The URL can be used to link to this page

Home My WebLink AboutApril 13, 2021 Planning Commission Agenda PacketCOUNTY OF KAUA'I PLANNING DEPARTMENT TO:Subdivision Committee,Planning Commission SUBJECT:Extension Request PURPOSE:^File Final Subdivision Maps Complete Subdivision Improvements Other: Subdivision Application No.Applicant(s) S-2019-4 Tim Beckman &Mira Hess Location:|Po ipu Tax Map Key:|(4)2-8-014:038,042 st ^ndExtensionRequestNo.(1st,2'"',etc.)Tentative Approval Granted On:Previous Ext.Expired On: 2nd March27,2019 March27,2021 Subdivision Bonded:Yes |v^|No Deadline to Complete Improvements:Not Applicable APPLICANT'S REASONS:Additional time is being requested to comply with the conditions/requirements oftentative approval.The Applicant is currently with the various reviewing agencies in resolving the required infrastructure improvements for the subdivision. EVALUATION:Please refer to nextpage... RECOMMENDATION:Please refer to next page.., VaffPlanner Date [<^]Approvedand Recommended to PIanning Commission [JDenied Comments: Date V:\2019 Master Files\Regulatory\Suhdivisions\S-2019-4\Extension\Extension Report -04.13.2021 KE S-2019-4 Tim Beckman &Mira Hess.docx 1.1.^1.1 ^l'APR 1 3 2021 COUNTY OF KAUA'I PLANNING DEPARTMENT Extension requests are primarily processed for the purpose of continuing a tentative approval for a subdivision application.An extension approval allows an applicant additional time to comply with the requirements in order to obtain final subdivision approval. In determining whether additional time should be granted,an evaluation is made ofthe project's progress as well as compliance with the requirements oftentative approval.The evaluation is primarily based on determining whether the applicant is progressively working towards obtaining final subdivision approval with the various reviewing agencies.The tentative approval conditions are then re-evaluated to determine whether the conditions/requirements are adequate to address the impacts ofthe proposed development in consideration ofthe time that haslapsed. Pending evaluation ofan extension request,one ofthe following can occur: 1.The extension is approved without changes to the tentative approval requirements; 2.The extension is approved with modified time frames but no modifications or additions to the tentative approval requirements; 3.The extension is approved with modifications and/or additions to the requirements; and 4.The extension is denied. FINDINGS/BACKGROUND: The proposed development involves a boundary adjustment that consolidates four (4)existing lots and resubdivides into three (3)lots within the Open (0)zoning district.This application was granted tentative approval by the Planning Commission on March 27,2019 and the Applicant's request is the second extension ofthe tentative approval. The subject property is located along the mauka side ofPo'ipu Road and adjacent to the Po ipu Beach Estates Residential Subdivision (refer to attached map).The total area involved is approximately 19.178 acres and the surrounding parcels are situated within the State Urban Land Use District that have been developed as residences or commercial/retail development. PROGRESS OF THE SUBDIVISION: In considering the extension request,it should be noted that the Applicant has shown some progress with the development.As represented,the Applicant has been trying to comply with the requirements oftentative approval. S-20l9-4;SubExtension(2nd) Beckman /Hess 04.13.2021 -2- The Applicant is still working to resolve the required infrastmcture improvements associated with this application and determining the applicable requirements ofthe County ofKaua'i, Department of Water (DOW)and Public Works (DPW).In addition,the Applicant is working with the County Housing Agency in resolving the workforce housing requirement.Since it is uncertain as to when the Applicant will be in compliance with the requirements oftentative approval,another time extension is being requested. Based on the foregoing circumstances,the Applicant's reasons are justifiable and no problems are foreseen in granting the extension request.The Departments ofPublic Works and Water have no objections to the request. Additionally,the Applicant should demonstrate further progress with the subdivision within one (1)year from the approval ofthis extension request.As such,the Applicant shall be made aware that in further considering extension requests involving the proposed development,the Applicant shall continue to submit to the Planning Department an updated status report on the subdivision with a detailed time chronology on the progress ofthe tentative approval requirements.The status report shall be submitted to the Planning Department no later than sixty (60)days prior to the expiration date in order to allow sufficient time to evaluate whether progress have been made and conditions satisfied. RECOMMENDATION: It is recommended that an extension until MARCH 27,2022 be granted to obtain final subdivision approval.However,the Applicant is made aware that an updated status reoort on the subdivision with a detailed time chronology on the progress ofthe tentative approval requirements shall be submitted to the Planning Department for review for further extensions requests.The status report shall be submitted to the Planning Department no later than sixty (60) days prior to the expiration date. S-2019-4;Sub Extension (2nd) Beckman /Hess 04,13.2021 -3- ESAKi SURVEYING &MAPPING 1610 HALEUKANA STREET -LIHUE,KAUAI,HAWAII 96766 (808)246-0625 FAX:(808)246-0229 esm@esakimap.Com February 26,2021 Mr.Ka'ainaHull DirectorofPlanning CountyofKauai 4444 Rice Street,Suite A473 Lihue,Hl96766 RE:S-2019-4,TIM BECKMAN &MIRA HESS 2nd SUBDIVISION EXTENSION REQUEST TMK (4)2-8-14:38,42 KOLOA,KAUA'I,HAWAI'I The subject subdivision was granted TENTATIVE APPROVAL by the Planning Commission at their meeting held on March 27,2019.It was also granted an extension until March 27,2021 by the Planning Commlssion at their meetlng held on July 14,2020. During the extension period that was granted,the applicant was able to resolve the following requirements: •Water meter plans have been approved and will be installed soon. •The following requirements have been added to the pre-final subdivision map: All existing and proposed easement have been identified 15'foot future road widening reserve has been established. No direct access onto Poipu Road from Proposed Lots A and C,denoted by semi- clrcles (except for the proposed vehicular access point for Lot C) Building setback line along the stream has been established Floodzone,FIRM panel no.and suffix,dateofFIRM,100-yearflood elevation and benchmark elevation and datum has been added 1610 HALEUKANA STREET -LIHUE,KAUAI,HAWAII 96766 (808)246-0625 FAX:(808)246-0229 esm@esakimap.Com The applicant continues to work on the list of conditions,including: •Resolving workforce Housing requirements with the Kauai County Housing Agency. •Establishing a vehicular access pojnt for Proposed Lot C.A request has been sent to Public Works for their review and comment. The applicant requires more time to complete the remaining conditions.We respectfully request an extension in time of one year to file the Final Subdivision Map. Thank you for your consideration, Verytrulyyours, Dennis M.Esaki cc:Tim Beckman V 3 o ••^A.'.^^ ^s'is^aa;il 3£.<_'y^^st/)-*-^.=^'^'0 sKs^S*Sg'c8^|Sg-;|Ttri^6^g^cPs^ll!;>^»S8->si SiS,t;z»-sSS':';Ss -?5'-i>5S-oS's-iBnt°B.S i!L^8§8T^ l:"gs§S° ,..—^Tm;;~~~~C°vl"^jifFK' ,<a9 »'"::,fS« s ^iS'^y^ Walta Reaervoir 'f^^'SiS^:^ BISS£Bfi%Shl:®^pt:^s"^^^•^^c.'^:,^ ^^^^'^^^^^'•v^^ ^^^y'^^^^^/^^''^'.•~•..~.•^'^^•^''l.'^.:^ "••-;^ ^^^E^p^^^^^^.iiy.''^^^^:^^^.::^F Y^^^^^^-;^is1 ^l^^l^'"''...•;;:11 '^^-^^..'^':^:^*^'''^"?i^%%S^jl^^;:/^i^isfli^; '^"'yi^""^' lais^^? VSSWK^^ •~':^SSS^:M^::::7"' iilNI».:'iliAj?lff^^l&i&^l^^ ysx^su^ssssssssss^^Sy--rsl<ljlgggl^igi!^gllii|£|^^ i.|ga11(||llt:':i.:||jg^^^::%"'!:::':::'::':'!~SSI'^^€ii81^Utt^ ..,;_^^^:''::fc^&seis;;^ ^^ff^.M^^ii^-'^^"^i: ::^3^^^^^%''&:&R'^!"^' "^'SiX^?^.^.'-^^-'"^:^ MAtlAULErU ;J^^2^^S]iSR^^SS ^^^. ••s-^„..;y<S a? 'm -®s-H.y m y^*-.''••IfiS 1»A K::"^?<yc£SSSW3S:SSSsK33ffsSSSSK- EK^'^?'1"-::'1 ay, b-WKWS aas,^ ^:" !IS;SSsI I-osatiii S-2019-^s^ ®II®SS?'Wi'^SSgF 'o.-^^^-'. Subdivision S-2019-4 Beckman /Hess 10/25/2020 COUNTY OF KAUA'I PLANNING DEPARTMENT TO:Subdivision Committee,Planning Commission SUBJECT:Extension Request PURPOSE:•/File Final Subdivision Maps Complete Subdivisioa Improvements Other: Subdivision Application No.Applicant(s) S-2020-9 Baird Family Limited Partaership Location:|Kapa'a Homesteads TaxMapKey:|(4)4-4-013:002 st ^ndExtensionRequestNo.(1st,2ncl,etc.)Tentative Approval Granted On:Previous Ext.Expired On: 1st January 28,2020 N/A Subdivision Bonded:No Deadline to Complete Improvements:Not Applicable APPLICANT'S REASONS:Additional time is being requested to comply with the conditions/requirements oftentative approval.The Applicant is currently with the various reviewing agencies in resolving the required infrastructure improvements for the subdivision. E'VALRATION:EleasereferAonextbase... RECOMMENDATION:Please lEfertonext page.. y6s^yo-s.1 ^taff'PIamier Date [v<]ApprovedandI{ecommended toPIanningCoinmission [jDenied Commehts: 'lanning Direefbr ^ll^WA Date V;\2020 Master Filei\Itegulatofy\Subdivii[ons^-Z020-9\ExtensionE\Extension Report -04.13.2021 K£S-2020-9 Baird Fomily Limted Partnership.docx J.l.b.l APR 1 3 2021 Yes •/ COUNTY OF KAUA'I PLANNING DEPARTMENT Extension requests are primarily processed for the purpose ofcontinuing a tentative approval for a subdivision application.An extension approval allows an applicant additional time to comply with fhe requirements in order to obtain final subdivision approval. In determining whether additional time should be granted,an evaluation is made ofthe project s progress as well as compliance with the requirements oftentative approval.The evaluation is primarily based on determining whether the applicant is progressively working towards obtaining final subdivision approval with the various reviewing agencies.The tentative approval conditions are then re-evaluated to determine whether the conditions/requirements are adequate to address the impacts ofthe proposed development in consideration ofthe time that has lapsed. Pending evaluation ofan extension request,one ofthe following can occur: 1.The extension is approved without changes to the tentative approval requirements; 2.The extension is approved with modified time frames but no modifications or additions to the tentative approval requirements; 3.The extension is approved with modifications and/or additions to the requirements; and 4.The extension is denied. FINDINGS/BACKGROUND: The proposed development involves a three (3)lot subdivision within the Kapa'a Homesteads area.This application was granted tentative approval by the Plaiming Commission on January 28,2020 and the Applicant's request is tbefirst extension ofthe tentative approval. The subject property is situated along Kawaihau Road,approximately 4.0 miles mauka ofKuhio Highway.The total area involved is approximately 3.38 acres within the County Agriculture District and within the State Land Use Agricultural District.The surrounding parcels are an assortment of County Agriculture and Open Districts and are also within the State Land Use Agricultural District. In further evaluation ofthe proposed subdivision,a Zoning Amendment was approved by the Planning Commission onNovember 13,2018 and the County Council on January 23,2019 through Zoning Amendment ZA-2018-1 that amended a portion ofthe property from the County zoned Open District to the Agriculture District.Prior to the Zoning Amendment,the subject S-2020-9;Sub Extension (1st) Baird Family Limited Partnership 04.13.2021 -2- property was split zoned;approximately 1.4 acres within the Agriculture District and 1.98 acres within the Open District. It is also noted that the subject parcel existed prior to the adoption ofthe Comprehecsive Zoning Ordinance (CZO)in 1972.Therefore,the project is subject to the requirements in Section 8- 8.3(b)(l)(A)which specify that "Parcels not more than ten (10)acres may be subdivided into parcels not less than one (1)acre in size."In addition,this project is subjected to the "one-time subdivision limitation for parcels within the Agriculture District,pursuant to Section 8-8.3(c)of the CZO,Kaua'i County Code (1987). PROGRESS OF THE SUBDIVISION: In considering the extension request,it should be noted that the Applicant has shown some progress with the development.As represented,the Applicant has been trying to comply with the requirements oftentative approval. The Applicant is currently working to resolve the Plamung Department's requirements, specifically the Agriculture Master Plan,Declaration ofConditions,Covenants and Restrictions, and the Agricultural Subdivision Agreement.Since it is uncertain as to when the Applicant will be in compliance with the requirements oftentative approval,another time extension is being requested. Based on the foregoing circumstances,the Applicant's reasons are justifiable and no problems are foreseen in granting the extension request.The Departments ofPublic Works and Water have no objections to the request. Additionally,the Applicant should demonstrate further progress with the subdivision within one (1)year from the approval ofthis extension request.As such,the Applicant shall be made aware that in farther considering extension requests involving the proposed development,the Applicant shall continue to submit to the Planmag Department an updated status report on the subdivision with a detailed time chronology on the progress ofthe tentative approval requirements.The status report shall be submitted to the Planning Department no later than sixty (60)days prior to the expiration date in order to allow sufficient time to evaluate whether progress have been made and conditions satisfied. RECOMMENDATION: It is recommended that an extension until JANUARY 28,2022 be granted to obtain final subdivision approval.However,the Applicant is made aware that an updated status report on the subdivision with a detailed time chronology on the progress ofthe tentative approval requirements shall be subinitted to the Planning Department for review for further extensions requests.The status report shall be submitted to the PIanning Department no later than sixty (60) days prior to the expiration date. S-2020-9;Sub Extension (1st) Baird Family Limited Partnership 04.13.2021 -3- 1610HALEUKANASTREET-LIHUE,KAUA'I,HAWAI'I 96766 (808)246-0625 ESM@ESAKIMAP.COM February 26,2021 Mr.Kaaina Hull,Director County of Kauai Planning Department 4444 Rice Street,Suite 473 Lihue,Kauai,Hawaii 96766 Attn:Mr.Hull RE:SUBDIVISION EXTENSION REQUEST S-2020-9 BAIRD FAMILY LIMITED PARTNERSHIP TMK (4)4-4-13:02 KAPAA,KAUAI,Hl.96746 Dear Mr.Hull, The subject subdivision received TENTATIVE APPROVAL by the Planning Commission at their meeting held on January 28,2020. The applicant is currently working on the Planning Department requirements,specifically the Agriculture Master Plan,Declaration of Conditions,Covenants,and Restrictions,and the Agricultural Subdivision Agreement and requests more time to complete the documents. We respectfully request an extension in time of 1 year to file the final subdivision map. Thank you forjitottrcopsiderati Dennis M.Esaki DME:vc rt '"\ r"W .Vi^'~\l'^T^^!B- -x<^'ifW s ^^x.^e.,^;'^'s .';~-L;^;~'tOT;§7^.e--^~-\'-;';:;^';;? ^-.'"'^-''^'''•^^&iec^.'"'":^-'';-''^---. (rW^U.^./~.u;^-.^~^-^_-^^^-^- LOT 874-B-3 ^"1.024 Acres .i^ ::;'-\. iigi^^1 '^i^i^w"" p"::\'''<^\«':^;';''^'''^''v../'-/' ' ^/ -V GRAPH1C SCALE SUSDIVISION OF LOT 87-BINTO.LOTS-87-.B--J,,87_-B-^-ANO'87-B-3ANDDESIGNATIONOFEASEMENTAU-1 &E^G POftlIO}!CF CKANT 7£S2 ta E.H.Un& K*PA»HtMESIEACS,2ND SEJilES,KkUAI.HAWIUI IUK;(4)<-1-1];as Daltr NonmbT 22,MIS SU!1 EURVCTNG S (WP; Subdivision S-2020-9 Baird Family Limited Partnership 12/06/2020 Ka'aina S.Hull Directof ot Pianning Jodi A.Higuchi Sayegusa Deputy Director ofPtanning I.SUMMARY Action Required by Planning Commission: COUNTY OF KAUA'I PLANNING DEPARTMENT DIRECTOR'S REPORT Consideration ofApplicant's request to AMEND Class IV Zoning Permit,Use Permit,and Special Permit to allow construction ofan office facility and two (2)storage buildings. Permit Application Nos.Class IV Zoning Permit Z-IV-2017-12 UsePermitU-2017-10 SpecialPermitSP-2017-5 Name ofApplicant(s)GREEN EARTH MATTERS INC.(GEM) lan K.Jung,Authorized Agent II.PERMIT INFORMATION F ^.^' PAPR 1 3 2021 PERMITS REQUIRED Use Permit A Use Permit was required as the proposed project was nol a permitted use within the Agriculture (A)zoning district. 1I Project Developmcnt Use Permit 11 Variancc Pcrmit Special Pcrmit A Special Permit was required as the proposed use was not a permissible use within the State Agricultural Land Use District. Zoning Permit Class IV III I'ursuant to Section 8-8.4(d)ofthe KCC,1987,as amended, a Class IV Zoning Permit was a procedural requirement for obtaining a Use Permit within the Agriculture zoning district. 