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2023-01-24 Planning Commission Agenda Packet
PLANNING COMMISSION KAAINA S. HULL, CLERK OF COMMISSION •The Planning Commission Meeting will be in-person at: o Lihu'e Civic Center, Moikeha Building o Meeting Room 2A-2B o 4444 Rice Street, Lihu'e, Kaua'i, Hawai'i FRANCIS DEGRACIA, CHAIR DONNA APISA, VICE CHAIR GERALD AKO, MEMBER HELEN COX, MEMBER GLENDA NOGAMI STREUFERT, MEMBER JERRY ORNELLAS, MEMBER LORI OTS� lvrEM�ER/C: ·23 18 . 10 :01 •Written testimony indicating your 1) name or pseudonym, and if applicable, your position/title and organization you are representing, and 2) the agenda item that you are providing comment on, may be submitted on any agenda item in writing to planningdepartment@kauai.gov or mailed to the County of Kaua'i Planning Department, 4444 Rice Street, Suite 473, Lihu'e, Hawai'i 96766. Written testimony received by the Planning Department at least 24 hours prior to the meeting will be distributed to all Planning Commissioners prior to the meeting. Any testimony received after this time and up to the start of the meeting will be summarized by the Clerk of the Commission during the meeting and added to the record thereafter. •Oral testimony will be taken on specific agenda items, in-person at the public meeting location indicated on the meeting agenda. IF YOU NEED AN AUXILIARY AID/SERVICE, OTHER ACCOMMODATION DUE TO A DISABILITY, OR AN INTERPRETER FOR NON-ENGLISH SPEAKING PERSONS, PLEASE CONTACT THE OFFICE OF BOARDS & COMMISSIONS AT (808) 241-4917 OR ASEGRETl@KAUAI.GOV AS SOON AS POSSIBLE. REQUESTS MADE AS EARLY AS POSSIBLE WILL ALLOW ADEQUATE TIME TO FULFILL YOUR REQUEST. UPON REQUEST, THIS NOTICE IS AVAILABLE IN ALTERNATE FORMATS SUCH AS LARGE PRINT, BRAILLE, OR ELECTRONIC COPY. 4444 Rice Street, Suite A473 • Uhu'e, Hawai'i 96766 • (808) 241-4050 (b) An Equal Opportunity Employer PLANNING COMMISSION MEETING NOTICE AND AGENDA Tuesday, January 24, 2023 9:00 a.m. or shortly thereafter Lihu'e Civic Center, Moikeha Building Meeting Room 2A-2B 4444 Rice Street, Lihu'e, Kaua'i, Hawai'i A.CALL TO ORDER B.ROLL CALL C.APPROVAL OFAGENDA D.MINUTES of the meeting(s) of the Planning Commission E. F. G. RECEIPT OF ITEMS FOR THE RECORD HEARINGS AND PUBLIC COMMENT l.Continued Agency Hearing a.None for this Meeting. 2.New Agency Hearing a.None for this Meeting. 3.Continued Public Hearing a.None for this Meeting. 4.New Public Hearing a.None for this Meeting. CONSENT CALENDAR l.Status Reports a.None for this Meeting. 2.Director's Report for Project(s) Scheduled for Agency Hearing a.CLASS IV ZONING PERMIT (Z-IV-2023-8) and VARIANCE PERMIT (V-2023-3) to allow deviations from the setback requirement, Section 8-4.3(b) of the Kauai County Code (1987), for the construction of a new single-family dwelling unit on a parcel situated along the mauka side of Hana lei Plantation Road in Princeville, situated immediately adjacent to and west of property identified as 5219 Hana lei Plantation Road, further identified as Tax Map Key: (4) 5-4-004:016, containing a total area of 838 square feet = Matt Berg. 1.Director's Report Pertaining to this Matter. PLANNING COMMISSION -JANUARY 24, 2023 PAGE 2 Project Summary Variance Application Reference Date 12/5/2022 TMK (4) 5-4-004-016 (referred to as Parcel 16 or P16) is an irregular triangular shape. Due to the standard property setback requirements listed in the CZO P16 is rendered unusable and thus does not have privileges enjoyed by other properties in the vicinity. The purpose of this application is to seek a variance permit to the standard setback, height and parking requirements listed in the CZO to build a micro-livable workspace. Parcel 16 is designated as AG and a remnant of the recordation of Land Court Map 1 of this area in 1958. This parcel was created prior to ordinance of 1972 (see Land Court Map in appendix). Plans within are designed to 1) protect cultural and historic resources while impacting the environmental surrounding area as little as possible 2) improve the value of the land and the neighboring area through thoughtful design and architecture that merges with the native surroundings 3) minimize the impact to the environment by using high efficient and green building practices such as renewable energy technology and advanced water treatment systems 4) complete the build in as an affordable manner as possible 5) make the building compact and walkable to public transportation to avoid need of car. To provide a resource that may be of use towards addressing the affordable housing crisis on island all plans and schematics for this micro-livable dwelling will be made open source and available to the public. Contents: •Ka Pa'akai o Ka Aina Analysis •Site Survey and Orientation •Proposed Plan and Renderings •Proposed Agriculture Work •Tree Removal Plans and SMA •Proposed Water Treatment Plan •Alignment with Kauai General Plan Goals •Summary •Appendix: Supporting Email Communication with Local Departments G.2.a. Jan. 24, 2023 Ka Pa'akai o Ka Aina Analysis Introduction At the request of the County of Kaua'i I have prepared this Ka Pa'akai o Ka Aina Analysis for Tax Map Key of (4) 5-4-004-016. The County of Kaua'I has requested an evaluation of the project for impacts to traditional native cultural and customary practices and this analysis is intended to address this request. The proposed project area will involve the construction of a two-story micro work from home office with dimensions of 30' I x 10' w x 18' h. Article XII, Section 7 of the Hawai'i Constitution reaffirms and shall protect the reasonable exercise of customarily and traditionally exercised rights of native Hawaiians to the extent feasible. Over the course of several months, I have worked to identify any valued cultural, historical or natural resources in the proposed project area and assess the extent to which traditional and customary rights are or have been exercised in the project area. This section presents a summary of the historical archival information specific to adjacent area from previous studies conducted within the immediate vicinity of the parcel. Hawaiian History in Area From its mountain peaks to the waters of the broad bay, Hana lei and the surrounding area is a richly endowed agricultural, scenic, recreational, and historical environment. For over 1000 years people, first the Hawaiians and subsequently Hawaiian and others, have used and cared for the land and waters. The continuing cultural traditions and ethnic diversity gives the community a blended character representative of the several eras of its historic and cultural heritage of the community. Hawaiians have lived in Hanalei and the surrounding area since the thirteenth century and possibly since the seventh century. The history of the Hanalei area is the story of the people of Hanalei: Hawaiians, Caucasians, Chinese-Americans, Japanese-Americans, and Filipino-Americans. It is the history of individuals, but especially ethnic and cultural groups. This history is still reflected in the historic buildings that survive and that are associated with each group. Hanalei Valley, with its taro fields, auwai, agricultural and residential structures, roads, bridges, cemeteries and historic sites, is a significant landscape on the island of Kauai, in the State of Hawaii, and within the United States. It is a landscape which has developed and changed through the intricate weaving of natural elements and human aspirations. Today, this landscape, placed between the power of the mountains and the wonders of the sea, reveals to all who see it a scene of classic beauty; but it reveals much more than that. This landscape is history made visible: the history of ancient peoples and modern ones; the history of agricultural successes and failures; and the history of the yearning to construct a place for human enjoyment beside and within a landscape of stunning brilliance. Known Cultural and Historic Resources According to several reports available at the Kauai Historical Society, inventories have shown Hanalei's prehistory archaeological resources to be extensive. The include irrigated lo'i, habitation sites, other agricultural sites, irrigation auwai and two heiau. However, the absence of comprehensive archaeological investigations and inventories have left many archaeological resources unidentified and, thus, vulnerable to unintentional damage and destruction, and intentional pillaging. The 1986 Cultural Landscape Survey found 13 significant landscapes/sites and 60 significant historic structures; of these, only 9 are listed on the State and National Registers of Historic Places: the Hanalei Pier, the Hanalei Bridge, the Haraguchi Rice Mill, the Lihue Hongwanji, Waioli Mission District, Mahamoku beach home, the A.S. Wilcox House, the Baldwin Beach Cottage, and the Old Hanalei School. DEPARTMENT OF PLANNING KA'AINA HULL, DIRECTOR JODI A. HIGUCHI SAVEGUSA, DEPUTY DIRECTOR I.SUMMARY DIRECTOR'S REPORT DEREK S.K. KAWAKAMI, MAYOR MICHAEL A. DAHILIG, MANAGING DIRECTOR Action Required by Consideration of Class IV Zoning Permit and Variance Permit to Planning Commission:allow a deviation from the setback requirements for the construction of a single-family residence. Permit Application Nos. Class IV Zoning Permit Z-IV-2023-8 Variance Permit V-2023-3 Name of Applicant(s) MATTHEW BERG II.PERMIT INFORMATION D Use Permit D Project Development Use Permit � Variance Permit D Special Permit � Zoning Permit Class �IV 0 IllD Special Management Area Permit Duse D Minor D Zoning Amendment D General Plan Amendment D State Land Use District Amendment PERMITS REQUIRED A Variance Permit is required to deviate from the setback requirement, pursuant to Section 8-4.3(b) of the KCC, 1987. Pursuant to Section 8-3.1 of the KCC, 1987, as amended, a Class IV Zoning