmtment twenty-one (21) days from
the receipt of this Order. Failure to correct the violation or pay the total amount of the civil fine
imposed within ninety (90) days of this Order may result in a lien placed on the subject property.
In addition, you may be subject to criminal prosecution.
This Order shall become final twenty-one (21) days after the date of this Order. Pursuant to SMA
Rules and Regulations Section 13.0, and Chapter 9 and 6 of the Rules of Practice and Procedure of
the Planning Commission (RPPPC), you have a right to appeal this Order to the Planning
Commission. The SMA Rules and Regulations and the RPPPC are available online at the Planning
Department's website: https://www.kauai.gov/Planning.
Please contact Leslie P. Milnes, CZM Enforcement Officer, of my staff at 241-4064 or email at
lmilnes@kauai.gov upon receipt of this letter to discuss the required remedial action plan.
Dlgllully signed by Kanina
K • H II Hull 881n8 Li Date:2020.12,04
10:15:36 -10'00'
KA' AINA S. HULL
Director of Planning
Cc. Max Graham, Esquire, Owners Authorized Agent
DPW, Engineering Attn: Paul Togioka, Eng.
VIA EMAIL & CERTIFIED MA IL
EXHIBIT 2
~CollfA;tA 0~ /({{MA,,l{,t ~ """'iva 'st ate of Hawai
Parcel 520120350000 Situs/Physical
ID Address
Acreage 161.88 Mailing Address
Class RES
INVESTOR
BriefTax Description LOT 2161.880 AC DES
1957 KAHILi QUARRY RD Total Market Value
Total Assessed
SOMERS.CHARLES M
TRUST
C/O B & Z PROPERTIES
5241ARNOLDAVE
MCCLELLAN CA 95652
Value
Total Exemptions
Total Net Taxable
Value
(Note: Not to be used on legal documents)
$13,817,900
$13,817,900
$0
$13,817,900
Overview
0
o e9
Legend
Last 2Sales
Date
12/20/2000
n/a
D Parcels
Roads
Price
$4050000
0
Reason
MUL Tl-
PITT
n/a
Th e Geographic In formation Systems (GIS) maps and data are made availab le so lely for informationa l purposes. The GIS data is not the official represe ntation of any of the
information included , and do not r eplace a site survey or lega l document descriptions. The County of Kauai (County) make s or ex tends no claims, represen tation s 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 conta in ed in any of the GIS data. In no event sha ll the County become liable for any errors or omissions
in the GIS, and will not under any circumsta nces be liable for any direct, indirect, spec ial, incidental, consequential , or other loss, injury or damage caused by its use or otherwise
arising in connection with its use, even if specifica lly advised of the possibility of such loss, injury or damage. The data and or functionality on this site may change period ica ll y and
without notice. In using the GIS data , us ers 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 : 12/16/2020
Last Data Uploaded: 12/16/2020 9:11:22 AM
Developed by ~ ... Schneider
.. ~ GEOSPa.TIAL
EXHIBIT 2
EXHIBIT 3
Co111Ai1A 0~ V~'(/
i,u~ 'st ate of Mawai
Parcel ID 520040470002
Acreage 5.687
Class AG
Brief Tax Description
Situs/Physical Address Total Market Value $2,300
Mailing Address SOMERS.CHARLES LIVING TRUST Total Assessed Value $2,300
Total Exemptions $2,300
TotalNetTaxableValue $0
UNIT B SEACLIFF GARDENS CONDOMINIUM CM 3361 TOG/UNO 1% INT IN ALL COMMON
ELEMENTS
(Note : Not to be used on lega l documents)
Overview
oc!t
0
Legend
D Parcels
Roads
Last 2 Sales
Date Price Reason
n/a O n/a
n/a 0 n/a
The Geographic Information Systems (GIS) maps and data are made available so lely for informational purposes. The GIS data is not the official represe ntation of any of th e
information included , and do not repla ce a site survey or lega l document desc riptions. Th e County of Kaua i (County) makes or ex tend s no claims , represen tations or warranties of any
kind , either express or implied , inluding, without limitation, the implied w arranties of merchantability and fitne ss for a particular purpos e, as to the qu ality, content, accuracy, currency ,
or co mpleteness of the information, tex t, maps, graphics, links and other items contained in any of the GIS data . In no eve nt shall the County become liab le for any errors or omi ss ions
in the G IS, and w ill not under any circumstances be li ab le for any direct, indirect, special, incidenta l, co nsequential, or other loss , injury or damage caused by its use or othe rwise
arising in connection w ith its use , even if specifica ll y advised of the pos sibility of suc h loss, injury or damage. The data and or functionality on this site may change periodica ll y and
without notice. In using the G IS data, use rs agree to indemnify, defend, and hold harmle ss the County for any and all liability of any nature arising out of or re sulting from the lack of
accuracy or co rrectness of the data, or the use of t he dat a.
Date cr eated: 12/16/2020
Last Data Uploa ded: 12/16/2020 9:11:22AM
Developed by •...._ Schneider .. JI' GEOSPATIAL..
EXHIBIT 3
EXHIBIT 4
CONSERVATION EASEMENT
(AREA = 69.3 ACRES)
PUU LANI SUBDIVISION
----(A)'AILANA SURVEYIN
PHONE (808)346-1818
FAX 1-800-655-6297
INFO®AILANASURVEYING.COM
LOT 8-W-14
C: ProJ.et.\2000\Somtrs ChartH\Somera Lot.dwg
)I W.E
s
SCALE 1" = 1 ooo'
SEACLIFF PLANTATION AG SUBDIVISION
CONSERVATION EASEMENT "C-1"
(AREA = 80.1 ACRES)
LOT 8-W-9-A
LOT 8-W-1-A
\
-~on of Kilauea Stream scaled
from tox mop and ls shown for
mustrotlve purposes only
KAHILi MAKAI SUBDIVISION
Mt\!' SHOWING m:srCNATION OF
CONSER\'ATION Et\SEMENT"C-1& C-2"
AFFECTING
TMK(4} 5-2-012 PARCEL :-l!i
BEING t\ PORTION OF GRANT 289/i TO CHARLE,
TITCOt\IB
BEING 1\LSO t\ PORTION OF LOT 8-W-9-1\-l "Pl.
LANI Sl 1BDIVISION"
KILAl,EJ\, KAl!AI, HAWAII
EXHIBIT 4
DATED: October 14, 2008
PROJECT#125-08 TMK( 4)5-2-012-035
EXHIBIT 5
THE PLANNING COMMISSION OF THE COUNTY OF KAUAI
STATE OF HAWAII
IN THE MATTER OF APPLICATION
OF
CHARLES M. SOMERS
and
WEST SUNSET 32 PHASE 1, LLC
)
)
)
)
)
)
)
-----------------)
FOR
Special Management Area Use
Permit SMA(U)-2008-5
Use Permit U-2008-4
Class IV Zoning Permit Z-V-2008-6
PLANNING COMMISSION'S
FINDINGS OF FACT, CONCLUSIONS OF LAW
DECISION AND ORDER
INTRODUCTION
The Application is for a Special Management Area Use Permit, Use Permit, and Class IV Zoning
Permit to be issued pursuant to the Comprehensive Zoning Ordinance (hereinafter "CZO") and Special
Management Area Rules and Regulations of the County of Kauai (hereinafter "SMA Rules"). The
Planning Commission of the County of Kauai 01ereinafter "Commission"), having heard the testimony
and examined the evidence presented at the hearings held herein and having considered the total record,
hereby makes the following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
PARTIES:
1. Charles M. Somers and West Sunset 32 Phase l LLC, a California limited liability
company (hereinafter "Applicant") is the Applicant for the permits sought herein. The
Applicant was also represented in this matter by Max W.J. Graham, Jr. and Loma A.
Nishimitsu of Belles Graham Proudfoot & Wilson, and William M. Tam of Alston Hunt
Floyd & Ing to file the application pursuant to the Applicant's authorization.
2. The Planning Department of the County of Kauai (hereinafter "Department") is the
agency responsible for coordinating the review of applications for the types of pem1its
discussed herein, and for preparing reports for the Planning Commission's consideration
concerning the approval, denial, revocation, amendment or modification of such permits.
1
EXHIBIT 5
3. The Petition for Intervention by Peter M. Morimoto on behalf of Elizabeth Freeman,
individually and as Trustee of the Revocable Trust of Elizabeth Anne Freeman dated
October 18,2005, and Makana Pomaika'i LLC, a Hawai'i limited liability company was
granted by the Commission at its January 22, 2008 meeting.
PROCEDURAL MATTERS:
4. The application was entitled "In the Mater of the Application of Charles M. Somers and
West Sunset 32 Phase I LLC for a Use Permit, Special Management Area Permit and
Class III Zoning Permit For Real Property Situated at Kilauea, Kaua'i, Hawai'i and
Identified by Kaua'i TMK No. (4) 5-2-12: 35 and 5-2-4: 47, CPR #2" was prepared by
Applicant's representative.
5. A public hearing notice was published in the Hawaii State and County Public Notices
on November 5, 2007. Notice was also given to prope1ty owners or lessees within a 300
ft. distance of the perimeter of the involved property, in accordance with Section 9.0 of the
SMA Rules as evidenced by an affidavit by Applicant's Representative Max W.J.
Graham, Jr. received on November 9, 2007.
6. The Department's Director's Report was transmitted to the Commission by memo dated
November 7, 2007, in accordance with Section 8-19.6(c) of the Kaua'i County Code. In
accordance with Section 8-19 .6 ( d), the public hearing for this matter was scheduled for
November 27, 2007.
7. On November 20, 2007 Applicant submitted supplemental information in support of the
application which provided an Index oflmprovements in Area describing improvements
and land coverage on lots or condominium units in the vicinity of the subject property, and
accompanying tax map to reflect the location of said improvements.
8. The public hearing was held in Room 2A-2B of the Moikeha Building at the Lihue Civic
Center, in Lihue, Kauai, Hawaii, on November 27, 2007. The public hearing portion of
this matter was continued to January 22, 2008 and closed on February 26, 2008.
9. The Petition for Intervention on behalf of the Kilauea Neighborhood Association was
denied as their request did not comply with Section 1-4-3 of the Rules of
Practice and Procedures of the Planning Commission. The request was denied by the
Commission at its January 22, 2008 meeting.
10. A pre-hearing conference was held on January 23, 2008 with the Applicant, Department,
Commission, and Intervenor representatives present. The following contested case
schedule was agreed upon: March 4, 2008 ( date to complete exchange of information,
2
including witness list, exhibits and testimonies); March 18, 2008 ( date of 1st hearing), and
April 1, 2008 (date of 2nd hearing).
11. On Saturday March 8, 2008 the Planning Commission conducted a field inspection of a
portion of the prope1iy pursuant to notice provided by the Commission to the Applicant,
Intervenor, Public and Department.
12. Oral and written testimony against the project was presented at the public hearings by
John Bailey, Beryl Blaich, Gary Blaich, Josephine Bonapart, Susan Boynton, Justin Britt,
Ellen Caldwell, Ken Carlson, Jeff Chandler, Bill Chase, Carol Conly, Felicia Cowden,
Evelyn DeBur, Linda Ditric, Edward Dreiss, Elaine Dunbar, Tevita Fonua, Elizabeth
Freeman, Steve Goldberg, Kirsten Jackson, Makaala Kaaumoana, Denise Kaufman,
Susan Lindquist, Scott Majerus, Suzanne Marinelli, Paul Massey, Nicholas Moore, Mark
Nesselson, Caitlin Odom, Gary Pacheco, Chadwyn Pasadava, Linda Pasadava, Deborah
Pence, Evajoy Peru, Marilyn Pollock, Kim Richard, Nani Rogers, Elliott Rosenblum,
Merlyn Ruddell, Todd Rundgren, Laura Schronen, Andrea Slevin, Tora Smart, Michael
Somers, Carrie Souza, Linda Sproat, Evan & Shane Valiere, Suzanne Vance, Winston
Welborn, Sandra Wood, Luisa Wooten, Rodney Yadao, Robert Zelkovsky, 3 petitions
with 48 signatures was also submitted.
The following concerns were provided:
• "The Somers parcel has high importance to the KIiauea Point Fish and
Wildlife Refuge expansion plans, and is an ideal habitat for nene and four
endangered Hawaiian water fowl. The parcel is essential to the health and
protection of the estuary and to providing managed public access to KIiauea
Falls."
• "This is one of the few coastal areas on the inhabited portion of the No1ih
Shore that lack acljacent residential development, and should be preserved a such
for the benefit of curTent and future generations."
• "The uses proposed in the permit application needlessly and recklessly
endanger the aesthetic and biological values inherent to the area."
• "The development would change the character of the beach for all of the
many local people and children who come to enjoy the area."
• "The size of the homes, the barn, and the 20 parking spots is completely out of
scale and not in line with this sacred and important ecological coastal area. The
pastures and overall development would highly disturb the estuary's health, and
interrupt all public peace and enjoyment of this pristine valley."
• "Such magical places are the foundation of local lore, the very imagery of
paradise, and the face that the State ofHawai'i would like the world to see. To
sully it would be an admission that no place is magical enough to resist one man's
money, and no beauty is worth preserving against one man's desire to take for
3
himself. That a man would besmirch this natural wonder in such a boorishly
gaudy and self-centered manner, well.. ... "
• "Concerns about the impact of this oversized proposal on the open space
and views there. Also worried about the impact on the water quality, beach and
recreational availability, fishing, surfing, crabbing, and mainly general changes in
the area that will be compromised by this building."
• "This area should continue to be a wildlife refuge, as was already voted
upon. If the property owner builds, I believe they should build up fmiher on the
property, farther from sensitive areas and nesting habitats for the wildlife there.
Such a large house will definitely impact the entire area and destroy the sanctuary
aspect for birds and humans alike."
• The knoll where the residence is being located is the most important
portion of the property for the USFWS expansion program.
• The SMA objectives are not being met and the project should be denied
because the cumulative impacts to both the water quality and quantity to the
adjacent Kflauea River estuary have not been addressed.
• "This is a "legacy" prope1iy that should be protected in a natural state for the
benefit of future generations."
13. Oral and written testimony for the project was presented at the public hearings by Brandon
Miranda, Ray Asuncion, Robert & Pamela Wan-en, Jorgen Lien, Rick & Julie Hearst,
Nathan Teixeira, & Gary Tobey.
Support was based on the following:
• " ... a commitment is made to forfeit future density in perpetuity, one large
residence or cluster development is better than multiple development."
• "The proposed project has minimal visual impact to the surrounding areas,
benefits Kilauea resident's by improving the upper portion of the access
road, and further protects the remaining portions of the KTlauea River Valley
because of the willingness of the land owner to forfeit additional home sites
throughout the greater acreage surrounding the limits of development of the
property. The proposed project is evidence of any applicant who, granted the
sensitivity of the area, seeks to integrate himself into a community he hopes will
recognize his conviction to responsibly develop the land he has been entrnsted to
steward."
• "The Somer's prope1ty is beautiful. We would hope that every caution
would be instituted to ensure that it remains so. It is not our intention to halt the
Somers' project. However, we do suggest vigilance. Home construction of the
proposed scope will visually impact on the area. Yes, there are other residences
visible from the river; however, none have such a large footprint. Reconfiguring
the project to break the enclave into smaller, more easily camouflaged units
4
would lessen the visual impact. Failure to rethink the grading program is
tantamount to disaster for the ecology of Kilauea River. The County should
inspect the property access to determine if the large trucks necessary to fire
prevention can negotiate the Kahili Quarry Road."
14. The contested case portion of this hearing was held on March 18, 2008, April 1, 2008, and
closed on May 6, 2008. Applicant provided the following witnesses: Gary Tobey
(architectural design, but not as an architect), John Edson (forester), David Shideler
(archaeologist), Eric Guinter (ecologist/botanist and aquatic biologist), Greg Boyer
(landscape architect), Reginald David (biologist), and Gordon Ring (licensed civil
engineer).
Intervenor provided the following witnesses: Chipper Wichman (CEO of National
Tropical Botanical Gardens), Don Heacock (aquatic biologist not representing DLNR),
Matt Rosensen (licensed civil engineer), Michael Hawkes (USFWS preserve manager),
Brenda Zaun, Kawika Winter (botanist), Andrew Bushnell (retired professor of history),
Gary Smith (Kilauea community member involved with previous USFWS acquisitions in
Kilauea), Duane Preble (University of Hawai'i professor of art), and John Harrison
(biological sciences and zoology).
15. At the May 6, 2008 hearing, the Applicant submitted the fo1lowing:
• a copy of the "Archaeological Inventory Survey of an Approximately 74-Acre
Portion of the Kilauea Falls Ranch Property, KTlauea Ahupua'a, Hanalei District,
Kaua'i Island, TMK 5-2-12: por. 3 prepared by Cultural Surveys Hawai'i, Inc.,"
dated March 2008. In addition, Applicant provided a routing cover sheet to
DLNR-SHPD dated April 4, 2008 which evidenced that a copy of the report was
provided to the agency for review.
• Index of Lots in IGlauea, Open/Special Treatment-Resource District (O/ST-R).
DESCRIPTION OF THE PROPERTY
16. The properties subject of this application are located in Kilauea, Kauai, bounded on the
north by Kahili Quarry Road, and on the south with portions ofKilauea Stream, which
meanders through the property. Lot 2 is a parcel of land identified by Kaua'i Tax Map
key 5-2-12: 35, and contains 161.88 acres. This property is referred to in the application
as "KIiauea Falls Ranch" property. Kahili Quarry Road is located on Kaua'i Tax Map
Key 5-2-4: 47, CPR #2, and is located on land known as Unit B of the Seacliff Gardens
Condominium. Unit B contains approximately 5.687 acres. (Application, Director's
Report)
5
17. The area of the subject property in which the development will occur is situated within the
State Land Use Agricultural "A" District, General Plan "Open" District, and zoned "Open
District and Special Treatment-Resource (O/ST-R). A small portion of Lot 2 is also
located within the State Land Use Commission "Urban" district, General Planned
"Residential Community", and zoned Residential District "R-6". Based on the zoning and
size of the property, the maximum dwelling unit density for the portion of Lot 2 located
within the O/ST-R zoning district is approximately 32 dwelling units. (Application,
Director's Report)
18. Planning Designations. The property is within the "Important Land Form" Heritage
Resources Designation of the Kauai General Plan, 11/2000. Mountains, stream valleys
and gulches, bluffs and other coastal features were identified on the Heritage Resource
Maps as "Important Land Form" areas. The stated policy for identifying an area as an
"Imporiant Land Form" was to "protect steep slopes and streams from erosion and to
protect landforms from development that might affect scenic views." (Director's Report)
19. The property is zoned Open/Special Treatment-Resource. The purpose of a Special
Treatment district is defined as:
a. To designate and guide development of County areas which because of
unique or critical cultural, physical or locational characteristics have
particular significance or value to the general public.
b. To insure that development within those areas recognize, preserve,
maintain and contribute to the enhancement of those characteristics which are of
particular significance or value to the general public.
The ST-Resource 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. (Director's Rep01i)
20. Substantially all of the subject property is located within the County of Kauai Special
Management Area (SMA). Generally, the first dwelling unit is considered exempt from
the SMA requirements. However, since the SMA provides for a "cumulative effect
consideration", proposed improvements that are part of the applicant's request were
considered for the SMA permit request. (Director's Report)
21. Cultural Surveys Hawaii, Inc. completed an archaeological inventory survey of
approximately 74-acre portion of the property located along the lower reaches of the
KIiauea Stream Valley. This survey was prepared to support the proposed project's
historic preservation review under Hawai'i Revised Statutes (HRS) Chapter 6Bw42 and
Hawai'i Administrative Rules (HAR) Chapter 13-284. This survey was submitted to the
State Depa1iment of Land and Natural Resources, Historic Preservation Division
6
(hereinafter "SHPD"), on April 4, 2008. SHPD has not completed its review at the time
the contested case hearing was closed.
22. Map Panel 87 of the "Detailed Land Classification -Island of Kauai", by the Land Study
Bureau, University of Hawaii, 1967 classifies the soils on the property as "D" and "E", on
a scale of "A" (best) to "E" (worst). Lands having an "A" classification have the highest
productivity. The portions of the property closest to Quarry Road is classified as D44 and
E87, signifying that it is not or is poorly suited for machine tillability, has slopes ranging
from 21-35%, and 36-80%, and is poorly to well drained. The po1iion of the property
fmiher up Kilauea Stream Valley is classified as "E87", is not suited for machine
tillability, and has slopes of 36-80", and is well drained.
Map Panel 25 of the "Soil Survey for the Islands of Kauai, Oahu, Maui, Molokai, and
Lanai, State of Hawaii" prepared by the U.S. Department of Agriculture, Soil
Conservation Service, identifies the following soils on the property:
• rRR, rough broken land, which consists of very steep land broken by numerous
intennittent drainage channels. The slope is 40-70%. Runoff is rapid, and geologic
erosion is active. This land type is used primarily for watershed and wildlife habitat.
In places it is used also for pasture and woodland.
• LhD, Lihue silty clay, 15-25% slopes. Runoff is medium and the erosion hazard is
moderate. This soil is used for sugarcane, pineapple, pasture, wildlife habitat, and
woodland. This series of well drained soils are located on the uplands on Kauai.
• MtA, Mokulea clay loam, poorly drained variant.