1I Special Managcment Area Permit DUse Minor AMENDMENTS 1I Zoning Amendment 1I Gcncral Plan Amcndment Datc ofReceipt ofCompletcd February 26,2021 Application: Datc ofDirector's Report:March 23,2021 Date ofPublic Hearing:APRIL 13,2021 Deadline Date for PC to Take Action May 22,2021 (60T"Day): III.PROJECTDATA IV.LEGAL REQUIREMENTS Scction 8-3.1(f),KCC:This report is being transmitted to the Applicant and Planning Commission in order to satisfy the Z-IV-2017-12,U-2017-10,SP-2017-5;Oirector'sReport (Project Amendment) Green Earth Matters,Inc. 03.17.2021 2|P ag e D State Land Usc District Amendment PROJECT INFORAMTION Parcel Location:Moloa'a.The parcel involves Units 69 &70 ofthe Moloa'a Hui I Condominium,on a parcel situated along the makai side of Kuhio Highway in Moloa'a,approximately 1,000 feet east ofthe Ko'olau Road/Kuhio Highway intersection. Tax Map Key(s):4-9-009:012 (Portion)Area:Affecting approximately 10.5 acres ofa larger parcel containing 281+ acres ZONING &DEVELOPMENT STANDARDS Zoning:Agriculture State Land Use District:Agricultural Gencral Plan Designation:Agriculture Height Limit:N/A Max.Land Coverage:N/A Parking Requirement:1 parking space/200 SF net office space 1 parking space/three (3)employees,not les than four.Total required =Four (4) Front Setback:lOfeet Rear Sctback:5 feet OR 'A Wall Plate Height Side Setback:5 feet OR Vi Wall Plate Height Community PIan Arca:N/A Community Plan Land Use Designation: N/A Deviations or Variances Requcstcd:NA. V.PROJECT DESCRIPTION AND USE 1.BACKGROUND The subject permits involve operation ofa green waste recycling facility that provides another option for green waste produced by commercial and residential use.The green water recycling produces an end product that would be beneficial to local horticulture and agriculture operations.The pemiits were initially approved by the Planning Commission June 13,2017. The facility accepts residential &commercial green waste,and utilizes the "windrow composting procedure to recycle the material.The green waste accepted at the facility primarily consists oftree trimmings,grass or flower cuttings,and hedge cuttings. The facility will consist ofunprocessed material windrows,actively composting windrows,a finished material storage area,a gravel access road with turnaround,an access gate,and a thi'ee-foot high grassy berm.The entire site is surrounded by a hedge line and unpaved. The facility is operational seven (7)days a week,from 7 am to 5 pm.Approximately, one to two facility personnel will be on-site during normal business hours.Facility personnel vehicles will be parked on-site,along the gravel access road with turnaround. At the time the permits were initially considered,no structures were being proposed. VI.APPLICANT'S REASONS/JUSTIFICATION 1 Request The Applicant is seeking an amendment to the project to amend the overall Site Plan of the Project include the office facility and construction two (2)storage buildings.As represented in the Application,the Project would contain the following elements: Z-IV-2017-12,U-2017-10,SP-2017-5;Director'sReport (Project Amendment) Green Earth Matters,Inc. 03.17.2021 3|Page requirements ofSection 8-3.1 (f),relating to the provision ofthe Planning Director's report and recommendation on the subject proposal within sixty (60)days ofthe filing ofa completed application.The application was received on February 26,2021 and the Applicant,through its authorized agent,was notified accordingly of the Planning Department's intent to commence permit processing. Commission Meeting Date:APRIL 13,2021 BuiIding/Project Description Area (square footage) Equipment Shelter 4,121 SF Wood Shelter and Storeroom 4,000 SF The purpose the Equipment Shelter is to provide storage ofequipment that is used in conjunction with the operation ofthis facility and to protect from the weather elements. The Wood Shelter &Storeroom is intended to store finished slabs harvested fi'om trees that are delivered to the project site. Due to the weather elements in this area,construction of an office facility was necessary to shelter staffand for the management ofthe green recycling operations.As constructed,the office building encompasses approximately 3,240 SF and is accompanied by a concrete-paved parking lot. Thejustification for these improvements is contained on Page 5,Section IV.ofthe Application. VII.FINDINGS 1.Project Site &Surroundines The project site is situated within the Moloa'a Hui I Condominium in Moloa'a and the surrounding properties are zoned Agriculture District (A).The nearest residence is approximately 0.4 miles to the northwest ofthe site.There is a similar operating facility (green waste recycling),dba.Heart &Soul Organics,LLC.,situated to the northwest ofthe project site and it was approved in 1993 by the Planning Commission through under Class IV Zoning Permit Z-IV-94-34 and Use Permit U-94-29. It is further noted that the subject property is located in Flood Zone "X",which is outside ofthe 500-year flood plain. 2.Vehicular Access The primary access to the project site is through a unimproved driveway connecting into Ko'olau Road.Ko'olau Road is a County roadway with a 44 feet wide right-of- way that can accommodate two-way vehicular traffic.The project is located approximately 1,400 feet east ofthe K.o'olau Road/Kuhio Highway intersection. VIII.PRELIMINARY EVALUATION In evaluating the Applicant's development proposal,the following aspects are bein; considered: 1.General Plan Z-IV-2017-12,U-20)7-10,SP-2017-5;Director'sReport (Project Amendment] Green Eorth Matters,Inc. 03.17.2021 41 P ag e Office 3,240 SF Concrete Parking Arca 1.700SF TOTAL AREA:13,061 SF a.The County General Plan (2018)acts as an over-arching valucs statement and provides a policy framework for the Kauai Island Plan and Community Plans within a twenty-year timeframe.The County General Plan provides broad goals, objectives,policies,and implementing actions that portray the desired direction of the County's future. b.Section 3.0,Sector IV ofthe General Plan regarding Solid Waste discusses the need for new solid waste facilities as well as increased diversion.At the present time, there are no new County facilities and the Kekaha landfill is nearing maximum capacity.The plan identifies green waste as the 1 largest component ofthe residential waste.The County ofKaua'i Integrated Solid Waste Management Plan (SWMP)encourages entrepreneurial principles in managing solid waste and involvement ofprivate businesses to emphasize recycling and diversion ofmaterials from the island's Kekaha landfill. c.In evaluating the goals,objectives,and policies ofthe Kaua'i General Plan,the project remains consistent in complying with the applicable strategies in moving towards sustainability,development of a healthier community,and preservation ofthe island's beauty. 2.Native Hawaiian Traditional and Cultural Rights The site previously under intensive agricultural cultivation and a part ofthe original agricultural subdivision for the Moloa'a Cooperative.In the later 1990's,the site was acquired by the cun'ent Moloa'a Hui and have been primarily utilized for agriculture. During the subsequent development of the parcel,the Applicant was required to conduct an Archaeological Inventory Survey which was reviewed by the State DLNR Historic Preservation Division.It was determined that there were no known impacts to any Native Hawai'i Traditional and Cultural Practices on the subject property. However,the Applicant should inform the Planning Department if they receive any knowledge ofor discover any cultural/historical resources. 3.Use &Special Permil Criteria Since obtaining approval by the Planning Commission in 2017,the department has not received any complaints regarding the recycling operation.The Applicant has demonstrated to be compatible with the surrounding uses and continues to fulfill the agricultural objectives contained in Chapter 205 ofthe Hawai'i Revised Statutes (HRS). 4.KCC Development Standards &Applicable Requirements As proposed,the project complies with the building height and setback requirements for development,as specified in Sections 8-4.3,8-4.5,and 8-8.2 ofthe Comprehensive Zoning Ordinance (CZO).It is further noted that this project is subject to the conditions previously imposed with the permits and that they remain in effect. It is noted that the project site shall continue to be utilized for green waste recycling as Z-IV-2017-12,U-2017-10,SP-2017-5;Direclor's Report (Project Amendment) Green Eorth Malters,Inc. 03.17.2021 originally represented by the Applicant.Any expansion or deviation from the green waste recycling operation shall be evaluated by the Planning Department.Any changes to the subject buildings and/or operations shall be reviewed by the Director to determine whether Planning Commission review and action is warranted. a.EIA Fees The Applicant would be subject to the requirements ofSection 1 1A-2.2 ofthe Kauai County Code (KCC),relating to the payment ofthc Environmental Impact Assessment (EIA)Fee for each required off-street parking stall.As represented in the floor plan and in considering the standards in Section 8- 6.3(e)(3)ofthe CZO,the proposed development will require a total offour (4) off-street parking stalls. b.TrafficStudy Another subject matter that should be revisited is the traffic analysis ofthe project. At the time the permits were initially considered,Condition No.20 was imposed that required that Applicant to resolve any requirements from the State Department ofTransportation (DOT)-Highways Division.It would be suggested that the Applicant contact the State DOT Highways Division to determine whether an updated traffic assessment is necessary. IX.PRELMINARY ItECOMMENDATION It is recommended that the Commission APPROVE the proposed development involving the permit addition ofthe office facility and construction oftwo (2)storage buildings. Based on the foregoing,following conditions are in addition to the subject permits: 21.Ihe Applicant shall provide a minimum of four (4)off-street parking stalls.However,the Applicant is made aware that the Planning Director may increase vehicle requirements when particular uses or locations occur in areas where unusual traffic congestion or conditions exist or are projected. 22.At the time ofbuilding permit application,an Environmental Impact Assessment (EIA)Fee of $100 per required parking stall shall be paid pursuant to Section 1 1A ofthe Kauai County Code. Furthermore,the Applicant is advised that all applicable conditions ofapproval shall remain in effect. DALEA Planner Z-IV-2017.12,u-2017-10.SP-2017-S;Director's Reporl (Proiect Amendmenl] Green Earth Matters,Inc. 03.17.2021 6|P ag e Approved &Recommended to Commission: Date KA'AINA" Director ofPlanning :^/ I^U Z-IV-2017-12,U-2017-10.SP-2017-5;Director'sfieport (Project Amendment) Green Eorth Matters,Tnc. 03.17.2021 7|P a g e EXHIBIT"A" (Agency Comments) For reference 'W^w^ :36 COUNTYOFKAUA'I PLANN1NG DEPAJ 4444 RICE STREET,SUITE A^ Phone:(808)241-4050•21 HAR 15 TO:Kaaina S.Hull,Director (Dale)March2,2021 PJ_ANN1NGDEPISUBJECT:Class IVZoning Pennit Z-IV-2017-12,Uie Pennit U-2017-10,Special Permit SP-2017-5,Accessory Sti-ucture Tax Map Key:(4)4-9-009:012,Green Earth Matters Inc,Applicant PW 03.21.018 TO: D D a D Department ofTransportation -STP DOT-Highways,Kaua'i (info only) DOT-Airports,Kaua'i (info only) DOT-Harbors,Kaua'i (info only) State Department ofHealth State Department of Agriculture State Office ofPlanning State Dept.ofBus.Econ,Dev.Tourism State Land Use Commission State Historic Preservation Division DLNR -Land Management DLNR -Forestiy &Wildlife DLNR -Aquatic Resources DLNR -OCCL 13 DPW -Engineering DPW -Wastewater DPW -Building Q DPW -Solid Waste I1 Department of Parks &Recreation Fire Department 1I County Housing Agency County Economic Development KHPRC ^]Water Department Kaua'i Civil Defense U.S.Postal Department UH Sea Grant D^]County Transportation Agency D Other: March 12,2021FORYOURCOMMENTS(pertaining to your department): We have reviewed the subject application to construct an office building and two storage buildings at TMK:(4)4-9-009:012 (CPR Unit Numbers 0001 &0026)for Green Earth Matters Inc..We offer the following comments. 1.All existing drainage runoff volumes and flow pattems shall be maintained and subject to Best Management Practices (BMPs).BMPs shall be implemented at all times to the maximum extent practicable to prevent damage by sedimentation,erosion,or dust to streams,watercourses,natural areas,and the property ofothers. Sincerely, Michael Moule,P.E. Chief,Engineering Division MM/PT copy:Design and Pennitting COUNTYOFKAUAI "21 TO-9 P1 :'<2 RECEIVED MAR -22021 COUNTY OF KAUA'I PLANNING DEPARTMENT L ANttt(4tRD@6'3TREET,SUITE A473 LIHU'E,HAWAI'I 96766 (808)241-4050 CountyofKauai Traasportation Agency FROM:Kaaina S.Hull,Director (Dale)March2,2021 SUBJECT: TO: Class IV Zoning Permit Z-1V-2017-12,Use Permit U-2017-10,Special Permit SP-2017-5,Accessory Structure Tax Map Key:(4)4-9-009:012,Green Earth Matters Inc,Applicant D Department of Transportation -STP DPW-Engineering DOT-Highway,Kauai(info only)D DPW-Wastewater D DOT-Airports,Kauai (info only)DPW-BuiIding D DOT-Harbors,Kauai (info only)a DPW-SolidWaste State Depanment of Health Department of Parks &Recreation State Department of Agriculture Fire-Department State Office of Planning County Housing-Agency State Dept.ofBus.&Econ.Dev.Tourism a County Economic Development a State Land Use Commission KHPRC State Historic Preservation Division Water Department D DLNR-Land Management Kaua'i Civil Defense D DLNR-Foresty &Wildlife a U.S.Postal Department a DLNR-Aquatic Resources UK Sea Grant D DLNR-OCCL County Transportation Agency D Other: FOR YOUR COMMENTS (pertaining to your department): Z|<^(^1 C-Tl^tVft^t~^<3 ^(Z.T^c^Co<^<^?1^^ 'T^fr'J(^>, Oi-'TH^{-^o5~€~<-^~- This matter is scheduled for a public hearing before the County of Kauai Planning Commission on 4/13/2021 at the Lihue Civic Center,Moikeha Building,Meeting Room 2A-2B,4444 Rice Street, Lihue,Kauai,at 9:00 am or soon thereafter.If we do not receive your agency comments within one (1) month from the date of this request,we wil]assume that there are no objections to this permit request. Mahalo! ;1 -9 2021 ENVlrtu.'-MENTrHBCmroiTOES COUNTYOrKAUAI "21 HfiR 24 P 1 :45COUNTYOFKAUA'I PLANNING DEPARTMENT 4444 RICE STREET,SUITE A473 LIHU'E,HAWAl'A ,%7(S<'(808)241.4050'"~'"Tt-'CTWiRG-DEPT. FROM:Kaaina S.Hull,Director (Dale)March2,2021 SUBJECT:Class IV Zoning Permit Z-IV-2017-12,Use Permit U-2017-10,Special Permit SP-2017-5,Accessory Structure Tax Map Key:(4)4-9-009:012,Green Earth Matters Inc,Applicant TO: D D Daa D a Depanment of Transportation -STP DOT-Highway,Kauai(info only) DOT-Airports,Kauai (info only) DOT-Harbors,Kauai (info only) State Department of Health State Department of Agriculture State Office of Planning State Dept.ofBus.&Econ.Dev.Tourism State Land Use Commission State Historic Preservation Division DLNR-Land Management DLNR-Foresty &Wildlife DLNR-Aquatic Resources DLNR-OCCL 0a D D D D D D DPW-Engineering DPW-Wastewater DPW-Building DPW-SolidWaste Department of Parks &Recreation Fire-Department County Housing-Agency County Economic Development KHPRC Water Department Kaua'i Civil Defense U.S.Postal Department UH_Sea_Grant County Transportation Agency Other: FOR YOUR COMMENTS (pertaining to your department): See comments on attached sheet. Darren TaiAekazif/Acting Chief Kauai District ^>(a3nirife»iainM&uaeon March 16,2021 This matter is scheduled for a public hearing before the Coi 4/13/2021 at the Lihue Civic Center,Moikeha Building,Meeting Room 2A-2B,4444 Rice Street, Lihue,Kauai,at 9:00 am or soon thereafter.If we do not receive your agency comments within one (1 ) month from the date of this request,we will assume that there are no objections to this permit request. Mahalo! Class IV Zoning Permit Application:Z-IV-2017-12 Use Permit:U-2017-10 Special Permit:SP-2017-5 Applicant:Green Earth Matters Inc. Based on our review of the application,we offer the following environmental health concerns for your consideration. 1.Noise will be generated during the site preparation and construction phases ofthis project.The applicable maximum permissible sound levels as stated in Title 11,HAR,Chapter 11-46,"Community Noise Control" shall not be exceeded unless a noise permit is obtained from the State Department of Health (DOH). 2.Temporary fugitive dust emissions could be emitted when the project site is prepared for construction and when construction activities occur.In accordance with Title 11 ,HAR,Chapter 11-60.1,"Air Pollution Control", effective air pollution control measures shall be provided to minimize or prevent any fugitive dust emissions caused by the construction work from affecting the surrounding areas.This includes the off-site roadways used to enter/exit the project.The control measures include but are not limited to the use of water wagons,sprinkler systems,dust fences,etc. 3.In accordance with Title 11,HAR,Chapter 11-58.1,entitled "Solid Waste Management Control",the grubbed material and construction waste that is generated by the project shall be either recycled or disposed of at a solid waste disposal facility that complies with the DOH.The open burning of any of these wastes on or off site is prohibited. Due to the general nature ofthe application submitted,we reserve the right to implement future environmental health restrictions when more detailed information is submitted. VAN BUREN &SHIMIZU LLP GEORGE W.VAN BUREN #3496 JOHN B.SHIMIZU #2627 Hawaii Kai Corporate Plaza 6600 Kalanianaole Highway,Suite 212 Honolulu,Hawaii 96825 Tel.No.(808)599-3800 Fax No.(808)522-0530 Attomeys for Petitioners MOLOAA FARMS LLC AND JEFFREY LINDNER COUNTYncKAUAI •21 APR-6 A1022 PLAHHIHG DF.PT. COUNTY OF KAUAI PLANNING COMMISSION STATE OF HAWAII In the Matter ofthe Application for a Class FV Zoning Permit Z-IV-2017-12,Use Permit U- 2017-10 and Special Permit SP-2017-5 for real property located in Moloa'a,Kauai, Hawaii,further identified as Lot 185 as shown on Land Court Application 956,Tax Map Key (4)4-9-009-009. CASE N0. MOLOAA FARMS LLC AND JEFFREY S. LINDNER'S PETITION TO INTERVENE; MEMORANDUM IN SUPPORT OF PETmON TO INTERVENE;EXHIBIT 1; CERTIFICATE OF SERVICE HEARING DATE:AprU 13,2021 TIME:9:00 a.m. MOLOAA FARMS LLC AND JEFFREY S.LWDNER'S PETITION TO INTERVENE Petitioners-Intervenors MOLOAA FARMS LLC and JEFFREY S.LFNDNER (hereinafter "Petitioners"),by and through their attomeys,Van Buren &Shimizu LLP,hereby file this Petition to Intervene in the above-captioned matter (the "Petition").The Petition is filed pursuant to Chapters 3 and 4 of the Rules of Practice and Procedure ("Rules")of the Kauai Planning Commission ("Commission"),the attached Memorandum in Support ofthe Petition,and any evidence to be adduced at the hearing on the Petition. F.1.0.