Permit is a procedural requirement in applying for a Variance Permit. AMENDMENTS https://kaua icounty-my.sha re point.com/persona l/dcua_kauai_gov /□ocuments/dcua.files/Regulatory Files/Zeni ng/Class IV /Z-IV-2023-B_Berg/Reports/Report-1 l.17 .2023 DC..Z-IV-2023-B_Berg.SFR.docx G.2.a.1. Jan. 23, 2023 H.1. October 11, 2022XK.1.a. Jan. 24, 2023 PERMITTEE RP21 COCO PALMS, LLC'S MEMORANDUM IN OPPOSITION TO PETITION FOR DECLARATORY ORDER REGARDING SPECIAL AREA USE PERMIT SMA (U)-2015-6; PROJECT DEVELOPMENT U-2015-7; VARIANCE PERMIT V-2015-1; CLASS IV ZONING PERMIT NO. ZA-IV-2015-8, DATED AUGUST 23, 2022 Kauai Planning Commission 4444 Rice Street, Suite 473 Lihue, Kauai, Hawaii 96766 January 2023 K.1.b. Jan. 23, 2023 WILLIAM W.L. YUEN RICHARD M. CRUM DENTONS US LLP 1001 Bishop Street, Suite 1800 Honolulu, Hawai'i 96813-3689 Telephone: (808) 524-1800 Facsimile: (808) 524-4591 1359 11499 E-mail:william.yuen@dentons.com rick.crum@dentons.com Attorneys for Permittee RP21 Coco Palms, LLC BEFORE THE PLANNING COMMISSION OF THE COUNTY OF KAUAI In The Matter Of SPECIAL AREA USE PERMIT SMA (U)-2015-6; PROJECT DEVELOPMENT U-2015-7; VARIANCE PERMIT V-2015-1; CLASS IV ZONING PERMIT 2015-8 (for RP21 COCO PALMS, LLC) 15811525\000001\122822653\V-4-12/28/22 PERMITTEE RP21 COCO PALMS, LLC'S MEMORANDUM IN OPPOSITION TO PETITION FOR DECLARATORY ORDER REGARDING SPECIAL AREA USE PERMIT SMA (U)-2015-6; PROJECT DEVELOPMENT U-2015-7; VARIANCE PERMIT V-2015-1; CLASS IV ZONING PERMIT NO. ZA-IV-2015- 8, DATED AUGUST 22, 2022; DECLARATION OF RICHARD M. CRUM; DECLARATION OF BENJAMIN SCHRAMM AND EXHIBITS A AND B; DECLARATION OF CHAD DECOURSEY; EXHIBITS 1 -8; CERTIFICATE OF SERVICE PERMITTEE RP21 COCO PALMS, LLC'S MEMORANDUM IN OPPOSITION TO PETITION FOR DECLARATORY ORDER REGARDING SPECIAL AREA USE PERMIT SMA (U)-2015-6; PROJECT DEVELOPMENT U-2015-7; VARIAN CE PERMIT V-2015-1; CLASS IV ZONING PERMIT NO. ZA-IV-2015-8, DATED AUGUST 23, 2022 I.INTRODUCTION On August 23, 2022, Petitioners Hawai'i Alliance for Progressive Action ("HAPA"), Sierra Club, Kauai Group ("Sierra Club"), Surfrider Foundation, Kauai Chapter ("Surfrider"), and Judith Ann Dalton ("Dalton," and collectively "Petitioners") filed a Petition 1 asking the Kaua'i Planning Commission (the "Commission") to determine that the property owner has not made St!bstantial progress under the development permits for the restoration of the Coco Palms Resort (the "Project"). RP21 Coco Palms, LLC ("RP21 Coco Palms") Permittee and the present owner of the Coco Palms Resort property, submits this Opposition to the Petition. Petitioners contend RP21 Coco Palms and its predecessors did not make substantial progress to develop under the Class IV Zoning Permit Z-IV-2015-8, Project Development Use Permit PDU-2015-7, Variance Permit V-2015-1 and Special Management Area Use Permit SMA (U)-2015-6 issued by the Commission on March 10, 2015, as amended by Letter dated December 31, 2018 (the "Permits"). Petitioners allege the Director of the Planning Department of the County of Kaua'i (the "Director") did not make a "finding" of substantial progress within two years of the issuance of the Permits, and therefore pursuant to the County ofKaua'i Special Management Area Rules and Regulations (the "SMA Rules") Rule 10, the Permits should be deeil).ed to have lapsed. Petitioners also allege that the 2013 Extension of the Iniki Ordinance allowing the owners of the Coco Palms Resort to submit the Special Permit Application constitl.!tes unconstitutional special legislation. The Petition must be denied for the following reasons: (1) the Commission lacks authority to determine whether substantial progress has been made under the Permits; (2) a lack of substantial progress within two years is only one factor the Director may consider when deciding to recommend revocation of permits; (3) the Director made a determination of substantial progress under the Permits in 2018; (4) as recently as August 23, 2022, the current 1 Petitionfor Declaratory Order Regarding Special Area Use Permit SMA(U)-2015-6; Project Development U-2015-7; Variance Permit V-2105-1; Class IV Zoning Permit No. ZA-IV-2015-8; Memorandum of Authorities; Declaration of Anne Frederick; Declaration of Rayne Regush; Declaration of Gordon Labetz; Declaration of Judith Ann Dalton; Declaration of Teresa Tica; Exhibits A-F; Certificate of Service, dated August 23, 2022 (together with the accompanying Memorandum of Authorities and Dedarations, the "Petition"). 