• Mr, Mokulea fine sandy loam. Runoff is very slow, and erosion hazard is slight. This
soil is used for pasture.
• BS, beaches, occur as sandy, gravelly, or cobbly areas, and are washed and rewashed
by ocean waves.
• HrB, Hanalei silty clay, deep water table, 0-6% slope. This series of soil is somewhat
poorly drained to poorly drained soils on bottom lands. These soils are used for taro,
pasture, sugarcane, and vegetables. (Director's Repo1i)
23. Applicant prepared an "Agro forestry Management Plan" for approximately 30 acres of the
property. The balance of the property is unsuitable for agricultural activities due to slope
constraints. This plan was prepared by John Edson, an agroforester specializing in high-
value hardwoods.
PROPOSAL FOR DEVELOPMENT
24. Main dwelling unit. The main dwelling unit is split level with approximately 9,580 sq.ft.
in living area. There are 5 bedrooms, 5 bathrooms, a dining/kitchen area, a living area, a
theater room, a pool and water features, decks, and a 928 sq.ft.3-car garage. Land
7
coverage for this improvement is 7,952 sq.ft for the living area, 16,713 sq.ft. for
walkways/lanais/paved driveway; 1,482 sq.ft. for wood deck area, and 5,910 sq.ft. for the
pool/pond area, for a total of 32,057 sq.ft.
Caretaker unit. The second dwelling is for caretaker purposes, and is designated the
Ranch Manager's House. This facility is one sto1y and consists of 2 bedrooms, 2
bathrooms, a kitchen/living room/dining room area, decks, and an attached 2 car garage.
Land coverage for this improvement will be approximately 1,424 sq.ft. of living area, a
wood deck area of 620 sq.ft., and walkway/Lana'i areas of 226 sq.ft., for a total of 2,270
sq. ft.
Bam. The proposed single story barn will contain 1 tack room, 5 stalls for animals, and a
storage area, totaling approximately 3,238 sq.ft. under roof, and will be used for horses,
farm machinery and equipment.
All totaled, the proposed lot coverage of these improvements will be approximately
37,829 sq. ft, or .53% of the total land area of Lot 2, which is 161.88 acres in size.
Permissible lot coverage within the Open District is 10%. (Application, Director's
Report)
25. Applicant has chosen to place the building improvements as close to Kahili Quarry Road,
and as far from Kilauea Stream, as could be managed without intrnding further upstream
into the valley area, which is sought to be preserved in order to establish agricultural uses.
The proposed location is also to tly and address visual impacts of said improvements.
26. Grading. The proposed grading area for this project will encompass approximately 1.3
acres. The total cut will be approximately 5,600 cubic yards and the total fill will be
approximately 5,400 cubic yards. The proposed grading plan is included within the
applicants permit application.
Water well. The Applicant's also intend to drill a well and construct a 14,500 gallon
water tank as an accessory to the proposed residential and agricultural uses. The steel,
cylindrical tank will be approximately 18.4 feet in diameter and approximately 9 feet high.
27. A portion ofKahili Qua1Ty Road will be graded and improved with compacted gravel,
which will be covered with a sealant. The improved portion ofKahili Quarry Road will
be approximately 10 feet wide, and will run for approximately 3,700 feet from the end of
the existing paved portion of Kahili Quany Road to the entrance to the proposed driveway
on Lot 2. The proposed Kahili Quarry road earthwork involves 1.4 acres; total excavation
-953 cubic yards; total embankment -673 cubic yards; and net excavation -280 cubic
yards.
8
APPLICANT'S REASONS AND JUSTIFICATION:
28. "Compatibility With Surrounding Uses. The subject Property is smTounded by properties
located within the SLUC Urban District, the SLUC Agricultural District, the CZO
Residential District, the CZO Open District, and the Special Treatment District
(Scenic/Ecologic Resources). Uses on the surrounding lands include residential uses,
farm dwelling uses, and agricultural uses. The Subject Property is similar in topography,
character and nature with adjacent and surrounding properties, and the Development
activities are consistent with such surrounding uses."
29. "Developments Compliance with Special Treatment District Standards. The
Development on the Subject Property will have no negative impact on the Special Treat
District. The Development is and will be compatible with existing uses in areas on or
around the Subject Property. The Development will not impact scenic or open space
resources within the Special Treatment District. The Development will not increase
runoff or otherwise endanger the Special Treatment District. The Development will not
increase runoff or otherwise endanger the coastal ecosystem. The Development (of
buildings) on the Subject Property is not located in a coastal hazard area. The
Development will have no detrimental impact on recreational, historic, economic or
resources. The Development will not have detrimental impacts on beach or marine
resources. Approval of the Development will not result in the foreclosure of future
management options for development in the area. The design, siting, and landscaping of
the Development proposed will ensure that the proposed Development recognizes,
preserves, maintains and contributes to the characteristics of the surrounding lands (which
lands are recognized to be of particular significance or value to the general public). In
particular, the Development will be compatible with, and will protect, the unique natural
forms of, biologic systems contained within, and aesthetic characteristic of, the Special
Treatment Area."
30. "Development's Compliance with CZO Use Permit Standards. The Development
activities on the Subject Prope1ty are in compliance with the standards for Use Permits as
contained in CZO Section 8-20.S(a) in that the Development will be:
a. A compatible use;
b. Not detrimental to health of persons residing or working in the
neighborhood;
c. Not detrimental to safety of persons residing or working in the
neighborhood
d. Not detTimental to peace of persons residing or working in the
neighborhood;
e. Not detrimental to morals of persons residing or working in the
neighborhood;
9
f. Not detrimental to comfort and general welfare of persons residing
or working in the neighborhood;
g. Not detrimental or injurious to property or improvements in the
neighborhood
h. Not detrimental to the general welfare of the community
i. Not a cause of substantial harmful environmental consequences to
the Subject Property, or to other lands or waters;
j. Not inconsistent with the intent of Chapter 8, K.CC; and
k. Not inconsistent with the General Plan." (Application)
31. "Development's Compliance with CZO Class IV Zoning Permit Standards. The
Applicants have complied with the procedural provisions for a Class IV Zoning Permit by
their filing and process of this Application."
32. "Development Plan Goals and Objectives. The goals and objec6tives of the North Shore
Update, as adopted by the North Shore Development Plan ordinance, include the
following:
Goal A:
Goal B:
Goal C:
Goal D:
Goal E:
Goal F:
Goal G:
Goal H:
To preserve the unique natural beauty of the North Shore Planning
Area.
To preserve the special rural charm of the North Shore Planning
Area.
To provide for the safety and welfare of the people of their
property of the North Shore Planning Area.
To provide for economic development of the North Shore Planning
area.
To preserve the wildlife and flora and the north Shore, recognizing
man's dependence upon this preservation for his own health and
welfare.
To insure the preservation of historic-archaeological sites in the
No1ih Shore Planning Area.
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.
To provide for recreational opportunities that are compatible with
unique qualities and natural features of the North Shore."
33. "Development's Compliance with Development Plan Standards. The proposed use of
the Subject Property will not conflict with any of the Goals contained in the North Shore
DPO. The design, layout and outside appearance of the Development is and will be
compatible with the natural beauty of the area. As such, the proposed use will not conflict
with Goals A or B. The proposed use will provide economic opportunity for Kaua'i
10
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 Subject
Property. As such, it will not conflict with Goals C, E, For H. The process of filing this
Application is consistent with the purposes of Goal G."
34. "Development's Impacts Within SMA. The Development on the Subject Property will
have no negative impact on the SMA. The Development is and will be compatible with
existing uses in areas on or around the subject Property. The Development will not
negatively impact scenic or open space resources within the SMA. The Development will
not increase runoff or otherwise endanger the coastal ecosystem. The Development ( of
buildings) on the Subject Property is not located in a coastal hazard area. The
development will have no detrimental impact on recreational, historic, economic or
resources. The Development will not have detrimental impacts on beach or marine
resources. Approval of the Development will not result in the foreclosure of future
management options for development in the area. The design, siting, and landscaping of
the Development as proposed will ensure that the proposed development recognizes,
preserves, maintains and contributes to the characteristics of the surrounding lands (which
lands are recognized to be of particular significance or value to the general public). In
particular, the Development will be compatible with, and will protect, the unique natural
fom1s of, biologic systems contained within, and aesthetic characteristic of, the SMA."
35. "Development's Compliance with SMA Standards. The Development activities on the
portions of the Subject Property within the SMA fulfill the provisions of the SMA Rules
in that:
a. The Development will have no affect on public access to publicly
owned or used beaches and recreational areas;
b. The Development will not detrimentally effect any wildlife or
endangered plant or animal species which may be located at this site.
c. Provisions for solid and liquid waste treatment, disposition and
management will be developed in order to minimize adverse effects on the
Special Management Area.
d. Alteration to existing land forms or vegetation and the construction
of structures will cause minimum adverse effects to water resources and
scenic and recreational amenities, and will minimize danger of floods,
wind damage, stom1 surge, landslides, erosion, siltation, or failure in the
event of earthquake.
e. The Development will not require dredging, filling, or altering any
bay, estuary, salt marsh, river mouth, slough or lagoon.
f. The Development will not reduce the size of any beach or other
area useable for public recreation.
11
g. The Development will not reduce or impose restrictions upon
public access to tidal and submerged lands, beaches, portions or rivers or
streams within the Special Management Area and the mean high tide line
where there is no beach.
h. The Development will not substantially interfere with or detract
from the line of sight toward the sea from the State highway nearest the
coast.
i. The Development will not adversely affect water quality, existing
areas of open water free of visible structures, existing and potential
fisheries and fishing grounds, wildlife habitats, or potential or existing
agriculture uses of land.
J. The Development will not have any substantial environmental or
ecological effect, except as such adverse effect is minimized to the extent
practicable and clearly outweighed by public health, safety, or compelling
public interests.
k. The Development is consistent with the objectives, policies, and
guidelines set forth in HRS Chapter 205A and Sections 3.0 and 4.0 of the
SMARules.
I. The Development is consistent with pennitted uses in the SLUC
Urban D8istrict, the Kaua'i General Plan, the North Shore Development
Plan, and the CZO."
36. "Development's Impacts on Traditional or Cultural Practices. The Development will
have no impact on any known traditional or customary practices of native Hawaiians.
There are no lmown traditional or customary practices of native Hawaiians that are
presently occurring within the Subject Property that will be affected by the Development.
There are no special gathering practices taking place within the p01tion of the Subject
Property where the Development will occur that will be affected. The Development will
not detrimentally affect: access to any streams; access to the shoreline or other adjacent
shoreline areas; or gathering along any streams, the shoreline, or in the ocean. There are
no known religious practices taking place within the portion of the subject prope1ty where
the Development will occur. The Development will have no negative impact on any
cultural or historic sites or resources located within the Subject Prope1iy."
LEGAL REQUIREMENTS:
37. A Special Management Area Use Pennit is required since the project is located within the
Special Management Area of the County of Kauai, and the valuation of the project
exceeds $125,000. A Special Management Area Use Pem1it Project Assessment was
completed as part of the application.
12
However, ce1iain aspects of the applicant's request can be considered as not
"development" as per Sec. 1.4 (H) Definitions, of the Special Management Area Rules
and Regulations of the County of Kaua'i. Development does not include:
(8) Use of any land for the purpose of cultivating, planting, growing, and harvesting
plants, crops, trees, and other agricultural, horticultural, or forestry products of
animal husbandry, or aquaculture or mariculture of plants or animals, or other
agricultural purposes.
(9) Installation of underground utility lines and appmienant aboveground fixtures
less than 4 ft in height along existing co1Tidors. (Directors Report)
38. Use Permit is required by Sec. 8-9.3 of the CZO for all uses, structures, or development
within the Special Treatment District.
39. Class IV Zoning Permit required as per Sec. 8-7.7(3)(A) since the proposal is within a
Special Treatment District and involves a Use Permit.
OTHER GOVERNMENT AGENCY COMMENTS:
40. Fire Department: The Fire Department has concerns: 1) Access to subject property is
questionable (i.e. Road grade, finish, width); 2) Property does not qualify for ADU; 3)
Fire protection questionable. Lack of water and length of driveway to structures are
significant factors in this review and may need to be addressed appropriately.
41. Department of Land and Natural Resources, State Historic Preservation Division: The
aforementioned project is to construct two single family dwelling, a barn and do
agroforestry. We reviewed this permit under the previous SMA(U)2007-11 and
recommended an archaeological inventory survey for the parcels listed above. In Exhibit
F-2, an archaeological literature review and field inspection was conducted by Cultural
Surveys Hawai'i (Shideler, Tuchlin and Hammatt) 2007. There is no archaeological
survey and this document is not governed by any of our rules and regulations. This is a
fine planning tool for due diligence but nothing more. Over ten sites were found on parcel
35. The applicant now includes parcel 47 which would also needs to have an
archaeological inventory survey. The application states no impacts will occur to historic
properties, we assume that the applicant would like to preserve all historic properties and
we will need to commitment by way of a preservation plan. We need to make sure all
sites are identified, buffers are adequate if preservation in place is recommended. We
need the archaeological inventory survey in order to protect all historic properties. Please
have the applicant upgrade his literature search and field inspection to an archaeological
inventory survey.
13
We know that there are historic sites in this area, such as terraces (agricultural and
habitation sites). Therefore, we recommend the following conditions be attached to any
approved pennit to ensure significant historic sites are properly identified and treated:
1. An Archaeological inventory survey shall be conducted by a
qualified archaeologist prior to well construction. A report documenting
the archaeological work shall be submitted to the State Historic
Preservation Division for review and approval. The report should include
extensive background research on the history of the Kilauea and land
commission award/title history for this parcel. This report shall propose
significance evaluations and shall propose mitigation treatments for any
significant historic sites.
2. If significant historic sites are identified and once mitigation
commitments are agreed to, then the applicant shall development detailed
mitigation plans (scopes of work and preservation plans) and submit these
to the State Historic Preservation Division for review and approval. Prior
to any land alteration, that Division must verify in writing that these plans
have successfully been executed.
3. If burials are discovered during the survey, a burial treatment plan
shall be prepared following the procedures outlined in Chapter 6E-43 and
its rules. Coordination with the Kaua 'i Island Burial Council is required
as part of the approval of burial treatment.
42. Department of Public Works, Division of Wastewater. The proposed project is not within
the County of Kaua'i's Wastewater service area and the applicant is proposing use of
individual wastewater system (IWS's). The applicant shall comply with State ofHawai'i,
Department of Health Requirements for all IWS's.
43. County ofKaua'i, Department of Water. The Department of Water has concerns
regarding the possible backflow of water into our system and the increase in water
demand associated with this re-submittal -Special Management Area use Permit SMA
(U)-2008-5 for the proposed Main House, Ranch Managers House, Barn, Driveways,
agroforestry, landscaping, site grading, preservation of historic sites, well and water tank
and utilities on TMK 5-2-12: 35 and the construction of a proposed roadway (graded and
improved with compacted gravel) on TMK 5-2-4: 47, (CPR No.2)
We recommend to the Planning Department that any approval of the proposed re-
submittal -Special Management Area use Permit SMA(U)-2008-5 application be
conditioned; whereby, the applicant shall be required to:
14
1. Be made aware that water service provided by the proposed private
well shall not be used for domestic water service. If water service from
the proposed private well will be used to supply domestic water to the lot,
please notify the DOW as soon as possible. Additional requirements will
be administered in accordance with the Depaitment's SOP 55 "Private
Potable Water Systems for Lots with Existing County Water Meter
Service."
2. If the existing or proposed water meter(s) will be used for non-
residential purposes. The applicant will be required to submit detailed
water demand calculations for the proposed use for the DOW's review and
approval. The Department's comments may change depending on the
approved water demand calculations.
3. Prepared and receive DOW's approval of construction drawings
for the necessary water system facilities and construct said facilities.
These facilities shall include but not be limited to:
a. The interior plumbing plans with the appropriate backflow
prevention device.
b. The domestic service connection(s), if applicable.
c. The fire service connection(s), if applicable.
4. Pay the applicable charges in effect at the time of payment to the
DOW. At the present time, these charges include the Facilities Reserve
Charge (FRC) of $4,600 per unit and/or 5/8-inch water meter.
Requests for additional water meters or an increase in water meter size will be
dependent on the adequacy of the source, storage, and transmission facilities existing at
that time. At the present time, the DOW is restricting water service in this area to five
5/8-inch water meters or five single family dwellings per existing lot of record until
additional storage capacity is provided for this area.
44. State Department of Health: Based on our review of the application and our on-site
survey of the property, we offer the following environmental health concerns for your
consideration:
1. The use of individual wastewater systems is allowed. The type
and number of individual wastewater systems to be used on each lot will
be detennined by the wastewater rules in effect at the time of building
permit application.
2. The property may harbor rodents which will be dispersed to the
surrounding areas when the site is cleared. In accordance with Chapter
11-26, entitled Vector Control of Title 11, Hawai'i Administrative Rules
(HAR), the applicant shall ascertain the presence or absence of rodents on
the property. Should the presence of rodents be determined, the applicant
15
shall eradicate the rodents prior to clearing the site.
3. Noise will be generated during the clearing and construction phase
of this project. The applicable maximum permissible sound levels as
stated in Title 11, HAR, Chapter 11-46, entitled Community Noise
Control shall not be exceeded unless a noise pennit is obtained from the
Department of Health.
4. Temporary fugitive dust emissions could be emitted when the
project site is prepared for construction and when construction activities
occur. In accordance with Chapter 11-60.1, entitled "Air Pollution
Control", Title 11, HAR, effective air pollution control measures shall be
provided to minimize or prevent any fugitive dust emissions caused by
the construction work from impacting the smrnunding 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.
5. In accordance with Chapter 11-58.1, entitled "Solid Waste
Management Control", Title 11, HAR, the grubbed material and
construction waste that will be generated by the project shall be disposed
of at a solid waste disposal facility that is in compliance with the State
Department of Health. The open burning of any of these wastes on or off
site is prohibited.
6. The Department of Health (DOH), Clean Water Branch (CWB),
has reviewed the subject document, received November 2, 2007, and
offers the following comments:
I. The Army Corps of Engineers should be contacted at 808-438-
9258 for this project. Pursuant to Section 40l(a)(l) of the Federal
Water Pollution Control Act (commonly known as the "Clean
Water Act"), a Section 401 Water Quality Certification 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
water. .. "
II. A National Pollutant Discharge Elimination System (NPDES)
general permit coverage is required for the following activities:
• Storm water associated with industrial activities, as defined
in Title 40, Code of Federal Regulations, Sections
122.26(b)(14)(i) through 122.26(b)(14)(ix) and
122.26(b )(14 )(xi).
• Construction activities, including clearing, grading, and
excavation, that result in the disturbance of equal to or
greater than one ( 1) acre of total land area. The total land
area includes a contiguous area where multiple separate
16
and distinct construction activities may be taking place at
different times on different schedules under a larger
common plan of development or sale. An NPDES permit
is required before the commencement of the
construction activities.
• Discharges of treated effluent from leaking underground
storage tank remedial activities.
• Discharges of once through cooling water less than one (1)
million gallons per day.
• Discharges of hydrotesting water.
• Discharges of construction dewatering effluent.
• Discharges of treated effluent from petroleum bulk stations
and terminals.
• Discharges of treated effluent from recycled water
distribution systems.
• Discharges of storm water from a small municipal separate
storm sewer system.
• Discharges of circulation water from decorative ponds or
tanks.
7. The CWB requires that a Notice ofintent (NOI) to be covered by
an NPDES general permit for any of the above activities be submitted at
least 30 days before the commencement of the respective activities. The
NOI forms may be picked up at our office or downloaded from our
website at:
http://www.hawaii.gov/health/environrnental/water/cleanwater/forrns/genl
-index.html.
8. The applicant may be required to apply for an individual NPDES
permit if there is any type of activity in which there is a discharge from the
project into State waters and/or coverage of the discharge(s) under the
NPDES general pe1mit is not permissible (i.e. NPDES general permits do
not cover discharges into Class 1 or Class AA State waters). An
application for the NPDES permit is to be submitted at least 180 days
before the commencement of the respective activities. The NPDES
application fonns may also be picked up at our office or downloaded from
our website at:
http://www.hawaii.gov/health/environmental/water/cleanwater/fonns/indi
v-index.html.
9. Hawai'i Administrative Rules, Section 11-55-38, also requires the
applicant to either submit a copy of the new NOI or NPDES permit
application to the State Department of Land and Natural Resources, State
Historic Preservation Division (SHPD), or demonstrate to the satisfaction
of the DOH that the project, activity, or site covered by the NOI or
17
application has been or is being reviewed by SHPD. Please submit a copy
of the request for review by SHPD or SHPD's determination letter for the
project.
Please note that, in general, anyone causing or contributing to a violation
of the State water quality standards must apply for an NPDES pennit
coverage. Discharges which are not an integral and nonnal part of the
operation, but are caused by heavy rains, floods or other events outside the
reasonable control of the owner or operation must also be permitted. Point
sources include vehicle wash discharges or a discharge of processed
wastewater from you construction activity. If there is a discharge of any
pollutant to State waters, Hawai'i Revised Statutes, Section 342D-30,
provides for penalties of up to $25,000 per day for each violation. The
CWB reserves its right to seek penalties for all violations.