^ APR 1 3 2021 DATED:Honolulu,Hawaii,April 5,2021. GEORGE W.VAN BUREN JOHN B.SHD^IIZU Attomeys for Petitioners MOLOAA FARMS LLC and JEFFREY S.LINDNER COUNTY OF KAUAI PLANNING COMMISSION STATE OF HAWAII In the Matter ofthe Application for a Class FV Zoning Permit Z-IV-2017-12,Use Permit U- 2017-10 and Special Permit SP-2017-5 for real property located in Moloa'a,Kauai, Hawaii,further identified as Lot 185 as shown on Land Court Application 956,Tax Map Key (4)4-9-009-009. CASE N0. MEMORANDUM IN SUPPORT OF PETITION TO INTERVENE MEMQRANDUM IN SUPPORT_QF PETmON TO INTERVENE I.INTRODUCTION Petitioners file this Petition because they hold interests in the property that is the subject of the above-referenced hearing (the "Hearing")and will be directly affected by the Commission's action.According to the Hearing notice,the applicant seeks Class FV Zoning Pennit and Use Permit and Special Pennit (the "Permits")to construct an office building and two storage buildings located in Moloa'a,Kauai,Hawaii designated as Tax Map Key ("TMK")(4)4- 9-009:009 (the "Parcel").The applicant does not own the land outright and has no authority to construct the improvements.The land is a common element within the Moloaa Hui condominium and cannot be used as proposed without the approval of the owners of the land which include petitioner and many other owners.Moreover,the parcel size in the application is incorrect.Lot 1 is not subdivided to Petitioners'knowledge and therefore Lot 1 is 593.1 acres. Petitioners own interests in the land and have not approved of the improvements. Petitioners own Unit 34 and own an undivided interest in the land underiying the proposed improvements.Based on their ownership interests in the land and property that is the subject of the Hearing,Petitioners are entitled to intervene as ofright.Furthermore,the Hearing will have a direct and immediate effect on Petitioners that is clearly distinguishable from that of the general public.Accordingly,the Petition should be granted. II.BACKGROUND The subject property,Lot 1 was condominiumized into two condominium property regimes ("CPR"),Moloaa Hui I and II .The land is a common element owned in common by the owners of the units.Petitioner is unaware of any subdivision of tbe land owned by the two condominiums.See page 21 of Exhibit 1.A master Association was contemplated but to Petitioners'knowledge never created.See page 18 of Exhibit 1.The owners of Hui I have presiimably been conducting their affairs without creating a Master Association and without involving the owners of Hui II.Moreover,the condominiums require that buildings be used only for agricultural purposes and must comply with all rules,ordinances,etc.Under existing laws and ordinances tbe buildings are not allowed which presumably is why Applicant has filed its petition without getting the approval ofthe co owners. III.PETITIONERS HAVE STANDING AS A MATTER OF RIGHT fTHE NATURE OF PETITIONERS'STATUTORY OR OTHER RIGHTS AND INTERESTS IN THE AFFECTED PROPERTY} Petitioners have the mandatory right to intervene in these proceedings because they have a property interest in the land affected by the Hearing and will be directly and immediately affected by the Commission's determination.Moreover,the Petitioners'interests in the proceeding are clearly distinguishable from that ofthe general public. The Commission's Rules ofPractice and Procedure,1-4-1,states: Who Mav Intervene.All Persons who have hold interest in the land,who lawfully reside on the land,or who can demonstrate that they will be so directly and immediately affected by the Petitioners own a unit within Moloaa Hui II (Unit 34,C.P.R.No.15). proposed application that their interest in the Proceeding is clearly distinguishable from that ofthe general public shall be admitted as a Parties-Intervenors upon timely application for intervention. (emphasis added). Additionally,any proceedings or decisions of the Commission regarding the Permits will directly and immediately impact Petitioners given their ownership of the land.The proposed use is detrimental to Petitioners'property rights and interests. TV.PETITIONERS HAVE A RIGHT TO PERMISSIVE INTERVENTION Petitioners also have the right to permissive intervention under the Commission's Rules and Regulations ("Commission Rules").Leave to intervene may be granted where (1)the intervenor has a position different from the Party-Intervenor already admitted,(2)the admission ofthe intervenor won't render the proceedings inefficient or unmanageable and (3)the intervention will aid in the development ofa fiill record and will not overly broaden issues.Commission Rules 1-4-2.All ofthese tests are also met. V.THE PETITION TO INTERVENE HAS BEEN TIMELY FILED Commission Rule 1-4-3 states that petitions to intervene "...shall be filed with the Commission at least seven (7)days prior to the Agency Hearing for which notice to the public has been published pursuant to law."The scheduled hearing on this matter has been set for April 13, 2021 at 9:00 a.m.Therefore,any petition for intervention may be timely filed by April 6,2021 at 9:00 a.m.Thus,this Petition has been timely filed. VI.THE ISSUES TO BE RAISED BY PETITIONERS C<THE CONTESTED CASE HEARING A.Applicant Lacks Sole OwnershieOfThe Underlying Land As set forth above,the land has not been subdivided to Petitioners'knowledge and should not be allowed to change the uses. B.The Improvements Require Approval OfAll Condominium Unit Owners Pursuant to the Declaration and state CPR laws,the land is a common element in a CPR and the proposed use which is not consistent with the CPR requires all condominium unit owners'approval. VII.THE EFFECTS OF ANY DECISION ON PETITIQNERS'INTERESTS Permitting the construction of the buildings will directly impact Petitioners' interests in the property as the land is owned by Petitioners and others. VIII.PETITIONERS'PARTICIPATION WILL NOT UNDULY BROADEN THE ISSUES OR DELAY THE PROCEEDINGS BEFORE THE CQMMISSIQN AND WILL SERVE THE PUBLIC INTEREST Petitioners'participation will focus on the ownership ofthe land and the applicant's lack of authority to seek the Permits.Consideration of these issues is necessary to develop a full and complete record of the proceedings and to make an informed decision.Informed decision- making is in the public interest.Similarly,the public interest is served by the proper application of state and local laws meant to preserve and protect agricultural uses. IX.CONCLUSION. Based on the foregoing,Petitioners respectfully request that the Commission grant this Petition to Intervene and allow Moloaa Farms LLC and Jeffrey S.Lindner to participate in this matter. DATED:Honolulu,Hawaii,April 5,2021. A^(J-^ GEORGE W.VAN BUREN JOHN B.SHIMIZU Attomeys for Petitioners MOLOAA FARMS LLC and JEPFREY S.LINDNER t' ^^-R-149 ^ STATE OF HAWAIT BUREAU OF COWVByANCES RECOBDED MAY 05.1997 08:01.AM Doc No(»>97-057760 /0/CABL T.WATANABB ACTIHC RECISTBAIi OP CONVITyANCRS APTM!tUiCORDATION,RBTOIW BY MAII, STEVEN R.LEB,ESQ. 4473 Pahe'e Stt-eet,Suite L Lihue,Kauai,Hawaii 9676S TO; Tft i/olooc'^"•" "--'-•.-'„'*'-^';^:AiM' TITI,B 0V DOCO.HSHT! OECLARATION OP COKOOMINIUM PROPERTy RBOIMB OF MOLOAA HVI II AND^ CONtX3MINXUM MAP N0./• PARTIIB TO DOCDMlENTi Fae Owner:KOLOAA HUI LAND3,IttC..a Hawli sorporat-ion,T.G. EXCHANOE,IfTC.,A Hdwaii corporation,and T,G;.SUPER KXCfiANGE CORP.,d Hawaii corporatlon niOPBRTY DBSCRI.PTIOttl LOTS 1.2,3,7,8,9,10A&B, 13,14^16 and Roadway, MoJoaa and Papaa,Kawaihau , Kauai.r Hawai i TAX MAf KTX HOS.i(4)4-9-003:001, LiB«R/i>»gai Docmasr NO.i CBRTiriCATl Or TITLB N0.l 97-0327B3 009, 018, 010, 0.21, 011, 022, 015, 025. 016.017, 027 &037 DKCUUtATXOH OI»COMDOMIMtCTl PROPBRry S»ai><» or HOLOAA BOI rr KNOW ALL MEN BY TMESE PRESENTS; 3.Haw<aii cor'porstion,whoee Hawaii,96754,T.G.BXCfIANQE. SUPBR EXCHANOS CORP.,a Kawaii if 23^Queen Stroet,Honolulu^ ao tho "Feo ownT"^.are the rsal properhy (hereln reforred to ^tH the "ProFer't.y")de^cribed i n Exhibit incorporated ho-c-ein fcy rcfer^nee? HHEftEAS,HOLOAA HUI IANDS,INC addresis is P,O.Box 30,Kilaues. IMC.,a Hawaii corporatiion,and T.0. cofporat lon /bofch of ^nog'e addresa Kawali,96813 fherein referred EIO ohmei-s in fee sJ.mple o£ch<'''""ftaln "A<r ^ctached hereto and EXHIBIT 1 HHBRKAS,MOLOAA tfUI tANDS,INC.ia,by decj.alon of Fee Owner, acct.ng as Ehe "Develaper",as descrlbed .in ehe Hawail Condominium Proparcy Act,Chapter 514A,Hawaii RevlBed Stacytes (hsreln the"Condominiuin property Act"),co dovalop a condominlum on the p.t-oporty;MOLOAA KtJJ LANDS,INC.io somefifflcs hereinaCter referred to as tihe "Developer"- NOW,THERBFORE,in arder to create a condomini.um projactcpnsi.stj.n^o£land described in Exhit>it:"A",and i.niprovements thereon (herej.naft.ar referrsd to afi the "Froject"^.and to toe fcnown aa MOLOAA HUJ II,said Fee Owner and DQveloper herejby submit sald property anc3 all of theiT-inEieresb tiherein co the CondominlLim Property Regime eetabti.shed by tho C'ondciminium Pt-operty Act and.In fyrtherance fchereof,make "tihe followi.ng decl'ai-atione aa to dl.vi eiong ,Z imitat ic»ns and restricfcions upon which unJLts in t'ne Project ohall be held,conveyed,inortgaged/encumbered,leased, r'en^edl,usecl,occypled and improved,^u'bj'ect to thiy Declarati-on, which ehall constituce covenanto running with che land and shall be tiinciing on and for clie benc'fit af the owners and leoseee of all or any part o£the Projecfc and cho.Lz'respective suc^eseoro,hoirs, exescutora ,administ racors and gsaigna, r UUtD The land UPOn which ths bul.ldin^e ^nd J-mproYemsnEa of bhe Project are Xocat-ed ie descrlbed in Eithibit "A*'atfcached horeto. IX DIVIBXON OP PltOPKKTY Eigrhteen <18j freehold eafcafcee a-E-e hsreby cr«AE«"'fi an^ desi-gnated/and heteinafter raferr*<?^^?as "cc'ndomj.n.i.um uniCB"fslgo re£<err«d t-o hsrein •33 "unit:"or "uni,t:s"j .Speeiflca.lly,the el^ht<ten (1S)cstatee go created and deai^natied are referred to heroinafter ae Unj.t:er 20 through 37.Said unifcs consist of the undivided Intereet in the common elements of the project,the limited common elemcnt (o)appurtenant t,o the unit,aa sho^n on hhe Condominium Map for the p.r'oJGct and the apart.ment,i£any, conBtructGd or fco b<!conatructed on the Iifrtlted common element.The apartmaote are deeignated on plane i.ncoz'poraced hefein by z-cference and being fiied separately with the Bui-eau of Conveyanceo of tho Stdte of Ksiwaii alfttultan&ouely herewith aa parfc of ttie Condomin tum Map referonc'od on the firsL pa'ge hereof .The unxts are daecribed as follows: (a)Un±C 20 IH a nawly built single-otory ahad^eLjruc-tui-e, conetructaci of PVC pip<*and ohade c:l.oth,which ha^a roof but no sides and c-ontains <an area of 16 ecruarR feet.Tho efcrucrture ifl locatecl in the aoufchwesfcern portion ot a 24-463 acre limited cotnmon element. fb)r^nit 23 io a newly built a inglo-st-ory shade structure, conetruc'c.ed o£PVC pipe and ohade cloth,wrhich h.?s a roof but no sides =and cont^ins an area of 16 sqiiare feet .Tho etructure io located J.n the souchwegtern portion of d za.5B4 acre limi.ced commonelement. (c)Unit_22 is a n&wly builc sinsrle-scory ahride ^tructure,conatz-ucted of pvc pipe and "sliade clothT whlc-h 'hag a roof but nosidesandconeainaanareao£16 square feet.The Btructur?ialocatedinthesuutheagt.ern portion o£an 9.437 acre limifced commonelement. (d)Unit 23 is a newly built:aingle-scoi-y shdde strucrture, sonatrucced o£PVC pipe and oha^A clctth^whxcrh hiia a roof but.no gides and confcains an area of 16 squax'e feet .The etrucfcure isloc^ated in fche northeaetern port ion of a 10,000 acTC 1imlced commonelement^. (e)Unx t 24 ie a newjty built Qingle -scory ehade structure, conetructed of PVC pipe and s^ade cloch/which hao a roof but no oidee =*nd concalns an~area af 16 gcruare ffiet .The structure ie located in che oouthwest.ern por-ti.c?n of oi 30.ooo acre llmi.ted common elemftnt:. (f/Uni t_35 io a newly built single-fltory flh^de etructt.ire. conscructed of pvc pips and ghada r-loch'.which ~hae a roof but no sides and contains an area of 16 squ&re feet .The atructure is Ipcated in the southeastern portion 06 a 1G.481 acre limited commonelement. (g)Unifc.26 consigto of two sttuctures.Th<a first is a newly hui-lC aincfle-story tihade structure,construeted o£PVC pipe and shade cloth,which hae a roof but no sides and contains an area of 16 aquarc feet,The structure is located in the goufchwe^tern portion of a 16.481 acre lifTticed coinmon elemenfc.The aecond is a single-atory equipmenc storage bu-i-ldin^J.niti.qJ.ly conoLructed in 197$/but under'going remodcliny ac.fchiB"flm^,as 'set Corth in the floofplana and ^1^'<r9ti^ns recorcied simu.LtaneoueXy hcrewitJi.It is con 01-1-utft:ed wlth a wood framc and ^metal roof and aiding^and contair.s 900 s^uare fect o)e atorage area. <H)Unlfc 37 ie ni newly buijt otngle-sfcory ohade structure. conetrucfcGd of PVC pip&and ghade cloth,which -has a roof bufc no sides and confcains an area o£16 aqziare feet.The etrucbure io loeated xn the ^ovtheaetem portion of a 9.162 acx'e limJLted <?omhion element. fi?CJnit 28 ip a newl./bullt ein^le -sEory shad<2 ac-ructLtrc, c-onstructed of PVC plpe and ohade cloth,whlch hao a roof but no eldea and containe an area of 16 equare feet,The stfiicture i^ located in the oouthwesterr;portion o?a 14 .762 ^icre lifr.iKed common element. (-])Unit 29 Xs a newly bujtlt oingle'^tory ehade structure, conf?tructi<ed of PVC plpe an<l ghade c-loch,which hao a roof but:no oldca and containo an area of 16 equare feeC.The fltructure i3 locacedl in che oouthweetern portion of a JS.050 a£'re limlted cocnmon element . (k)Unit 30 is a newly bui1 E:s ingte -BtoirY shade Bt.rucrture, COnat.ructed o£PVC pipe and 'shade clothT which 'haa a roof but:no oidee and contains an area of 16 scp-iare feet .The structure ie located i ii the southaastern porfc.ion o£a 20.QOQ acre limited CQmmon el-ement.+ <1,)Unit 31 io a newly builL aingle-story shade sfcructure, conotructed of PVC pipe an<3 ghade cloth,which hae a roof but no sides ?"d containg an area of 1<*sqyare EaGt .The strucrture is locatod in the nori.hwestern poc-tion of a 19.946 acre limited crummon element, (nt)Uni t 32 xsa newly built oingle-sfcory ohade afcructure, constructed of PVC pipc and ~shade clot:h7 which'has a roof but no aides and confcains an area o£16 square feet.The gtructure io locatod in the southwestern portion of a 5 .S4S <icre limited common eiementi. (n)Unifc 33 is a water tank,constructed of concrcte and sfceel, and containg an area o£approximately 1,33o square feet.The fcank io located cent.rally in a X.883 acre limited common element. (o)Unit 34 is a newly bui.it single-story ahade etructure, constructied of PVC pi.pe and shade clofch^which 'hag a roof but no sidos and contalns an area o£l6 sq-uar^£eot .The structure i& located in the HOUtheastern portion oE a 19.216 acre limited copimon element. (p)Unit 35 id a newly built single-story shade etructure, constructed o£PVC pipe and ahade cloth,which haa a roo£but no sideg and containe an area of IG scfuare feet;*The structure is located in the northeaefcern portion of an 18 .396 acre limited common element. (q)Unit 36 contains bhree structures.The first is a newly built sxngle-etory ohade structure,consti-ucted of PVC pipe and shade cloth^which has a i-oof but no sides and contai-ns an area o£ 16 aquare f^«at.The structure is located in the northeastern portion o£an 18.396 acre limifced common elemenfc.Tha oecond 3trU7f:yr<3 wa&built in 1.97B,and ie a ainglB-story covered flhed, conetructed o£wood,which has a metal roof but no eides and containe an area o£2S5 aquaro feet.Thia ohed ia located in the east -centr'al portion o£the li,mited cQmmon element.The third etructure was builfc in 1979,an<3 is a s i,ngla 'ofcory equipment and storagfe ohed,constructed of p^-pe fr^mework with d matal x-oo£but no sidee"and containe an area o-£1031.sqn-iare feet.This shed LB located in the central portion of the limiteci common elem^nt . The second and thir-d sLriir-^uz-ea arc now being rcmodelod aa ect fprth in the rioorplana and elevatioris record^u simultaneoualy herawlth. (r)Unit 37 ia a neuly built singl.n -story shade Bttructure, cdnstructed o£PVC pipa and shade clot.h,which has a roo£but no aidee and containe ^n area of 16 scruare Ceet .The otructurc io Located in dhG Boutheastern portion o£a 15 .319 acre limited common clementi . Ther-a are no basementa jLn this Project. Th^conclominium limited common el<ement3 and apartmentp arelocated^in che manner shown on the said Condomlnium Mdp.The ^ollndsries af-e^ch apartment ehall be the outer gurf^ce o£each bulldin^on thc specific limited common elemcnt dfeas oet aaidG in the Project.Each unifc hafi dii-ect:acceas to a common acceas lilement or easement or co public right (o)-of-way.Unlega gpecifically provided to th^contrary herein,the reopective units ehall not be deemed to include any present:c?r future pipafl,wires or conduite or other utilifcy lineo running over,uiider or t-hrough any 1 imi ted common elemehti or-apartment which s^fQ utilizsd for or-aervc al 1 uni tg,the eame being deemeci common elemente as hereinaffci^r provided. II-C LXMITS Of APAJtTMENTS Each apartrtient ohall be deemect to include the buildlng comprising thc aparcment,including specifically,but not limited to: (a)all perimeter walls,floors^foundat-ione and roof of such buildin^,all fenc-ea,outbuildtngB,otrucEures and impr-ovefflente o£any Icind locabed wholly within the limitcd common elementfs)of the individual unito;and (b) lines in by fftore chan all pipeg,wiree,conduics or other ucility and servic^ or on euch unifc building f or i f the same are not utilized one aparfcment;and (c)each a<3dAti,Gn,repl.acemant and other improvemenfc of the apartment;a^permitted by law-The costs aod expenses incurred £or ouch acidi.t.ions,replacements and improvem^nte t;b the apartftient aa pemiitted uncter the lawg o£the State of Hawaii or the Countiy of Kauai shall be charged to fche ownerts)o£fche unit vfhich i.a altered, changed or imprraved. XVcotnioNar,Bttn<T8 Onc freehold estace ig hereby degignafctid of all the refflatning portiona o£t^e..Pro^ect /horein referred fco as "common elenFtents", inc'ludifig speci,fical ly,but nofc llmited to: (a)fc.ho land in fsc ftimple; fb)Ehe common roadway uhown on tho condominium map which ig shared in cotnmon with concioinj.ni.um proj ects known as "Moloaa Hul II/" (c)the portion o£the 1.740-^cre draina^e dlfcch ^hared wi.t-.h Moloaa Hui l which i@ located within thia Pro^'ect/ae ghot^n on the conciominittm map; td)the common water dlstribuLion sysfcem,including pipes, wxrcflf pumpo,"fcc.; (e)aZ^comfnonly uoftd preeont;or fufcure duc-Eis.eZcccri.calequipment.wirtng^and ojcher central and appurtenant installat i.ona(or common ser-i/lcea,if any,incliiding ~"power,light,sewage7i.rrig'ation and fcelephone;and (f)any and all ^othor (ucure elQmenCB and facilities in commonuseornecoeoarytotheProject. The common elemencai ahall rernain yndivided,and no right ehallexiattoparfcitionordivldeanypartthereof,except as provided InttieCondominlumpropertyAct./iny auch partition or divlsion shallbsautojecccoche"prlor consenc"t)ier"tb by chc holder(6)of allmorfcsra^e(g)of any c-ondominlum unit fs)wh-Lch'are filed of record. All or portions of che Mulfci-project Roadway and che drainagedit.ch may be ucillzed by ch°othor MoJ.oaa Hul condominlum projactspurnuanttowri.tten agrsemsnt(9>relating to conscruction.fflAintenance and rcpair ot'fchese common .elements on a fair andequltablcjb=>aie. The water distritiuti.on aygtem ia a common element to the extantitlanoclocatedwichinanyunitocherttianUnil:33 of MoJoaa HulIZ;The wacer tank ie che property o{Chc Oeveloper.but wlll beffiaintained>repalred and replaced by the Aaeociati.on of CondominiumOwners^indt may be trane£err"d to che Asoo<:iation by Developer. I.IHITKD COWtON BfcBOEWTa Cercain parts of fche comnnon elemento,hcrei-n referred to ^s the"limited common elemcnts'*,are hereby designateti and set apids foy the exclusive uss ot one or more unlcs,ancf such unjtt (s)ahall have appurtanant chersto excluoive Basamencs for the uae o£such limltedcoinff&n elemen^s ,The limited common elenienhg so set aside ,z-ftft^i'^/ed and doemed a Ijlmit&d coramon elemenc appurt<?n.snt to and for theaxclualveusepCeachraspeceiv'jnlt ia 'thgt certa-ln Jand arsa upon and around whl.ch Unito 20 fchrough 37 are located,ahown and desi^natcd on fche Condominlufn Map an^i the fcal&JLe below. Unit Kusfefix 20 31 22 23 24:2B*sa^l»a 3S39 11 3Z 33 34. Aresi of tttsitissl-Ssiasiaa—E^esE&nf.. 24 28 8 10 20 3.6 16 3 14 35 20 . 19.s. 1. 13. .463 .584 .437 .000 ,000 .461 481 162 762 050ooo 846 S45 sei 21.6 acrof? acreo acres acree a.cx-fss acres acreo acjreo acrea acreo acres acres acreo acreo acres t *• 35 36 S7. 