1 5811525\00000l\l:,.2822653\V-4-12/28/22 Director determined during a Hawai'i Revised Statutes ("HRS") Chapter 92 hearing that the time to demonstrate progress under the Permits has effectively been extended beyond the two year window set by the SMA Rules; (5) substantial progress in development has in fact been made; and (6) Petitioners' theory of "automatic lapse" is not supported either by Hawai'i law or the Fifth Circuit Court's Order in West Sunset 32 Phase I, LLC v. County of Kaua 'i Planning Commission, Civil No. 5CC191000105 (June 9, 2020) ("West Sunset"). Further, the Commission lacks authority to rule on the constitutionality of a county ordinance. Petitioners' counsel admitted at the October 11, 2022 Commission hearing, that the Commission does not have authority to rule on the constitutionality of an ordinance. Petitioners furthermore misconstrue the applicable laws and regulations at issue. For these reasons, the Petition must be denied. II.FACTUAL AND PROCEDURAL BACKGROUND A.Ownership of the Coco Palms Resort Property On or about May 2, 2016, Coco Palms Hui, LLC and Private Capital Group, Inc., as agent for certain lenders ("PCG") entered into a loan agreement for PCG to finance Coco Palms Hui, LLC's redevelopment of the Coco Palms Resort. Declaration of Benjamin Schramm ("Schramm Deel.") ,i 5. Coco Palms Hui, LLC, defaulted on the loan from PCG. Id at ,i 6. On June 17, 2020, the Circuit Court for the Fifth Circuit, State of Hawai'i entered Findings of Fact and Conclusions of Law and Order, granting PCG's motion for foreclosure of PCG's mortgage on the Coco Palms Resort. Private Capital Group, Inc. v. Coco Palms Hui LLC, Civ. No. 19-1- 0086 (Hawai'i 5th Cir., June 17, 2020). On July 26, 2021, the Coco Palms Resort was sold at a foreclosure sale to PCG, for the price of$22,231,000. See Private Capital Group, Inc. v. Coco Palms Hui LLC, Civ. No. 19-1- 0086, 2 (Hawai'i 5th Cir., Sept. 16, 2021). On October 26, 2021, the court confirmed the sale of the Coco Palms Resort to RP21 Coco Palms, as nominee of PCG. B.The Permits On March 10, 2015, the Commission approved the Permits for the Coco Palms Resort, subject to 29 development conditions. Exhibit 5. No condition imposed a two-year substantial progress requirement. Following the issuance of the Permits in March 2015, RP21 Coco Palms' predecessor in interest hired Pacific Concrete Cutting and Coring, Inc. ("Pacific Concrete") to conduct reconstruction, hurricane debris removal, demolition, sitework, and construction preparation to 2 I 581 !525\000001\122822653\V-4-12/28/22 renovate the Coco Palms Resort. Pacific Concrete completed the majority of the reconstruction work in 2016. This work was critical for the commencement of construction and renovation phases of the development. Between March 10, 2015, and March 10, 2017, PCG paid $4,946,433.81 for the Coco Palms Resort development, $3.1 million of which was paid for demolition and sitework on the Project. Since March 2017, PCG, relying on the Commission's continued approvals, has paid an additional $3,132,320.65 towards construction and development of the Coco Palms Resort. See Schramm Deel., at ,r,r 10-14, Exhibits A and B. C.Relevant Hearings Before the Commission SMA Rule 12.0 and Chapter 12 of the Rules of Practice and Procedure, Kaua'i County Planning Commission (the "Commission Rules") describe the proper procedure to revoke Permits issued by the Commission. Commission Rule 1-12-2 provides that the Director or other interested party may initiate a proceeding to show cause why permits should not be revoked. In 2018, the Planning Department initiated just such an enforcement-related order to show cause why the Permits should not be revoked. Following departmental review, the Director and RP21 Coco Palms' predecessor negotiated amended conditions to the Permits. Minutes to the Regular Meeting of the Kaua'i Planning Commission, Nov. 13, 2018 at 17 (the "Nov. 13, 2018 Commission Minutes," attached as Exhibit 1). Prior to negotiating the amendments and withdrawing the enforcement action, the Director had to have made a determination that substantial progress had been made under the Permits. The Commission ratified the Director's conclusions and approved the amended conditions on November 13, 2018. On December 31, 2018, the Commission notified the then-owner of the Coco Palms Resort of the approval and the amended conditions of"the permit in its entirety" (the "2018 Permit Amendment," attached as Exhibit 2). The Commission's 2018 Permit Amendment further establishes that Coco Palms made substantial progress on the development within two years of SMA Permit's issuance. Between 2018 and 2022, the Coco Palms Resort, on numerous occasions, was occupied by squatters illegally trespassing on the land.2 Other unknown people also dumped garbage and 2 See, e.g., Bethany Freudenthal, Police Remove Coco Palms Occupiers, The Garden Island (Feb. 23, 2018) https://www .thegardenisland.com/2018/02/23/Hawai' i-news/police-remove-coco-palms-occupiers- 2/. 