If you have any questions, please contact Ms. Joanna Seto, Supervisor of
the Engineering Section, Clean Water Branch, at (808)-586-4309.
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.
45. Department of Public Works, Engineering Division. We reviewed the subject application
to construct two (2) single family dwellings and an accessory building (a barn) on the
subject property. We offer the following comments:
• The Department is in receipt of the grading plan for the subject property. The
Department has not approved the grading plan at this time. Best
Management Practices (BMP's) shall be provided to the maximum extent
practicable to prevent damage by sedimentation, erosion or dust to
streams, waterways, natural areas and the property of others.
• At page 6, approximately 36 acres of the subject property is intended to be
dedicated to agriculture. The applicant needs to be infom1ed that grading and
grubbing activities associated with an approved conservation plan approved by
the District Soil Water Conservation District can be exempted from the
Sedimentation and Erosion Control Ordinance No. 808. Additionally, the
applicant must contact the State Historic Preservation Office and resolve all
agency comments before the Department is able to exempt the applicant from
Ordinance No. 808.
• We recommend comments be solicited from our Building Division in
regards to Flood Plan Management requirements.
18
46. Department of Public Works, Building Division. According to the Flood Insurance Rate
Map panel 60E, the parcel has various flood zones. The Main House and the Ranch
manager's House are comfortably located in Zone X outside the flood zone. However,
care needs to be taken in locating the Barn so that it is outside the flood zone. Building
permits will be required for the work.
STANDARDS FOR ISSUANCE OF A USE PERMIT
47. Section 8-20.l of the Kauai County Code states:
"The purpose of the Use Pennit procedure is to assure the proper 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, a1rnnged or conducted in a
particular manner, and to prohibit such uses if the proper integration cannot be assured."
48. Section 8-20.5 of the Kauai County Code further states:
"A Use Pern1it may be granted only if the Planning Commission finds that the
establishment, maintenance, or operation of the construction, development, activity or
use in the particular case is a compatible use and is not detrimental to health, safety,
peace, morals, comfort and general welfare of persons residing or working in the
neighborhood of the proposed use or detrimental or injurious to property and
improvements in the neighborhood or to the general welfare of the community, and will
not cause any substantial harmful environmental consequences on the land of the
applicant or on other lands or waters, and will not be inconsistent with the intent of this
Chapter and the General Plan."
COUNTY OF KAUAI GENERAL PLAN POLICY
49. Section 5.3.1 of the County of Kauai General Plan, Open Lands, Policy, states:
"Lands designated Open shall include: important landforms such as mountains, coastal
bluffs, cinder cones, and stream valleys; native plant and wildlife habitat; areas of
predominantly steep slopes; beaches and coastal areas susceptible to coastal erosion or
hurricane, tsunami, or stonn-wave inundation; wetlands and flood plans; important
scenic resources; and known natural, historic and archaeological resources. Open shall
also include parks, golf courses, and other areas committed to outdoor recreation."
SPECIAL MANAGEMENT AREA RULES & REGULATIONS
50. Applicable to this permit are the following guidelines for the review of
19
developments proposed within the Special Management Area, Section 4.0 Guidelines:
A. All development in the special management area shall be subject to
reasonable terms and conditions set by the Authority to insure that:
B.
C.
I. Adequate access, by dedication or other means, to publicly owned or
used beaches, recreation areas, and natural reserves is provided to the
extent consistent with sound conservation principles.
2. Adequate and properly located public recreation areas and
wildlife preserves are reserved
3. Provisions are made for solid and liquid waste treatment,
disposition, and management which will minimize adverse effects
upon special management area resources.
4. Alterations to existing land forms and vegetation except crops,
and construction of structures shall cause minimum adverse effect
to water resources and scenic and recreational amenities and
minimum danger of floods, landslides, erosion, siltation, or failure in the
event of earthquake.
No development shall be approved unless the Authority has first found
that:
1.
2.
3.
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. Such adverse
effect shall include, but not be limited to, the potential cumulative impact
of individual developments, each one of which taken in itself might not
have a substantial adverse effect and the elimination of planning options.
The development is consistent with the objectives and policies, as
enumerated in Chapter 205A, HRS, and as recited herein under Section
3.0 above; and special management area guidelines set forth in the Rules
and Regulations; and
The development is consistent with the County general plan and zoning
ordinances. Such a finding of consistency does not preclude concurrent
processing where a general plan or zoning amendment may also be
required.
The Authority shall seek to minimize, where reasonable:
2. Any development which would reduce the size of any beach or other area
usable for public recreation
3. Any development which would reduce or impose restrictions upon public
access to tidal and submerged lands, beaches, po1tions of rivers and
20
streams within the special management area and the mean high tide line
where there is no beach.
4. Any development which would substantially interfere with or detract from
the line of sight toward the sea from the State Highway nearest the coast,
or from existing public view to and along the shoreline.
5. Any development which would adversely affect water quality, existing
areas of open water free of visible strncture, existing and potential
fisheries and fishing grounds, wildlife habitats, estuarine sanctuaries,
potential or existing agricultural uses of land.
51. Applicable to this permit are the following sections, Special Management Area
Rules and Regulations, Section 7.4 -Significant Adverse Effect Criteria:
In considering the significance of potential environmental effects, the Agency and
Applicant shall consider the sum of those effects that adversely affect the quality of the
environment, and shall evaluate the overall and cumulative adverse effects of the
proposal.
A "significant adverse effect" may vary with the individual setting and circumstances of
particular proposals. Generally, however, any proposal which may have a major adverse
effect on the quality of the environment or adversely affect the economic or social
welfare of an area, or would possibly be contrary to the objectives, policies and
guidelines of these Rules and Regulations, the County's General Plan, Development
Plans, zoning and subdivision ordinances, policies and purposes, and to the State Plan,
would likely result in a "significant adverse effect".
In dete1mining whether a proposal may have a significant adverse effect on the
environment, the Agency shall consider every phase of a proposal and expected
consequences, either primary or secondary, or the cumulative as well as the short or long
term effect of the proposal. The agency should bear in mind that in most instances, the
following actors of a proposal, although not limited to same, may constitute a significant
adverse effect on the environment when the proposal:
A. involves an irrevocable commitment to loss or destruction of any natural
or cultural resources, including but not limited to, historic sites, Special treatment
Districts as established in the County CZO ordinance, viewplanes or scenic
corridors as outlined in the Development Plans, and recreation areas and
resources;
B. curtails the range of beneficial uses of the environment;
C. conflicts with the County's or the State's long-term environmental
policies or goals;
D. substantially affects the economic or social welfare and activities of the
21
community, County or State;
E. involves substantial seconda5ry impacts, such as population changes and effects
on public facilities;
F. in itself has no significant adverse effect but cumulatively has considerable effect
upon the environment or involves a commitment for larger actions;
G. substantially affects a rare, threatened, or endangered species of animal or plant,
or its habitat;
H. detrimentally affects air or water quality or ambient noise levels; or
I. affects an environmentally sensitive area, such as flood plain, shoreline, tsunami
zone, erosion-prone area, geologically hazardous land, estuary, fresh water or
coastal water.
HAW All COASTAL ZONE MANAGEMENT ACT
52. Applicable to this permit request are the following objectives and policies of the
Hawaii Coastal Zone Management Act:
Objectives
2. Protect, preserve, and where desirable, restore those natural and man-made
historic and pre-historic resources in the coastal zone management area that are
significant in Hawaiian and American history and culture;
3. Protect, preserve, and where desirable, restore or improve the quality of coastal
scenic and open space resources;
4. Protect valuable coastal ecosystems from disruption and minimize adverse
impacts on all coastal ecosystems.;
6. Reduce hazard to life and property from tsunami, storm waves, stream flooding,
erosion, and subsidence.
Policies
1. Historic Resources
b. Maximize infom1ation retention through preservation ofremains and
a11ifacts or salvage operations.
c. Support State goals for protection, restoration, interpretation and display
of historic resources.
2. Scenic and Open Space Resources
b. Insure that new developments are compatible with their visual
environment by designing and locating such developments to minimize
the alteration of natural landforms and existing public views and along the
shoreline.
6. Coastal Hazards
b. Control development in areas subject to storm wave, tsunami, flood,
erosion, and subsidence hazard;
22
c. Ensure that developments comply with requirements of the Federal Flood
Insurance Program;
d. Prevent coastal flooding from inland projects.
DISCUSSION AND TEST FOR PERMITS
Relative to the standards, considerations and guidelines for the issuance of the
requested pe1mits, the following are considered:
1. The proposed residential and agricultural use of the property are not expressly forbidden by
zoning, the General Plan, nor the North Shore Development Plan, provided certain issues are
properly addressed to ensure the development's integration within the surrounding community of
uses, as previously discussed above in items #48-53, above.
Residential and agricultural uses have been successfolly developed within the Open/Special
Treatment-Resource District. Short term inconveniences and impacts such as noise, dust,
visual, drainage, erosion, etc. are created, but are addressed with the implementation of the
BMPs. Such visual, social and environmental impacts are eliminated in the long term with the
grow out of landscaping, use of eaiih tone and non-reflective colors, implementation of drainage
improvements, etc. Staff acknowledges visual impacts from those surrounding residential
improvements that did not benefit from an SMA and Use pennit review as is being done for this
application.
2. Intervenor's witnesseses Gary Smith and Chipper Wichmann both stated that a win-win situation
permitting some development can be achieved. It is that general scenario that the Department
will explore, with the following considerations:
a. Level of development to be considered. The size and design of the primary residence,
upon initial review, is quite large, given all the access01y concepts (ponds, walkways,
pool, etc.) incorporated. Such large and excessive residential designs are foreign, and
many times obscene, for those of us who live here. And, this residence will not be a full
time residence, instead being watched over by a caretaker in the second proposed
residence. Staff has no objection to the primary residence as proposed provided the
caretaker residence and barn improvements are deferred to a later date, or are eliminated.
That makes this residence the primary, and only, residence. An absentee landlord's
palatial residential structure in this location, remaining uninhabited a majority of the
time, is not an acceptable proposition. The barn would no longer be necessary if the
balance of the prope1iy will exist as a wildlife preserve, and no large scale agricultural
operations would occur.
An alternative to that concept: Pern1it the proposed primary dwelling unit, where is, as
is. Eliminate the barn. And/or pennit the second dwelling unit and barn only if and
23
when the applicant completes the following specific activities that staff visualized would
be the responsibility of the NPO:
• Complete the survey and subdivision of the property that clearly identifies the
preservation easement area, and the residential area;
• Construct a fence line to wildlife preservation standards between the preservation
easement area, and the residential area;
• Landscape said fence line, between the preservation easement area, and the
residential area.
This alternative minimizes or eliminates development and expansion expenses for the
NPO, and transfers the land in a quicker timeframe as compared to having to conduct an
appraisal of the land area, do the back and forth negotiations to establish and agree upon
value, and then lobby or fundraise to obtain the necessary funds.
b. Short term impacts. The proposed improvements to the Kahili Quarry Road will be
done to the standards of the Department of Public Works, utilizing and implementing
Best Management Practices. Short te1m inconveniences will occur, but in the long term,
long term benefits will clearly outweigh those inconveniences. This is in specific
reference to roadway improvements to the Kahili Quan-y Road, which should be to its
entire length, and not just a portion of it. This provides safer and more convenient access
to a recreational amenity for the greater good of more than just the Kilauea community.
c. Public Access to Coastal Recreational Resources. Kahili Quarry Road will serve as
access to the subject site; this road is also one of two access roads to the Kilauea Quarry
beach. Applicant has proposed to provide a certain level of improvements to just a
portion of the road right of way up to the area to be developed. A greater public benefit
will accrue if this road right of way were improved its full length, rather than retain it in
its present state where only a few people who have the proper 4-wheel drive vehicle will
traverse its length to get to the beach. This recommendation gets to the heart of a social
dilemma: retaining a substandard road right of way that only a few people can utilize due
to the ruggedness and inconvenience its present state affords, and in the name of
preserving the rural character of the area, or provide a safer improved access that many
can benefit from, which will encourage a greater numbers of users. A greater
appreciation of this resource will result.
d. Coastal ecosystems. As represented, the project's proposed drainage system will
comply with the County's Drainage standards and requirements. It will also be designed
to control drainage flows and minimize impacts to the adjacent and nearby properties and
to the nearshore coastal waters. A drainage study is necessary in order to determine, at a
minimum, the existing peak runoff from off-site and on-site areas, determine the peak
flow generated by the development, address the increase in peak flow and specify the
appropriate mitigative measures to be employed, and incorporate appropriate Best
Management Practices (BMPs).
24
Potential water quality impacts to nearshore coastal waters during construction of the
project will be mitigated by adherence to State and County ofKaua'i water quality
regulations governing grading, excavation and stockpiling. Appropriate erosion and
sediment controls will be instituted during project grading operations and construction
site work activities in compliance with the County's Grading Ordinance and the State
Department of Health's National Pollutant Discharge Elimination System (NPDES)
General Permit for Storm Water Associated with construction activity.
e. Coastal hazards. The proposed two residence's will not be located within any flood
zone as noted on the Flood Insurance Rate Map for the property.
f. Scenic and Open Space Resources. The primary viewplane impacted would be from
the beach looking back mauka. The applicant proposes grading activities that will bench
the residential improvement, which will better set the project against the valley
background. On one hand, without this benching, the residential development has more
potential to impact the view plane from the beach. On the other hand, the extent of
grading is quite extensive -proposed is 5,600 cubic yards of cut, and 5,400 cubic yards
of fill, on approximately 1.3 acres. The applicant should explore other design alternatives
that can achieve benching in order to sit the house down against an earthern backdrop,
but not to the extent proposed. Also, there should be a no-net gain in terms of grade and
fill requirements. No additional fill material should be pennitted to be imported to the
site.
The proposed building massing will be broken up due to the architectural design of the
home. The requirement for landscaping and the prohibition of reflective paint, glass or
roof material, in addition to the use of eaiih tone color schemes, should greatly aid
minimizing and reducing the proposed development would have on any visual impact to
this view corridor.
g. Historical resources. The subject application has been submitted for review by the State
Department of Land and Natural Resources, Historic Preservation division (SHPD).
h. Lot coverage. The proposed lot coverage of this Open/Special Treatment-Resource
zoned parcel includes 32,057 sq.ft. for the primary dwelling unit, and 2,270 sq.ft. for the
caretaker cottage, for a total of approximately 34,327 sq.ft., or .49% of the overall parcel
size of 161.88 acres. Sec. 8-8.5 a-1 of the CZO pern1its a lot coverage of 10% or 3,000
sq.ft. of the lot or parcel area. In this instance, the 10% will be applicable.
i. Building height. Height limit within the North Shore Planning Area is 25 feet; the
proposed development does not exceed this height.
25
RULINGS ON EVIDENCE:
For the purpose of this proceeding, the Commission takes judicial notice of the
entire contents of the Department's files for the original request designated Special
Management Area Use Pennit SMA(U)-2007-11, Use Pem1it U-2007-19, and Class III
Zoning Permit Z-III-2007-2 (which was subsequently withdrawn), and the present
application designated Special Management Area Use Permit SMA(U)-2008-5, Use Pem1it
U-2008-4, and Class IV Zoning Pennit Z-IV-2008-6
The Commission accepts for the record all of the documents offered by the
Applicant, the Department, the Intervenor, the public, and the County of Kauai permit review
agencies.
RULINGS ON PROPOSED FINDINGS:
1. Any of the proposed Findings of Fact submitted by any other party to this proceeding
not already ruled upon by the Commission by adoption herein, or rejected by clearly
contradicted Findings of Fact herein, are hereby denied and rejected.
2. On July 22, 2008, the Commission voted to adopt the Planning Depaiiment's Findings of
Fact, Conclusions of Law, Decision and Order and made revisions pursuant to the Rules of
Practice and Procedure of the Planning Commission ("Planning Commission Rules"), § 1-6-
18(±)(1 ). The Commission rejected the Applicants' Proposed Findings of Fact, Conclusions
of Law, and Decision and Order and Intervener Elizabeth Freeman's Proposed Findings of
Fact, Conclusions of Law, Decision and Order submitted by the Applicant and the
Intervenor.
3. The Commission adopted a proposed Planning Commission's Findings of Fact, Conclusions
of Law, Decision and Order on August 12, 2008 and served the document upon the Applicant
and the Intervener.
4. Intervener submitted her Exceptions to the Planning Commission's Findings of Fact,
Conclusions of Law, Decision and Order.
5. On September 23, 2008, the Commission heard argument on Intervener's Exceptions to the
Planning Commission's Findings of Fact, Conclusions of Law, Decision and Order.
6. On September 23, 2008, the Commission modified its August 12, 2008, Findings of Fact,
Conclusions of Law, Decision and Order after hearing argument regarding Intervener's
Exceptions to the Planning Commission's Findings of Fact, Conclusions of Law, Decision
and Order as follows:
26
a. Finding of Pact No. 37(2) was deleted.
b. Finding of Fact No. 40 was deleted.
c. Under the heading, "DISCUSSION AND TEST FOR PERMITS":
i. Paragraph No. 1 was modified as follows:
The second sentence of the second paragraph was deleted and third
paragraph was deleted.
ii. Paragraph No. 2(a) was deleted.
iii. Paragraph No. 2(c) was deleted.
iv. Paragraph No. 2(i), which is cun-ently numbered as 2(g), was
modified to read:
Historical resources. The subject application has been submitted
for review to Department of Land and Natural Resources, Historic
Preservation division (SHPD).
The remainder of No. 2(i) was deleted.
d. Decision and Order No. 1 l(d)(i) was modified to include an additional
paragraph as follows:
"Prior to recordation, the Conservation Easement shall be
submitted to the Planning Department to review its compliance with this
condition. The Planning Department shall solicit comments from the U.S.
Fish & Wildlife Service. The Plaiming Department shall have 45 days to
provide written comments to the Applicant, in the absence of which the
Conservation Easement shall be deemed acceptable. The Planning
Commission shall resolve any disagreements concerning the language of
the Conservation Easement."
e. The fourth sentence in Decision and Order No. 12 was modified to read:
"The use of gravel and chemical sealant shall not be pem1itted."
7. Applicant, Intervener and Department agreed to the modifications made to the Planning
Commission's Findings of Fact, Conclusions of Law, Decision and Order.
27
CONCLUSIONS OF LAW
1. The Commission has jurisdiction over the subject permits under provisions of A1iicle XIV of
the Kauai County Charter, the Special Management Area Rules and Regulations of the
County ofKaua'i, as amended, and Section 8-20.5 of the Comprehensive Zoning Ordinance
("CZO"), as codified by the Kaua'i County Code, 1987 ("KCC").
2. Due notice was given and all parties were offered an opportunity to present evidence and
argument on the requested petition.
3. 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 by the conditions set forth in Paragraphs I through 14 of the Decision and
Order herein, and will be clearly outweighed by the public health, safety and welfare, and
other compelling public interest;
4. The proposed project complies with the policies and guidelines of the Special Management
Area Rules and Regulations, and with the following:
a. 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;
b. The development is consistent with the objectives and policies, as enumerated in
Chapter 205A, Hawai'i Revised Statues ("HRS"), and as recited in Section 3.0 of the
SMA Rules; and Special Management Area Guidelines set forth in the SMA Rules;
and
c. The development is consistent with the County general plan and zoning ordinances.
5. The development complies with standards applicable to uses within: the State Land Use
Commission Agricultural District as contained in HRS Section 205-4.S(a); the Kaua'i
General Plan Open Land use Designation as contained in Section 5.3 of the Kaua'i General
Plan, Kaua'i County Ordinance No. 753; the CZO Open District as contained in KCC
Chapter 8, Article 8; and the CZO Special Treatment (Scenic/Ecologic Resources) District as
contained in KCC Chapter 8, Article 9.
6. The development complies with the standards for Use Permits contained in KCC Section 8-
20.S(a).
28
7. The Applicant has complied with the procedural provisions for a Class IV Zoning Pe1mit as
contained in KCC Sections 8-7.7(4)(A), 8-8.7, and 8-19.6.
8. The development complies with and/or will not conflict with any of the Goals contained in
the North Shore Development Plan Ordinance contained in KCC Chapter 10, Article 2.
DECISION AND ORDER
BY ORDER OF THE PLANNING COMMISSION, the application by Charles M. Somers and West
Sunset 32 Phase 1, LLC for a Special Management Area Use Pennit, Project Development Use Pen11it,
Use Permit, and Class IV Zoning Permit to unde1iake development on two lots located within the
Special Management Area (SMA) and within the Open/Special Treatment-Resource District (O/ST-R),
further identified as Tax Map Key 5-2-12: 35 ("Lot 2") and 5-02-4: 47, CPR #2 ("Kahili Quan-y Road"),
Kilauea, Kauai, be approved, subject to the following conditions:
I. As represented by the Applicant, the development subject to this permit approval shall be
limited to: the single family residence/farm dwelling unit referred to in the Application as
the "Main House'; the Driveway accessory to the Main House; Landscaping; Site Grading
for the Main House and Driveways; Preservation of Historic Sites; utilities; Well and Tank;
and improvements to Kahili Quarry Road.
2. Applicant shall provide annual status reports to the Planning Commission beginning from
one year from the date of this approval. The reports shall be submitted to the Department no
later than 30 days prior to the annual anniversary date of approval of this project. The report
shall provide project status and progress towards project completion and compliance with
conditions of approval. Annual reports shall be provided until completion of the project, and
compliance with all conditions of approval.