18 .igfi 18 .396 15.319 acres dcree acres All coets of every Kind pertaining to the aforesaid 1imited common elementa,includinq,but not 1 imited to ^coati a of landaicaping f maincenance;repair,i-epiacemGnt and irr.pzTovement,shall be bome oolely b/thc owncr oC the unit to which said limifced common olement^are appuz'tenant . VT COKMOM rtTTERKST Each unit and its ownRr (s)-^h^l 1 h^ve appurtenant theroto a percentage of intereot (which is raferred co as the "c'ommon interess")in thc corr.mon Qle~.ents of fche Project,Cor all pafpoeefiincludingvoting.according tQ E.h$following"amuunts :(a)21-Units 32 and 33;(b)3V-Units 22^23 and 27;(c)5V-Unlt 28;(d)61-Uni.ta 24,25.26.30,J1,J4,35,-i G and 37;(e)8»-unit 20;(£1 9»-Unit 7.1;and (g>llt-unill 29. VII KABBMKNTS In addit ion to any exclusive easemenLs eatdbliehed in the common elements and the limited common element eaoement(s)shown on the Condominium M^p for thio Project,each unit shal 1 have appurtenant thereto reasonable non-exelusive reasonable eaQements and/or right.fa)-of-entry in the common olemQntB designed for such purpoeesasunpavcdingreasto,ogress fr'pm,ut.ilifcy servicres for,and support,mainfcenance and repair of ouch unit,and in the other crommon elements of the Project for USE accordtncf to their respective purpoaes.When applicabl".each unit shall algo have appurtenant thereto eaBemente in the other unit(e)for fche purppses o£ytility services Cor,and the ntaintenance and r-epair of said utility seiTvJLces including^but not 1 imited to,electric'iby'r gas,w^ater, sewage^telephane"and televioion cablo,if any.Such "eaaement: (g? ehall be bhe minimum aize,oxtont and durafcion required £or fche atat<sd purpofle and th«-bene-fitinq unit(s>ahall be»T'all c'osts and damagcs incur-red in th<s use fchereof.Except as othRrwise Bpocifi-cally scated herein^thers shall cilso be an encroachment saaement;it»'Cravor of any otherwiaet legally congt ructed improvement on the Proj ect at the date of recbrding hereof ,for any sctback or unit boundary violaLion othcrwiee existin^on fche projoct at recor'dation.individual unlt owners may gr'ant.eaeementa on or over tlieir 1 imited commort (^letnenta only oo long aa EhiEi doee not prcsent a dang»r to other urtifcs and doca not materially change tihe level o£ activlty on the projecfc aa a whole. Any iinit owner using a common element for utility installatione ehall do so with due regard o£uge by the ownere of oth<g3-units and shal 1 further restore the common element to its condit ion prior to use.At least Cifteen (1S)days advance not ice to the Fann Review Committee ahall be given prior tc exc^vation,trenching and similar improvemente shall be given ,t.o allow obher unit..owners .t^e oppor'tunity to prratect crope,join in the work where relevant,limit £utU£'e diat.urbance of the common eLemcnts dnd t-o save coata. ?3rmanent lmP^^VGtn®nt:a co comrnon elenients,such as paving of accesa ,shall not be done as a common expense without prior decia.i.on by anumericalmajorltyofthecommoninterestaoftheProjecTti.Thecrompletedimprciv<sment:s sh^l 1 becomG additional common elemenfcg a£ the Projoct,subject to repair and mainten^nce by the Asaociation ofCondominiufnOwnera,unleoa otherwise provided herein cr in another w^z-itten agreement t-o which the Associ.ation of Condominium Own<?r?is a party^Developcr or third-pdj-fcy holdex-s of <»aooment3 ot- rxgrhta-of-wdy inay be gx-^nted ~tt^.f right t-o improve cocrimoneJ.ementa al;cheir own expense or on suc-h tex'mH ae are 9ranted by Oeve .l.oper or the Associat ion of Condominiurn Ownere . VXIX Al,T«ttATIOH *ND TIUUISrBR or INTBRBST8 Except ae otherwj.se provlded in this Oeclaration^the common intereet snd easements appurtenanL to sacrh condominium unit^ohall have a permanont charactcr and ahall not be dltered without thc approyal of all o£t}is unit owner(sj affecfced,expreseed .--n a duly recrorded amendment to thia Dec?lara tion,which -amendment ahall contain the consent •;heraco b>the holdars of all mortgages of any affected unic which are filed of record.Tha common Interest and eastements ohall npt:bq separ^ted €rom the unit to which thsy appertain and ahall be d<°emed to fc>^convoyed,leaeted,or encumbere^ with such ynit;even fchou^h such intereaf.or fiaoomene may not.be menti.oned or described expi-cs^ly ln the inotrucnent:of traps^er'. <a) used IX POTtPOSBS Or BOILDINOS ANI>RESTRICriONS AS TO aflB P&ZTn-Lfc t.ec2 Us&s-Ffll': Ths unic^i ryf ^hd Pr^jc^t shall be occjupiod an'3 used only Cor ayjn.CLtl turaj.useo and/where permitted,ao piTivateFOsjLdentialdwellingobythereepe^t ive owriQfs thereof,- the ir fsmilJLes,employees,business invit.ee g^personal guests dnd tenanfcs,anct for nc other purposes,Only Unite '2S, 26,30 and 37 gh^ll be petimitted a single r&sidential faz-m dwelling.Unit?25 and 26 may t»e perTTtitted roeidcnces only if allowed by the County o£Kauai.Wb other reeidencefl may be cbnistructed unlegs apprcrved by the Parm Revie^Cotnmitfcee (created pursuant to the terms of the reBtz-ictive covenanfca affecfcinc^th&Projec-t)and t,hs Ueveloper,ag allowed by the Courtty of K^uai.The ri'ght to conQtruct a farm dw^elling may fcae transferred to another unit i f approyed by ths Farm Review Commit bee in its rcsasonable diacrot icn.Rea iden ti.al improvementB may not be constructed on any other units so long aa currenti zoning ^nd Pfoj ect documents roma^n unjainended.Reoideht i.al uoae cvrrointly rec£uirc executipn of a Farm Dwftlling Agreement wifch the County of'Kauai,as c'^ntemplaLed by Hawai i l^iw r-egardin^r use of agricultural,lands for reflidential purpoeeei.Kav/aii Taw re^uireo fchat the family occupylng a ^es idcnce on jagricrulLural Jt and deriv*;inc-oine from farming activitieo conducted on fche Project:. Kach unjLt.^l^3ro.i.n,wh^ther now oj-o'jbgequenbiy entitl<sd to cons&rucK.a farm <^we'l 1 i.ng,m^y bfl requi rod tc?•engage fn agrlci.iltura.t ac-tiyity as a condltion 6£obtai.ning a bullding'pormit:.^The act.ual leval of agricultiural actiyity on the t;»ro-?ect -n'»*'4-"j ^•3 qualif^to cionnt:T-U--*;farm ^wfill^nQri .La A matter determined by fche 'County of Kauai .The requi raments ch^nge from t:imo fco fc ims ,dnd each owtitsr 'o actions on the ir units may have an impact on the ability oE other owners to build farm dwel i.i.r.gg ,T.ndependont.of every unit owner'o obLigat-ion to engage in l?ona ^ide farmi.ng activitiea,edch owner with a farm dwelFing aha\X hav<?the a££irmative duty to en'gage xn agricultural actiyi.t ies ,i.nc ludi.ng a requirement of a£ter-the -£act increases in the level o£a&tual agricultural activity on hia Qr her unifc^i.f such ia requir^-d as a pre-conciition t:o allowing other owners to obtain builciing pei-mito.Xn that regard,each unit wi.th a residence,or then desiri^g to conetruct a residence,shall have an equal byrden pf acfcivi.ty Ln proportion c-o the amount o£^andr'eaoondbly avatilabl'e for a^ricultural ugc on the rfispect ive unita^ Thege provioions shall apply unti.l al).unite with T-'SBlLciential conBt.ruction rights have c'onatructetl residences,and thereaftar so long ae agricultural uo^rnuet bc maintain&d ag a condit ion o£ keeping i-ssidential improv°tr,snto on the ProjeCt. (b)Chancr^in y^lc,a Should the requireTnents of the Farm Dwelling Agreement and/^r the underlying zonlng code or state atatutes mandating agriciiltural uae be"changed to ^liminac.e euch requirements,the agricultural requirement.a uf t.ha.a Project way be abandoned by a vote"of ^0 Xeos fchan aeventy-f ive perceht C75lf)o£ the common interests of tnis Pro^ect.,or euch greater percentage aa may be provided in the DecLax-afc.ion o£Covenaiiitg,Condit-iona and Reatri-ctione {horeinafte^the "ccScRs")£or fchig Project.Nothing, howcver,ahal-1 be constr-iJied to prohibit agricu^tural actxvxt-iea on the Project.Ltnlesa a ttit^ety percent (9'0<f)vote o£the '^oinmon intereste of the Proj ect so decidee. (c)Ufftit.^^^n^J^XL^JI&S^.No hobel or titnesh^re uae shall be allowed.The unTt owne?sshaXl have the right 110 rent.or leaae their untts aubject to tbs li.mjLtat.ions,restiT-ictiono.covenants,and conditi-ons contained in (law^ii State law,County o£Kauaj.ordin^nce, applicable goyernTnential r^gulat.iong,recorded r&strictiona orl__fc^e l^>t C?T'r.he aubd-tviaion j."whxch the Prolect is located,the CC&Ra, fchis Declaration or i-n ^he Sylaws •n?f »-;h'»AqyociLat.i.on *Such Isgal precedents are sutoject to amQndment and varying interpret-atiun. td)Wipd)3jreak&.'T^^s ba.Lng an agrtcuXtural Froject with aubst.anti.al on-^oin^agi;i0ult.ural activity,windbreaks _aro crit-ical EQ on-going dally farmi-n^opsrat.ions,Exist-ing windbreako will, ynlcas good farmincr pr-^Cticee cithetwi.se require and/or the Parm R.evi.ew Commit.fcee ao-E'Lrids,be ma infcalnsd excepc,where requirod EO conatfuct driveways,roadwaya ^etc.,whJLch ac'e conat-ructed conai-atent wii^h the tQfmg of all Froject documents .S^cept aa deptcted in plana previ<?ueLy approvsd by the Farm Review ^Commit^ee ^ wlndtoreake o>iall noc.b»g E'emoved without thc approval Cif the Farm Review Committe-e -Wi.r^^t>reakg Bhall algo be maintained in guch f^shion ae t&sub^ifcanL ially continue and perpetuaiie their efEectiveneay ,Mor,wi thiftgnd i.ng a windbrcak may bs located entir&lY wifc^iin a unic.,the 'oef\e€it.may extend beyond unit boundarteB,and removal may only occur *is oet for-th hex'ein,or l-n Curfcher Gnactmento o£tho Aosocl.at ion <!an<j/or the Farin Rcview Gomral.t.tee.Windbreaks shal1 be trimmed or oth^^wis^huabanded aonaist-ont with good far-ml.ng practi.cQS,This sha 11 includ^topping where there is a danger o£ their creati-ng damaqe fco adj olning"uniii <s).Disputea betwesn owners regarding E^r^iing pracc-icea sh-all bc reQol'/(sd by tho Parm Revxew Cofflmlt.tee .Appe-^1 S rotfl decigiong of th^Farm Review Comcnittee may be taken by way of!acbitratiion as set forth clsewhere hcx-^in. Windbreake deBtroy<i<3 by f lood ,f ire,t.aun^mi,hurricane or other nafc-ural or man made cfi-aaster shaLl be replacod unlego the Fann Review Committee detertriineB c.o c.he canteary".R^placeinenfc need not be by identical plantings,but shall b<i ' o£a ~ type designed fco reatore full ^f fec^fc J vencsa within a reaeonable number"of years.The individual UTlit owner (a)conotructing and/or replacing the windbreako ahall do so congiBtent with the t&t-Tns o£the project docyments .The natuz-c and compoeition of the windbroaka shall be ae r^aeonably ag det-ertnined by the unit owner(e)constructing and/or planti.ng eame,subject:to Fai-rn Review ComrnitEee appx'oval . (e)Liab.ULit.v Ear Damaaee Caused bv,violati.on.ot CC&Ra_.aa4 ^£.S.iey^-_^D<asuro?Q^g^Uni-ti oWTter(a)(direcfcly aa to thGmgelvea,^nd £ojc their lic'^nsiae^.invitees,cantrac-t-ors and gucota)acting in a manner incongiatent,d/ith thc proviril.ons of fch^Pro-l ect document.e sliall be l iable for damages occaoioned by violati-onoE this and or other provisions o£the CC&RS,this Declaration and the SyJ.awa o£ the Project.Dam^ges include ,bi.it.are not limitGd to,1itigat ion and/or arbifcration coats and attorney'e feea incurj-ed. SERVXCE QF FROCBSS MtCHAEL R.STRONG,whoae Btraet addreas ts 4139 Kilauna Road, Kilaue?,Kauai,Hawaii ,l.s hereby designated aa the peroon to recai.ve ci<TVice of procesg until auch time ag a president of the AsBociation of Condominrum Ownere is appointed.It i.9 intended thafc the Proj ecit wil X fc>e g&lf-manag^d. XIASSOCIATXONorcoHOOttiNiOt cminiRB Aclministrafcion of Lhe Project ahall be vesfc^d in i-ts Aagociatlon of Coridominium Owneca,herein called t;hc "Asaocxation",consiet-ing o£all unit pwnera oC the Pro^ect in accordance witl-i the Bylawg p£the Aoaociation being recorded concurrent.ly herewi-th*ae Quch may be fl>m«n<ifld from fcime to timfi.The owner o£any condoini.nium unit.,upon eicqruirin^title ^herefcs,g^^ll automaticaXly become a metnber o£the ,on,anci ©hall iTemain a meimber ch&r€to£Lintil su'sh t ITTI^aa ownerahip o£euch unifc ceaaeg for sny reason,at which ti.me Tnemberahlp in the Association a^4li automatically ceaee ;pt-ovided, however,that to the extant provided by leaee on any unit.,a copy o£ which leaae ie filed wj-th the Board c?£Direcfcora c'£the Association, the 1-eqBce o£auch unit inay exerc:1.8e votLing rightEi othex-wiae reservftd to be c.he owner thersof. The Dovelopcr,and aft.^r creatiLon of ths Aeaoctation,tho Presidcnt o£the A&soc'l.ation,to hereby gran^ed a power-o£-attorney to Esxecut-G al 1 building pcrTflits,g'overniflental ^pP^i-cations or similar matiterg Bo-vight by t-hg Aaoociat ion or any unit.o'rfner.Said Preaident ehoill pr<mptly exocute £ill ouch docum&nt-a which do npt violat-e law or ariy ProJQct documRntfl dnd have been ^pproved by the Farm Review CommiEtfte .Ao to buil.ding perwiite,thft Preeident.Tnay aLithorize any indi-vitiua l unit,owner t-o make appl i.cation,but only r?y giving wrJLtLtter^conscnt . 10 XIX ADMIMISTRATtON oy THB PROJXCT Adminiatration antl oparat.ton of ths Project,includ.i.ng ehe ciaincenancs.repair,repl.acement and rescoi-atlon o£t-he conimon elementQ,if any,and any add.i.tiona nnd alterationa t-hereto,ghall be in accor-dancft with the provisions of thes Condofninium Property Act:,tLhiff Declarat:ion and the &ylawH.Corist^ruct:ion snd cortain farming actiivities are govcrned ^?y the CC&R^,implementdtion of which ehal1 in some caseo bc reserved (^o the Parm Review ContmittGe, as defineci in the CCStRg .The owner of each aondoininium unifc ohall be aolely responsihl&£pr Lhe maintenAnce,repair,repldcement anci reg torafcion of h.Lo individual unxt an<3 1 te ^ppurfcertant jl imi ccct common elemenbs ^except as ot.iierwiee provided herein -Thc Assaciatio"°^condom.ihium Owners shall b'e j"aspc>nsible foi-all common elements of the Pro^ect and,op<c*cxfically but without 1imifcation,shall: (a)Rcpaj r^inaintain,amend and keep all conimon elemenE&of fche Projecc ,incluciing w^ithouE 1 imitafc ion fche common bui Zdlngs thereof, if any,in good order and condi t ion except df?nthervjLse provided herein,and r-epair an<3 make gooci aXI dcfecco in the comftion dQfnonte of the Prpjecfc herein reqp.iired to be repalred by ths Aeaociacion,of which notice may be given by any owner or hie~a9ent,wichin thirty f30?<J3ye ^fter Ehe criving of such notico; (b)Obsejrve and perforw ^ll laws,ordinances^rule^and regulaciong now or here^fter made by any gov^rnmontai authoricy £or the time bein^applicabl^to the Pz-o^ect or the u^e ther&of; (c)Sxcept as specif ical.ly provided or reeerved in chc CC&Rs or herein,nc>t erect or place on any common elements o£thc Pr-oject any building or sLructujre/inc.l.uding fenceg and wal1s/n6r make addit iono or efcyuctural alterati&n'ff to or exter'ior ehangeo o£any t^ommon elemente o£the Projec-b,nor placo or maintain t;hex-eon any slgns or bills vieible outside of che Project<except tho»<e firfit: approved by the Farm Review Comftitte'fr,- (ci)MaLntain in a reasonably neat and attractive condition all ent.ry improvcmenta,common signs,.common fcree^^shrubfl,graae ^ndt g.roundc^over,and repl^nfc ^he same as m^y be necesaar/on all parte of the common eleTnents which aro not limlted to-a par ticular apArtment r s uset / fe)Have tihie ri^ht,to be exej-cised by i.t a Board o£Direcfcors or Managi.ng Agent /co enfcer any unit and 1 imit^d common element,if any,during reasonable hourff ao may be neceoeary lEor making emer^cncy repai.rs therein requirod to prevent:damdge co any unit ov common elemento not:IJ.mltecJ so a particular unit s use,or for'Eho xnstdllation,r-epair or replacem'ent of any common elemente not lirni ted to a par-fc iciilar uni t 'B use/ (f)W"t tT>^)cR or suffer any ot.rip or waete,or unlawful, Impfoper or offffneive ue6 af ths Projecrt br any poi-tion thereof. 11, XIII COMMON SXPKNSSS (a)Exp^rises ^f Commor^E^errton^a^1'tiG owner of each unit flhall be iia£>le for and shall Pay a .et^a^"e 0^t'he comtnon expenses of the Pro^ect,if any,in proport ion to the common interesL appurtenant EO fche^owner's respective unit;.Where applicafcflc,flaid common exp^n&es shall include all chargeo,coste and ejcpeiiiyee whaLeoever incurred by the A^Qociat ion for or in c'onnect.ton with the adminj.stiration and operatlon of the ProjecL inc luiJj.ng,t>ut not limited to/fche fol lowing ;(i)maintenanc-e ,repair-,replac-ement:and reatnrat ion of the common el^menta not limi^ehd Lo •a parcicular unit:')?use;f2) prGfnlume for hazard and l iabi.lifcy ineu-rancre ae c'cqui red by thls Declardtion air by Id^;f3)atl available utility~Hervices and eaeiement.®,includingf electi.'ici.ty,water,common fcelcphone eKpenae. etc*^unleag rtepac'atcly meter^d or chargeci;(4}managemont fees/i£ any;(S)tihig Pro^ect:'»rat^ible shar-e c>£c'ootfl of maintenance of common elemento &haz-ed h/i th otiheir Mol<>aa Kui condominium projectfi or third paT-tlog,includJ.n^but:not llmifceci to .road inaintenance, insurance and water sy^fcem e^pensGs/and (6)all other expenses necesaary for the upkeep ^malntenancre ^management and oper-at ion (includih^f reaZ props'rLy fcnx on Unxt 33 with water tdnk and water ayetem improvemonte and taxea on other conimon elemente,if any) actually incurred on or Cor the cornmon eloments.All unit owaers shall be eeverally liablc for said common exp^neefl in propojft-ion co cheir respective common intereats.The fore^oing rtotwithot^nding, real property taxes and sp<°cial aagessments referred to in Sect ion 514A-6 /Hawaii Revised Stat.utes,as amended <shaX1 noc.be CGimnvon sxpenses o£t:he Condomlniuin Property Regifne hereby created,and no paymsnts thereof ahall be consldered paymento of coTnmon estpenaea. (b)ExcenBes of ^imir.ed Common^EJ.ementa^.All charges.coats and e?cpena<ee incurred by fche Associatlpn fbr or in connec-tj-on with the adminietration and upkeep of the l imi ted c'ominon elements including,but not limifced tLo,real prop<arf--y tia^etf^costs o£ mdint«nanc;«?,rnp^ir a.*]d i-csplacement fcherGof,and,^iddit:iona, atterati onc»^n<3 improvementa t-here to,ahal}.fc>c asee^^ed againot and born©ent irely by the respc^c,ivo uni c ts )to which any such 1imitcd coflimon elemente are appurfcenant , (c)^SBeBsmsnto forcammpn ExpensAe^.The Board o.E Direccors,o£ the Aasoc^iat.ion ^hall .aiosespi tho common exp^nees ag^inst all unitgr in their rospfict ive proport ion<!>te shafea as provlded for in Section XIV below,Any unpaid ^mount of such aseegements ag^ingt any uriJ.t shall congfcj.cute a "lien againot sych unit whicH may be Eoreclooed by the Board pf Directors or Managincj Agent ^o provided for in aaid Condominium Property Act.