3 15811525\000001\122822653\V-4-12/28/22 abandoned vehicles on the Coco Palms Resort property.3 Problems with illegal squatters and garbage dumping still persist at the Coco Palms Resort. Nevertheless, RP21 Coco Palms has completely satisfied eight of the 29 conditions under the Permits and is in the process of satisfying an additional 14 conditions. In particular, regarding condition No. 15, RP21 Coco Palms has applied for all 25 of the required building permits necessary to restore the Coco Palms Resort. The county has issued 18 of the required building permits. See Exhibit 3, June 30, 2022, Progress Report at 6 ,r 15. At the August 23, 2022, Commission public hearing on the acceptance ofRP21 Coco Palms latest progress report, the Director stated that the two-year substantial progress requirement stated in SMA Rule 10 does not apply to the specific Permits for the Coco Palms Resort. See Exhibit 4, Minutes to the Regular Meeting of the Kaua'i Planning Commission, Aug. 23, 2022, at 30 (the "Aug. 23 2022 Commission Minutes .. On October 11, 2022, the Commission held an HRS Chapter 92 public hearing on the Petition at which time RP21 Coco Palms and Petitioners (collectively, the "Parties") gave statements and answered questions regarding the Petition and the Project. The Director stated on the record that RP21 Coco Palms, and its predecessors, had been diligent and proactive in their compliance with the development conditions under the permits. See Exhibit 8, Draft Minutes to the Regular Meeting of the Kaua'i Planning Commission, Oct. 11, 2022 (the "Oct. 11, 2022 ·Commission Minutes") at 26-27. The Commission also requested that the Parties meet to discuss possible settlement. Declaration of Chad DeCoursey ("DeCoursey Deel.") at ,r 5. The Parties discussed settlement on October 21, 2022, and November 1, 2022, via videoconference, but were unable to agree on an amicable resolution to this dispute. Contrary to their representations at the October 11, 2022 Commission meeting, Petitioners have neither made any offer to purchase the Coco_ Palms Resort nor provided any indication that they have the financial ability to do so. Id. at ,r 5-8. 3 See, e.g., Ryan Collins, People Still Residing at Coco Palms, The Garden Island (June 14, 2019) https:/ /www .thegardenisland.com/2019/06/14/Hawai' i-news/people-still-residing-at-coco-palms/. 4 15811525\000001 \122822653\V-4-12/28/22 III.LEGAL ST AND ARD Rule 10 of the SMA Rules provides: Unless othenvise stated in the permit, once a permit is issued, the applicant must make substantial progress, as determined by the Director, regarding the development or activity within two (2) years or the permit shall be deemed to have lapsed and be no longer in effect. Permits can be amended or revoked through the procedure outlined in Chapter 12 of the Rules of Practice and Procedure of the Planning Commission. 'Development' means any of the following uses, activities, or operations on land or in or under water within a Special Management Area: (2)Grading, removing, dredging, mining, or extraction of any materials; (5)Construction, reconstruction, demolition, or alteration in the size of any structure. SMA Rule 1.4 (F) (2, 5) ( emphases added). Under SMA Rule 10, a permit may lapse, but it is not revoked. In essence, lack of progress within two years is only one factor Planning Director should consider in determining whether to recommend revoking a permit. It is not the sole determining factor. "An agency's interpretation of its rules receives deference unless it is plainly erroneous or inconsistent with the underlying legislative purpose." Int'/ Bhd. of E/ec. Workers, Local 1357 v.Hawaiian Tel. Co., 68 Haw. 316,322, 713 P.2d 943; 950 (1986).4 The passage of ordinances by the Kaua'i County Council is a legislative act, and is therefore entitled to a presumption of validity. HRS§ 46-1.5 (counties have power to adopt their own charter, structure a municipal legislature, and pass ordinances); County ofKaua'i Charter 4 Notably, the County ofKaua'i has relied on this case in an appeal of the West Sunset case for the proposition that: "'Substantial progress' is not a defined term in the SMA Rules and is, instead, 'determined by the Director.' SMA Rule 10.0. However, 'substantial progress' does not mean that a project must be in its final stages or completed[.] The Director thus has the discretion to determine whether progress in a development constitutes 'substantial progress.' Just as an agency's discretionary determinations are entitled to deference, the Director's interpretation of 'substantial progress' is entitled to deference[.]" Respondents/Cross-Appel/ants County of Kaua'i's Opening Brief. West Sunset 32 Phase 1, LLC et al. v. County of Kaua'i Planning Commission et al., 2020 WL 10357072 at *10 (Hawai'i App. Dec. 3, 2020) (emphasis added) (citing Int 'l Bhd. of Elec. Workers, Local 1357, 68 Haw. 316, at 322, 713 P.2d at 950). 5 15811525\00000l\122822653\V-4-12/28/22 Article IV, Section 4.01 ("Every legislative act of the council shall be by ordinance except as otherwise provided."). 