3. Applicant shall substantially commence construction of the project development within one
(1) year from the date of full approval, and shall complete construction of the project
development within 5 years from the date of approval of the subject permits.
4. Subject permits approved herein cannot be sold and are not transferable to other than
Applicant, its subsidiaries and affiliated corporations and legal entities prior to the
completion of the project and issuance of the occupancy permit.
5. Filling of the prope1iy with material obtained from off-premises shall not be
pen11itted. This prohibition of imported fill material shall not apply to
top soil used for landscaping purposes in accordance with the approved
landscaped plans. Mass pad filling to increase the heights of the proposed
structures shall not be pem1itted.
29
6. The Applicant shall apply for Leadership in Energy and Environmental Design (LEED)
registration.
7. The Applicant shall comply with the requirements and recommendations of
applicable County, State and Federal Agencies, including the County Fire, Water,
Engineering and Building Divisions of the Department of Public Works, the State
Department of Health, and State Department of Land and Natural Resources, Historic
Preservation Division, as reflected in Findings #41-47 above.
8. The Planning Commission reserves the authority to impose additional conditions, modify or
delete conditions stated herein, or revoke the subject pennits through proper procedures
should the Applicant fail to comply with the conditions of approval, or should unforeseen
circumstances occur or result.
9. In view of the various conditions and recommendations imposed by the various government
agencies as referenced to herein, building permit application or preconstruction work for any
phase of the project or portion of the property shall not be accepted until the Applicant
submits a status report of all permit conditions that are either required to be complied with
prior to or at time of building permit application.
10. Should the applicant be unable to comply with the development time line in
condition #3 above and request an extension of time, applicant is advised that any new laws,
ordinances, or regulations that have been implemented within this time frame may become
applicable to the project.
11. Prior to building permit review, the applicant shall:
a. Redesign the project to reduce the proposed grading area and volume, while still
retaining the benching and proposed architectural design concept. A soil study/report
and proposed grading plan shall be submitted to the Department of Public Works for
review and approval. Such grading plans should include all off-site improvements.
b. In order to help screen the strnctures from public views as seen from public areas, and
to blend the structures with its surroundings, external colors shall be of earth tones,
complementary to and compatible with the smTounding natural background. In
addition, the Applicant shall prepare a landscape plan to fu1iher soften the existing
building mass. The landscape plan shall reflect the use of native plants that are
common to the area, endemic, indigenous, or Polynesian-introduced. Use of
herbicides, pesticides and non-organic fertilizers shall be kept to a minimum. The
proposed color scheme and landscape plan shall be submitted to the Planning Director
for review and approval prior to building permit review.
30
c. Record all of the conditions imposed under the subject permits with the deed(s) to the
subject prope1ty(ies). A copy of this recordation shall be provided to the Planning
Department.
d. As represented by the Applicant, prior to the issuance of any building pem1its, the
Applicant agrees to transfer a perpetual Conservation Easement over an approximately
eighty (80) acre portion of Lot 2 ("Conservation Easement Area"). The Conservation
Easement shall comply with the applicable terms, conditions, and definitions
contained in Chapter 198 (Conservation Easements) of the Hawai'i Revised Statutes,
subject to the following tem1s and conditions:
i. The Applicant shall convey the Conservation Easement to a governmental entity
or 501C(3) organization of Applicant's choice, provided such organization
constitutes a "qualified organization" as defined in 170(h)(3) of the Internal
Revenue Code of 1986 (the Code). Said entity or organization shall have the
capability of developing and maintaining threatened and endangered species
habitat consistent with the Kilauea Point National Wildlife Refoge Land
Conservation Plan and Environmental Assessment (May 2007) prepared by the
U.S. Fish and Wildlife Service.
Prior to recordation, the Conservation Easement shall be submitted to the
Planning Department to review its compliance with this condition. The Planning
Department shall solicit comments from the U.S. Fish & Wildlife Service. The
Planning Department shall have 45 days to provide written comments to the
Applicant, in the absence of which the Conservation Easement shall be deemed
acceptable. The Planning Commission shall resolve any disagreements
concerning the language of the Conservation Easement.
ii. The delineation and detem1ination of the Conservation Easement's
boundaries and the content of the restrictive terms of the Conservation Easement
document shall be as negotiated and agreed upon between the Applicant and the
qualified organization provided:
1. That the Conservation Easement shall encumber approximately 80
acres of Lot 2
2. That the Conservation Easement shall expressly extinguish density
for sixteen (16) of the dwelling units permitted within Lot 2. It is
Applicant's intention that any dwelling unit density attributable to and
arising out of the Conservation Easement Area shall be extinguished, and
shall not be transferred to any other portion of Lot 2.
31
3. That the lands encumbered by the Conservation Easement and the
terms set forth in the Conservation Easement fulfill a "conservation
purpose", as defined in 170(h)(4) of the Code.
4. That except as restricted in the Conservation Easement document,
the Applicant shall have the right to the use, possession and enjoyment of
the Conservation Easement Area.
5. That no dwelling units (including single family residences and
farn1 dwelling units) shall be allowed to be located within the
Conservation Easement Area.
6. That to the extent reasonably possible, and subject negotiations
with the qualified organization, the Conservation Easement Area will
include: areas adjacent to the KIiauea Stream; and the archaeological sites
identified as SIHP #50-30-04-580 and 581 in the Archaeological
Inventory Study of an Approximately 74-Acre Portion of KIiauea Falls
Ranch property (Applicant's Exhibit "F-5").
e. Evidence shall be provided that reflects resolution or compliance to the comments and
recommendations of the government agency(ies) reflected in Condition #7 above.
12. Applicant shall provide roadway improvements to the entire length of Kahili Quarry Road as
may be authorized by its present owners. Said roadway improvements should include
clearing and drainage improvements as may be permitted by the present road right-of-way
width. The use of crushed coral would be acceptable to retain a rural ambience. The use of
gravel and chemical sealant shall not be permitted. As represented, Applicant shall maintain
this road right-of-way. Said improvements shall implement and utilize best management
practices as recommended by the Department of Public Works. No weekend or holiday work
shall be pern1itted.
13. The proposed residence(s) shall not be used for vacation rental or bed and breakfast
purposes.
14. The Applicant is advised that prior to and/or during construction and use, additional
government agency conditions may be imposed. It shall be the Applicant's
responsibility to resolve those conditions with the respective agency(ies).
15. In order to minimize adverse impacts on Federally Listed Threatened Species, such as
Newell's Shearwater and other seabirds, if external lighting is to be used in connection with
32
the proposed project, all external lighting shall be only of the following types: shielded
lights, cut-off luminaries, or indirect lighting. Spotlights aimed upward or spotlighting of
structures, landscaping, signage or hotel features within the project site shall be prohibited.
16. As represented, Applicant shall contribute no less than $5,000 towards the conduct of a water
quality baseline study of KIiauea River.
17. Customary and traditional rights and practices including without limitation those exercised
for subsistence, culture, religious, access or gathering purposes, as provided for in the
Hawai'i Constitution or Hawai'i Revised Statutes, shall be permitted.
18. Access to the waterfall shall be permitted at the Applicant's discretion.
Amended and approved by the Planning Commission on September 23, 2008 by a 6-0 vote.
B~~)
Chairperson, County ofKaua'i,
Planning Commission
Date /O-;;J.-08"
33
Sean Mahoney
Chair
Louie Abrams
Vice-Chair
Roy Ho
Wayne Katayama
Kimo M. Keawe
Members
Max Graham
PLANNING COMMISSION
County of Kaua'i, State of Hawai'i
4444 Rice Street
Kapulc Building, Suite A-473
Lihu'e, Hawai'i 96766-1326
TEL (808) 241-4050 FAX (808) 241-6699
APR al s ?016 :
Michael A. Dahilig
Clerk of the Commission
rffi IE t rE Il 1W lE tD)
Belles Graham Proudfoot Wilson & Chun LLP
4334 Rice Street, Suite 202
MAY -1 2016
BELLES GRAHAM PHOUOFOOT
W1LSON & CHUN, LLP
Lihue, HI 96766
Subject: Amendment to Special Management Area Use Permit SMA(U)-2008-5
Use Permit U-2008-4
Class IV Zoning Permit Z-IV-2008-6
Tax Map Key: (4) 5-2-012:035
Kilauea, Kauai
Charles Somers, as Trustee of the Charles Somers Living Trust
Dated November 12, 2002, and West Sunset 32 Phase 1 LLC, Applicant
Dear Mr. Graham,
This letter memorializes the action taken by the Kaua'i Planning Commission effective APRIL
26, 2016 concerning approval of the above subject permits. The approval by the Planning
Commission, per yom consent, is subject to the following conditions:
A 1. The conservation manager's house and garage shall be sunken approximately five
feet below grade and shielded, by way of dense shrubbery and tall tree landscaping
in order to alleviate view plain impacts of the proposed new structmes from Kahili
Beach as well as looking westward across Kilauea Stream. The conservation
maintenance building and conservation manager's house shall be constructed as
revised. The structures shall also be operated as represented. Any changes to said
structures shall be reviewed by the Planning Department to determine whether
Planning Commission review and approval is warranted.
A2. The applicant shall comply with the requirements of the State of Land and Natural
Resources, Historic Preservation Division, County's Department of Public Works,
as well as any other applicable government agencies.
An Equal Opportunity Employer
Y:\2008 Master Filcs\Regulatory\SMA P,,nnits\SMA Use Pcrrnits\SMA(U)-2008-5\SMA(U)-2008-5 Modification\Sorncrs\Approvul Letter for
Somers Alnendmcnl.docx
SMA(U)-2008-5
Page 2
A3. The applicant shall develop and utilize Best Management Practices (BMPs) during
all phases of development in order to minimize erosion, dust, and sedimentation
impacts of the project to abutting properties.
A4. In order to minimize adverse impacts on the Federally Listed Tlu:eatened Species,
Newell's Shearwater and other seabirds, all external lighting shall be only of the
following types: shielded lights, cut-off lmninaries, or indirect lighting. Spotlights
aimed upward or spotlighting of structures, landscaping, or the ocean shall be
prohibited.
AS. To the extent possible within the confines of union requirements and applicable
legal prohibitions against discriminatjon in employment, the applicant shall seek to
hire Kauai contractors as long as they are qualified and reasonably competitive with
other contractors, and shall seek to employ residents of Kauai in temporary
construction and permanent jobs. It is recognized that the applicant may have to
employ non-Kauai residents for particular sldlled jobs where no qualified Kauai
resident possesses such skills. For the purposes of this condition, the Commission
shall relieve the applicant of this requirement if the applicant is subjected to anti-
competitive restraints on trade or other monopolistic practices.
A6. The applicant shall implement to the extent possible sustainable building techniques
and operational methods for the project, such as Leadership in Energy and
Environment Design (LEED) standards or another comparable state-approved,
nationally recognized, and consensus-based guideline, standard, or system, and
strategies, which may include but is not limited to recycling, natural lighting,
extensive landscaping, solar panels, low-energy lighting and other similar methods
and techniques. All such proposals shall be ret1ected on the plans submitted for
building permit review.
A 7. 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 or
approval not be complied with or be violated.
A8. 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 Plancing Department at (808) 241-
4050.
A9. The applicant shall not use this residence for vacation rental purposes. This
restriction shall be incorporated into the deed restrictions of the subject parcel, draft
copies of which shall be submitted to the Planning Department prior to building
pennit approval.
SMA(U)-2008-5
Page 3
Al 0. Applicant is on notice that the property is "Agricultural" under State Land Use
designations. Applicant must comply with all requirements pursuant to Hawaii
Revised Statutes Chapter 205 including the submission and approval of a fann plan
to the director prior to building permit approval.
A 11. The applicant shall submit for review and approval by the Planning Department a
landscape plan composed of native species, or species common to the are[!., to help
screen the proposed structures, and integrate the site with its surroundings.
A 12. Exterior colors and finishes of all strnctures, including roof colors, shall be limited
to medium or dark emth tones such as brown, green, or grey, or other colors
compatible with the area's natural surroundings. Use of reflective materials or
colors shall be prohibited. The proposed color scheme and samples shall he
submitted to the Plaiming Department for design review and approval prior to
building permit application.
A 13. The applicant shall comply with the previously approved conditions for Special
Management Area Use Permit SMA(U)-2008-5 prior to the issuance of building
permits for the residence and maintenance building. The applicant shall apply for
the building permit within one (1) year of the date of approval of this application
and complete the proposed development within two (2) years of the date of
approval of the building permit.
J\ 14. The applicant shall pay a $500 fine for the "Alter-the-Fact" permit for the
temporary maintenance structure. The structure shall be removed once the
conservation maintenance building is constrncted.
A 15. The Nene fencing shall be constructed as stated, including landscaping as
recommended. The fencing and landscaping shall be completed prior to
construction of the conservation manager's house and maintenance building.
A 16. Given Finding 18 of the 2008 Decision and Order, applicant shall provide director
contact information should a member of the public wish to seek access to the falls
understanding access is at the landowner's discretion.
Sincerely,
/:'
I,,••''..,, '1 .J •' .§
,,
MICHAEL A. DAHkIG
Clerk, Kaua'i Planning Commission
Cc: County-Public Works, Fire, Water, Real Properly Division, Housing, Transportation, State-Health,
Historic Preservation
PLANNING COMMISSION
THE COUNTY OF KAUA'!
Glenda Nogami Streufert
CHAIR
KA' AINA S. HULL, CLERK OF THE COMMISSION Donna Apisa
VICE-CHAIR
July 15, 2020
Melvin Chiba
Helen Cox
Francis DeGracia
Roy Ho
Lori Otsuka
MEMBERS
Max W. J. Graham, Jr., Esq., Authorized Agent
BELLES GRAHAM PROUDFOOT WILSON & CHUN, LLP.
Watumull Plaza JUL 2 1t 2020 4334 Rice Street, Suite 202
LThu'e, Hawai'i 96766
lie Gral1 rn LJJ'
Subject: Special Management Area Use Permit SMA(U)-2008-5
Use Permit U-2008-4
Class IV Zoning Permit Z-IV-2008-6
Tax Map Key: (4) 5-2-004:047
Kilauea, Kaua'i
CHARLES M. SOMERS/WEST SUNSET 32, PHASE 1 LLC., Applicants
Dear Mr. Graham,
This letter memorializes the action taken by the Kaua'i Planning Commission effective JULY 14,
2020 concerning approval of the above subject permits involving amendments to the project that
include the redesign of the barn/maintenance building, and elimination of the Manager's/
Caretaker's House & Nene Fencing on the parcel referenced above. The approval, per your
consent and as amended, is subject to the following conditions:
A 1. The conservation manager's house and garage shall be sunken
approximately five feet below grade and shielded, by way of dense
shrubbery and tall tree landscaping in order to alleviate view plain
impacts of the proposed new structures from Kah iii Beach as well as
looking westward across Kilauea Stream. The conservation
maintenance building and conservation manager's house shall be
constructed as revised. The structures shall also be operated as
represented. Any changes to said structures shall be reviewed by the
Planning Department to determine whether Planning Commission
review and approval is warranted.
A2. The applicant shall comply with the requirements of the State of Land and
Natural Resources, Historic Preservation Division, County's Department of
Public Works, as well as any other applicable government agencies.
A3. The applicant shall develop and utilize Best Management Practices (BMPs)
during all phases of development in order to minimize erosion, dust, and
sedimentation impacts of the project to abutting properties.
www.kauai.gov
4444 Rice Street Suite A473 • Lihu'e, Hawai'i 96766 • (808) 241-4050 (b) • (808) 241-6699 (f)
An Equal Opportunity Employer
V:\2008 Moslor Fllo,\Regulalary\SMA Pormils\lMA Uso Permils\SMA(U)-2008-5\Corrospondences\Approvol-1 7.15.20 DC lornors_2nd Amendrnonl.docx
Max W. J. Graham, Jr., Esq., Authorized Agent
BELLES GRAHAM PROUDFOOT WILSON & CHUN, LLP.
SMA(U)-2008-5, Z-IV-2008-6, U-2008-4
Proposed Amendments to Project
Page 12
A4. In order to minimize adverse impacts on the Federally Listed Threatened
Species, Newell's Shearwater and other seabirds, all external lighting shall be
only of the following types: shielded lights, cut-off luminaries, or indirect
lighting. Spotlights aimed upward or spotlighting of structures, landscaping, or
the ocean shall be prohibited.
A5. To the extent possible within the confines of union requirements and
applicable legal prohibitions against discrimination in employment, the
applicant shall seek to hire Kauai contractors as long as they are qualified
and reasonably competitive with other contractors, and shall seek to employ
residents of Kauai in temporary construction and permanent jobs. It is
recognized that the applicant may have to employ non-Kauai residents for
particular skilled jobs where no qualified Kaua'i resident possesses such
skills. For the purposes of this condition, the Commission shall relieve the
applicant of this requirement if the applicant is subjected to anticompetitive
restraints on trade or other monopolistic practices.
A6. The applicant shall implement to the extent possible sustainable building
techniques and operational methods for the project, such as Leadership in
Energy and Environment Design (LEED) standards or another comparable
state-approved, nationally recognized, and consensus-based guideline,
standard, or system, and strategies, which may include but is not limited to
recycling, natural lighting, extensive landscaping, solar panels, low-energy
lighting and other similar methods and techniques. All such proposals shall be
reflected on the plans submitted for building permit review.
A7. 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 or approval not be complied with or be violated.
AS. 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.
A9. The applicant shall not use this residence for vacation rental purposes. This
restriction shall be incorporated into the deed restrictions of the subject
parcel, draft copies of which shall be submitted to the Planning Department
prior to building permit approval.
A 10. Applicant is on notice that the property is "Agricultural" under State Land Use
designations. Applicant must comply with all requirements pursuant to Hawaii
www.kauai.gov
4444 Rice Street Suite A473 • Uhu'e, 1-lawai'i 96766 • (808) 241-4050 (b) • (808) 241-6699 (f)
An Equal Opportunity Employer
Max W. J. Graham, Jr., Esq., Authorized Agent
BELLES GRAHAM PROUDFOOT WILSON & CHUN, LLP.
SMA(U)-2008-5, Z-IV-2008-6, U-2008-4
Proposed Amendments to Project
Page 13
Revised Statutes Chapter 205 including the submission and approval of a
farm plan to the Director prior to building permit approval.
A 11. The applicant shall submit for review and approval by the Planning
Department a landscape plan composed of native species, or species
common to the area, to help screen the proposed structures, and integrate
the site with its surroundings ..
A 12. Exterior colors and finishes of all structures, including roof colors, shall be
limited to medium or dark earth tones such as brown, green, or grey, or other
colors compatible with the area's natural surroundings. Use of reflective
materials or colors shall be prohibited. The proposed color scheme and
samples shall be submitted to the Planning Department for design review and
approval prior to building permit application.
A 13. The Applicant shall comply with the previously approved conditions for
Special Management Area Use Permit SMA(U)-2008-5, as amended, prior to
the issuance of building permits for the maintenance building. The applicant
shall apply for the building permit within one ( 1) year of the date of approval
of this application or within one (1) year of the date of approval of any new
application to modify the design of the maintenance building, and complete
the proposed development no later than June 30, 2023. The maintenance
building shall not be used for residential or habitation purposes, and it shall
not be used for transient accommodation purposes. This restriction shall be
incorporated into the deed restrictions of the subject parcel, draft copies of
which shall be submitted to the Planning Department prior to building permit
approval.
A 14. The applicant shall pay a $500 fine for the "After-the-Fact" permit for the
temporary maintenance structure. The structure shall be removed once the
conservation maintenance building is constructed.
A 15. As represented by the Applicant, prior to issuance of the Building Permit for
the Barn, the Applicant shall donate the sum of Eleven Thousand Five
Hundred Dollars ($11,500.00) to the Hawaiian Island Land Trust (Hll,. T), to be
used by HILT in support of its efforts to protect and preserve the
environmental qualities and ecosystem of the Kilauea Stream and Kahili
Beach, including but not limit to the removal of invasive species, the replacing
of native species, erosion control, the clean-up of Kahili Beach, and the
empowerment of community stewardship of the area.
A 16. Given Finding 18 of the 2008 Decision and Order, applicant shall provide
Director contact information should a member of the public wish to seek
access to the falls understanding access is at the landowner's discretion.
www.kauai.gov
4444 Rice Street Suite A473 • Lihu'e, Hawai'i 96766 • (808) 241-4050 (b) • (808) 241-6699 (f)
An Equal Opportunity Employer
Max W. J. Graham, Jr., Esq., Authorized Agent
BELLES GRAHAM PROUDFOOT WILSON & CHUN, LLP.
SMA(U)-2008-5, Z-IV-2008-6, U-2008-4
Proposed Amendments to Project
Page 14
Sincerely Yours,
~-H_:::U;L!:-L-1----1-
Clerk, Kaua'i Planning Commission
xc: COK -Public Works, Fire, Water, Finance-Real Property Division
State -Health, Historic Preservation Division-DLNR
www.kauai.gov
,1444 Rice Street Suite A473 • Uhu'c, Hawai'i 96766 • (808) 241-4050 (b) • (808) 241-6699 (f)
An Equal Opportunity Employer
EXHIBIT 6
LAND COURT SYSTEM
After Recordation, Return by: Mail (
Belles Graham Proudfoot & Wilson, U.P
4334 Rice Street, Suite 202
24 2/2 Z9
R "06 STATE OF HAWAII
-~ BUREAU OF CONVEYANCES
RECORDED
OCT 09, 2006 08:01 AM
Doc No(s) 2006-184268
YSTEM
lb~ ;,t~l/:·O @
Lihue, Kauai, Hawaii 96766
Telephone: (808) 245-4705
. tltt.