$Ut"h'J.Iens ah^ll t>ear intereat at the rafce o£15^annum'from tho date the amounts came duc to the Aeoociation.In the event that asseasmeiits rcceivc'd during sny ye^r are in exc^-os o£fche acfJal expendiLureH £or'euch ye^r by_t^1e Associat ion for cufnmon expenges of t^"Pfpj ect,the Board o£ Directoro may determinc^in ite aolc diecret i.dn,that aiich cxceas ahall be;(1)refunded to the unlh (swners in whole or in part;(2) applied in whole or i-n part fco reduce ^the ^s&essmenta £or the immediately gubeequent.year;(3)defla.gnated in whole or in part as a capital confcribu^'ion to fche ABSoc-iation tc?bo used for future capital improvements and replaceTrents;(4)e^gr^gat^cl and held in 12 whole _or in parfc as a "Custodial Fund"to b^expended solely fot specifically designated capitial impE-ovcmenta dnd replacementa;or f5)segreg^ted and added ln wholc or in part to the M^iAntenancre Reaerye Fund established hereunder.Mo unit owner may execnpt hiEnsol f from liability for his contribution toward the comftibn eKpenees by waiver o£the uee or enjoyment of any of fche common elcmsnts or by abandoninent.of hio unit. XIV MAINTBNANCE R1ESKRVB rWD <a)ffsneral ProvJLig.A.ons^The soard o£Directors,pursuant hereto,and wich specificregatd to Hawaii Revised Statutee Section 514A-83.G,wifcbi regpect to the timing of eBfcablJ-shingf and creat-ing reeervea^shaJLJ,establi.sh and maintain a Waintienance RegeT-ve Fund by fche ^flQeogment o£and payment by all fche unit owncrs,in equal monthly inatallments,o£their respective proport ionate ehares of such reasonable annuaL amounts as Ehe Board may eetiniate ag adequate to covex-each unit owner •s obligationa to provide C&r utilitieo, xnsurance,repair,maintenance and repair of the coTnmon elemertfcs , an<3 other c'ommon expensea of admlnistration of the Projecrc.,which shall t>e deemed concluoiyely Lo be a common expenae of t^ie Project . Such expenses may incXude roitabls port ion$of'expensea ohared - with other condofninium projecto and third partieo.The Board may include r'eaerves £oz-confcincTenclee in the assesoment,and the asBeosment may from timo to time be increased or reduced dt the discretion o£the Board *The proportionate int-ersst of each apartmcnt owner in aaid Mainfcenance Reserve JFund,oc in Lhe capital confcribufcions or Cufifcodial Fund prGvi-ded for in Section XIII above,cannot be withdrawn or sopat-ately assignod,ment.ioned or described in the conveyanco t-hereof .In CZIBC thc Condominium Property ftegime hereby crcated shall be terminat.ed or waived,said Mai-ntenan'ce Rsaerve Fund,capital contribut:iono or Cugtodial Fund remaining,af&cr full p^ynTn^of -al 1 C'^TTHTTOD *?>Fp<*n'3"g of th^*A3S'3'~lat:ioh,shgll b" distributed to all unlt:QWneT-s in their ragpect ive propox-t ionate shares. (b)Waiver &£Fyjid.Subject to tbe requir-emenEs of Section 53.4A-83 »6,Tnthe evQnt E}-iat the Project haa no coramon expenses that i-equire reguXar monthly assessmept ^nd payment,,fche Board of Directora m-ay elect not tci estdblieh and maintain a Maintenance Reaerve Fund and to insteaci levy epecial aseesom^nts anly when common expenses ariae from t ime EO fcirflQ .whenevRr such opecial assessmentia <are levieci,the Qoarci fihalL asBeoo the ownere accbirdtng to fcheir respect ive pruportionate common intcrests. XV IKBORANCE (a)The Aogociation shall atCasualtvandLiflbiliLy_^Insijrance.Ths Anaociat: a 11 timee keep a 11 common impTovements of the Project insurad against tosfff or d^image by fir^^in an <imount:eufficient to providef6rr^pair or replacemenfc thereoE in the event of such loga or damage,and bo the full extent t'oquired by law,whethsr undcr Chapter 514A-Q6 or any oucceasor or addifcional proviaion pf law. Flobd ineurance ohall also b<b provid^d uiider the Fedisral Flood Dioaster Protcct ion Act i £fc he prbperty is l.ocafced in an identif iod n 1 flooc.3 hcaziard area ao deoignated by the fecieral Department of Housing and Urban Development.To the cxtont:roquircd by law or the votie o? a major'ity of th&Board,in addicion -to thc"£oregoin^cr.aaualty coverage,the Asaociation shall purchaee and at all 'times maintain genar^al conimercial Xiability inourance and,if so elected by the Board^directors'and offic^rs'liability insuT-ance.Al 1 in&urance ohall t>e in euch amounts as shatl bo deterfttined by the Board of Dir'ectoro,and in full compl iance with the .law.Ali inaurance prefttiume incurred pursuant to this subsection shall be common expene^s. tb)Genefal Insj4ran<?e Pfovigj.ons,All insurance r-equired under thifl i^ec-tlon ohall be written on the px'optifty in the naffle of the Aseociation of Condominium Owners and shsil 1 be pvz-chased Erom ^n insurance company authorized to do buainesa in thc"State o£1-Iawaii . All ^^rov^e^on8 ^or _/?-"°u^^nce contained herein ^re wi chout pr'e^udicetotherightofeachunit.owner to ineure hio own uni t for his own b—n»£it. XVI DAMAOB OR DKSTXUCTIOH OT TMPROVaKSWTS (a),AadJLSiJ.dual UnitB .If any part ot the improvements o£an individual unTt,induding'any limited conimon element appur-tenant exclusively to said unit ,sh^ll be darrtaged or destroyed oy an ingured or uninsured casu^lty,fche detei-mination of whetfiez~or not to reconstruct or repair fche aame shall be made by the owner of aa id unit.Specifically/unleas ^he owner of the damaged or descro^ed unit,wlfch the approval of the holder(e)of any morfcga^fifB) affecting said unili,decide againat auch raconstruct ion and/or repair;or unless this Declaracion 10 terminated by vofce of all fche unit ownaro purauant:to the proviaione of Section 514A-21 of the CondonrtJ.ni.uffi Property Acfc^said owner ahall proceed promptLly and dJLligently wifch reconsfcruct ion and/or repaiz-o£the unxt;provided,however,that said owner sh^ill be provided a reasonable timo periodfpr"the ad^ustiing of any inourance looa,prepardtlon of ksu.llding plans,hiring o£contractors,ar<tohitecta ,and 'ofcher pi"ofessionalo7anciarrcingingoffinanctng-All such reconetryction"and/or-repair shall be mad<?in accordance wj.th plans con^ormlng to thie Dedac-aition and to a 11 law^s and ordinancrefl fchen i.n effect.Xf the owner of a damaged or deatroyed unif.electa not to rapair or reconatruct tHe unit pursuanc hereto,said owner shall be retsponal.ble at his own cosc and expense to remove all remains of ths unit oo dainagcd or destroyed and t6 reatore the eito thereof to goodordcrlyconditionandgracie-Any insurance proceeda payable with re^pec:t t:Q tt.be unit in connection wich a c^eualty J.oee sha'll be paidtotheunifcownerandhLsmortgagH'e1 (B),ao their interests may appear, Paniaqe—s.a-j.anmsu—Eifffnsnfg.(b> which fisetendB to any Itmifced As0oci.at ior. Jimprovements pr-ovig iong of th^consent..o£ comwon elemento n th<3 event o£lc>og oi~damage to any part of the commcin ^lemento of tho Pfoj ect,or cartimon e lements benefiting t.he Association ,fchfi shail pi-omptily reconstruct ^nd/or repair such unlees thff D^dar^t ion is tsrminated purauant to the Sract i,on 514A-21 o£the Condominium Property Act ,with •al 1 mort^agys fo)of any unitfo).Restoration o£t:he shall be compleErid di1igently by the Asaocla E ion a^ 14 ita common expense,according to the original plans and elevationa ther^of,or such modi-£ied plans conformil^g fco lawg ^nd ordinances then in cffect.UnXess restorabion i-a undertc»k;en within a reaeonable r.ime after such casualfcy ,thc Aseociat ion,at its common expense,shall r-emove all remains of improvementB go damaged ot' dastroyad and rcotore the siLe ther-eof to good orderly condit ion and grade. XVII JU.TXRATION OF INDIVIDOAI-CONDOMINXUM UNITB (a)CieTiej'al},Y_,_6xc;spE:as LO the limi-tation or prsclugion of residential conetruction seto Eorth abovg and in the CCfitRe • i-ndividual unit owners inay remodet ,expand or othcrwiee alter their unit,providcd game is permi tLed by and done in complete accordance with a 11 applicablfe ordinances,codes ,rules,z-egulatxona or other rec^uirements in force afc the t i.me c?f sAid constructipn .Such coriotruction ehall be Curthe^subject.to the requirement:that it not violate this Declarat ion,the Bylawa and the CCScRs of record for the Projecfc or otherwiae enacted by the Association.Except as provided fco the contraE-y elsewhere herein,eaid alterat^lons shall not~require the consent or perniisaion o£other unit owner-@ or the Asa&ciation. Newly congtr'ucted 4'x 4 'sh^de structures designed to satJLefy State of Hawai i condominiufn law and pi'acfcicco may be constiri^cc.ed anywhere aXlowed fc>y law;provided,however^that:any cther newly-conot-ructed i.mprovements ahaXl m'iintair.a minimum oetback oC the cfroater of the distance requirod by subdivision or Project CC&Rg,^?r fifty (50) £eet fz-om a 11 propert:y liriRS (ineluding al 1 individual 1imited common @ lement l-an<3 area psrifneter boundairiee);and proyided,^urthGr,that 3-31-4 nqwly 'conet-ructod improv^inenfca shall noti unreagonably i-nterfere with any other unit.owner's enjoyTment-o£ th&ir unJLt.Pre -exi.stiing legal or rehabilitated etructureg shall be perfflittedl to remain on the Projeci^.Al 1 alterat-ions shall be made at thc expense o£the unit owne r making oaid alterationB,and ehall be expeditioualy madc and in a manner that will not unreaeonably inter-fer-e wi-th f.he other unit ownera'uoe of their limi-tect common element land areafl.f\ny alterations o£a unit subject to a murtgage or agreement.o£gale may require the consenu of the lender and/or Ee^owner-.as their intei-esta may appeaz-, (b)Owisx to ^.[ifiend Declaratisirir Thc owner o£any a.t.t-ered unit ahall have the T-JLgHt and duty,and shall bti re<^ui-red to amend thia Dedarat ion and the Conciom ini.um Map to re£lect any 3uc:h alterationa. If required by ths crondomLrtium Property Act,promptly (currently 30 daya)afc.er completion o£such alterat-iona,th<s pwher oC the altsrcd unit ahal 1 record an amendmont:to thia Oeclarat ion in the Bureau of Conveyancea,St-ato o£Hawai i.,togefcher with a complete eet of £loor plans and elevationo o£the port-i.una of t-he "Project altered, cer'tiEJLed as -built by a r^gi st'arcd archite^'t or pr-ofcaflional engineer .As long as al 1 l^gal requi rementB c*T-"met as required herein ^All ofc-hcr uni-t owners ,by acq\i i-ring an intemst:in any other Linit^ohall be d"cm<ad to have be*?n qrantsd a power-of-attorney £rom all c3ther uni-t owners t.o exeCLitQ at\amsndmGnt EO this Decl-^r^LjLon £tol"ly <or f.hft purpoce o£dcscnblng the alfcerations to hio reepective unit.-This power-o^-ac-tomey Hh^li be deefflad couple'3 with each ow^ner 'a int^rest in his unit and ahall be irrevocable. 15 TVIII COKPLZANCE WITS DKCLARATION,BYIAW8 AND DtECISIONS A 11 unit ownere,their tenants,earnilieHi servants,contractorg and g^iesta and any other perootis who may in any manner uae thc Project,or any part therebf,on^ll bc bbund by and ahall comply sfcrictly with the proviEa ions o£ttie Condomxnium property Act , Ch^pter"514A o£fchc Hawaii Revi.aed StatLitea,thl-o Decl.dration,the Bylaws of the Asaoci.at.lon o£Condomi ni.um Owncrs ,the CC&Rs and a11 agrCRfflents r d^ciaiona,and determinat^i.ona oC the Associafcion ,as lawfully cnade or amcnded £rom time to t-ime.The £ailurs t-.o complY with any of the same Bhall be ^roundo for an action,with costo and £ees c:+hargeable to ths losing prirty,to r<scover sutna due,for- damagea or injunct.i.ve relisf,or both,maintainabXe by the Managi.ng Agenfc or-tihe Board on behalf o£the Aasociat ion , case,by an aggrieved unit owner.The aforeaaid Acieoci-at ion ,be in9 recordeci concvrrent]y or JLR a proper Sylaws of the herewi tih,^c'e incox'p0fated herexn fc?y referRnce,aa are the CCScRft cor the Project XTX ItXISBTS OP KORTOAOK BOU3BIIB.isamtxs.s OB OUJUUUCTOIIB <a)tisjiiss Reauirai^.The Asoocinc i-on,where ie hag previousl.y rciceived writteni-equeet chRrcEor^ahall pr-ovide the holder (g), insurer(Bl,or guar^ntior (a)of the mortgage(s).on any unit in the Proj ect,with written not ice of any of^the followingr ^,tl)any condemnation QTC casualfcy IOSB that a^fects either a mater'ial portioh o£the common eLement-a of t^ie Projecti or the unlb securi-ng it-s mortgage;(2)any ninety-day detincru^ncy in fche paymsnt of aB8<ssEmenfce or charges owed by ths owner of any unl-t on which it holtle the mortgagc;(3)a lapoe,cancellation or materi.al inodificati.on of cTny insur-^nce policy or fideli.Ly bond maintained by the Agsoci-ation;an<l (4)any propoeed action fchat requireB the coneent o£a specific percent-age of eligible mortgage holders. tb^pr^fiijrit^'•?^^s^'3arT^Holcli$^-a .^,Not.wit.hetainding anything i-n t-his 0<3clar^t:Toniirthe Sylaws o^the AsaeciaLlon o€CorKlorT'lnl-'jm Owiiers to the contrary,no unxt own<?r-oir any other parfcy ahal 1-have priority over any righ^s of the mort.gageeg o£units purauant to theix-tnbrtgage {s)~in fche caee o£a distribufc ion to unit owners af insurance prdceeds or condemnation awarda . (c)&a£Bdment of Declaraclon or_a^.lAItSL>..Mo ^maCori.al ,amsndmsnt of thie>Dedarati^in or o£the Bylawa o£hhe Aosociation o£ Condomintum Ownor-s aEfecting the sec:urity o£&lender shalX a££ect the prior righto of any moftgayee of any unit.ILR the Pro^ect.whooe mox't-g^gc ia recorded prior to the record&t:ion of such amehdment and whicFi doee not conoBnt to sai-d amendment:.PurfchcT-^and not in limitsit-ion o£the foregoing,any nmanclmenta o£a material nature fco oifcher th»?Declaration or Bylaws shall require the congent o£ mo.rtgage holders repreaenting ah l»naot sevftnf.y'f ive psrcont <7SV)of the 'votes of unita that ar«:>oubject to mort.gages held by such holdera. 16 XX AiaaiUKENT TO DECLARATION Except as otherwise provided herdn,in fche CC&Rs or in the Condominiym Property Act.this Declarabion may be amerided upon the vote .or _writ ten consent of sevenc.y-five percent (75l()of the undivided inter'ests of all unit owners,or sach cjreator percentagea.s the ownerg may reqtil fe by amendtiient hGrsof,auch amendment shal1 be effective only upon the recording o£an instrum^nt setting for-th the amttit<3ment.duly executed by said o'^mers or by thn propsr officsrp of the Associat ion of Condotnihium Ownera . XXX ARBITRATION At the request o£any parfcy,any dispute concei-ni ng or involving ona or more unit owners and tihe Ao'oociat lon of Condominium Owner-s, its Board oC Dijcoctors,Managing Agant or one or more other unJLt owners relating to the intcrpretation ,applicat ion or enfoi-cerfient of the Condominium Property Act (chapfcer 514A,Hawaii Revieed Statutes, £IQ amended),thifi DecrLaration.~ the Bylawg,ur any Houee Rulea adopfced in accordance wifch said Bylawa,shall be submi Lted to arbitration.Any arbitrat ion ohal 1 be conductted,unleeB otherwlae agreed by the parties,befoz-e a aingle arbitrator in accordance with the provisione of Chapt.er 514A,Part Vtl (Sections 514A-121,ct aeq.),o£the H^waii Revised Statuteei.The recordod Project documcnts and Mawaii law ghall govern resolution of all disputesr XXII ACTION3 OP DBVELOPER With the excepti.on r—strlctiona on renalee, gr'anted herern,as long units of Lhe Froject, remaining provifiions o£ of provioions regarding initicil aalee, unit pi-ices and opecific addit.iondl righta an the Developer owna one or more of the said Develop'3!'shall b&subject to this Daclarat ion and the Bylawo of tha tha ofAssociationofCondominiumOwners'.Prior to the first mceting fche Aasoci.ation,which meet ing shal I be hffld as provided by the Bylawe,said Developer ohall:- (a)represent.all.of the owners of th®units and all of the mcmtoQrs o£the Asaociation ;(b)appoint t-he officere and directiors of tho Aeaociation and Board;and Cc)act on behalf of the Aseoci^t.ion arici all Euturo unifc ownere o£the Profject . XXXII STATtJS OF PROJZCT The Projec^t i-a a convoroion ojE certain fully construcfced and exisfcing buildingo,which are being remod^led,to crondominium gtat.ua,as well ae oubmiggion of,certain shade otructureB construc-ted or to be conotiructed to condominiijm ^tatus.Said buildi-nga az-o ot'wil J be ,on completion,in compl i<ance with a 11 ordinanceo ,cod.es ,rules ,regulat ioht?or oLtier"r-^qui.remanta i.n for'ce afc the time of fcheir construction.tlo vaz'iance has been granted frtom any ordlnance,code ,ryle,rcgulati-on or other requi-rement:in force afc the bime o£Lhe-i r ccnotruct ion or from any ofcher ordinance/ code,rule,reguLaLion or ot-.he-r requlr-ement .Within 30 d-ayo o£ complet-ion o£any work in proceos,an ae-built cerfcl-f i.cate of a 1.7 registered archi tecfc Conveyances. or °ngineftr shall ba flled with c.he Sureau o£ xxiv CONCBltNATION In the evsnt o£condemn^t ion/as botween member's of Ehe AaaocJLation only,sach unit shall be d^emed a separ-ite £cte gimpl^ property.Ariy arbitir^t;ion Award or court;judgmc-nfc ghall be apportioned accqardingly.No consenaual salo under bhreab of CQnde*innat.ion ehall occur without the conocnt of each unit owner whoee uni-t:haa loat oz"wil].lose usable land arca as a rosult o£the fcaking- XXV MASTBR AaSOCIATTON/rARM RJBVIBN COMMXTTBB Thio Project is one o£three pz'ojecc.s fherein*ajEtor "fche Three Projccte")c^urrently contemplated"fur thc iinmediate aiz-ea bftin^ daveloped.The Threa Project..-s are known as Moloaa Huj.I,Moloaa Kui II andT Moloaa Hui.III.Moloaa Hul.IV ifl the tejiLafcive name for a remnant parcel conoisting of approximately 122.81^acres of ^and which laibuts Ehree sides bf the-Thr»se Projects.Each pi-oject ^ill bave its c*wn Aggociafcion and Board of Directora ./\furtiher "Magt.er Aooociation"may be creafced a&the election o£the Developor or a majority of thc Aseiocidt ions.The Master Asap^iat ion will be creaced"to deal with maEtars of joint concern^including the r-epair, maintenance ^nd up^rrading o£sharcd roadway,cirainage,water, electric and ofcher utilit.iee,A Parm fteview Committee hag been created pureuant to the fcerme of the CC&Rs aEfscfcing the Thr'ee Projecte.The Parm Reviev Committee ohall have Ehe powcrs and authority set forth in the CC&Rs .Wherever poafli.ble/f^ull effect shall be given to all project doc'umenta.independenc o.C each other- Whffr**tth<sr—ifl ?i ep^s/-1 J?lr"righr:g'T-3ntrt':t tc ihs Farm R^view Commi t.-tee and/or fche Oeveloper,gaid right ohal1 fc»e maxntained. notwic-hetandJLng provxsiono of tho DecLaration and Bylawa to the cancrary*Thc CC&Rs ohall control over c?hhsr Project documsnts,as they are d^eignpd bci inaure the long-fcerm euccess of che Three Pro3<sct0,ao v/ell as to InsuJ-ate againsc claimQ by the fuc.ure owners of "Moloaa Hui IV,by way o£giving notice of"£ut.ur-e activitiea pez-initted on the Three Projscto."Koloaa Hui.IV and ad^oining^landa may ov may not be witihin the Md^ter Asaocigtion,ag the Devel^per, the Farm "Review ComniA fctee or a ma'^arity of c^ommon int^T-eoto may el-ect:. XXVI ANTI -S F ECOLAT XOM Thc CCArRo and other documents aCEectifig this Project are designed in part:to IjLtriltL e^ecul^t.lon and prof iBs or x-eaail oof Llnits and encourage reasonat»ly priced farnio.F'oi-the firat ten <10)yeara of ownership after tihe dste of cloaing of the sale of the £i.rot uniti by a thi r<3-party pur'chaser (not aCfil iated wijth or relatied to Oeveloper),Froject i.nterEsstg arc subject c-o a buy-bac}*:proyinlon which w.lll ^llow repurchase by tihe Developer for tfie JLower of;ta) f.he original pz-ic^e plufl "the mur.uAlly-agri-ect value of ^n/ improvemenes;or fb)t,he ori.ginA)price of tHe land plufl fche lower 18 &.-. o£the actuai cos*".or fc-iie apprai-sed valuc of improvements placed on c.he property in campliancR v/ith3.1X Project ducufnent,s .Xn the eyent o£dti@agreemf»nt &s t-o value of i.mprovemento ,dppra i.ffal shal.l be by a eingle mutually selected dxsi.nteresCod a'ppraiaer,_°?'.^V n disint-erested appraiser selected by the AmerLcan Arbitration Aosoci^ttJLon uncter appl tcable current rulea tor resolucion of dieputea on.valua.tion.Costs will be shared equ&lly by the parti.eeunlessarbifcrationactuallyoccursandthearbi-t.rai.or/apprai.ser f indg that one si.de actied unreaoonably,in whi-c^caae coots ah<d feaB may be awardad to the prevailing party.Complcte buy back provieione ttfill toe cantatned in the deed to •each ititer^st. X f the Develop-sr or tts ^ycceeaor-in-interes^dotsa not elect to repurchaae propsrty under t'ti-e buy back.the immiediateJly adjacent (phyeically abutt.ing}ownerfs}may cho&Qe ^o do QO .