5"[T]he Commission may, on its own motion or upon request but without notice or hearing, issue a declaratory order to terminate a controversy or remove uncertainty." R. 1-1 0- 1 (b) ("Declaratory Order on the Commission's Own Motion"). IV.ARGUMENT As a threshold matter, Petitioners request a declaratory ruling under Commission Rule 1 O regarding the applicability of SMA Rule 10 to the Permit;_ this ruling is the only relief Petitioners have sought and is the only relief the Commission may grant them under the Com mission Rules. The Commission may do one of the following: 1.Dismiss the Petition. Commission Rule 1-10-4 ( dismissal of a petition, without notice, for failure to comply with requirements of Commission Rules Chapter 1 O); 2.Refuse to Issue a Declaratory Order. Commission Rule 1-10-5 (for good cause, the Commission may refuse to issue a declaratory order under certain conditions); or 3.Issue an Order Disposing of the Petition. Commission Rule 1-10-7 ("an order disposing of a petition shall be applicable only and strictly limited to the factual situation described in the petition or set forth in the order"). If the Commission were to find that substantial progress had not occurred, the Commission is without authority to revoke the Permits under a petition for declaratory ruling. For this reason, the relief requested in the Petition should be denied. Commission Rule 1-12-2 provides that the Planning Department, the Commission or any person directly affected by the permit whose interest is clearly distinguishable from the general public may file a petition with the Director to revoke an SMA permit. Commission Rule 1-12-5 requires the Director to review and investigate the basis for any petition to revoke a permit and report to the Commission within 60 days. If the Director recommends revocation of permits to the Commission, and the Commission agrees, Commission Rule 1-12-6 then requires the Commission to issue an Order to Show Cause why the permit should not be revoked or modified. The instant proceeding before 5 Save Sunset Beach Coal. v. City & Cnty. of Honolulu, 102 Haw. 465,473, 78 P.3d 1, 9 (2003) (legislative acts of county councils are "entitled to a presumption of validity") ( citations omitted); Richardson v. City & Cnty. of Honolulu, 76 Haw. 46, 54-55, 868 P.2d 1193, 1201-02 (1994) ("legislative enactments are presumptively valid and "should be interpreted [in such a manner as] to give them effect."). 6 15811525\000001\122822653\V-4-12/28/22 the Commission is not a Commission Rules Chapter 12 proceeding, so revocation of the Permits is not properly at issue here. As discussed below only the Director, not the Commission, has the power to make determinations under SMA Rule 10 regarding progress under the Permits.6 The Petition otherwise lacks merit sufficient to grant it on any basis, and therefore must be denied. A.The Director, Not the Commission, Has Authority to Make a Determination of Substantial Progress Under SMA Rule 10 First, only the Director, not the Commission, has the authority to make an initial determination of substantial progress under SMA Rule 10. SMA Rule 10 ("the applicant must make substantial progress, as determined by the Director") (emphasis added). Petitioners repeatedly contend that the "Planning Director did not make a finding of substantial progress within two years of the issuance of the permits." SMA Rule 10 requires that the applicant must make substantial progress "regarding the development or activity" within two years, "as determined by the Director," but SMA Rule 10 does not require the Director to make such a finding. ( emphasis added). The Petition states that "[t]here is nothing the Commissioners need to do but acknowledge the permits have lapsed and are no longer in effect." While SMA Rule 10 so provides, a lapsed special permit must still be revoked. SMA Rule 10 provides that if a Director believes no substantial progress has been made to develop under a permit, the Director must recommend initiating a proceeding to amend or revoke the permit under the Commission Rules Chapter 12 procedures outlined above. Commission Rule Chapter 12, Revocation and Modification of Permits, outlines the rules and procedures for petitions to revoke permits. Commission Rule Chapter 12 does not require any specific findings or that the determination-as opposed to substantial progress-occur within two years. Because Petitioners did not petition the Director to revoke the Permits, there has been no investigation by the Director and no order to show cause issued. As a result the Commission has no factual basis on which to conclude that substantial progress has or has not been made with respect to the development at the Coco Palms Resort. Thus the Petition sh ould be denied. Petitioners' only authority is an approved Findings of Pact and Conclusions of Law Order from the West Sunset case (which is currently on appeal before the Hawai'i Intermediate Court 6 RP2 l Coco Palms also notes that the Director has discretion to amend or modify permits and allow permit holders to correct or remedy any underlying issues with a given permit. Commission Rule 1-12-4. 