This document contains ~ pages.
TYPE OF DOCUMENT:
GRANT OF EASEMENT B
PARTIES TO DOCUMENT:
GRANTOR:
GRANTEE:
NEW SEACLlFF ESTATES, LLC,
a Delaware limited liability company
P. 0. Box 770, #370
Park City, Utah 84060
COUNTY OF KAUAI
c/o Department of Public Works
4444 Rice Street, Suite 275
Lihue, Kauai, Hawaii 96766
TAX MAP KEY FOR PROPERTY:
(4) 5-2-04: 47 (por.) and 99 (por.) (CPR No. 2)
{W:IDOCS\26151\IIW0075372.DOC) -1-
EXHIBIT6
GRANT OF EASEMENT B
This Grant Of Easement B is made effective as of the 11 th day of April, 2005,
by and between NEW SEACLIFF ESTATES, LLC, a Delaware limited liability company, whose
mailing address is P. 0. Box 770, #370, Park City, Utah 84060, hereinafter called the "Grantor",
and the COUNTY OF KAUAJ, a political subdivision of the State of Hawaii, whose mailing
address is c/o Department of Public Works., 4444 Rice Street, Suite 275, Lihue, Kauai, Hawaii
96766, hereinafter called the "Grantee",
I. RECITALS
1, Grantor is the owner of certain property known as Unit B of the Seacliff
Gardens Condominium located on Lot 26-B of the Seacliff Plantation At Kilauea Bay Subdivision
located in Kilauea, Kauai, Hawaii, identified by Kauai Tax Map Key No. ( 4) 5-2-04:47 (por.) and
99 (por.) (CPR No. 2), as more fully described in Exhibit "A", attached hereto and incorporated
herein ("Grantor's Property").
2. Grantorwishes to conveyto Grantee a public access easement across a portion
of the Grantor's Property, identified as Easement "B''; as more fully described in Exhibit ''B",
attached hereto and incorporated herein, and as shown on the map attached hereto as Exhibit "C". 1
II. GRANT OF BASEMENT
In consideration of the swn of TEN DOLLARS ($10.00) and other good and
valuable consideration paid by the Grantee and subject to all of the terms, conditions and limitations
contained herein, the Grantor does hereby declare, grant and convey unto Grantee Easement "B" as
described in Exhibit "B" (referred to as the "Easement"), being a perpetual, non-exclusive easement
for access purposes over and across Grantor's Property in favor of Grantee. The portion of Grantor's
Property subject to Easement "B" shall be referred to hereinafter as the "Easement Area".
TO HA VE AND TO HOLD the same unto the Grantee and the Grantee's successors
and assigns for the purposes stated herein, forever; subject, however, to all of the terms, conditions
and limitations stated herein.
EXCEPTING AND RESERVING HOWEVER, from this Grant the right of the
Gran tor to make use of the land within the Easement Area in any manner which is not inconsistent
with the rights of the Grantee hereunder and the right to grant other easements within the Easement
Area for such purposes as are not inconsistent with and will not unreasonable interfere with the
rights of the Grantee hereunder.
In consideration of the rights hereby granted and the acceptance thereof and the
obligations hereby asswned, the parties mutually covenant and agree as follows:
l. Intent. The Grantor's intention is to create the Easement across the Easement
Area to be used by Grantee and the public for access purposes, including but not limited to,
pedestrian, vehicular, bicycle and equestrian access.
(W:\DOCSl26l57\I\W0075372.DOC} -2-
2. Improvements Within Easement Area. The following improvements shall be
allowed within the Easement Area:
a. The Grantee shall have the right, but not the duty, to construct, install,
maintai~ reconstruct, replace and repair roads, bikeways, pathways, guardrails, and related
improvements within the Easement Area ("Grantee's Improvements").
b. The Grantor shall have the right, but not the duty, to construct, install,
maintain, reconstruct, replace and repair roads, bikeways, pathways, guardrails, fences, walls, and
utilities within the Easement Area, and to install and maintain vegetation within the Easement Area,
provided such vegetation or improvements do not unreasonably interfere with Grantee's rights
hereunder. Any improvements or vegetation constructed or installed by Grantor pursuant to this
paragraph shall be referred to as the "Grantor's Improvements".
c. Except for jointly owned improvements, if any, any improvements
constructed, reconstructed or installed by either party within the Easement Area shall be and remain
the property of the person constructing same. Any party that constructs, reconstructs, installs,
replaces, repairs or removes any improvements on or in the Easement Area shall restore the surface
of the ground to its original condition to the extent that such restoration is reasonably possible.
3. Condemnation. If at any time the Easement Area, or any part thereof, shall be
condemned or taken for any public project by any governmental authority, the Grantee shall have the
right to claim or recover from the condemning authority, but not from the Grantor, such
compensation as is payable for the said Easement and the rights granted herein.
4. Exercise of Rights. Each party shall exercise its rights hereunder in such
manner as to occasion as little interference as reasonably necessary with the use of said Easement
Area by the other party.
5. Grantee's Indemnification. Grantee and Grantee's agents, servants, employees,
invitees and guests will use the Easement at its sole risk. Grantee will indemnify, defend and hold
harmless the Grantor, and Grantor's successors and assigns, against any and all claims and demands
for any liability, costs, expenses, attorneys' fees, loss, damage or injury to persons or property,
including the claims of its agents, servants, employees, invitees and guests that shall or may be
caused by the willful acts or negligence of the Grantee and which arise by reason of the use of the
Easement by Grantee and Grantee's agents, servants, employees, invitees, or guests, except to the
extent such claims or demands arise by reason of Grantor's own gross negligence or willful
misconduct.
6. Condition of Easement Area. The Grantee understands that a majority of the
Easement Area is presently an unimproved, dirt road. The Grantee understands and agrees that the
Grantor has not made and does not make any representation or warranty with respect to the condition
of the Easement Area. The Grantee hereby accepts the Easement Area in its "as is" conditions.
7. Limitation of Use. The Grantee's rights shall be strictly limited to those
necessary to allow Grantee to utilize the Easement Area for the purposes intended and described
above. The Grantee's rights hereunder shall be limited to those uses legally permitted on the
Easement Area and for no other purposes.
(W:\DOCS\26157\1\ W0075372.DOC} -3-
8. Utilities. For the purposes of this Grant, the following definitions shall apply.
a. The tenn "utility" shall include services for: drainage; sewer and
wastewater disposal; gas; water (including potable water and/or irrigation water); and telephone,
electric, cable television and other services employing electrical or electronic means of transmission.
b. The term "drainage" shall include the grading and grubbing of
property, the creation of ditches or swales, and the installation of improvements in order to collect,
direct, redirect, concentrate, and discharge surface water flows.
9. Maintenance. The Grantor shall have no responsibility or duty to maintain or
repair any of the Improvements in the Easement Area. The Grantee shall not be obligated to improve
the Easement Area. However, if Grantee improves the Easement Area, then the Grantee shall be
solely responsible for maintaining and repairing the Grantee's Improvements (if any) in the Easement
Area in good and safe repair and condition.
10. Installation of Grantee's Improvements. The Grantee shall have the right to
install Grantee's Improvements within the Easement Area. Prior to installing any of Grantee's
Improvements, the Grantee shall do the following:
a. Except as otherwise provided herein, the Grantee shall give the
Granter at least forty~eight ( 48) hours prior notice of the Grantee's intent to enter onto the Easement
Area to construct, reconstruct, install, maintain, replace or repair Grantee's Improvements, which
entry shall be restricted to reasonable daylight hours. However, the restrictions of this paragraph
shall not be required for the making of emergency repairs necessary to protect any of the Grantee's
hnprovements located on or within the Easement Area.
b. The Grantee shall obtain any and all governmental pennits necessary
to install the Grantee's Improvements and shall provide copies of the same to the Grantor. The
Grantor shall cooperate with the Grantee as may be reasonably required to obtain such pemrits. but at
no cost to the Grantor. The Grantee shall not perform any work pursuant to this Grant which will or
may violate any local ordinance or any state or federal law.
c. Any and all work within the Easement Area by the Grantee or the
Grantee's agents or contractors shall be conducted in such a way as not to create any drainage or
erosion damage, or to exacerbate any condition related to drainage or erosion, which may adversely
affect Grantor's Property, and which shall otherwise comply with all of the terms and conditions of
this Grant.
11. Service of Notice. Any written notice or request required or authorized to be
served hereunder shall be deemed delivered and received either upon the actual personal receipt
thereof by the receiving party or within five (5) business days after the notice has been posted with
the U.S. Mail, return receipt requested, addressed to the receiving party at its address as stated herein,
{W:\DOCS\2615Tll\W0075372.DOC) -4-
or at such other address as the receiving party may have previously designated to the sending party in
writing.
12. No Liens. The Grantee shall take no action nor refrain from taldng any action,
nor shall the Grantee allow or authorize its agents or contractors to take any action or refrain from
talcing any action, by or as a result of which the Easement Area. Grantor's Property or any portion
thereof shall be made subject to any mechanics' or materialme11's lien or any other attachment,
execution or judgment lien, or any other charge or encumbrance whatsoever. Should any such lien,
charge or encumbrance or notice thereof be recorded, filed or attached to the property of the Grantor,
the Grantee shall immediately pay off the same and cause the same to be satisfied and discharged of
record, all at the sole expense of the Grantee. The recordation, filing or attachment of any such lien
shall constitute a default by the Grantee under this Agreement.
13. Severability. If any tenn or provision of this Grant is determined by a court or
competent jurisdiction to be illegal, invalid or unenforceable for any reason whatsoever, such
illegality, invalidity or unenforceably shall not affect the legality, validity or enforceably of the
remainder of this Grant.
14. Headings For Reference Onlx. TI1e headings of the sections and subsections
herein are inserted only for convenience and reference and shall in no way define, limit or describe
the scope or intent of any provision of this Grant.
15. Countyrparts. This Grant may be executed simultaneously in two or more
counterparts, each of which shall be deemed on original, but all of which together shall constitute
one and the same instrument. Signature pages from separate signed copies may be attached to a
single copy for purposes of recording.
16. Intyrpretation. The Grant shall be interpreted. in accordance with the laws of
the State of Hawaii.
17. Terms. The terms "Grantor" and "Grantee11 as and when used herein, or any
pronouns used in place thereof, shall mean and include the masculine or feminine, the singular or
plural number, individuals or corporation and their and each of their respective devisees, successors
in trust, successors, heirs, personal representatives and assigns, according to the contest thereof.
18. HRS Chapter 520. The parties intend that this Grant will promote the
purposes of Hawaii Revised Statutes Chapter 520 bymaldng land and water areas available to the
public for recreational purposes, and as a result that Grantor and Grantee will be eligible for the
limitations in liability set forth in said Chapter 520.
{W:\DOCS\26157\1\ W0075372.DOC) -5-
19. Special Development Restriction. A portion of the Easement Area ("Open
District Portion") is located within the Open District of the Comprehensive Zoning Ordinance of the
County of Kauai ("CZO"). The total "land coverage" (as that term is defined in the CZO) allowed by
the CZO within the Open District Portion is ten percent (10%) of the area of the Open District
Portion. As a result, the total amount ofland coverage that will be allowed by Grantor within the
Open District Portion of the Easement Area shall be ten percent (10%) of the area of the Open
District Portion of the Easement Area. (For example, if80,000 square feet of the Easement Area is
located within the Open District, then the total land coverage allowed in this area will be a maximum
of 8,000 square feet). This restriction shall apply unless the Grantee is able to obtain: the written
consent of the Grantor or the successors in interest to Grantor's Property, to waive or amend this
restriction; and a variance from the County of Kauai waiving or amending this restriction.
IN WITNESS WHEREOF, the parties have executed this Grant Of Easement 0 B"
effective as of the date written above.
{W:\DOCS\26157\1 \ W0075372.DOC}
GRANTOR:
NEW SEACLJFF ESTATES, LLC,
a Delaware limited liability company, by
NSE MANAGEMENT COMP ANY, LLC.
Its Managing Member
~ii:~
Its Member
-6-
STATE OF HAW All )
) SS:
COUNTY OF KAUAI )
On this l 5\Vlday of ~ 20lli before me appeared
JAMES R. O'CONNOR, to me personally known, who, being by me duly sworn, did say that he is
the Member ofNSE MANAGEMENT COMP ANY, LLC, a Delaware limited liability company, the
managir1g member of NEW SEACLIFF ESTATES, LLC, a Delaware limited liability company
("Company"), and that said instrument was signed in behalf of said Company, and the said officer
acknowledged said instrument to be the free act and deed of said Company.
f.s. Notary Public, State of Hawaii
My commission expires: tlJ\ 00 ]mo i
(W:IDOCS\26157\l\W0075372.DOC) -7-
APPROVED:
~r~,f_.
Director of Finance
County of Kauai
APPROVED AS TO FORM
AND LEGALITY:
{W:\DOCS\26157\l\W0075372.DOC}
GRANTEE:
COUNTY OF KAUAI
Byo/ANU~ ~~~ By _______________ _
PETER A. NAKAMURA
Its County Clerk
-8-
STATE OF HAWAII )
) ss.
COUNTY OF KAUAI )
On this lB.\n day of ~ bett... , 20 Ob, before me appeared
BRYAN J. BAPTISTE, to me personally kno~eing byme duly sworn, did say that he is the
Mayor of the COUNTY OF KAUAI, a political subdivision of the State of Hawaii; that the seal
affixed to the foregoing instrument is the seal of said COUNTY OF KAUAI by authority of its
Charter; and that said BRYAN J. BAPTISTE acknowledged said instrument to be the free act and
deed of said COUNTY OF KAUAI
~.·
My commission expires: __ J_un_e_1_4,_2_00_8 ___ _
STATE OF HAWAII )
) ss.
COUNTY OF KAUAI )
On this /W day of ~ , 20th, before me appeare•{
PETER A. NAKAMURA, to me personally knwn, who, being by me duly sworn, did say that heir'( Na
the County Clerk of the COUNTY OF KAUAI, a political subdivision of the State oj]!~~jl?M~-~ <a~
the seal affixed to the foregoing instrument is the seal of said COl,JNTY OF K.AUA!lry'autl:io'nffor~ ~,..,_
its Charter; and that said PETER A. NAKAMURA acknowledged said instrument to be the free act ~ r;,..,-rl,_
and deed of said COUNTY OF KAUAI. ----~ ,F~
{W:\DOCS\26157\I\W007S372.DOC)
Name of No : ~ 0~
Notary Pub · , State of Hawaii.
-9-
EXHIBIT "A''
Those certain premises comprising a portion of the Project known as the "SEACLIFF
GARDENS CONDOMINIUM", said Project having been established as a Condominium Property
Regime by Declaration of Condominium Property Regime of Seaeliff Gardens Condominium dated
October 30, 2001, and recorded in the Bureau of Conveyances of the State of Hawaii ("Bureau") as
Document No. 2001-174035, as amended by First Amendment To Declaration Of Condominium
Property Regime OfSeacliffGardens Condominium dated January 29, 2002, recorded in the Bureau
as Document No. 2002-024821, by Restated Declaration Of Condominium Property Regime Of
Seacliff Gardens Condominium dated April 11, 2005, recorded in the Bureau as Document
No. 2005-165965, and as may be amended from time to time (herein called the 11Declaration11
), and
Bylaws of the Association of Unit Owners of Seacliff Gardens Condominium, dated October 30,
200 I, and recorded in said Bureau as Document No. 2001-17 4036, as amended by instrument dated
April 11, 2005, recorded in the Bureau as Document No. 2005-165966, as may be amended from
time to time (herein called the "Bylaws"), the premises hereby conveyed being more particularly
described as follows:
FIRST:
Unit No. B as shown on Condominium Map No. 3361 recorded in said Bureau.
TOGETHER WITH appurtenant easements as follows:
Exclusive easements to use other limited common elements appurtenant thereto designated
for its exclusive use by the Declaration> and the Condominium Map.
SUBJECT to easements for th~ encroachment by any part of the common elements of the
Project now or hereafter existing thereon and for entry as may be necessary for operation of the
Project or for making repairs therein as provided in the Declaration.
SECOND:
An undivided one percent (1 %) interest appurtenant to the apartment and in all common
elements of said Project as described in the Declaration.
THE LAND UPON WHICH SAID CONDOMINIUM PROJECT IS SITUATE IS MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
{W:\DOCS\261S7\l\W0075372.DOC/ -10-
/
I
LOT26-B
Being a portion of Lot 26 Seacliff Plantation At Kilauea Bay
Portion of Grant 2896 To Charles Titcomb
Land situated at Kilauea, Hanalei, Kauai, Hawaii
Beginning at the northwest corner of this parcel of land, the southwest corner of
Lot 26-A, portion of Lot 26 Seacliff Plantation At Kilauea Bay, portion of Grant 2896 to Charles
Titcomb and the East side of Kilauea Road, the coordinate of said point of beginning referred to
Government Survey Triangulation Station °KILAUEA" being 2,718.25 feet south and 3,290.42 feet
west, thence running by azimuths measured clockwise from true South:
1. Thence along Lot 26-A, portion of Lot 26 Seacliff Plantation At Kilauea Bay, portion of
2. 258° 45'
3. 262° 59'
4. 266° 05'
5. 270° 00'
6. 298° 49'
7. 277° 37'
8. 259° 40'
9. 271° 24'
10. 282° 25'
11. 273° 02'
12. 281° 45' 41"
(W:\DOCS\26157\l\W007537Z.DOC}
221.38
312.25
983.21
748.37
322.90
69.42
138.47
332.09
172.22
207.55
68.84
~11-
Grant 2896 to Charles Titcomb on a curve to
the left with a radius of 20.00 feet, the chord
azimuth and distance being:
325° 13' 36.67 feet
feet along same;
feet along same;
feet along same;
feet along same;
feet along same;
feet along same;
feet along same;
feet along same;
feet along same;
feet along same;
feet along same;
13. 246° 57' 191.12 feet along same;
14. 126° 01' 30" 52.00 feet along same;
15. 720 05' 98.27 feet along same;
16. 92° 00' 270.19 feet along same;
17. 163° 45' 90.97 feet along same;
18. 187° 30' 57.00 feet along same;
19. 265° 30' 215.28 feet along same;
20. 306° 01' 30" 295.78 feet along Lot 10 Seacliff .Plantation At
Kilauea Bay, portion of Grant 2896 to Charles
Titcomb;
21. 66° 57' 196.02 feet along Lot 25 Seacliff Plantation At
Kilauea Bay, portion of Grant 2896 to Charles
Titcomb;
22. 280° 00' 70.00 feet along same;
23. Thence along same on a curve to the left with a radius of 470.00 feet, the chord azimuth
and distance being:
271° 41' 135.97 feet;
24. 263° 22' 60.76 feet along same;
25. Thence along same on a curve to the right with a radius of 530.00 feet, the chord azimuth
and distance being:
269° 48' 30" 118.92 feet;
26. 276° 15' 213.95 feet along same;
27. Thence along same on a curve to the left with a radius of 470.00 feet, the chord azimuth
· and distance being:
268° 19' 30" 129.60 feet;
28. 260° 24' 413.92 feet along same;
{W:\DOCS\2615711\W0075372.DOC) -12-
29. Thence along same on a curve to the right with a radius of 530.00 feet, the chord azimuth
30. 273° 12'
and distance being:
266° 48' 118.16 feet;
214.19 feet along Lot 24-A Seacliff Plantation At
Kilauea Bay, portion of Grant 2896 to Charles
Titcomb;
31. Thence along same on a curve to the left with a radius of 220.00 feet, the chord azimuth
and distance being:
234° 34' 30" 274.66 feet;
32. 195° 57' 433.04 feet along same;
33. Thence along Lot 23-A Seacliff Plantation At Kilauea Bay, portion of Grant 2896 to
34. 183° 40' 142.87
Charles Titcomb, on a curve to the left with a
radius of 470.00 feet, the chord azimuth and
distance being:
189° 48' 30" 100.57 feet;
feet along same;
35. Thence along same on a curve to the right with a radius of 230.00 feet, the chord azimuth
36. 218° 47' 393.13
and distance being:
201° 13' 30" 138.77 feet;
feet along Lot 23-A and Lot 16 Seacliff
Plantation At Kilauea Bay, portion of
Grant 2896 to Charles Titcomb;
3 7. Thence along Lot 16 Seacliff Plantation At Kilauea Bay, portion of Grant 2896 to Charles
(W:\DOCS\26157\J\W0075372.DOC} -13-
Titcomb, on a curve to the right with a radius
of 1030.00 feet, the chord azimuth and
distance being:
220° 48' 10" 72.59 feet;
38. 10 45' 88.78 feet along Lot 19, portion ofL. P. 8323, L. C.
Aw. 8559-B, Apana 38 to William C.