^A randorn drawing will be he1.d i£more thdn one ad3<ac^;nt owrter wlehes to pux-chaBe.If ttiercs io no tnter^et i.n purchase by ths Developer prabutt-ing owners,sal-e will be aLlowed.'Frofits on reaale will be li.mi.tGd to £ive percent t5\l per year ipro-ratcd on a 3^0-day yea^),and any proceecTs over that amount wi.il be uoed fc'o Sunct worthy non -profit or civic or a^ricultural induetry entJLties or prografnsthatoupportagri.cul.ture which are eelectsd by t.lT.c DecLarant-or l.t.a succeeeor i.n jLnterest. XXVII I.XMITtiO LIABILITY T.0.EXCHANOE.INC.,iiod T.G.SUPER EXCUANGE CORP.(hereinatter the "ExchdrLge Accommci^atora")hold t it.le to undivided i-nteres^s in the property upon which this Projact i^located.Such title ie held by tha 'Exchange Accommodatora pending complGtion of a tranaact.ion cont.emplat.ed under Secti&n 1031 of fche tnt.ernal Revcnue Code o£ 198€.aa amen<3ed.The Exchan^e Accommodatora are acting hcreunder only aa an accoTnmodation to perwlt proceesin^o£an applicati-on £or an -effectiv^dace for a Final Public Rcport ^or the Project,an<3 no recoursc sihall be obtained a^ainst -the Exchange Accommodatora personaLly tor any m^^E®r related to the execution hereof. Subjectxon of the-£ee inc.eresc in ^h"pr'opez'ty to the Project cpndominiutn ciocument.at i.on is requircd by law,and such ^ufc^^^cti-on i-fl fc.he aole pur^iose o£t-.he Exchange Accowmodators 'executi-on hereof . There shall be no cloain^OT'deedi.n'^oC any uni.t by Deiveloper to icself or fco thvrdt partieo exctipt xn conveyance of the ^?cchangeAcciomtnod&tore'ci,t.l<5 to tho units tn queet.i.on,whereby £ull tee tLifcle to the uni-ta in quc;stion p^saes "fco Deyelop&r,a-pennittedassigneeinbyl)<aftcr prior written approva X o£Fee 0<*/ner,or to t..hird~party purchaH*;ra , It is expressly agreed and underatood,by and between the >arcxes hereto,that ti'tese provisi.one shatl bind all thoae who claim >y.through or"under the particg hereto/anything herein to tbe conLrary notwit.hetancling.Each and a3.L o£the warrantiea, indemrixtJLes ,repre-sentat ions ,covenants ,undertakJLnge and agreementa here in made on th<s part ft£ths Exchangs Accommodators .whi.ie xn Eorw purport Lnc(to bs ~r.he war'rantiaa,ind^mni^ies,repyeoentat i-one. covenant.a /undertal*;ings and agre^ments o£s&id &xchange Accoinmodat.org,ac<n nevertheteB&.eac:h and every onc of them,made and jLnfcended nat as person.al warrantiie^,indefnnicieo» 19 *'ir- irepresenfcat ione,covenanta,undercakinys ^ni.1 AgreeTier.ls by •:hA &xchange Accommodatiors,or for the purpogs or wi-cl:i t--he intention ofbindingaaxdExchangeAcco^trnodat.org p(araondlly,but are madc and infcended for the purpose o£binding t-.he Duveloper and its interesta in the property gpcci £ically descr-ibed herein -~Thia instrument i.a executed and delivered by said Exchange Accommodators solely ag a reflection o£the legal requirement.that che rec:ord title holder joi.r.in any conveyance,lien oc other inst.rument:required to areate or paee fcitle to int^rests in this Condominium PrOperty Regime.No per-sonal li-^bility or pBroona]resppnsi.bil ifcy ia agsufned ^V •"or ahaJ.1 at any time be aaeerted or onforceablc againat.,the Exchange AccoTTimodtacoT-B on account of t.hi@ inafcrument or on account of any warranty.indemnity,rRpresenc-ation,<^ovenant /undsrtaklng or agreement of fche eaid Exchange Accommodatora in this inatrunient contained,either expreesed or i.mpligd,all auch pereonal liability, 1.£any,bea-ng expresgly waived and releaaed. XXVIII DOKBSTIC/POTABt.B WATBR BUPPLY This project--io currently aerved only by agricultural water sex^/ice which haa been suppl ied for over 20 yearo by either privatewellsorfromwellaoperstedunderaStateofHawaiiXicense,which wello are locrated in the vicinifcy of th^Project.No potable water IB currently available to the Project,and none is promised.Any party deoiiTing to provide domeBtic or potable water to a unit or project shall do ao by on-site treatment,del ivery Crom third-party aources^catchment or sifnilar off-site oourc:e,inclLuding the unilateral obtaining o£water meter (s)from fche County oE Kauai afc.er jsayment of eech,every and at.1 applicafole Ceee Cor service extenBiQns ,met.er 9,ebc .,by t-he party or parfcieo deairiny county of Kaval water eervice,No wella are permittied on the Proj ect without thc prior written appi-oval,in writing,of the Farm Reviow committee and the appropriate action c?f the St^tte of Hawaii,Counfcy of Kauai and/or Biinilar agency wifch jurisdiction thereof.No auch approval le anticipated fco be 9ivr.gs of t;h<*d-5it»hereof . XXIX AORICtn.TlDUU,PAJUC.COHSOLIDATIOH AND RaSUBDIViaZOtt DEVELOPER'S SIKSSS.VTCD RIOHTS The three projects of which t-hio Projec-t ii?a part were previously subject to special t^xation and la'nd-uee c-tiatr.LctJLono no an "agricultural park"under the provisions of the Kauai County Comprehengive ^oning Ordinance tthc "CZO">.Under th^CZO provieions soparaEe T^x M<ip Key ("TMK")numbero were given t-o thc various subparcels in ths pT-ojoct.ThoBe numbere eKiat -only so long ao the agricult.ural park exiote under the CZO pi-ovieions.Currentl.y pending is a coneolldation and resubdJLviBiori procesa by which tho agricultural park wi.il be terminated,and oeveral individual eCtbdivided parcela wiil be credted .The Uni.t.s created heroin compriae portions of t-he preexi-sting 'fMK parcels of the ^griculturaX park,but aro conCigured to coincide wit^i areao o£the anfcicipatod hew aubdivided lofca.Moloaa Hui 1 and XI wl.il eacti be part o?onc large subdivided lot,sharing an undlvided i.nterest in th<?whoXe parcei ,with exduoivK riqhts c.o Liee of che gr-e^io of the Unite cind the common elementa o£^ach Pro^ect.Woloa-^Hul.III wi 11 be a 20 separate parcc-l or parcele,and wi 11 share only che water digtLribution syBtiem and benefl te of the drainage improvemenc.s of the three projecty The conditiona of congolidafcion and resubdivieion ^hall be -as reaflonably approved by Develciper,^nd shall be incorporated into the condomiriium documentff of recofd at:the time of final approval.The Developer lo authoz-ized to record a final aubdivision map disclosing and eatAbllwhing new subdivigion 1 ineo and take SL*ch furth&r action as JLR re^uired to separate poirtioni?of the prior TMK parcelg not includeci in this Project or~thcs other Moloaa Hui projectg Eor nale to third parties or development,os Developer shall slscc .if^w TMK numbers will bc given tp tlie oubdivided lote,and TMK nuiml?erH currently appl lcab-le t-o tihie Prvyect,will likely change, It;ie ant i.c'ipatsd that approximsitely 125 acros of t^ie pripragriculcuralparkwillbo8Lit>cfivided off froni the bal^nce of the propeyty and developf*d ae c»T'eoident:ial ^ubdxvision or condominium propert^regime -Yhe lntencie<3 parcel borders Moloaa Hui I anci I r, an<3 ia genet-at ly on the pcedn of bay sides of the various pro^octs,and concains sLtbstancial ac:reage lee.si desirable fof agricultur'al uae,plus additional areas for ro^dway eind homeeite "placement. Developer reserve^i the rigtit.to subdivido,condofniniumi ZG and develop the*portione of the agricultural park nofc included in the three projects/and to do so by way of tho pending eubdivision or by aeparacicrn o£the dcreage fram one or more of the three projecto b^ wa/of creation of ^new condominiumi zed parcrel .The fina configuration of fche three Moloaa Kul projects shall toe as set £orE.h in t.he Fin^il or Siupplementary Public'ReporL (0}for the Project. Deveioper regervog the fucure right;to subdivide a11 or part <?f Moloaa Hul I,II and II l on the fol lowing condic iono ;Develqper Qhall pay all coets of fche aubd.i.vi.aion procegs;any aubdj.yicleci parcel <a)tliafc utilize c'ommon or limited comnion elemenfcs of t.he reniaining Prpjecfc<;e)irfill continy*t'->,pa/,ratably for ropair. maintendnce and other expense^associated with such uge;except aa may be voced by t/he apprbpriate percentacfee o£Moloaa Hui X ,II or- 111 Aa&ociationo,Developex'wi,ll pay al1 infrastructure coste aigoociated wich thc eubdivi^ion;costs ajstsociat-ed with upgradin^of water eyBfcem,electrical,telephone^cable televxei.on or eimilar ufcility lnet.al lationfl may toe crhargecJ bacfr:ratably only to ouch Unit(a)oz-Projoct(a)aa may ^ccesa,make connection to OJT"otherwiee uge <any Lipgradeci infraot:ructure placed in,on or ccrving any Unj.t(s) of Moloaa Hul I,IT and/or 111 .Addi fc ionally .ind soparately,the Aa^oci.ation of CondorttJ-nium owners may elect bo subdivide by a 7SV vofcfl of the common infceFests,costg o£whicrh will be eommon expenoc- xxa COtfNT«aPAJlTS The particfl her'atp agrce th^c tihia i nst z-ument:may be executed in countei'parto,each "f whic-h shall be deemed an originAl,and s^id counterparte shall togftthor constj-tijcc on^cind th"o-ame inat.rument, binding ali o£the parfci^s hsT-eCo,nofcwi chsEianding sll of ths ^rtieo are not gi^natory ti?t^ie ongina I.or tbe a^rne counfcer^arts.^or all purposeo,incrludin^,without.1 imitati.on,rccordation^filin< iind delivery of thia j-nsc.rLimont,dupl ic-rat'"'unexecuced an< 21 unacknowledged pages of the counterparts may bQ discarded an<i the renwining pages ae>cemfoled ae one documenfc. IN WITNESS WHEREOP,Foe Ownei-and Developer have executed thig Declaration of Condominium Property Aegime of MOLOAA KUI IX t-hioj'^^' day of ..Ap2-i_•'.931. 22 Pee Owner and Develop&r MOIX3AA HUI IANDS,INC. By. Jto Pr^^ident STATE OP HAWAII COUNTY OF KAUAI > >ss ) On chis <33~day e>f [AEL R-sTftdfIG,to me p^r^ona',<3-^Zj^before me appeai-odWICHAELR-STROtIG,to me pferSbhaTlY Known,~who,belng by in^dulygworndldsaythatheiathePresldantofMOLOAAHUI-IA DS,INC.^thap the infit-z-ument was olgned in bohalf of bhe corporation/byauthorltyofIteboat-d 6£dii-ectors,and che s'aid offlcei- acknowledged tha .ingtrument to be the free act and de&d of the corporat.i on. ^' ^ S<L/(^/^L^^C^U NOTAK?'PtJBLlT;State o£Hawgll My cofflmxaeion e^pires; 23 ree Owner and Developer: MOLOAA HUI UUTDS,INC. Sy:O'^^-JB-^^-^^-^FKaC~e~wsES- Its vi.ee Presicient STATE OF HAWAII COUNTY OF KAUAI'cg^-l )SS- ) On l:hlo(:7E~''aay of C.HUBER,to-~me pensona' aay that he xe tho Vice before ffle appeared ^AUL who,^o^'i.ny by me duly eworn did o£MOt-OAA HUt fcANDS,INC.,thatyxnown, President the instrument was slgned in behalf of che cprporation,by authority of Ate board of dire^ctiore,and fche said off'icer ac?cnowledged fche instrumsnt to be the fr^e act:and decd of the coi-por-ation. TO3TXRY PUBLt'(?—'Stafcc—ST~HawaTT My commiaoion expxree ;<^"; 24 Fee Owner- T.G.EXCHANGB,INC. Sy c? I?B6 (l-*INEi»HIIC*W» ASSISTAhTT TBEASUfren JSImTJUlWAHin-KKaSfV lcs;&5<;1<?TANT TREASUREft STATS OF HAWAII ) )SS; CITY AND COUNTy OP HONOl.ULU ) On th^.__day o(/PR.2^M.19-_/b^for"rric*^ppeared t^A»«EMIj[IKAWA.^7a"d^Ul.iE^y93%USai;.T.~7~^c'.®o-1Perso".a.l_ly_!s.no.>'2".»^.wh°'. "HffEy me3uly gwSTT;aid—oayiHiat ehey are AtaiSTANTTREASURCT and ASSISTAf^TTnEASUREIt rsspecc Ively,0£T.G.EXCtlANOE,ItlCT,that-Phe"n'j&E'rumen^WSLB signed i-n behalf o^,th<?corporafclon,by auchorlty of ita board of direcfcort?,and the Naid oftEicez'e,ac')cnowledcred the intitrument EO be fche free a<-t and decd o^the corporatlon. ROT'AST'-FO^CTTT'S^reniit 1 HawaTT My comrn t'aeion GJtplroe .'Q/ff ^ 25 Fee Owner: T.G.3UPER EXCHANGE CORP. ."7^By 1^_}'^-C-^'' Name :MAE ^*ti'/.'~A'?7r^ It-9 ;A^-.-.T^'if -r:C.r --Ir£^'0?WT ^^a'^S^^^t' i n**<FTFFTi ^.^•/•Tt^P^nKT Its ;ATI"T ^?/'<<t'rA STATE OF HAWAII )ss; CITY AND COUNTY OF HONOLULU ) APR 3 O f997Onthiodayof before m<s appeared MAE HAKASA'/y.s."and lKt''TT7c ^'/'ATOsin ;Eo ma "peraqnAl^ ,Jlpai^n^..>ho, J>e4"3-A£.7m8 3uly sw5?n3135S7ETiat they are ^fi?'*"'"<-«'•"tMucni gr,^ ,1SST.StCR(T«XT ,reopBCti.valy,oE T'G.S'JPER "BXCHANCE CORP.,thal;the li-rsti-ument:was gigned in bshalf o£Lhe cor-poration <by authority of ita board of dirac-toi-s,and the said of"fxcers,acknowledged "che inetrument to be tha fi-ee act and deed o£fche coz-poration . NOTAR'/PUpU My commloexon GXpires: [Hawa'I zliifis <4 26 EXHIBIT -A" -POllTIOlt OF FAKCKL rlSST:-<Tt(K 4-9-009-001 (4» All o-£that cert.ain parcel o£land (bein^f portions of the Koloaa Hul Lands &nd the'Kaapuna Hui Landa,be3.ng portion of the Jtand deecribed in and covered by Royal Patent No.5 3 5 to Jamae W.Smith)situate ^lying and being at Moloaa and Fapaa, Kawaihau,leiland and County of Kau^i,Sfcate of Hawai i.being portions o£Loto 24-A and M-1,bearing fcax key deeignation 4-9-009-001 (4),and containlng an area o£122.812 acres,more or leae. -PORTION oy puicaL SBCONDI-(I.OT l.'rMK <-9-009-OOS (4)) All o£fchat certain parcel of land (being portion o£the Moloaa Hu-L Lands )aitudte ,lying ^nd being approximately 2,500 feet north o£fche Kuh:La Highway and Koolau Road intez-Bection ati Moloaa,Kaw^JLhau,IsLand and County o£Kauai/State of Hawaii, being LOT 1 ^game being a port i.on of ttOt 24 -A,and thuo boundcd and deBcr'ibed; Qeginning at a point at the souLh corner of thio parcel o£ land,also being the east corner of Lob $and fche west fooundary o£the Roadway (SG feet wide),the coordinates of which referred t:o Government Survey Triangulation Sfcation "MOLOAA",being 130.14 feet south and 3,007.52 feet weat and running by azimutha Tnesaeured clockwlae from true South : 1.141 17 1,1.11^94 feer;along t-he norc-h boundary of L>ot Q; Thence following olong t-he meandering boundary £01-tihe next: Eour couraea,Lhe direc-t azimuths anci diotancea betwGen said.poinfcs beiiig: 3 . 4 . 5 . 6 . 7 . 201° 365° 2S3° 322" Sos so° 30' 30 ' 30' 30' 24 ' 26 ' 220.00 Eset, 56S.OO feot; S58.48 Eeet; 636.94 Eaat; 418.^8 feet /along thei w^st, boundary o£Lot 2; 692.l"?feefc along the west: bou (.'dla ry o f t hc Roadway (56 Eeet wide); 8 .2T 51 99.09 £eet aXoncr aame.to the poi.nt o£beginning and Containing an area of 24.609 acres,trore or lCiBS . -PJUlctt.THXRS!-(LOT 2,THK 4-9-009-010 «)) All of that cer-tain parcel of landl tbeing portion of t--he Moloaa Hyl.Lands)situatQ,lyi-n^and iaeing approximately €,000 feet northcaet o£ths Kuhio Highway and Anuenue Road i.nt.eraection at Moloaa,Kawaihau ,Iglanct and County o£Kauai, State o£Havaii,being LOT 2 ,same being a poirtion of Lot 24 -A, axid thus boundod and described : Seginning at a point ar.the wesfc c'orner o£this parcel o£ land,aXso bsing thc east boundary o£L*ot 1,the coordxnates of which reforred fco Governritcnt Survey Ti-iangulaEion Stafcion"MOLOAA,''^being 372.9&Eeet north and 2»4S8.49 feet west and running by azi-muths meaeursdl clockwiae from true South: J..230 24 41B-68 feet along the ^ast boi^ndary o£Lot i; Thence Eol.lowing along th"meandf^ring taoundar-y ,the ui-i ect azimuth and distance betwecn sa.i.d poxnta being; 2 .2S2'1 3 .S2' 4 .140 41'2,016.03 feet; 35'30"1.35B.30 EaeE .ilong the weat boundary o£Lot 3; ^9*X,'?3^.SB Eeot-along the north boundary of the Roadway (56 Ceec uide),to the point o£beginning and containi-iig an area o£ 30.522 a.cres^more or laas , -PA»Cat,POtniTBs-(LOT 3,TKK 4-9-009-011 (4)) All of thdt cert-ain parcal of l a,n<3 (b'sing portion of the Moloa^Hui t^anda)oituatK^lying ^nd oci.ng 3pp<-oKi,ftatLely 3,000 feflt northoast of fche Kuhio HI.=;<;''//ayt in<^Koolau Road int^rsecfcion at Mol-oaa,K-awajLhau,"Esland and Counc.y of K.auai,St<,ats uf Haw-ai L ,bel-ng LOT 3 ,samc b^i,n<j a poT-t ion c£L,ot.21-A^^nd thus bounded and described: Begi-nning at.a potnt at t he sout-hwest CQrrier o£^his parcalofland/alpo bf»ing t.l-ic nort^corner ^f Lot 10,ths coordinatQa of whi.ch rcfomad'to Govemmei^t Survcy Triangiilat i-on Station "MOLOAA",being 1.40S.39 £eec aouch and 1,931.94 f?et weoE and runni.ng by ^zimuths m^aeured cloc <wise from true South; 1.23Z 7.. 3 . 4 . 35 30"X,414.34 feet along che aaot boundaries of LOt 2.L><5t. 7 and Roadway (5(5 feet w^de); Thence following along fche mcandcTJ-ng boundary,the direct azirnuth and difltance between aaid poincs being: 307° 43° 89° S.119 40 05 08 43 50 30 1S 850.65 feet; 1,669.00 feet along the west boitndary 6f Lot 4; 449.41 fei?t along the north boundary of thfi Drairtage Dltch; 712,.14 feet along the north boundar-y 6£Lot 10,to the poiht of beginntng and containin^an drea o£ 39,759 acres,more or lees . -PARClt,FT»TSs-(t.OT 7.T»OC 4-9-009-015 (41) A]1 of that cerfcain parcel of land (being portion qf the Mol 039 Kul Lgn'-lsT g l';*^^'';"/lyln^snd b**i ng gppr'')xlms(tsly 5,000 feet northeast of ths Kuhio Kighway and Ahuehuc Road l,ntersection at Moloaa,Kawaihau,Island and County of Kauai, State of Hawaii,being LOT 7,sam^,boing a por-tion o£Lot 24-A^ and thua bounded and described : Seginning at a point ^n the oouttifasfc <;orner of thia parcel o£lanct,alBo being cho souc.hwsBC croz-nGr of Lot 3;the co&rdinafces of ttfhich reforred to Oovernrnant Survey Triangulation Station "MOLOAA".belng l.405.39 £eet souch and l.S31.9'l feet west,and running by azimutha rn^^our'ccl clockwi^e from true Southi 1.119 2.140 3.ZO'7' 42 13 51 15 27,58 feet along the north boundary o£LoL 9; l,S82.22 £aet.along tho north boundat'y of Lot 9; 1.10.01 £eet.along the east boundary o£the Roadway (56 iseet widc); ExhibiE "A"P^ge 3 oC 12 pages <.230 5.320 6.52 16 29 35 30" 594.94 feet olong the easfc boundary o£the Roadway f56 (eet wida); 1,675.47 feet along th^gouch boundary o£the ftoadway (56 feet wide)/ 669.78 feet along tihe wcefc boundary of Lot 3,co the point o£beginning and containing ars area of 2$,ozo acre^,more or lesa . -POJITION 0V PJUICBL SIXTHi-(LOT B,TMK 4-9-009-016 (•«}) Atl of Lhat certain parcel o£land (bein^portion o£thc Moloaa HUJL Lands)aifcudt^,lylng and being approximat.ely 2,500 feet noarth of the Kuhio Highway~anc3 Koolau Rbad intersection at Moloaa,K^waihau/laland and County of.Kauai,State o£Hawsii/ tseing JLOT 8,artme belng a portion of Lot.24-A,and chua bounded and deocribed; Beginning at a poinfc ac the south K(?rncr pf thie parcel of land^also bcing the east:c-orncr of Lot 13 /the coordinateo of which 2-&ferred to C?ovornmenC Survay Triangulation Station"KOLOAA";being 996.31 feet eouth anci 3,903.16 feet west and runnlng by <aainiufchs measured cJLockwioe from fcrue South i 14S«37'S07.u feet along bhe north boundary of Lot:13; Thenc*$fol lowing along the mednderXng boundary,the direet: azimuch and diflfcanc^ batwedn said poi.ntabeing; 2 .211 3 .321 4 .27 8.51 34 17 51 02' 1,2S3.ae tcet; 1,111,94 feet,along tijne eouth boundary of L»ot 1; 2^9.97 feet aJ.ong the west boundary of the Roadway (S6 teet wide); 983.71 feec along the west boundary of the Roadway/ to thc point o£bsg;Lnnin< and contain ing an area o 26.743 acreo,more or IfiflB . Rxhfbf "A Pag'12 payey -PAXCfl.SSVSSTB:-(LOT 9,TMK 4-9-009-017 (4)) All of that certain parce^o£land tbeing'portion of the Moloaa Hui Lan<3o)oi tuate,lyingf ^nd bei.ng on the east side of Kuhlo Highway,approximateiy'2,000 feee norttieasc of the Kuhio Hlghway and koolau Road interaectjion at Moloaa,Kawaihau,leland and Count^of Kaual,Sfcgte o£Hawaii,being LOT 9,s^me bei.n9 a portion of Lot 24-A,and chua bounded and 3escrlbed.' fisginning cit-.d p&int at th&most;oaat corner of this parcelofland,aileo being the southw^esti corner of Lot 3,the coordinatiee of which ref^rred to Government Sujrvey Triangu lation Scaclon "MOLOAA",baingr 1,')05.39 feet;south and 1;931.94-fect we^t and running by azimuths m&aaur&d clockwise from true South ; 1.S2°35'30"1,044,96 feet along the west boundary^of Lot 10; 1,473.35 feot along the nori^h boundary o£Loe 147 751.10 feet along the east boundary of t^ie ftoadway {S6 Eeet wlde); 4.2070 51'269.3$feel-aldng the samaj 5.320°li'1.SB2.22 fsst along the eoufch boundary of Lot 7; 6.299°42'.IS"27.SS fect aiong r.he same,co the poi,nt-of bnfjtnning and containlng an a;rea o£ 35.050 a<:res,more or less * 2.141°33• 3.231°02 • -PARCB.t.BIOBTSt-(I.OT 10-A,THX •t-9-OOg-OlB (4)) All of.that certain parcel of land fbcing portion of th^ Moloaa Hui Lando)oituato,lying and being oh the northea^c side of Kuhi-o Highwgy at Moloaa ,Kawaihau,Island and c;ciunt;y of Kauai,Sfcatie of Mawaii,being LOT IO-A^aame being a portion of l;;ot 24 -A»and thu^houndQd and clescribed ^is per eurve/of Masao Fu^i shi,ge i Land Surveyor ,datcd November 21,1980; Beglnnl.ng ^t a pipft dt the ejfff-.crarnQr o?thio lot,^nd at fche eoufch cox-ner o£Lot 10-B,the coordirtattfe of thi-s said polnt of beginning refex-red to Government Survey Triangulation Statio^"MOLOAA",belng 2,702.07 teet eauch and 3,053.15 fget west,and rynning by azimuE-ho meaeurcd c'loc^wioe from Krue 5ouch; 1 .O 2 .114 • OS 02 30"927.90 Ceah a lon^Lob 11 -A f-o a plpe; 429.