7 15811525\000001 \122822653\V-4-12/28/22 of Appeals ["ICA"]), where the Fifth Circuit found that other permits on a different property under different circumstances were deemed lapsed under SMA Rule 10. Appellants West Sunset 32 Phase 1, LLC et al. Findings of Fact and Conclusions of Law, Civil No. 5CC 191000105 at ,I 48-73 (June 9, 2020) (the "West Sunset Order, " attached as Exhibit 7). SMA Rule 10 establishes a standard for the Director to evaluate progress and determine whether to initiate proceedings to revoke the Permits. But because the Director has already determined substantial progress has been made for the purposes of SMA Rule 10 in 2018, Petitioners' arguments fail. B.The Former Director Made Determinations of Compliance with Development Conditions and Substantial Progress Petitioners do not cite to any Director determinations supporting their position that the permits have lapsed. In contrast, RP21 Coco Palms finds two determinations-in the public record by the former Director supporting the position that: (1) the Coco Palms Resort _is now and has been in compliance with the development conditions attached to the permits, and (2) substantial progress has been made within two years of the issuance of the Permits. First, the former Director clearly indicated that the Coco Palms Resort had made "progress" in November of 2018. Exhibit 1 at 27 (Nov. 13 Commission Minutes). The November 13, 2018, Planning Commission hearing arose following an enforcement proceeding to determine whether progress had, in fact, been made. Addressing whether to modify the conditions of Permit approval, former Director Michael Dahilig determined progress had been made, no violation of SMA Rule 10 had occurred, and it was appropriate to modify the conditions of approval. Id. at 17-18, 27. At the hearing.Mr. Dahilig stated the following with respect to progress on the four Permits at issue: "[W]e feel comfortable that there are enough safeguards to help [the developer] maintain fonvard progress. With that, Madame Chair, we would recommend that the Commission ... amend the permit conditions as listed [in] the stipulated agreement[.]" Id. at 27. The Commission then amended the development conditions attached to the Permits. Developers have reported continued progress in satisfying these conditions in the progress reports submitted to the Planning Department from 2018 to the present. The most recent progress report, submitted in June of 2022, was received and filed by the Commission in August 8 1581 1525\00000 l \122822653\V-4-12/28/22 2022. Exhibit 2 at 1-8 (2018 Permit Amendment); Exhibit 3 (June 30, 2022, Annual Progress Report); Exhibit 4 at 30 (Aug. 23, 2022 Commission Minutes). Second, the Commission took action in 2018 to amend the Permits to include development conditions with deadlines for completion scheduled beyond 2019. Exhibit 2 at ,i 15 (2018 Permit Amendment; setting development condition deadline in 2019). If the former Director had made a determination of no substantial progress in 2018, he would have so stated and allowed the enforcement actions to revoke the Permits to proceed. See Commission Rules R. 1-12-2 ("Declaratory Order on the Commission's Own Motion"). Instead, the Director determined that the permits remain valid and recommended the 2018 Permit Amendments. The Commission agreed. Exhibit 1 (Nov. 13, 2018, Minutes) at 27; Exhibit 2 (2018 Permit Amendment). The Commission approved the 2018 Permit Amendment after an express finding of progress by the former Director. Neither the Commission nor the former Director found a lack of compliance with development conditions, or a lack of progress with the development itself. If anything, the opposite inference should be drawn; amendment to the development condition attached to the permits effectively renews and confirm their validity. The former Director signed and issued the 2018 Permit Amendment following a finding by the Commission that the permits, as amended, are valid. Additionally, the current Director has determined that "when you look at these specific permits that were granted in 2015, there were specific deadlines for specific actions to occur that go beyond the two-year window" under SMA Rule 10. Exhibit 4 at 30 (Aug. 23, 2022 Commission Minutes) ( emphasis added). The current Director has reiterated that RP21 Coco Palms has done everything it was required to do. Oct. 11, 2022 Commission Minutes at 26-27 (Exhibit 8). These statements are a further determination by the Director that the SMA Rules requirements have been satisfied, SMA Rule 10, as it applies to the Coco Palms Resort Permits has been satisfied, and the Coco Palms Resort Permits remain valid. C.The Current Director has Determined Petitioners' Misread SMA Ruic 10 When asked whether