Lunalilo;
39. 51° 53' 48.71 feet along Lot 8-BB, portion of Grant 2896 to
Charles Titcomb;
40. 38° 47' 354.76 feet along same;
41. 18°' 36' 114.66 feet along same;
42. 30 40' 188.05 feet along same;
43. 15° 57' 548.37 feet along same;
44. 51° 51' 224.12 feet along same;
45. 93° 12' 345.58 feet along same;
46. goo 24' 540.01 feet along same;
47. 96° 15' 340.39 feet along same;
48. 83° 22' 191.38 feet along same;
49. 104° 20' 239.69 feet along same;
50. 93° 02' 207.04 feet along same;
51. 102° 251 171.78 feet along same;
52. 91° 24' 326.11 feet along same;
53. 79° 40' 140.13 feet along same;
54. 97° 37' 79.78 feet along same;
55. 118° 49' 320.81 feet along same;
56. 90° 00' 739.63 feet along same;
57. 86° 05' 981.37 feet along same;
58. 82° 59' 310.37 feet along same;
(W :\DOCS\26157\1 \W0075372.DOC} -14-
59.
60.
78° 45'
211° 41'
294.10 feet along same;
86.90 feet along the east side of Kilauea Road to
the point of beginning and containing an
area of 6.914 Acres.
TOGETHER WITH a nonexclusive easement appurtenant to said Lot to use Roadway
Lots 27, 28 and 29 of the Seacliff Plantation at Kilauea Bay Community for ingress and egress
purposes, reserving, however, unto Roberson/Larson Partners, and its successors and assigns, the
right from time to time to convey said Roadway Lots 27, 28 and/or 29 to a community organization
or such other entity for the care and maintenance of the same, or to convey said Roadway Lots 27, 28
and!or 29 to the County of Kauai as a public road, in which latter event, the said easements shall be
automatically extinguished.
TOGETHER ALSO WITH a non-exclusive easement for ingress and egress for beach
access and parking of vehicles over and across Easement "Q-1 ", known as Kahili Quarry Road, as
granted by Easement Deed for Access and Parking dated March 1, 1988, recorded in Liber 21703 at
Page 797, being more particularly described as follows:
EASEMENT "Q•l"
All that parcel ofland being a portion of LOT 19, a portion ofLand Patent 8323, Land
Commission Award 8559-B, Apana 38 to William C. Lunalilo, situated at Kahili, Hanalei, Kauai,
Hawaii, and being more fully described as follows:
Beginning at the northwest comer of this parcel ofland and on the eastern comer of
Lot 16 (Seacliff Plantation at Kilauea Bay), and along the north side of the Quarry Road, the
coordinates of said point of beginning referred to Government Survey Triangulation "KILAUEA"
being 1,471.96 feet south and 2,454.63 feet east, running by azimuths measured clockwise from true
South:
Thence along the remainder of Lot 19, on a curve to the right having a radius of
1,030.00 feet, the chord azimuth and distance being:
1. 232° 03' 10" 330.44 feet;
2. 241° 17' 277.00 feet along same;
3. 206° 36' 40.50 feet along same;
4. 249° 06' 116.00 feet along same;
5. 273° 46' 208.00 feet along same;
(W:\DOCS\26157\1\W007S372.DOC} -15-
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
331° 17'
58° 34'
780 58'
16° 33'
61° 17'
103° 17'
70° 17'
151° 17'
61° 17'
50° 02'
38° 47'
181 ° 45'
44.98
116.88
122.50
32.93
28.30
79.71
57.00
18.69
200.00
feet along same;
feet along the top of stream bank;
feet along same;
feet along same;
feet along same;
feet along the remainder of Lot 19;
feet along same;
feet along same;
feet along same;
TI1ence along same on a curve to the left
having a radius of 970.00 feet, the chord
azimuth and distance being:
378.48 feet;
3.58 feet along same;
95 .38 feet along the remainder of Quarry Road to the
point of beginning and containing an area of
1.818 acres, more or less.
TOGETHER WITH a non-exclusive easement for pedestrian and vehicular purposes
as a roadway, over and across the surface of the property designated as Easement A, being more
particularly-described therein, as granted by instrument dated December 17, 2002, recorded as
Document No. 2003-003808; and subject to the terms and provisions, including the failure to comply
with any covenants, conditions and reservations, contained therein.
TOGETHER WITH Easement C for landscaping and underground utilitypurposes in
favor of Lot 26-B of the Seacliff Plantation At Kilauea Bay Subdivision as shown on the Final
Subdivision Map and as set forth in that certain Grant of Easement C dated April 11, 2005, recorded
in the Bureau as Document No. 2005-165968. Easement "C" is described as follows:
(W:\DOCS\26157\l\W0075372.DOC) -16-
EASEMENT "C"
Beginning at the north comer of this easement, the true azimuth and distance from
the west corner of Lot 10 Seacliff Plantation At Kilauea Bay, portion of Grant 2896 to Charles
Titcomb the coordinate of said point of beginning referred to Government Survey Triangulation
Station "Kil.,AUEA" being 2,277.38 feet south and 178.61 feet west, thence running by azimuths
measured clockwise from True South:
1. 306° 01'
2. 85° 30'
3. 126() 01'
30"
30"
488.51 feet along Lot 10 Seacliff Plantation At
Kilauea Bay, portionofGrant2896 to Charles
Titcomb;
7 .69 feet along Lot 26-B portion of Lot 26 Seacliff
Plantation At Kilauea Bay, portion of Grant
2896 to Charles Titcomb;
488.63 feet along remainder of Lot 26-A portion of
Lot 26 Sea.cliff Plantation At Kilauea Bay,
portion of Grant 2896 to Charles Titcomb;
4. Thence along same on a curve to the left with a radius of 605.00 feet, the chord azimuth
and distance being:
266<> 05' 50" 7. 79 feet to the point of
beginning and containing an area of
2,443 square feet.
SUBJECT, HOWEVER, to the following:
1. Reservation in favor of the State of Hawaii of all mineral and metallic mines.
2. Six (6) foot wide Future Road Widening Reserve along Kilauea Lighthouse
Road as shown on tl1e surveyor's map, revised July 1983, prepared by Cesar C. Portugal,
surveyor, and as amended by Final Subdivision Map dated March 8, 2005, prepared by Cesar C.
Portugal, Surveyor, approved by the Planning Commission of the County of Kauai in
Subdivision No. S-2005-23 on March 8, 2005 ("Final Subdivision Map").
3. The terms and provisions. including the failure to comply with any covenants,
conditions and reservations contained in Agreement dated March 16, 1977, recorded in the Bureau in
Liber 12ll0 on Page 330.
{W:\DOCS\26157\I\W0075372.DOC} -17-
4. Basements or rights of way in favor of others entitled thereto, including the
general public, and including the possibility of implied dedication of all or any portion ofthe land for
public access, or claims to ownership by the government as a public highway under the Highways
Act of 1892 (Chapter 264, Hawaii Revised Statutes).
5. Restriction of access into and from Kahili Quarry Road as shown on the
Final Subdivision Map.
6. A 10-foot wide easement along Kilauea Lighthouse Road, as per survey
dated August 11, 1983, revised January 29, 1986.
7. The terms, provisions, covenants, easements and reservations as contained in
that certain Declaration Re: Electricity dated July 25, 1988, recorded in the Bureau in Book 22226 at
Page 340.
8. That. certain Right Of Entry in favor of the Citizens Utilities Company and
GTE Hawaiian Telephone Company Incorporated dated October 12 1 1988, recorded in the Bureau in
Book 22768 at Page 454, granting an easement for right of entry and incidental purposes.
9. Terms and provisions, including the failure to comply with any covenants,
conditions and reservations contained in Grant OfEasement dated November 21, 2000, recorded in
the Bureau as Docwnent No. 2000-183832.
10. Terms and provisions, including the failure to comply with any covenants,
conditions and reservations contained in Grant Of Basement dated December 29, 2000, recorded in
the Bureau as Docwnent No. 2000-183833.
11. Terms and provisions, including the failure to comply with any covenants,
conditions and reservations contained in Grant Of Easement dated February 15, 2000, recorded in the
Bureau as Document No. 2000~049924.
12. Terms and provisions, including the failure to comply with any covenants,
conditions and reservations contained in Grant Of Easement dated May 11, 2001, recorded in the
Bureau as Document No. 2001-098818.
13. Terms and provisions, including the failure to comply with any covenants,
conditions and reservations contained in Grant Of Easement dated December 17, 2002, recorded in
the Bureau as Document No. 2003-003808.
14. The terms and provisions, including the failure to comply with any covenants,
conditions and reservations, contained in the Declaration Of Condominium Property Regime For
0 Seacliff Gardens" Condominium Project, dated October 30, 2001, and recorded in the Bureau of
Conveyances of the State of Hawaii as Document No. 2001-174035, together with Map 3361 and
any amendments thereto.
(W;\OOCS\26l5111 \ W0075372.DOC) -18-
Said Declaration was amended by instrument dated January 29, 2002, recorded in the
Bureau as Document No. 2002-024821, by instrument dated April 11, 2005, recorded in the Bureau
as Document No. 2005-165965, and by instrument dated October 5, 2005, recorded in the Bureau as
Document No. 2005-237739.
15. The terms and provisions, including the failure to comply with any covenants,
conditions and reservations, contained in the By-Laws Of The Association Of Apartment Owners
Of Seacliff Gardens Condominium, dated October 30, 2001, recorded in the Bureau as Document
No. 2001-174036, as amended by instrument dated April 11, 2005, recorded in the Bureau as
Document No. 2005-165966.
16. Pursuant to conditions imposed by the Department of Water of the County of
Kauai ("DOW"), Lot 26-B shall be restricted to a maximum of two (2) five-eight (5/8) inch water
meters. .This restriction shall remain in effect unless and until: the source, storage and/or
transmission facilities are increased sufficiently, as determined by DOW, to allow the issuance of
additional water meters to Lot 26-B; or DOW, in its sole and absolute discretion, agrees to release
additional water meters to Lot 26-B.
17. Claims arising out of customary or traditional rights and practices, including
without limitation those exercised for subsistence, cultural, religious, access or gathering purposes as
provided for in the Hawaii Constitution or the Hawaii Revised Statutes, as amended.
END OF EXHIBIT "A"
(W:IDOCS\26157\l\W0075372.DOC} -19-
EXIllBIT "B II
EASEMENT "B"
Beginning at the above-described point of beginning of Lot 26-B, thence running by
azimuths measured clock.wise from true South:
1. Thence along Lot 26-A, portion of Lot 26 Seacliff Plantation At Kilauea Bay, portion of
Grant 2896 to Charles Titcomb on a curve to
the left with a radius of20.00 feet, the chord
azimuth and distance being 325°13' 36.67 feet;
2. 258° 45' 221.38 feet along same;
3. 262° 59' 312.25 feet along same;
4. 266° 05' 983.21 feet along same;
5. 270° 00' 748.37 feet along same;
6. 298° 49' 322.90 feet along same;
7. 277° 37' 69.42 feet along same;
8. 259° 40' 138.47 feet along same;
9. 271° 24' 332.09 feet along same;
10. 282° 25' 172.22 feet along same;
11. 273° 02' 207.55 feet along same;
12. 281° 45' 41" 95.12 feet along Lot 26-A & remainder of Lot 26-B
portion of Lot 26 Seacliff Plantation At
Kilauea Bay, portion of Grant 2896 to Charles
Titcomb;
13. 280° 00' 70.00 feet along Lot 25 Seacliff Plantation At
Kilauea Bay, portion of Grant 2896 to Charles
Titcomb;
{W:\DOCS\26157\I\W0075372.DOC} -20-
14. Thence along same on a curve to the le.ft with a radius of 470.00 feet, the chord azimuth
and distance being:
271° 41' 135.97 feet;
15. 263° 22' 60.76 feet along same;
16. Thence along same on a curve to the right with a radius of 530.00 feet, the chord azimuth
and distance being:
269° 48' 30" 18.92 feet;
17. 276° 15' 213.95 feet along same;
18. Thence along same on a curve to the left with a radius of 470.00 feet, the chord azimuth
and distance being:
268° 19' 30" 129.60 feet;
19. 2600 24' 413.92 feet along same;
20. Thence along same on a curve to the right with a radius of 530.00 feet, the chord azimuth
21. 273° 12'
and distance being:
266° 48' 118.16 feet;
214.19 feet along Lot 24-A Seacliff Plantation At
Kilauea Bay, portion of Grant 2896 to Charles
Titcomb;
22. Thence along same on a curve to the left with a radius of 220.00 feet, the chord azimuth
and distance being:
234° 34' 30" 274.66 feet;
23. 195° 57' 433.04 feet along same;
24. Thence along Lot 23-A Seacliff Plantation At Kilauea Bay, portion of Grant 2896 to
(W:\DOCS\26157\I\WO075372.DOC) -21-
Charles Titcomb on a curve to the left with a
radius of 470.00 feet, the chord azimuth and
distance being:
189" 48' 3011 100.57 feet;
25. 183° 40' 142.87 feet along same;
26. Thence along same on a curve to the right with a radius of 230,00 feet, the chord azimuth
27. 218° 47'
and distance being:
201° 13' 30" 138.77 feet;
393.13 feet along Lot 23-A & Lot 16 Seacliff
Plantation At Kilauea Bay, portion of Grant
2896 to Charles Titcomb;
28. Thence along Lot 16 Seacliff Plantation At Kilauea Bay, portion of Grant 2896 to Charles
29. 1° 45'
30. 51° 53'
31. 38° 47'
32. 18° 36'
33. 3° 40'
34. 15° 57'
35. 51° 51'
36. 93° 12'
37. 80° 24'
38. 96° 15'
39. 83° 22'
40. 104° 20'
{W:\DOCS\26157\l\W007S372.DOC}
Titcomb on a curve to the right with a radius
of 1030.00 feet, the chord azimuth and
distance being:
220° 48' 10" 72.59 feet;
88.78 feet along Lot 19, portion ofL. P. 8323, L. C.
Aw. 8559-B, Apana 38 to William C.
Lunalilo;
48.71 feet along Lot 8-BB, portion of Grant 2896 to
Charles Titcomb;
354.76 feet along same;
114.66 feet along same;
188.05 feet along same;
548.37 feet along same;
224.12 feet-along same;
345.58 feet along same;
540.01 feet along same;
340.39 feet along same;
191.38 feet along same;
239.69 feet along same;
. -22-
41. 93° 02' 207.04 feet along same;
42. 102° 25' 171.78 feet along same;
43. 91° 24' 326.11 feet along same;
44. 79° 40' 140.13 feet along same;
45. 97° 37' 79.78 feet along same;
46. l 18° 49' 320.81 feet along same;
47. 90° 00' 739.63 feet along same;
48. 86° 05' 981.37 feet along same;
49. 82° 59' 310.37 feet along same;
50. 78° 45' 294.10 feet along same;
51. 211° 41' 86.90 feet along the east side of Kilauea Road to the
point of beginning and containing an area of
5.678 Acres.
END OFEXHIBlT "B"
(W:\DOCS\26157\l\ W0075372.DOC) -23-
----~-f,'J
~ ' · ..
'~ ....
-
EXHIBIT 7
MAX W.J. GRAHAM, JR.
JONATHAN J. CHUN
JANK.JUNG
Federal LD. No. 99-0317663
Mr. Ka'aina S. Hull
Director of Planning
Planning Department
County of Kauai
BELLES GRAI-IAM LLP
ATTORNEYS AT LAW
WATUMULLPLAZA
4334 RICE STREET, SUITE 202
LII·HJE, KAUAI, HAWAII 96766-1388
TELEPHONE NO: (808) 245-4705
FACSIMILE NO: (808) 245-3277
E-MAIL: mail@kauai-law.com
September 22, 2020
OF COUNSEL
M1CHAEL J. BELLES
DA YID W. PROUDFOOT
DONALD H. WILSON
VIA EMAIL & HAND DELIVERY
4444 Rice Street, Suite A473
Lihue, Kauai, Hawaii 96766
Re:
Dear Mr. Hull:
Eighth Status Report
Application for a Special Management Area Use Permit, Use Permit, and
Class IV Zoning Permit by CHARLES SOMERS, as Trustee of the Charles
Somers Living Trnst dated November 12, 2002, and WEST SUNSET 32
PHASE 1, LLC, affecting real property located at Kilauea, Hanalei, Island
and County of Kauai, State of Hawaii, more particularly identified as
Kauai Tax Map Key No. (4) 5-2-012:035
Special Management Area Use Permit SMA(U)-2008-5
Use Permit No. U-2008-4
Class IV Zoning Permit No. Z-IV-2008-6
Lot 2
Kilauea, Kauai, Hawaii
Kauai Tax Map Key No. (4) 5-2-012:035
Owner: Charles Somers, as Trustee of the Charles Somers Living Trust
dated November 12, 2002, and West Sunset 32 Phase 1, LLC,
a California limited liability company
I am writing to you on behalf of Charles Somers, Trustee of the Charles Somers
Living Trust dated November 12, 2002, and West Sunset 32 Phase 1, LLC, the owners of the
above-described Property. In accordance with your letter to me dated July 15, 2020, I have
enclosed an Eighth Status Report.
{W:/DOCS/2695 l/J/W0l66072.DOCX} EXHIBIT 7
Mr. Ka'aina S. Hull
September 22, 2020
Page 2
Thank you very much for your continued assistance in this matter.
MWJG:jgm
Enclosure
Sincerely yours,
BE~~
~
Max W. J. Graham, Jr.
cc: Ms. Jodi A. Higuchi Sayegusa, Deputy Planning Director, w/encl. (via email only)
Mr. Dale A. Cua, w/encl. (via email only)
Mr. Romio Idica, w/encl. (via email only)
{W:/DOCS/26951/J/W0!66072.DOCX }
Mr. Ka'aina S. Hull
September 22, 2020
Page 3
bee: Mr. Charles Somers, w/encl. (via email only)
Mr. Ron Alvarado, w/enel. (via email only)
Mr. Rohn Boyd, w/encl. (via email only)
Mr. William Scannell, w/enel. (via email only)
{W:/DOCS/2695 l/!/W0!66072.DOCX}
EIGHTH STATUS REPORT
Re: EIGHTH STATUS REPORT
Special Management Area Use Permit SMA(U)-2008-5,
Use Permit No. U-2008-4; and Class IV Zoning
Permit No. Z-IV-2008-6
In the Matter of the Application of Charles Somers, as
Trustee of the Charles Somers Living Trust dated
November 12, 2002, and West Sunset 32 Phase 1 LLC for
a Use Permit, Special Management Area Permit and Class IV
Zoning Pennit For Real Property Situated at Kilauea, Kauai, Hawaii
and Identified by Kauai Tax Map Key No. (4) 5-2-012:035
Property: Lot 2
Kilauea, Kauai, Hawaii
Kauai TMK No. (4) 5-2-012:035
Owners: Charles Somers, as Trustee of the Charles Somers
Living Trust dated November 12, 2002, and
West Sunset 32 Phase 1, LLC, a California limited
liability company
Property: Kahili Quarry Road
Owner:
Unit B, Seacliff Gardens Condominium
Lot 26-B
Kilauea, Kauai, Hawaii
Kauai TMK No. (4) 5-2-004:047 (CPR No. 2)
Charles Somers, as Trustee of the Charles Somers
Living Trust dated November 12, 2002
This Eighth Status Report ("Report") is submitted by Charles Somers, as Trustee
of the Charles Somers Living Trust dated November 12, 2002, and West Sunset 32 Phase 1, LLC
Gointly, the "Applicant"). This Report is intended to provide a report on the status of the
Project as of September 23, 2020.
I. COMPLIANCE WITH INITIAL CONDITIONS
The Planning Commission of the County of Kauai ("Planning Commission")
approved the above described pe1mits("Master Pem1it") pursuant to the Plam1ing Commission's
Findings Of Fact, Conclusions Of Law, Decision And Order entered on October 2, 2008. The
portion of this approval entitled "Decision And Order" contains eighteen (18) conditions of
approval ("Conditions"). The Applicant is providing the Planning Commission with this
Report on each Condition.
{W:/DOCS/26951/1/W0 166070.DOCX }
1. Condition 1. As represented by the Applicant, the development subject to
this permit approval shall be limited to: the single family residence(farm dwelling unit referred
to in the Application as the 11Main House", the Driveway accessory to the Main House;
Landscaping; Site Grading for the Main House and Driveways; Preservation of Historic Sites;
utilities; Well and Tank; and improvements to Kahili Quany Road.
Status. The Applicant continues to acknowledge this limitation
concerning the initial scope of the project (11 Project").
2. Condition 2. Applicant shall provide annual status reports to the
Planning Commission beginning from one year from the date of this approval. The reports shall
be submitted to the Department no later than 30 days prior to the annual anniversary date of
approval of this project. The report shall provide project status and progress towards project
completion and compliance with conditions of approval. Annual reports shall be provided until
completion of the project, and compliance with all conditions of approval.
Status. This Report is being submitted in fulfillment of this provision.
The Applicant previously filed the following status reports: a preliminary status report on
September 1, 2009; a Second Annual Status Report on August 18, 201 0; a Third Annual Status
Report on September 30, 2011; a Fourth Annual Status Report on September 12, 2012; a
Fifth Annual Status Report on October 1, 2013; a Sixth Annual Status Report on October 1,
2014; an Update To Sixth Annual Status Report on October 27, 2015; a Seventh Annual Status
Report on December 1, 2019; and an Updated Seventh Annual Status Report on May 18, 2020.