^6 f.€:et aJLong Kuhiu Highw^fl/ Lo d pipe; Ex^italt:"A"-pAge 5 off 13 p^goo 3 . 4 . s. s . 7 . a. 125" 127» 232° 319' 236» 316" 57 11 35 14 ' sa' 09 • 30' 30" 30" 30" 3G^.G6 feec along Koolau Road to a pipe; 329.40 feet along Koo2.au fload to *a p l pe; 66S.81 fefit:along Lot 10-B to a pipc, 654.39 feet along Loc 10-B co a pipe; 578.3S fcat alona the Lot IO-B to a pipc; 335.73 feet along oame to fche pc3J.nt o£6<sginning and confcaining an aroat of 17,850 acreo,mor@ or less . -PORTION Of PA1ICBI,NIMTHi-(I.OT 13,TMX 4-3-009-021 (•*)) Al 1 of that c-erta in parcel of land fbexng porcion of the Moloaa HuJL Landg)situate;lying and being approximately 2/000 feet northweet;pf the Kuhio HigAway and Koolau Road infcairsection at Moloaa,Kawaihau,Island and Covnty of Kauai^State of Haitfali,b^ing LOT 13,same being a portion o£Lot-24~A,and chuo bounded and described; Beg'inn.tng 411 *a polrtt ^t*t:hG east cojrnejT of c.^le pArcel of land,atso being the eouth comer of Lot 8 and fche west boundary o£thc Roadway i56 £eet wide),T:h^coo^di.natee of which referred to Gfovernment Sur^/oy Trxan^uldtlon Sfcat lon "MOLOAA"<be in^ 996.31 feet.south and 3,903.16 £e<$t weat and running by aaimutho meaourt.*^clockwiss Crom true South ; )..51 140 02 • S6 73G .02 feet,a long the wesc boundary 6£the Roadway /56 feet wide)/ 735.70 f^fit.along tho norbh boundary o£Lot 16; Thence following along the ni<°<»nderins'boLindary,the direcc. az .'muth ati<^rllatan<:e bethfeert said poinfcebein^; 226"0-1 •30'ao'i ,15 Eest ,• ExhibiC."A"-Pagft ^of 12 p^geo 4.323 37 607.13 feec a1.ong the ^outh boundary of Lofc 9^to thfi point;oC be^inning and containing an area of 15.130 dcrc^,morc or leos . -PAXCXI.TSVTSi-(LOT 11,THK <-9-009-032 «)) All of that certa in p^rcel o£land (being port:ions of the MoJloaa Hul.Lande and the K^apuna Hui L,ands,being portion of fche land dcgcribed in and covcred by Royal Patent Number 535 to t7amtfs w.$mit:h)^iEiuate,lyin^and being on tihe north eide o£ Koolau Road^aj^proximafcel y 1,000 feet norch of fche Kyhio Highwciy andt Koolau Roact intcrsect ion at Koloaa,Kawaihau,laland ani County of Kavai,Stiate of Hawa i i ^being LC>T 14 ,same beifig portions of Lot 24-A and Lot:M"l,and thus bounded and deocribed: Be^inning ati a point at the eouth cornet'of thla pax-cel of 1.3tnd,aleio belnq the southwest corner of Lo&10 and the north boundairy of Koolau Road,the coordinabef?of which ro^erred to Governmenfc Survey Triangulat ion Statton "MOIX>AA",being 2,781,37 ^eet eouth ^nd 3,731,09 feet weet and running by a-zimuths meaflured clockwige from true South: 1. 2. 3 . 4 . s - 127 123 • iia' 116' 231 ' 6.321 7.S2° 11 40 os 30 02 33 ' 30 30 977.28 feet along fche north boundary of Koolau Road; 113-33 feet along £he safne/ ^.*^.7ft £a&t a lofig the aame; 305,89 feet along tihe e^m^; 1;6'/l,89 feet *=ilong the eaet boundary 6f the Roadway f56 feet widej/ 1,4^3.35 £eet along the soufch boundary of Lot 9; 1,.250,05 fect along the we^ft bounddry of Lot 10,fco the point o£b^ginning and confcaining an area of 4 7 .274 acresr,more or less. -PORTION 0»PAJtCBI,BLKVSNTH;-(LOT 16,TMK 4-9-009-025 (4)) All &f that certain parcel of land fbffing poi-tlono of th'° Woloaa Hul Landa -snd th-*Kaapuna Hui L^ndo,being porfcion of fchc lanci dGffc-ribeci in <snd cov^rod k>y Roy^l PgLs>nE Numbar 535 to Jamee w,Smi-Lh)aitUAte,lyi nfj ^nFi bcing on the north sicle o£ Exhi.fc'it."A"P^g<i '/'-?f.3 2 p^geg Kool<iu Road,approximately 1,000 fcet northeast of the Koolau Road and Anuenue Roaci intersection at Moloaa,Kawaihau,Island and CounLy ut.Kdudi,Stdtc of Hawai i ,bfti.ng I^OT 16,same be ing portionfl of Lot 24-A and Lot M-1,and thus bounded and descrlbed: Beginning at ct point afc the south corner of this parcfl of land,alao being che weat boundLiry of the RQaelway f 5€~feet wide) and fchft north boundai-y oE Koolau Road,the coordinafcee of whxch referred to Govcrnment Survfiy Triangulat ion Station "MOLOA.^"^ being 1,310.27 feet aouth and 5,033.16 feet wesfc and running by azlmuths Tn<?agureci clo<-k;wTOR from true South: 116 30 1,007.36 feet along the nor'th boundary of Koolau Roaxd; Thence following along h.he north bc^undary o£Koplau Road on a curve to the le£t with a raclius o£190.00 feet the chord azimuth and distance being; 110° 235° ~i~r 40' 30 "40,00 fec*:; 8.88 feet along the remainder of Lot M<1 fa portion of Ka^pyna Hu i l^anda ; ThenCfi following along the tneandering boundai-y,the direcfc azimuth £»nd diotance between gaid poinfca be i ncf t 241° 320» 51° 38 56 02 1,1^5.72 Eeet; 7AS .70 ileeL along t,he sout.l^i boundary of Lot 13 ; 7X7.34 feet alon9 the west boundar-y o£the Roadway (SS fcet wide),eo tho pQJLnt df beginning and containing an area of 20.827 acres/more or'• IQOB , -PAKCBL TWZLrTH;-(ROAOWAY LOT,WX 4-9-009-027 (4)) All of that certain parccl of land fbc-ing portions of che Koloaa Hui Ldndo and Kaapuna Hui Lande,being portion of the tand deBcribed in and crovered foy Royal Patent Number 53S to Jameg w.Smith)sltuate,lying and belng at noloaa,Kawaihau, loland and CounCy ot'Kauai.State o£Hawall,being a SS-foot roadway,Bame being poz-tionfl of Lots 24-A and M-t,bearing tax key designation 4-9-b0?-02'?,and c'antaining an jrea of 6.592 acirca,mor'e or less . Sxhlbiv.-A-Pagc 3 of 12 pages -PARCXt,TBIKTBXtmi •-(LOT 10-B,THK 1-9-009-037 «)) All of that cert.ain parccl of land (b&ing portion of th^wt?^oaa.Hui .Lan<^s?situate,lying and bein'y on the northoast eildeofXuhioHighuayacMoloaa,kaualhau.Island and County ofXaua^,SEatc o£Hawaii,being rAT 10-B,same bolng a portion o£Lot,24~A'and thy8 bounded and described as per eurvey of MaoaoFujishlgs,Land Surveyor,datsd Hovembe.r 21,'1980: Be9inning at a pipa at.the gouth corngr of this parcel oElandandatcheeastcarnBrotLot10-A,the coordinatea o£thxsgaidpointo£beginn.i.ng referred tn Ooverjnment SurveyTr.i'anffylation Star5,on "MOLOAA"being 2,•782.07 feot Bouth anda,OS3.1S feet weet,and running by azimuthe measured clockwlsefromcrueSouth; 2. 3 . 4 . 5. 9. 136" 46 139" 52 127° 6.333» 299" 8 .375 49 03'39S.73 faet along L,ot 10-A to a P.1pe; Sa'30"57B.38 teac along Lot 10-A co a pipe; 14'6S-1.39 feet along LoE 10-A to a Pipe; 3S'30"6S5.Sl £eec along Lot 10-A to a pipc; 11'30"31.12 feec.along Koolau Road to a pi.pe, 3S'30"2.26S.01 £eat slong Lote 14 and 9 to a pipe; 42'1S"712.34 fBRt 9ling t he Lot 3 to a pipe; SQ 'i.5"396.09 feet along Oraina^e Ditch t:o a p\pe ; OS'30"1,300.33 feeE along l^ota 11-8 and 31-A ^o tfte poj.nt of ^beginning an<3 cont;ainir'ig an arsa of 36.434 acreo, more or less, Exhibit r'A"-Pa^e 9 oC 12 pAqea COUNTY OF KAUAI PLANNING COMMISSION STATE OF HAWAII In the Matter ofthe Application for a Class FV Zoning Permit Z-IV-2017-12,Use Permit U- 2017-10 and Special Permit SP-2017-5 for real property located in Moloa'a,Kauai, Hawaii,further identified as Lot 185 as shown on Land Court Application 956,Tax Map Key (4)4-9-009-009. CASE N0. CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE I hereby certity that a true and correct copy of the foregoing document was duly served upon the following party by the United States Postal Service,electronic mail,and/or via hand delivery on April 5,2021. MAX WJ GRAHAM,JR.,ESQ. Belles Graham LLP Watumull Plaza 4334 Rice Street,Suite 202 Lihue,Kauai,Hawaii 96766-1388 DATED:Honolulu,Hawaii,April 5,2021. Av-u^ GEORGE W.VAN BUREN JOHNB.SHIMIZU Attomeys for Petitioners MOLOAA FARMS LLC and JEFFREY S.LINDNER County of Kauai Planning Commission 4444 Rice Street Ste A473 Lihue,Kauai,Hawaii 96755 RE:Green Earth Matters Inc. Class IV Zoning Permit Z-IV-2017-12 Use Permit U-2017-10 Class Special PermitSP-2017-5 Lot 185 Land Court Application No.956 To Whom this Concerns, I am writing in response to being notified ofthe above request being heard on April 13,2021.1 would not be supportive ofthis application.1 believe that this parcel has office space that should support a green waste operation.1 think office space should be located in zoning that is already set aside for such purpose of office space and any further business offices should be located in those areas.Large storage facilities may serve multiple needs and 1 am concerned about this request as 1 have seen some parcels become equipment,and machinery storage and 1 believe that is what will happen to this parcel.1 see it currently operating with minimal need for large storage.My concern is the morphing of a green waste facility into something that really does not fit the idea nor the zoning the farmers in Moloa'a Hui have bought in to. 1 therefore can not voice support for this application. Mahalo, Linda Neuman Unit#23 Moloa'a Hui f^.^Lfl.^ 2021 Shanlee Jimenez From: Sent: To: Subject: Attachments: Planning Department Tuesday,April 06,2021 2:10 PM Shanlee Jimenez FW:4-13-2021 Public Hearing Testimony RE2-IV-2017-12 County of Kauai Planning Commission.docx From:Linda Neuman <neumanahui@gmail.com> Sent:Tuesday,April 6,2021 2:02 PM To:Planning Department <planningdepartment@kauai.gov> Subject:4-13-2021 Public HearingTestimony RE:Z-IV-2017-12 CAUTION;This email originated from outsidethe CountyofKauai.Do notclicklinksoropen attachments even ifthe sender is known to you unless it is something you were expecting. Please see attached testimony.Ifthis is the incorrect place to send please advise. Linda Neuman MCCORRISTON MILLER MUKAI MACKINNON LAUREL LOO 4806 4357 Rice Street, Suite 102 Lihue, Kauai, Hawaii 96766 Telephone No.: (808) 632-2267 Facsimile No.: (808) 440-0399 Attorney for Applicant MICHAEL KAPLAN, Trustee of the Michael A. Kaplan Revocable Trust, dated August 12, 1992 as amended and restated by instrument dated July 16, 2017 BEFORE THE PLANNING COMMISSION OF THE COUNTY OF KAUAI In The Matter Of The Application Of MICHAEL KAPLAN, Trustee of the Michael A. Kaplan Revocable Trust, date August 12, 1992 as amended and restated by instrument dated July 16, 2017, affecting real property located at Kahili Ahupua’a, Hanalei, Island and County of Kauai, State of Hawaii, more particularly identified as Tax Key No. (4) 5-2- 012:019, and containing an area of 32,034 sq. ft., more or less. _____________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) USE PERMIT NO. U- __________________________ CLASS IV ZONING PERMIT NO. Z- IV________________ APPLICATION FOR USE PERMIT AND CLASS IV ZONING PERMIT; EXHIBITS "A" – "M" APPLICATION FOR USE PERMIT AND CLASS IV ZONING PERMIT -2- I. APPLICANT AND PROPERTY INFORMATION The Applicant in this matter is MICHAEL KAPLAN, Trustee of the Michael A. Kaplan Revocable Trust, date August 12, 1992 as amended and restated by instrument dated July 16, 2017, by and through his undersigned attorney. Legal title to the real property is held by MICHAEL KAPLAN, Trustee of the Michael A. Kaplan Revocable Trust, date August 12, 1992 as amended and restated by instrument dated July 16, 2017. Attached as Exhibit "A" is the current deed to the Subject Property. II. LOCATION MAP IDENTIFYING THE SITE, ADJACENT ROADWAYS AND IDENTIFYING LANDMARKS The property subject of this application is located at Kilauea, Hanalei District, Island and County of Kauai, State of Hawaii, is identified as Tax Key No.: (4) 5-2-012-019, and contains 32,034 square feet, more or less ("Subject Property"). Attached as Exhibit "B" is a location map depicting the Subject Property, adjoining properties and roadways. Access to the parcel, highlighted in blue, is from Kuhio Highway, to Pili Road, to Kolo Road, and then over various recorded easements to the parcel. III. COUNTY ZONING AND GENERAL PLAN DESIGNATION AREAS OF THE PROPERTY The property's classifications are as follows: - entirely Agricultural by the State Land Use Commission; - entirely Open designation by the Kauai General Plan; and - entirely within the Open (O) zone by the County of Kauai. It is designated Open/Special Treatment-Resources (O/ST-R). -3- - Although the property is within the Special Management Area (“SMA”), the first single-family residence is exempt from a SMA permit. IV. FLOOD ZONES AND REQUIRED ELEVATIONS The property is not within any flood zone. It is located in Zone X, which is an area determined by the Federal Emergency Management Agency to have a moderate to minimal risk of flooding, and is determined to be outside the 0.2% annual chance floodplain. Attached as Exhibit “C” is a Flood Hazard Assessment Report for the parcel. V. PRIOR PERMITTING OF THIS PARCEL Applicant purchased this kuleana lot from the Hendrikus Group, Inc. (“Hendrikus”) in 2018. At the time Hendrikus had already received permits for various structures on this kuleana parcel and an additional parcel, 5-2-21:04-0001, which Applicant also purchased from Hendrikus but is not the subject of this application. Prior to the Hendrikus ownership, a former single-family residence was located on the kuleana but was destroyed by Hurricane Iniki. In 2010, the Hendrikus Group received permits to build a single-family residence on the kuleana parcel under SMA Use Permit (SMA (U) 2011-1; Class IV Zoning Permit Z-IV-2011-1 and Use Permit U-2011-1, but had not yet built the single-family residence on the kuleana parcel. The reason Hendrikus applied for a SMA permit then was Hendrikus was also applying for other development on this kuleana lot as well as a separate lot; this Application is solely for the first – and only – single-family residence on the kuleana lot. After the Applicant bought the parcel from Hendrikus, Applicant requested an extension of two years within which to build a slightly smaller single-family residence than approved for Hendrikus. On April 23, 2019, the Planning Commission unanimously approved Applicant’s request to build the smaller residence within two years. On May 21, 2019, a neighboring landowner submitted a petition for revocation of the Planning Commission’s April 23, -4- 2019 approval; the Planning Commission denied the petition. That denial was appealed to Circuit Court and the Court subsequently ordered the prior permits had lapsed and no further construction could proceed. That judicial determination is on appeal. VI. LOCATION, SIZE AND DIMENSIONS OF EXISTING AND PROPOSED STRUCTURES AND USES After the April 23, 2019 approval by the Planning Commission, Applicant began to construct the single-family dwelling, but a few months later when the Circuit Court ruled the prior permits had lapsed, construction stopped. As a result, Applicant’s dwelling is partially constructed. The foundation has been installed and it is partially framed. Attached as Exhibit “D” is a photo taken on January 8, 2020 which depicts the current status of the construction. This kuleana parcel is situated on relatively flat tableland overlooking a small, steep pali above the southeastern edge of Kilauea Stream. It is characterized by a series of terraced agricultural fields which step down, and are believed to previously have been used to cultivate rice during the late nineteenth and early twentieth centuries.i The site plan depicting the proposed dwelling is attached as Exhibit “E”. The elevations for the dwelling are attached as Exhibits “F1 and F2”. The total lot coverage resulting from the improvements, which is approximately 8.7%, is set forth on Exhibit “G”. The interior area of the proposed dwelling is 2,373 square feet; the Floor Plan is attached as Exhibit “H”. Along with the walkways, lanai and carport (and all other hardened surfaces), total lot coverage is 2,791 square feet. 1 Clark, Matthew R., B.A. and Rechtman, B., Ph.D., 2010 Rechtman Consulting, LLC, An Archaeological Inventory Survey of TMK: 4-5-2-12:019. This survey was previously completed for this parcel and submitted to the County Planning Department along with the SMA Area Permit Assessment Application & Class IV Zoning Permit Application for the Proposed Hendrikus Group, Inc. Single-Family Residence, Accessory Ag. Structures & Archaeological Restoration Project for this parcel and another parcel for a previous project -5- The total lot area is 32,034 square feet, or .735 acres. The total lot coverage for all improvements would thus total 8.7%, within the allowed lot coverage of 10%. The landscape plan is depicted on Exhibit “I”. VII. OFFSTREET PARKING FOR EXISTING AND PROPOSED USES Parking for two cars will be provided under the porte cochere, as depicted in Exhibit “H”. All parking is provided for on-site; there is no off-street parking. VIII. TOPOGRAPHIC INFORMATION, WITH EXISTING FEATURES, CONDITIONS AND DRAINAGE PATTERNS Exhibit "J" is a topographical map of the property, showing the contours. The drainage pattern will be maintained. The rock walls on the kuleana site, believed to be to aid the cultivation of rice, are depicted several times in an Archaeological Inventory Survey conducted in 2010 for Hendrikus (“AIS”). The archaeologist working on the site, Matthew Clark, is monitoring the rock walls during the construction, and has allowed removal of some of the walls during construction. Walls will be replaced under the archaeologist’s supervision after construction of the dwelling is completed. An Archaeological Inventory Survey that was submitted with the Hendrikus permit in 2010 and which covers two parcels is attached as Exhibit “K”. Mr. Clark, the current archaeologist, prepared the AIS in conjunction with an environmental assessment prepared for DLNR by Hendrikus. A letter from Matt Clark is attached as Exhibit “L” and states he is monitoring the removal and replacing of the rock walls for the project and no further historic preservation work is required. -6- IX. TOPOGRAPHIC INFORMATION, WITH PROPOSED GRADING AND FINISHED GRADE ELEVATIONS AND GRADING PATTERNS Applicants’ designer incorporated a design which would limit grading to the greatest extent possible. The selection of the site for the dwelling and the floor plans allow for the improvements to incorporate the natural slopes of the site. X. LOCATION OF ENVIRONMENTALLY SENSITIVE AREAS, HABITAT AND BOTANICAL FEATURES There are no environmentally sensitive areas on the property, which is surrounded by heavily wooded areas. In the "neighborhood", however, are the