3. Condition 3. Applicant shall substantially commence construction of the
project development within one (J) year from the date of full approval, and shall complete
construction of the project development within 5 years from the date of approval of the subject
permits.
Status. The status of construction authorized by the Master Pe1mit is as
follows:
a. Main House. The Applicant submitted its Building Permit
Application for the Project in October, 2010. A Certificate of Occupancy for the Main House
was issued on February 26, 2014.
b. Well/Tank. The Well has been drilled, the pump has been
installed, and the water tank has been completed.
c. Landscaping. The landscaping has been completed as shown on
the original Landscape Master Plan (including large palm trees, ground cover, ornamentals, and
smaller vegetation).
-2-
{W:/DOCS/2695!/l/W0J66070.DOCX}
4. Condition 4. Subject permits approved herein cannot be sold and are not
tran~ferable to other than Applicant, its subsidiaries and affiliated corporations and legal
entities prior to the completion of the project and issuance of the occupancy permit.
Status. The Applicant continues to be the sole owner of the
Subject Property. As pem1itted by the Master Pennit, Applicant, Charles M. Somers,
transferred his personal interest to himself as Trustee of the Charles Somers Living Trust dated
November 12, 2002.
5. Condition 5. Filling of the property with material obtained from
off-premises shall not be permitted. This prohibition of imported fill material shall not apply to
top soil used for landscaping purposes in accordance with the approved landscaped plans. Mass
padfilling to increase the heights of the proposed structures shall not be permitted.
Status. The Applicant acknowledges these limitations. In the construction
of the Main House, the Applicant did not impo1i fill material or unde1iake mass pad filling.
However, the Applicant did allow the County to deposit rocks and materials from the dredging of
Kilauea Stream on the Property.
6. Condition 6. The Applicant shall apply for Leadership in Energy and
Environmental Design (LEED) registration.
Status. The Applicant, through its consultant, Gary Tobey of Design
Concepts has registered a LEED For Homes Single Family with the U. S. Green Building
Council.
7. Condition 7. The Applicant shall comply with the requirements and
recommendations of applicable County, State and Federal Agencies, including the County Fire,
Water, Engineering and Building Divisions of the Department of Public Works, the State
Department of Health, and State Department of Land and Natural Resources, Historic
Preservation Division, as reflected in Findings #41-47 (sic) above.
Status. As part of the Building Permit Approval process, the Applicant
complied with the requirements and recormnendations of the applicable County, State and
Federal Agencies, as set forth in Findings of Fact 40 through 47 as follows:
a. Fire Department (FOF 40). The Applicant has resolved the
Fire Department issues sufficiently to obtain its approval for the construction of the Main House.
b. DLNR (FOF 41). The Applicant retained Cultural Surveys
Hawaii, Inc. to prepare an Archaeological Inventory Survey and a Preservation Plan. Both
reports were submitted to and approved by the State Historic Preservation Division ("SHPD") of
DLNR. By letter dated May 12, 2008, from SHPD to the Applicant's archaeologist, SHPD
approved the Archaeological Inventory Survey prepared by Cultural Surveys Hawaii, Inc.
-3-
{W:/DOCS/2695!/I/W0J66070.DOCX}
("CSH"). By letter dated May 16, 2014, from SHPD to CSH, SHPD approved the
Archaeological Preservation Plan prepared by CSH.
c. Department of Public Works ("DPW") (Wastewater) (FOF 42).
The Applicant installed an Individual Wastewater System ("IWS") for the Main House in
compliance with the State Department of Health ("DOH") requirements.
d. Department of Water (FOF 43). The Applicant has obtained water
issued by DOW and constructed the water facilities necessary to provide potable water to the
Main House. The Well is used only for agricultural needs and is not connected to the DOW's
potable water system.
e. DOH (FOF 44). As noted, the Applicant has installed an IWS in
compliance with DOH requirements. All other DOH requirements have been met.
f. DPW (Engineering Division) (FOF 45). The Applicant obtained
all DPW approvals necessary to construct the Main House.
g. DPW (Building Division) (FOF 46). The Applicant obtained all
DPW approvals necessary to obtain a Building Permit for, and to construct, the Main House.
8. Condition 8. The Planning Commission reserves the authority to impose
additional conditions, modify or delete conditions stated herein, or revoke the subject permits
through proper procedures should the Applicant fail to comply with the conditions of approval,
or should urif'oreseen circumstances occur or result.
The Applicant acknowledges the Planning Commission's
reservation of authority in this matter.
9. Condition 9. In view of the various conditions and recommendations
imposed by the various government agencies as reference to herein, building permit application
or preconstruction work for any phase of the project or portion of the property shall not be
accepted until the Applicant submits a status report of all permit conditions that are either
required to be complied with prior to or at time of building permit application.
Status. The Applicant has submitted eight (8) ammal, and two (2)
updated, Status Reports in compliance with this Condition from September 1, 2009 to
September 23, 2020. fNote: No Status Reports were submitted in 2016, 2017 or 2018.)
10. Condition 10. Should the applicant be unable to comply with the
development time line in condition #3 above and request an extension of time, applicant is
advised that any new laws, ordinances, or regulations that have been implemented within this
time frame may become applicable to the project.
-4-
(W:/DOCS/26951/l/W0166070.DOCX}
Status. The Applicant acknowledges that new legal laws, ordinances and
regulations may apply to the Project should an extension of the development time be requested.
11. Condition 11. Prior to building permit review, the applicant shall:
a. Redesign the project to reduce the proposed grading area and
volume, while still retaining the benching and proposed architectural design concept. A soil
study/report and proposed grading plan shall be submitted to the Department of Public Works
for review and approval. Such grading plans should include all off-site improvements.
Status. Grading plans for the Project and a soils report were submitted and
approved as part of the Building Permit Application process.
b. In order to help screen the structures from public views as seen
ji-om public areas, and to blend the structures with its surroundings, external colors shall be of
earth tones, complementary to and compatible with the surrounding natural background. In
addition, the Applicant shall prepare a landscape plan to fitrther soften the existing building
mass. The landscape plan shall refl.ect the use of native plants that are common to the area,
endemic, indigenous, or Polynesian-introduced. Use of herbicides, pesticides and non-organic
fertilizers shall be kept to a minimum. The proposed color scheme and landscape plan shall be
submitted to the Planning Director for review and approval prior to building permit review.
Status. The Applicant has utilized the earth tone external colors
previously submitted to the Planning Commission and the Planning Department. The Applicant
has installed landscaping as set forth in the Landscape Master Plan.
c. Record all of the conditions imposed under the subject permits
with the deed(s) to the subject property(ies). A copy of this recordation shall be provided to the
Planning Department.
Status. A Declaration Incorporating Conditions Of Approval Into
Instruments Of Conveyance dated August 4, 2010 ("Declaration") was recorded at the Bureau of
Conveyances of the State of Hawaii (''Bureau") as Document No. 2010-115969. A Declaration
Incorporating Condition Of Approval A9. Into Instruments Of Conveyance dated January 2,
2019 ("First Amended Declaration") was recorded at the Bureau as Document No. A-69680580.
The Applicant is in the process of recording a Declaration Incorporating Amended Additional
Conditions Of Approval Into Instruments Of Conveyance ("Second Amended Declaration") to
include the Amended Additional Conditions described in Section II.
d As represented by the Applicant, prior to the issuance of any
building permits, the Applicant agrees to transfer a perpetual Conservation Easement over an
approximately eighty (80) acre portion of Lot 2 ("Conservation Easement Area"). The
Conservation Easement shall comply with the applicable terms, conditions, and definitions
contained in Chapter 198 (Conservation Easements) of the Hawai'i Revised Statutes, subject to
the following terms and conditions:
-5-
(W:/DOCS/26951/1/W0l66070.DOCX}
i. The Applicant shall convey the Conservation Easement to a
governmental entity or 50JC(3) organization of Applicant's choice, provided such organization
constitutes a "qualified organization" as defined in l 70(h)(3) of the Internal Revenue Code of
1986 (the Code). Said entity or organization shall have the capability of developing and
maintaining threatened and endangered species habitat consistent with the Kilauea Point
National Wildlife Refuge Land Conservation Plan and Environmental Assessment (May 2007)
prepared by the U S. Fish and Wildlife Service.
Prior to recordation, the Conservation Easement shall be
submitted to the Planning Department to review its compliance with this condition. The
Planning Department shall solicit comments fi·om the US. Fish & Wildl[fe Service. The
Planning Department shall have 45 days to provide written comments to the Applicant, in the
absence of which the Conservation Easement shall be deemed acceptable. The Planning
Commission shall resolve any disagreements concerning the language of the Conservation
Easement.
ii. The delineation and determination of the Conservation
Easement's boundaries and the content of the restrictive terms of the Conservation Easement
document shall be negotiated and agreed upon between the Applicant and the qualified
organization provided:
1. That the Conservation Easement shall encumber
approximately 80 acres of Lot 2.
2. That the Conservation Easement shall expressly
extinguish density for sixteen (16) of the dwelling units permitted within Lot 2. It is Applicant's
intention that any dwelling unit density attributable to and arising out of the Conservation
Easement Area shall be extinguished, and shall not be transferred to any otherportion of Lot 2.
3. That the lands encumbered by the Conservation
Easement and the terms setforth in the Conservation Easement fulfill a "conservation purpose 11
,
as defined in 170(h)(4) of the Code.
4. That except as restricted in the Conservation
Easement document, the Applicant shall have the right to use, possession and enjoyment of the
Conservation Easement Area.
5. That no dwelling units (including single family
residences and farm dwelling units) shall be allowed to be located within the Conservation
Easement Area.
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6. That to the extent reasonably possible, and subject
negotiations with the qualijzed organization, the Conservation Easement Area will include: areas
adjacent to the Kilauea Stream; and the archaeological sites identified as SIHP #50-30-04-580
and 581 in the Archaeological Inventory Study of an Approximately 74-Acre Portion of Kilauea
}alls Ranch property (Applicant's Exhibit "F-5'~.
Status. By Grant Of Conservation Easement recorded on December 23,
2008, in the Bureau as Document No. 2008-191932, the Applicant granted the Kauai Public
Land Trust, a Hawaii nonprofit corporation ("KPL T"), an easement for conservation purposes
(designated as Easement "C-1") over an 80.1 acre portion of the Subject Property.
By Grant Of Conservation Easement recorded on December 24, 2008, in the Bureau as
Document No. 2008-192741, the Applicant granted KPLT an easement for conservation
purposes (designated as Easement "C-2") over a 69.3 acre portion of the Subject Property. As a
result, a total of 149 .4 acres of the approximately 161.88 acres contained within the
Subject Property are covered by the two Conservation Easements. Included within the
Conservation Easements are the Archaeological Sites, the wetlands, and the areas adjacent to the
Kilauea Stream. In 2011, KPLT merged with the Hawaiian Islands Land Trust ("HILT") and the
Conservation Easements were assigned to HILT.
e. Evidence shall be provided that reflects resolution or compliance
to the comments and recommendations of the government agency(ies) reflected in Condition #7
above.
Status. As discussed in Paragraph 7, the Applicant has to date complied
with the comments and recommendations of governmental agencies.
12. Condition 12. Applicant shall provide roadway improvements to the
entire length of Kahili Quarry Road as may be authorized by its present owners. Said roadway
improvements should include clearing and drainage improvements as may be permitted by the
present road right-of way width. The use of crushed coral would be acceptable to retain a rural
ambience. The use of gravel and chemical sealant shall not be permitted. As represented,
Applicant shall maintain this road right-of way. Said improvements shall implement and utilize
best management practices as recommended by the Department of Public Works. No weekend
or holiday work shall be permitted.
Status. Kahili Quan·y Road is a private road located on Unit B of the
Seacliff Gardens Condominium ("Unit B") located on Lot 26-B (Seacliff Plantation At Kilauea
Bay Subdivision, Kauai Tax Map Key No. (4) 5-2-004:047). Charles Somers, Trustee, who is
one of the Applicants, is the Owner of Unit B. The County of Kauai has been granted an
easement ("County Easement") for public access purposes over Kahili Quarry Road.
Unit B, on its makai side, ends at the Fish & Wildlife Service Refuge
property located on Lot 19 (Kauai Tax Map Key No. (4) 5-2-004:043) ("FWS Lot"). The
FWS Lot is owned by the United States of America and is part of the Kilauea Point Wildlife
Refuge operated by the U.S. Fish & Wildlife Service ("FWS"). The FWS Lot is subject to an
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easement for access and parking ("Lot 19 Easement") which runs in favor of Lots 1-25 of the
Seacliff Plantation At Kilauea Bay Subdivision. The FWS Lot is not subject to any other
recorded easements or rights in favor of the County, the general public, or the Property.
The County Easement is part of the access used by the public to get
to the shoreline along the FWS Lot. This access runs over Kahili Quarry Road and a portion of
the FWS Lot. The Applicant has maintained K.ahili Quarry Road so that it is passable.
However, FWS does not maintain the road on the FWS Lot ("FWS Lot Road"). By 2015, the
FWS Lot Road had become almost unpassable due to erosion. As a result, the Applicant, by
letter dated January 16, 2015, to FWS, offered to make improvements to the FWS Lot Road.
By email dated October 23, 2015, from Michael Mitchell, Acting Project Leader, FWS agreed to
allow the Applicant to undertake such work, subject to FWS approval of construction plans. The
Applicant filed a Special Use Permit Application with FWS for permission to undertake the work
on November 28, 2018. FWS approved the application and issued a Special Use Permit
dated March 15, 2019, allowing the work to progress. The improvements were completed in
May, 2019. K.ahili Quarry Road was thereafter open to vehicular traffic from Kilauea
Lighthouse Road to the parking area on the FWS Lot.
On March 27, 2020, a heavy rain event caused excessive flooding on
Kauai. This flood caused substantial damage to a portion of Kahili Quarry Road and culvert
structure on Unit B ("Culvert") located near the northern end of the road, close to the FWS Lot.
As a result, the County closed Kahili Quarry Road at this point. The preliminary cost of
reconstructing the Culvert and road has been estimated to be approximately $220,000.00. The
Applicant is currently assessing how this situation might be remedied and has been meeting with
the County in this regard.
13. Condition 13. The proposed residence(.~) shall not be used for vacation
rental or bed and brea!ifastpurposes.
Status. This Condition prohibiting vacation rental and/or bed and
breakfast uses is incorporated in the Declaration, the First Amended Declaration and the
Second Amended Declaration which have been or will be recorded and which encumber the title
to the Subject Property.
14. Condition 14. The Applicant is advised that prior to and/or during
construction and use, additional government agency conditions may be imposed. It shall be the
Applicant's responsibility to resolve those conditions with the re::,pective agency(ies).
Status. The Applicant acknowledges that it will need to resolve any
additional agency conditions with the applicable governmental agency.
15. Condition 15. In order to minimize adverse impacts on Federally Listed
Threatened Species, such as Newell's Shearwater and other seabirds, if external lighting is to be
used in connection with the proposed project, all external lighting shall be only of the following
types: shielded lights, cut-off luminaries, or indirect lighting. Spotlights aimed upward or
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spotlighting of structures, landscaping, signage or hotel features within the project site shall be
prohibited.
Status. The Applicant has incorporated shielded and indirect lighting as
part of the lighting scheme for the Project as shown on its Building and Construction Plans.
16. Condition 16. As represented, Applicant shall contribute no less than
$5,000 towards the conduct of a water quality baseline study of Kilauea River.
Status. The Applicant contributed $5,000.00 to the Hanalei Watershed
Hui toward the conduct of a water quality baseline study of the Kilauea Stream.
17. Condition 17. Customary and traditional rights and practices including
without limitation those exercised for subsistence, culture, religious, access or gathering
purposes, as provided for in the Hawai'i Constitution or Hawai'i Revised Statutes, shall be
permitted.
Status. This requirement was included in the Restrictive Covenants that
were recorded. To date, the Applicant has received no special requests from native Hawaiian
individuals or groups regarding the use of or access to the Subject Property.
18. Condition 18. Access to the wate,fall shall be permitted at the Applicant's
discretion.
Status. The Applicant acknowledges this Condition and pennits access, in
Applicant's sole discretion, on a case-by-case basis.
II. COMPLIANCE WITH ADDITIONAL CONDITIONS
On February 4, 2013, the Applicant filed a new Application To Amend the
Master Permit (SMA(U)-2008-5, U-2008-4, and Z-IV-2008-6) ("First Amendment") which was
approved by the Planning Commission on April 26, 2016. The approval of the First Amendment
was subject to sixteen (16) conditions ("Additional Conditions"). In the First Amendment, the
Planning Commission approved the construction of a Manager's House, Barn, Accessory
Improvements, Nene Fence, and Equipment Tent. Work on the Manager's House, Barn and
Nene Fence was not commenced within the time period set for in Additional Condition A13. As
a result, on January 23, 2020, the Applicant filed an Application for a Second Amendment To
The Master Pennit ("Second Amendment"). In the Second Amendment, the Applicant asked for
approval of the Barn, withdrew Applicant's request to build a Manager's House and Nene Fence,
and asked that Condition A 15 (relating to the Nene Fence) be modified to allow
Applicant to make a monetary contribution to the Hawaiian Islands Land Trust ("HILT") in
lieu of constructing the Nene Fence. The Second Amendment was approved by the
Planning Commission on July 14, 2020. As part of that approval, the Planning Commission
amended Conditions Al3 and Al5. The status of the Additional Conditions as amended
("Amended Additional Conditions") is as follows:
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1. Condition Al. The conservation manager's house and garage shall be
sunken approximately jive feet below grade and shielded, by way of dense shrubbery and tall
tree landscaping in order to alleviate view plain impacts of the proposed new structures from
Kahili Beach as well as looking westward across Kilauea Stream. The conservation
maintenance building and conservation manager's house shall be constructed as revised. The
structures shall also be operated as represented. Any changes to said structures shall be
reviewed by the Planning Department to determine whether Planning Commission review and
approval is warranted.
Status. The request to construct a conservation manager's house
("Manager's House") has been withdrawn. Instead, the conservation maintenance building
("Barn") has been redesigned as described in the Second Amendment and has been approved by
the Planning Commission.
2. Condition A2. The applicant shall comply with the requirements of the
State of Land and Natural Resources, Historic Preservation Division, County's Department of
Public Works, as well as any other applicable government agencies.
Status. The Applicant will comply with a11 requirements applicable to the
construction of the Barn as maybe imposed by the State Historic Preservation Division
("SHPD"), the County Department of Public Works ("DPW"), and any other governmental
agencies.
3. Condition A3. The applicant shall develop and utilize Best Management
Practices (BMPs) during all phases of development in order to minimize erosion, dust, and
sedimentation impacts of the project to abutting properties.
Status. The Applicant will develop and utilize Best Management Practices
("BMP") as required.
4. Condition A4. In order to minimize adverse impacts on the
Federally Listed Threatened Species, Newell's Shearwater and other seabirds, all external
lighting shall be only of the following types: shielded lights, cut-a.fl luminaries, or indirect
lighting. Spotlights aimed upward or spotlighting of structures, landscaping, or the ocean shall
be prohibited.
Status. The Applicant agrees that any external lighting that is installed
will only be shielded lights, cut-off luminaries, indirect lighting, or other such lighting designed
to minimize adverse impacts on endangered or threatened species.
5. Condition A5. To the extent possible within the confines of union
requirements and applicable legal prohibitions against discrimination in employment, the
applicant shall seek to hire Kauai contractors as long as they are qualified and reasonably
competitive with other contractors, and shall seek to employ residents of Kauai in temporary
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construction and permanent jobs. It is recognized that the applicant may have to employ non-
Kauai residents for particular skilled jobs where no qualified Kauai resident possesses such
skills. For the purposes of this condition, the Commission shall relive the applicant of this
requirement if the applicant is subjected to anti-competitive restraints on trade or other
monopolistic practices.
Status. To the extent possible, the Applicant will hire Kauai contractors
and Kauai residents.
6. Condition A6. The applicant shall implement to the extent possible
sustainable building techniques and operational methods for the project, such as Leadership in
l!,nergy and Environmental Design (LEED) standards or another comparable state-approved,
nationally recognized, and consensus-based guideline, standard, or system, and strategies,
which may include but is not limited to recycling, natural lighting, extensive landscaping, solar
panels, low-energy lighting and other similar methods and techniques. All such proposals shall
be re.fleeted on the plans submitted.for building permit review.
Status. The Applicant will employ sustainable building techniques and
operational methods, including Leadership in Energy and Environmental Design ("LEED")
standards for the Barn construction and operation.
7. Condition A 7. The Planning Commission reserves the right to revise, add,
or delete conditions of approval in order to address or mitigate unforeseen impacts the project
create, or to revoke the permits through the proper procedures should conditions or approval
not be complied with or be violated.
Status. The Applicant agrees that the Planning Commission has
continuing oversight powers concerning the development.
8. Condition AB. 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.
Status. The Applicant agrees to stop work and contact SHPD and the
Planning Department if any archaeological or historic resources are discovered during ground
disturbing construction work.
9. Condition A9. The applicant shall not use this residence for vacation
rental pwposes. This restriction shall be incorporated into the deed restrictions of the subject
parcel, draft copies of which shall be submitted to the Planning Department prior to building
permit approval.