Kilauea Point National Wildlife Refuge and the Kilauea River, although these properties do not abut the kuleana lot. The surrounding parcels are heavily wooded. Exhibit “B” is an accurate depiction of the parcel and surrounding areas. XI. EXISTING AND PROPOSED ROADWAYS AND ACCESSES TO THE PROJECT Access to the property is from Kuhio Highway, Kahili Makai Street, and then Kolo Road, onto various easements. No roadways are proposed by Applicant. XII. CERTIFIED SHORELINE, SHORELINE SETBACK LINES, STREAM AND OTHER SETBACK LINES The property does not abut any shoreline or stream. XIII. IDENTIFICATION OF ARCHAEOLOGY, ENVIRONMENTALLY SENSITIVE AREAS, HABITAT AND BOTANICAL FEATURES Aspects of the property are accurately described in Exhibit “K,” which summarizes at page 40 that the parcel contains former terraced fields and a concrete slab with no further need to mitigate any potential impacts from the construction of a single-family dwelling at this time. As for -7- habitat and botanical features, the property was heavily wooded with invasive brush and trees, is not inhabited by any animals, and no threatened or endangered plants grow on it. XIV. BUILDING HEIGHTS All of the buildings (only one building is proposed) are in conformity with the North Shore Development Plan (Section 10-2.4(4)(1) limits building heights to 25'). Exhibit “F” shows the maximum building heights from grade at 19‘ 3”. The home is designed as a one-story dwelling, with one bedroom on either end and separated by a living room and kitchen area. The dwelling is designed with a low profile, and is designed to be situated within low existing rock walls. It will be earth-toned with natural cedar siding and a cedar shake roof and is designed to blend into the natural environment. The trees and shrubs that will be planted as part of the landscaping and agricultural use have been chosen to blend in with the natural features of the area. XV. FLOOR PLANS OF DWELLING Exhibit "H” is the floor plans for the dwelling. XVI. SUMMARY OF PERMITS The permits sought in this application are a Use Permit and Class IV Zoning Permit. Pursuant to Chapter 8-11.3 of the Comprehensive Zoning Ordinance (“CZO”), all uses, structures, or developments require a Use Permit within the Special Treatment District. Pursuant to Chapter 8- 3.2 of the CZO, a Class IV Zoning Permit is a procedural requirement when a Use Permit is required for development in the Special Treatment District. Pursuant to Section 8-3.2 of the CZO: The purpose of the “Use Permit: procedure is to assure the proper -8- integration into the community of uses which may be suitable only in specific locations in a district, or only under certain conditions, or only if the uses are designed, arranged or conducted in a particular manner, and to prohibit such uses if the proper integration cannot be assured. The first single-family dwelling in the Special Management Area (“SMA”) is exempt from having to apply for a SMA permit, and Applicant has received a “Departmental Determination DD-2021-13) this proposed dwelling is NOT considered a development as defined by the County, and hence a Use Permit and not an SMA Permit is required. DD-2021-13 is attached as Exhibit “M”. XVII. POLICIES AND OBJECTIVES OF THE KAUAI COUNTY GENERAL PLAN A. Kauai County General Plan. The property is located in the Open designation under the General Plan ("GP"). “Natural” replaced the “Open” designation in the 2018 GP. The proposal of the Applicants, to construct a dwelling with aggregate lot coverage of approximately 8.7%, on a lot containing 32,034 square feet, meets the policy of having the land remain predominantly free of "development involving buildings, paving and other construction". Within the Open zone, permissible maximum lot coverage is 10%. Applicant's proposed development will not have a significant impact on the surrounding environment, and the proposed dwelling sits within stone walls that are part of the surrounding environment. This proposal complies with the GP policy in that it will, while allowing a reasonable use of the property by the owner, help preserve, maintain and improve the natural characteristics of the area, will allow the area to remain predominantly free of development, and will be incidental to the use and open -9- character of the surrounding lands. Many neighboring parcels are similar to this development – heavily wooded parcels featuring one home site. B. North Shore Development Plan. The property is located in the North Shore Development Plan area. The goals and objectives of the North Shore Update, as adopted by the North Shore Development Plan Ordinance, include the following: Goal A: To preserve the unique natural beauty of the North Shore Planning Area. Goal B: To preserve the special rural charm of the North Shore Planning Area. Goal C: To provide for the safety and welfare of the people of their property of the North Shore Planning Area. Goal D: To provide for economic development of the North Shore Planning Area. Goal E: To preserve the wildlife and flora and the North Shore, recognizing man's dependence upon this preservation for his own health and welfare. Goal F: To insure the preservation of historic-archaeological sites in the North Shore Planning Area. Goal G: To create a development for evolutionary growth that depends upon a planning process whereby conflicts can be resolved through the establishment of priorities and community participation. Goal H: To provide for recreational opportunities that are compatible with unique qualities and natural features of the North Shore. The Applicant’s proposed use of his property will not conflict with any of the Goals contained in the North Shore Development Plan Ordinance. The design, layout and visible appearance of the dwelling will be compatible with the natural beauty of the area. Although attention was given to architectural design and the ability of the materials to withstand the elements, the design also sought to reduce intrusion into view planes through appropriate siting and color selection. -10- As such, the proposed use will not conflict with Goals A or B. The proposed use will provide economic opportunity for Kauai residents and as such will promote Goal D. The proposed use will have no negative impact on the public safety or welfare, on any endangered species of plants or animals, on archaeological or historic sites, or on recreational opportunities on or around the property. As such, it will not conflict with Goals C, E, F or H. The process of filing this Application is consistent with the purposes of Goal G. C. Open District. The entire property is zoned Open. The purpose of the Open District are set forth in Section 8-9.1 of the Kauai County Code ("KCC"), which is the "Purpose" section, and which provides in pertinent part as follows: "(a) To preserve, maintain or improve the essential characteristics of land and water areas that are: (1) Of significant value to the public as scenic or recreational sources; (2) Important to the overall structure and organization of urban areas and which provide accessible and usable open areas for recreational and aesthetic purposes; (3) Necessary to insulate or buffer the public and places of residence from undesirable environmental factors caused by, or related to, particular uses such as noise, dust, and visually offensive elements. (b) To preserve, maintain or improve the essential functions of physical and ecological systems, forms or forces which significantly affect the general health, safety and welfare. (c) To define and regulate use and development within areas which may be potentially hazardous. (d) To include areas indicated on the County General Plan as open or as parks. (e) To include areas clearly indicated on the County General Plan or on Zoning maps as "Special Treatment – Open Space" if an applicant represents to government authorities that any properties or areas within a development proposal or subdivision application will remain in either permanent open space or private park areas, or if the Council in the exercise of its zoning power requires as a condition of rezoning that an area be designated for -11- permanent open space or private park. This does not preclude the Council from exercising its zoning authority as provided in Sec. 46-4, Hawai'i Revised Statutes. Within areas so designated, no uses, structures, or development inconsistent with such designation shall be generally permitted or permitted by use permit without express provision to the contrary. The Council is hereby authorized to make such factual determinations as necessary incident to this Section. (f) To provide for other areas which because of more detailed analysis, or because of changing settlement characteristics, are determined to be of significant value to the public. (citation omitted) While allowing the Applicants a reasonable use of their property by permitting the construction of one modest dwelling, this proposal provides for minimal development (approximately 8.7% lot coverage). Additionally, it mimics the surrounding parcels, of which many feature a single dwelling with a large “natural” or green area on the remainder of the parcel. Because of the design of the dwelling, the Applicants seek to minimize the extent of grading necessary to provide proper grounding for their dwelling, which will help to preserve and maintain the existing topography. A substantial part of the property will, because of the limited size of the improvements, landscaping and agricultural activities, remain in "open" space. XIII. DETAILED LAND USE HISTORY OF THE PARCEL, INCLUDING FORMER AND EXISTING STATE AND COUNTY LAND USE DESIGNATIONS, VIOLATIONS AND USES. A. Land Use Designations. The respective State Land Use Commission ("SLUC"), Kauai General Plan, County of Kauai Zoning and other relevant land use designations for the Subject Property are as follows: 1. SLUC. The property is entirely in the SLUC Agricultural District. It has been located in the SLUC Agricultural District since the inception of the SLUC Districts. -12- 2. Kauai General Plan. The property is entirely in the Kauai General Plan Open Land Use Designation, and has always been designated Open under prior General Plans. As stated previously, the 2018 General Plan updates “Open” to “Natural.” 3. Zoning. The property is entirely in the Open District and Special Treatment District (Scenic/Ecologic Resources). It has been located in the Open District since the adoption of the County's Comprehensive Zoning Ordinance in 1972. It was placed in the Special Treatment District as part of the North Shore Development Plan Update (Ordinance No. 476, adopted June 27, 1985). B. Development Plan Area. The property is located in the North Shore Development Plan Area, and has been so located since the original adoption of the North Shore Development Plan (December 27, 1974). C. Special Management Area. The property is entirely located within the Special Management Area ("SMA") of the County of Kauai, and has been so located since the adoption of the SMA Rules (December 17, 1979). D. Special Treatment District. The property is within the ST/R District (Special Treatment, Scenic/Ecologic Resources) as described in Section 8-9.2(a)(3), KCC. Sections 8-9.3 and 8-9.4(a) and (b), KCC, contain the provisions to which the property is subject. The uses which are proposed are consistent with the uses permitted within the County's Open zone (agricultural activities and accessory uses). Development in such Special Treatment Areas are not supposed to "substantially change the exterior form or appearance of such three (3) dimensional structures or land". Because the -13- Applicants have done only such grading as is essential to properly provide stable support of a dwelling, there is no substantial change to the land itself. The landscaping additions will not change the contours of the land. The relatively modest building footprint of the dwelling results in limited lot coverage and further ensures that the least amount of change occurs to the form or appearance of the Subject Property, and to its three-dimensional character. Because the parcel and surrounding areas are so heavily wooded, the only view into this parcel is via an aerial view. See Exhibit “B”. E. Violations. There are no existing violations of any land use laws or regulations affecting the property. There recently, however, have been a Circuit Court and an Intermediate Court of Appeals case involving the permits that were received from the Planning Commission on April 23, 2019. Those matters are on appeal and also involve development on a neighboring parcel. The Applicant wishes to isolate the Use and Class IV permits for this single- family dwelling so he can complete the dwelling that is partially constructed. F. Prior Uses. According to the Hendrikus application for a Class IV Zoning Permit in 2010, a building permit application was awarded to Gregory Taylor for the construction of a single-family dwelling. That dwelling was completed but later destroyed by Hurricane Iniki in 1992. There were other, small structures that have since been demolished. Applicant’s dwelling is the first dwelling to be constructed since the Taylor house was destroyed. G. PASH Rights. Applicant and its contractors have been working on the Property for at least two years, and have communicated frequently with Hendrikus. -14- Applicant is unaware of any customary and traditional practices on the parcel performed by native Hawaiians. XIX CONCLUSION For all of the foregoing reasons, the Applicant respectfully requests the Planning Commission grant the Use and Class IV permits that are sought herein, and allow the Applicant to build a farm dwelling as represented. DATED: Lihue, Kauai, Hawaii, February 08, 2021. Respectfully submitted, LAUREL LOO Attorney for Applicant MICHAEL KAPLAN, Trustee of the Michael A. Kaplan Revocable Trust, dated August 12, 1992 as amended and restated by instrument dated July 16, 2017 EXHIBIT A Developed by Parcel ID 520120190000 Acreage 0.735 Class RESIDENTIAL Situs/Physical Address Mailing Address KAPLAN,MICHAEL A REVOCABLE TRUST 2695 E DOMINGUEZ ST CARSON CA 90895 Total Market Value $1,210,400 Total Assessed Value $1,210,400 Total Exemptions $0 Total Net Taxable Value $1,210,400 Last 2 Sales Date Price Reason 7/21/2009 $300000 VALID SALE 2/19/2004 $995000 VALID SALE Brief Tax Description RP 3370 LC AW 10333 .735 AC DES TOG/ESMT (Note: Not to be used on legal documents) The Geographic Information Systems (GIS) maps and data are made available solely for informational purposes. The GIS data is not the official representation of any of the information included, and do not replace a site survey or legal document descriptions. The County of Kauai (County) makes or extends no claims, representations or warranties of any kind, either express or implied, inluding, without limitation, the implied warranties of merchantability and fitness for a particular purpose, as to the quality, content, accuracy, currency, or completeness of the information, text, maps, graphics, links and other items contained in any of the GIS data. In no event shall the County become liable for any errors or omissions in the GIS, and will not under any circumstances be liable for any direct, indirect, special, incidental, consequential, or other loss, injury or damage caused by its use or otherwise arising in connection with its use, even if specifically advised of the possibility of such loss, injury or damage. The data and or functionality on this site may change periodically and without notice. In using the GIS data, users agree to indemnify, defend, and hold harmless the County for any and all liability of any nature arising out of or resulting from the lack of accuracy or correctness of the data, or the use of the data. Date created: 1/13/2021 Last Data Uploaded: 1/13/2021 9:11:45 AM 1,180 ft Overview Legend Parcels Roads Kuhio Hwy Kahili Makai St. EXHIBIT B Flood Hazard Assessment Report Disclaimer: The Hawaii Department of Land and Natural Resources (DLNR) assumes no responsibility arising from the use, accuracy, completeness, and Ɵmeliness of any informaƟon contained in this report. Viewers/Users are responsible for verifying the accuracy of the informaƟon and agree to indemnify the DLNR, its oĸcers, and employ- ees from any liability which may arise from its use of its data or informaƟon. If this map has been idenƟĮed as 'PRELIMINARY', please note that it is being provided for informaƟonal purposes and is not to be used for Ňood insurance raƟng. Contact your county Ňoodplain manager for Ňood zone determina- Ɵons to be used for compliance with local Ňoodplain management regulaƟons. Property InformaƟon COUNTY: FIRM INDEX DATE: THIS PROPERTY IS WITHIN A TSUNAMI EVACUTION ZONE: FOR MORE INFO, VISIT: hƩp://www.scd.hawaii.gov/ THIS PROPERTY IS WITHIN A DAM EVACUATION ZONE: FOR MORE INFO, VISIT: http://dlnreng.hawaii.gov/dam/ Flood Hazard InformaƟon SPECIAL FLOOD HAZARD AREAS (SFHAs) SUBJECT TO INUNDATION BY THE 1% ANNUAL CHANCE FLOOD - The 1% annual chance Ňood (100- year), also know as the base Ňood, is the Ňood that has a 1% chance of being equaled or exceeded in any given year. SFHAs include Zone A, AE, AH, AO, V, and VE. The Base Flood ElevaƟon (BFE) is the water surface elevaƟon of the 1% annual chance Ňood. Mandatory Ňood insurance purchase applies in these zones: Zone A: No BFE determined. Zone AE: BFE determined. Zone AH: Flood depths of 1 to 3 feet (usually areas of ponding); BFE determined. Zone AO: Flood depths of 1 to 3 feet (usually sheet Ňow on sloping terrain); average depths determined. Zone V: Coastal Ňood zone with velocity hazard (wave acƟon); no BFE determined. Zone VE: Coastal Ňood zone with velocity hazard (wave acƟon); BFE determined. Zone AEF: Floodway areas in Zone AE. The Ňoodway is the channel of stream plus any adjacent Ňoodplain areas that must be kept free of encroachment so that the 1% annual chance Ňood can be carried without increasing the BFE. NON-SPECIAL FLOOD HAZARD AREA - An area in a low-to-moderate risk Ňood zone. No mandatory Ňood insurance purchase requirements apply, but coverage is available in parƟcipaƟng communiƟes. Zone XS (X shaded): Areas of 0.2% annual chance Ňood; areas of 1% annual chance Ňood with average depths of less than 1 foot or with drainage areas less than 1 square mile; and areas protected by levees from 1% annual chance Ňood. Zone X: Areas determined to be outside the 0.2% annual chance Ňoodplain. OTHER FLOOD AREAS Zone D: Unstudied areas where Ňood hazards are undeter- mined, but Ňooding is possible. No mandatory Ňood insurance purchase apply, but coverage is available in parƟcipaƟng commu- niƟes. FLOOD HAZARD ASSESSMENT TOOL LAYER LEGEND (Note: legend does not correspond with NFHL) www.hawaiinfip.org Notes: BASEMAP: FIRM BASEMAP 0 100 200 ft KAUAI TMK NO: (4) 5-2-012:019 WATERSHED: KILAUEA PARCEL ADDRESS: ADDRESS NOT DETERMINED KILAUEA, HI 96754 NOVEMBER 26, 2010 LETTER OF MAP CHANGE(S):NONE FEMA FIRM PANEL:1500020060E PANEL EFFECTIVE DATE:SEPTEMBER 16, 2005 YES YES ( ) EXHIBIT C