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Status. The Applicant agrees that the Barn will not be used for
vacation rental pm1Joses. The Applicant has recorded a Declaration Inco1vorating
Condition Of Approval A9. Into Instruments Of Conveyances dated January 2, 2019
("First Amended Declaration") in the Bureau of Conveyances of the State of Hawaii as
Document No. A-69680580 which incorporates this restriction. This Condition is also included
in the Declaration Incorporating Amended Additional Conditions Of Approval Into
Instruments Of Conveyance ("Second Amended Declaration") that the Applicant is presently
recording.
10. Condition A 10. Applicant is on notice that the property is "Agricultural"
under State Land Use designations. Applicant must comply with all requirements pursuant to
Hawaii Revised Statutes Chapter 205 including the submission and approval of a farm plan to
the director prior to building permit approval.
Status. The Applicant will comply with all applicable prov1s10ns of
Hawaii Revised Statutes Chapter 205 regarding uses and activities in the State Land Use
Commission Agricultural District. Pursuant to this requirement, the Applicant previously
submitted to the Planning Department on April 14, 2019, a Farm Plan Application Form for
the Barn as approved by the First Amendment, together with a Farm Plan, Barn Floor Plans,
and a tax map showing the location of the Barn and the agricultural activities. As a result of the
approval of the Second Amendment, the Applicant will submit an amended Farm Plan, Barn
Floor Plans, and Tax Map for the redesigned Barn as part of the Building Pe1mit Application
process.
11. Condition Al 1. The applicant shall submit for review and approval by the
Planning Department a landscape plan composed of native species, or species common to the
area, to help screen the proposed structures, and integrate the site with its surroundings.
Status. The Applicant will submit a Barn Landscape Plan to the
Planning Department as required.
12. Condition Al 2. Exterior colors and finishes of all structures, including
roof colors, shall be limited to medium or dark earth tones such as brown, green, or grey, or
other colors compatible with the area's natural surroundings. Use of reflective materials or
colors shall be prohibited. The proposed color scheme and samples shall be submitted to the
Planning Department for design review and approval prior to building permit application.
Status. The Applicant agrees: that it will utilize medium to dark earth
tones for exterior surfaces; that it will not use reflective materials for external surfaces; and that
it will submit color schemes and material samples to the Planning Department for its approval
prior to Building Permit approval for the Barn.
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13. Condition Al 3. The applicant shall comply with the previously approved
conditions for Special Management Area Use Permit SMA(U)-2008-5 prior to the issuance of
building permits.for the maintenance building. The applicant shall apply.for the building permit
within one (1) year <J.f the date of approval of this application or within one (1) year of the date
of approval of any new application to modify the design of the maintenance building, and
complete the proposed development no later than June 30, 2023. The maintenance building
shall not be used for residential or habitation purposes, and it shall not be used for transient
accommodation purposes. This restriction shall be incorporated into the deed restrictions of the
subject parcel, draft copies of which shall be submitted to the Planning Department prior to
building permit approval.
Status.
a. As set forth in this· Report, other than with regard to the recent
damage to the culvert, which Applicant is working on, the Applicant has complied with all of the
Initial Conditions.
b. The Applicant will comply with the timelines by applying for a
Building Permit no later than July 14, 2021, and by completing the Barn no later than
June 30, 2023.
c. The restrictions of this Condition A 13 have been incorporated into
the First Amended Declaration and will be included in the Second Amended Declaration.
14. Condition Al 4. The applicant shall pay a $500 fine for the "Ajier-the-
Fact" permit for the temporary maintenance structure. The structure shall be removed once the
conservation maintenance building is constructed.
Status. On April 5, 2019, the Applicant paid a Five Hundred And
No/100 Dollar ($500.00) fine for the After-the-Fact Special Management Area Permit for the
temporary maintenance structure ("Equipment Tent"). The Equipment Tent will be removed as
soon as the Barn is constructed.
15. Condition A 15. As represented by the Applicant, prior to issuance of the
Building Permit for the Barn, the Applicant shall donate the sum of Eleven Thousand Five
Hundred Dollars ($11,500.00) to the Hawaiian Island Land Trust (HILT), to be used by HILT in
support of its efforts to protect and preserve the environmental qualities and ecosystem of the
KIiauea Stream and Kahili Beach, including but not limited to the removal of invasive species,
the replacing of native species, erosion control, the clean-up of Kahili Beach, and the
empowerment of community stewardship of the area.
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Status. As represented by the Applicant, prior to issuance of the
Building Permit for the Barn, the Applicant has agreed to donate the sum of Eleven Thousand
Five Hundred And Noll 00 Dollars ($11,500.00) to the Hawaiian Islands Land Trust ("HILT"), to
be used by BIL T in support of its efforts to protect and preserve the environmental qualities and
ecosystem of the Kilauea Stream and Kahili Beach, including but not limited to: the removal of
invasive species; the replanting of native species; erosion control; the clean-up of Kahili Beach;
and the empowerment of community stewardship of the area. The Applicant is in the process of
delivering this donation to HILT.
16. Condition Al 6. Given Finding 18 of the 2008 Decision and Order,
applicant shall provide director contact information should a member of the public wish to seek
access to the falls understanding access is at the landowner's discretion.
Status. By letter to the Planning Director dated April 5, 2019, the name
and contact information for the person designated to receive public requests to access
Kilauea Falls was submitted to the Planning Director.
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EXHIBIT 8
OFFICE OF THE MAYOR
THE COUNTY OF KAUA'I
DEREK S. K. KAWAKAMI, MAYOR
MICHAEL A. DAHILIG, MANAGING DIRECTOR
EMERGENCY PROCLAMATION
By the authority vested in me as Mayor by the Constitution and laws of the State of
Hawai'i and Charter and laws of the County ofKaua'i, in order to provide relief for disaster
damages, losses, and suffering, and to protect the health, safety, and welfare of the people, I,
DEREK S.K. KAW AK.AMI, Mayor of the County of Kaua 'i, hereby determine, designate, and
proclaim as follows:
WHEREAS, overnight on March 27, 2020, the National Weather Service first issued a
flood advisory, leading to a Flash Flood Emergency the morning of March 28 for the island of
Kaua'i; and
WHEREAS, as a consequence of that weather event triggering the Flash Flood
Emergency, the island of Kaua'i experienced torrential rain, high winds, heavy rains, high surf,
storm surge, severe thunderstorms, landslides, and flooding; and
WHEREAS, the island ofKaua'i suffered extensive damage to private and public
property thereby endangering the health, safety, and welfare of the people; and
WHEREAS, this occurrence of extreme weather caused damages, losses, and suffering of
such character and magnitude to affect the health, welfare, and living conditions of a substantial
number of persons, and to affect the economy of the County, and was of such a nature as to
warrant rehabilitative assistance from the County; and
WHEREAS, pursuant to section 127A-14, Hawai'i Revised Statutes, the Mayor is
authorized to determine whether an emergency or disaster has occurred, or there is an imminent
danger or threat of an emergency or disaster and authorize actions under chapter 127 A, Hawai 'i
Revised Statutes; and
WHEREAS, pursuant to section 127A-13(b)(2), Hawai'i Revised Statutes, the Mayor is
authorized to suspend any law which impedes or tends to impede or is detrimental to the
expeditious and efficient execution of, or to conflict with, emergency functions, including laws
specifically made applicable to emergency personnel; and
WHEREAS, pursuant to section 127A-13(b) (1), Hawai'i Revised Statutes, the Mayor is
further authorized to relieve hardship and inequities or obstructions to the public health, safety,
and welfare found by the Mayor to exist in the laws and to result from the operation of federal
programs or measures taken under chapter 12 7 A, Hawai 'i Revised Statutes, by suspending laws
in whole or in part, or by alleviating the provisions of laws on such terms and conditions as the
Mayor may impose; and
WHEREAS, pursuant to section 127A-12(c)(6), Hawai'i Revised Statutes, the Mayor
may suspend chapter 103D and sections 103-50, 103-53, 103-55, 105-1 to 105-10, and 464-4,
Hawai'i Revised Statutes, and I find that these provisions, in whole or in part, impede or tend to
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EXHIBIT 8
impede the expeditious discharge of emergency disaster relief functions for this occurrence and
that compliance therewith is impracticable due to existing conditions; and
WHEREAS, pursuant to section 127A-12(c)(ll), Hawai'i Revised Statutes, the Mayor
may require each public utility, or any person owning, controlling, or operating a critical
infrastructure facility as identified by the mayor, to protect and safeguard its or the person's
property, or to provide for such protection and safeguarding; and provide for the protection and
safeguarding of all critical infrastructure and key resources; provided that without prejudice to
the generality of the foregoing two clauses, the protection and safeguarding may include the
regulation or prohibition of public entry thereon, or the permission of the entry upon such terms
and conditions as the mayor may prescribe; and
WHEREAS, pursuant to section 127A-12(a) (5), Hawai'i Revised Statutes, the Mayor
may direct or control, as may be necessary for emergency management alerts, warnings,
notifications, and activations; warnings and signals for alerts and any type or warning device,
system, or method to be used in connection therewith; partial or full mobilization of personnel in
advance of or in response to an actual emergency or disaster; the conduct of civilians and the
movement and cessation of movement of pedestrians and vehicular traffic during, before, and
after alerts, emergencies, or disasters; and
WHEREAS, pursuant to section 127A-13(b) (3), Hawai'i Revised Statutes, the Mayor
may shut off water mains, gas mains, electric power connections, or suspension of other services;
and
WHEREAS, pursuant to section 127A-13(b) (4), Hawai'i Revised Statutes, the Mayor
may direct and control the mandatory evacuation of the civilian population; and
WHEREAS, pursuant to section 127A-12(c)(14), Hawai'i Revised Statutes, the Mayor is
further authorized to order and direct government agencies, officials, officers, and employees, to
take such action and employ such measures for law enforcement, medical, health, firefighting,
traffic control, warnings and signals, engineering, rescue, construction, emergency housing, other
welfare, hospitalization, transportation, water supply, public information, training, and other
emergency functions as may be necessary, and utilize the services, materials, and facilities of the
agencies and officers; and
WHEREAS, pursuant to section 127A-12(c)(7), Hawai'i Revised Statutes, the Mayor
may appoint, employ, train, equip, and maintain, with compensation, or on a volunteer basis
without compensation and without regard to chapters 76, 78, and 88, such agencies, officers, and
other persons as the Mayor deems necessary to carry out emergency management functions;
determine to what extent any law prohibiting the holding of more than one office or employment
applies to the agencies, officers, and other persons; and subject to the provisions of chapter
127A, Hawaii Revised Statutes, provide for the interchange of personnel, by detail, transfer, or
otherwise, between agencies or departments of the County; and
WHEREAS, pursuant to section 127A-12(c)(l 7), Hawai'i Revised Statutes, the Mayor
may take any and all steps necessary or appropriate to carry out the purposes of chapter 127 A,
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Hawaii Revised Statutes notwithstanding that powers in section 127A-13(b) may only be
exercised during an emergency period; and
WHEREAS, pursuant to Section 18.02 of the Charter of the County ofKaua'i, the power
to declare a state of disaster or emergency is conferred on the Mayor.
NOW, THEREFORE, I, DEREK S.K. KAWAKAMI, Mayor of the County ofKaua'i,
hereby determine that an emergency or disaster contemplated by section 127 A-14, Hawai'i
Revised Statutes, has occurred within the County of Kauai and do hereby proclaim these areas to
be disaster areas for the purpose of implementing the emergency management functions as
allowed by law, authorizing the expenditure of monies as appropriated for the speedy and
efficient relief of the damages, losses, and suffering resulting from the emergency or disaster.
Pursuant to section 127A-13(b)(2), Hawai'i Revised Statutes, I hereby suspend any
county law that impedes or tends to impede or be detrimental to the expeditious and efficient
execution of, or to conflict with, emergency functions, including laws which by this chapter
specifically are made applicable to emergency personnel.
Pursuant to Section 127A-12(c)(l 1), Hawai'i Revised Statutes, I hereby require each
public utility, or any person owning, controlling, or operating a critical infrastructure facility as
identified by the mayor, to protect and safeguard the property or key resources, or to provide for
such protection and safeguarding. Without prejudice to the generality of the foregoing clauses,
the protection and safeguarding may include the regulation or prohibition of public entry thereon,
or the entry upon such terms and conditions as the mayor may prescribe.
Pursuant to Sections 127A-12(a)(5), 127A-13(b)(3), and 127A-13(b)(4), Hawai'i Revised
Statutes, the Emergency Management Administrator of the County ofKaua'i Emergency
Management Agency is directed to take appropriate actions to direct or control, as may be
necessary for emergency management:
a. Alerts, warnings, notifications, and activations;
b. Warnings and signals for alerts and any type or warning device, system, or
method to be used in connection therewith;
c. Partial or full mobilization of personnel in advance of or in response to an actual
emergency or disaster;
d. The conduct of civilians and the movement and cessation of movement of
pedestrians and vehicular traffic during, before, and after alerts, emergencies, or disasters;
e. Shut off water mains, gas mains, electric power connections, or suspension of
other services; and
f. Mandatory evacuation of the civilian population.
Pursuant to Section 127A-12(c), Hawaii Revised Statutes, and in order to provide
emergency disaster relief, I hereby direct all county agencies and officers to cooperate with and
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extend their services, materials, and facilities as may be required to assist in all efforts to
eliminate the danger.
I FURTHER DECLARE that a disaster emergency relief period shall commence March
27, 2020, and continue through May 26, 2020, which period shall also apply to the provisions
and applicability of section 127 A-30, Hawai 'i Revised Statutes.
APPROVED:
~F
Matthew M. Bracken
County Attorney
Done at the County ofKaua'i
This I st day of April, 2020
Derek S.K. Kawakami
Mayor, County ofKaua'i
An Equal Opportunity Employer
EXHIBIT 9
Mauna Kea Trask
From:
Sent:
To:
Cc:
Subject:
I concur. Thanks MB.
Michael A. Dahilig
Managing D irector
Co unty of Kau a 'i
4444 Rice Stree t, Suite 235
Li h u 'e, Hawai'i 96 766
(808)-241 -4900
Michael Dahilig < mdahilig@kauai.gov >
Saturday, April 4, 2020 11 :12 AM
Matthew Bracken ; Mauna Kea Trask ; Derek Kawakami; Sarah Blane; Elton Ushio
Billie Hairston ; 'Rohn Boyd'; William Scannell; Yoshito LHote
Re : Kahili Quarry Road Damage
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From: Matthew Bracken <mbracken@kauai.gov>
Sent: Fr iday, April 3, 2020 4:34 PM
To: Mauna Kea Trask <mtrask@cades .com>; Derek Kawakami <dkawakami@kauai.gov>; Michael Dahilig
<mdahilig@kauai.gov >; Sarah Blane <sblane@kauai.gov>; Elton Ushio <eushio@kauai.gov>
Cc: Billie Hairston <bhairston@cades.com>; 'Rohn Boyd' <rohnboyd@gmail.com>; William Scannell
<wscanl@gmail.com>; Yoshito LHote <yoshitol@yahoo.com>
Subject: RE : Kahili Quarry Road Damage
M auna Kea,
We agr e e th a t it qualifie s as criti cal infra s tructure. I'm interested to see what the e as ement d o cuments contain.
Thanks an d take car e!
M att
EXHIBIT 9
1
M atthew M. Bracke n
C ounty Attorney
County o f K au ai
4444 Ric e Stree t, Suite 220
L ihue, Haw aii 96 7 66
(808) 241 -49 30
mbracken@kauai.gov
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ch:ilkngc.
From: Mauna Kea Trask <mtrask@cades.com>
Sent: Friday, April 3, 2020 3 :18 PM
To: Derek Kawakami <dkawakami@kauai.gov>; Michael Dahilig <mdahilig@kauai.gov>; Sarah Blane
<sblane@kauai.gov>; Matthew Bracken <mbracken@kauai.gov>; Elton Ushio <eushio@kauai.gov>
Cc; Billie Hairston <bhairston@cades.com>; 'Rohn Boyd' <rohnboyd@gmail.com>; William Scannell
<wscanl@gmail.com>; Yoshito LHote <yoshitol@yahoo.com>
Subject: Kahili Quarry Road Damage
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 All,
Please see the photos below and attached video documenting the damage to Kah iii Quarry road as a result of the March
27, 2020 rains, covered under the Mayor's April 1, 2020 emergency proclamation. For the record Mr. Somers owns the
roadway lot but the County has a public access easement there over. We have ordered a copy of the county's easement
document to thoroughly vette the legal issues involved . In the meantime we wanted to reach out to confirm that Kah iii
Quarry road qualifies as "critical infrastructure" under the proclamation and that measures can be taken under 127 A-
12(c)(11) concerning the protecting and safeguarding of critical infrastructure. Copied on this email are Bill Scannell and
Yoshi L'hote who are the front line guys on this issue. Obviously the liability issues for damage to persons and property
are huge. More coordination and communication to come. Let us know if you have any questions. Be well, stay safe and
healthy.
Mahala,
2
4
Mauna Kea Trask
Of Co un sel
Cades Schutte LLP
Dyn a sty Profe ssional Building
3 135 Akahi Street, Suite A
Lihu e, HI 96766
(t) 808 .521.9297 I (t) 808.521.921 o
mtrask@cades.com I www.cades.com
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by reply e-mail or by telephone (808) 521 -9200 , and delete
the original e -mail and its attachments , and all copies .
6
EXHIBIT 10
SHEET 1 OF SHEETS
FEDERAL EMERGENCY MANAGEMENT AGENCY DATE
PRELIMINARY DAMAGE ASSESSMENT SITE ESTIMATE
PART I -APPLICANT INFORMATION
COUNTY I NA ME OF APP LIC ANT I NAME OF LOCAL CONTACT PHONE NO .
Kauai Dept. of Public Works
PART II -SITE INFORMATION
KEY FOR DAMAGE CATEGORY (Use appropria te tell ers in 1h e "category" blocks below)
A DEBRIS REM OVA L D. WATER CONTROL FACILITIES G. RECREATIONAL OR OTHER
B . PROTECTI V E MEASURES E . PUBLIC BUILDINGS
C. ROADS AND BR ID GES F. PUBLIC UTILITIES
SITE CATE-LOCA 1 ION (Use map lo ca l ion, address. elc.)
NO. GORY Kilauea Rock Quarry Road
1 C
DESCRIPTION O F DAMAGE
Culvert undermined and collapsed causi ng road to be unstab le and unusable . Applicant has provied photos and videos to FEMA. The site
will most likel y in c lude debris removal, embankment fill, re-install culvert , and RSP . Applicant Site 23.
IMPACT : % COMP LETE COST ESTIM ATE
Roadway is closed 0.00% $100,000.00
SITE CATE -LO CA TIUN (Use map local ion, address, e tc.)
NO . GORY PCCC
2 B
DESCRIPTION OF DAMAGE
Placed and hauled trash bins for flood victims. Applicant has provided invoices and documentation of active projects .
Applicant Site 24 .
IMP AC T : % COMPLETE COST ESTIM ATE
Public Health and Safety 0.00% $11,508 .00
SITE CATE -LOCA I IUN (Use map lo ca ti on. address. e tc.)
NO . GORY County of Kauai -Solid Waste/WW Apana Road area
3 B
DESCRIPTION OF DA MAGE
Storm preparation, pump rental and labor for removal of water from flooded areas and debris cleanup around facility for safety.
Applicant has provided photos of debris . Applicant Site 25.
IMPACT : % COMPLETE COST ESTIM AT E
Public Health and Safety 0 .00% $9,381 .59
SITE CATE-LU CA I IUN (Use map lo ca tion, address. etc .)
NO . GORY Deleted
DESCRIPTION OF DAMAGE
IMPACT: % COMP LETE COST ESTIMATE
NAME OF INSPECTOR AGENCY PHONE NO .
Keaton Browder/ Lori Borman FE MA/HI-EMA O FFICE
(202) 924-1237
IHOME
FEMA Form 90-81, MAR 95
EXHIBIT 10
EXHIBIT 11
~
.. : ;;~ --EXHIBIT 11
EXHIBIT 12
BEFORE THE PLANNING COMMISSION
OF THE
COUNTY OF KAUA'I
In the Matter of the Application
of
CHARLES M. SOMERS TRUST and
WEST SUNSET PHASE I LLC appealing
Notice of Violation & Order To Pay Fines
executed on December 7, 2020 for properties
located at 1957 Kahili Quarry Road, Kilauea, HI
Tax Map Key No(s).: (4) 5-2-012:035 & 047
Hanalei District Kahili, Kilauea, Kauai, Hawai 'i.
CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on December 28, 2020, the PETITION TO APPEAL
DECISION OF THE PLANNING DIRECTOR; EXHIBITS "l" -"12", was duly served upon
the COUNTY OF KAUAI PLANNING COMMISSION, via hand delivery, addressed to it at the
COUNTY OF KAUAI PLANNING DEPARTMENT, County of Kauai, 4444 Rice Street,
Suite A-473, Lihu'e, Hawai'i 96766.
DATED: Lihu'e, Hawai'i, December 28, 2020.
CADES SCHUTTE LLP
MAUNA KEA TRASK
Attorney for Petitioners
CHARLES M. SOMERS TRUST and
WEST SUNSET PHASE I LLC