the permits for the Coco Palms Resort had lapsed, the current Director stated: [There was] a reference to a recent court case in which the SMA rules and regulations were utilized [the West Sunset case], in that there is a two-year window that SMA permits are entitled to and ifno subsequent action is 9 1581 )525\000001\122822653\V-4-12/28/22 7 10 issued for the property by March 31, 2017, subject to extension caused by the occurrence of force majeure events. This condition 17 is satisfied." Id. at 5 ,r 17. The phrase "Unless otherwise stated in the permit" provides sufficient basis for the Planning Commission to impose conditions that may require more than two years to satisfy, nullifying any automatic lapsing of a permit. Petitioners' misinterpretation of SMA Rule 10 is clearly erroneous: the Commission's November 13, 2018, action, and the Director's August 23, 2022, and October 11, 2022, statements before the Commission, as well as the relevant permit documents, amendments, and determinations from both the former and current Directors confirm RP21 Coco Palms' compliance with permitting requirements. D.Substantial Progress Has Been Made Even if the Commission accepts the Petitioners' invitation to make a determination in place of the Director regarding substantial progress, the Director has already concluded substantial progress has been made regarding the Coco Palms Resort as required under SMA Rule 10 (requiring, "substantial progress, as determined by the Director, regarding the development or activity"). Activities that constitute development are varied. They include: •Placement or erection of any solid material or any gaseous, liquid, solid, or thermal waste; •Grading, removing, dredging, mining, or extraction of any materials; •Construction, reconstruction, demolition, or alteration of the size of any structure. SMA Rule 1.4(F). Each of these development activities occurred within two years of the issuances of the SMA Permit. Therefore, substantial progress occurred here. In order to prepare the Coco Palms site for new construction and renovation, RP21 Coco Palms predecessors were first required to remove debris from Hurricane Iniki, demolish and gut the insides of buildings on the property, and remove asbestos containing materials used in the original construction of the 1950's era structures. This limited demolition, site preparation activity, and r�moval of asbestos containing materials occurred in 2016. Schramm Deel. at ,r,r 11-14; Exhibit 3 at ,r 17 (June 30, 2022 Annual Progress Report); Exhibit 2 at 5 ,r 17 (2018 Permit Amendment). This construction work satisfied the definition of "development" under the SMA Rules. The 2018 Permit Amendment as well as the relevant development progress reports confirm that development of the project has occurred. SMA Rule 1.4(F)(2, 5) (the definition of "development" includes removal or extraction of materials, as well as demolition and 11 15811525\00000 l\122822653\V-4-12/28/22 reconstruction); Exhibit 2 at ,i 17 (2018 Permit Amendment); see also Exhibit 3 (June 30, 2022, Annual Progress Report).8 The foregoing development activity coupled with repeated acknowledgement by the former and current Directors confirm a finding of substantial progress. See Exhibit 1 (Nov. 13, 2018, Minutes) at 27; Exhibit 8 (Oct. 11, 2022 Commission Minutes) at 26-27, E.The Theory of "Automatic Lapse" of the Permits is Baseless Petitioners' only remaining argument is based on specious citation to the West Sunset Order and the theory of "automatic lapse." A lapse is not an automatic cancellation or invalidation of the permits under SMA Rule 10. SMA Rule 10 states: Unless otherwise stated in the permit, once a permit is issued, the applicant must make substantial progress, as determined by the Director, regarding the development or activity within two (2) years, or the permit shall be deemed to have lapsed and be no longer in effect. Permits can be amended or revoked through the procedure outlined in Chapter 12 of the Rules of Practice and Procedure of the Planning Commission. Thus once a Planning Director deems a permit to have lapsed, SMA and Commission Rule 12 on Revocation, not SMA Rule 10, describes the procedure the Planning Director and Planning Commission must follow to revoke the permit. No final appellate court ruling in Hawai'i supports Petitioners' position that the permit is automatically revoked. The theory of "automatic lapse" of permits under SMA Rule 10 can only be found in the non-precedential West Sunset Order, which is currently on appeal before the ICA. See Haw. R. of App. Proc. ("HRAP") Rule 35 ("Memorandum opinions and unpublished dispositional orders are not precedent[.]"); Respondents/Cross-Appellants County of Kaua 'i's Opening Brief, West Sunset 32 Phase 1, LLC et al. v. County of Kaua 'i Planning Commission et al., 2020 WL 10357072 (Hawai'i App. Dec. 3, 2020). The Petition cites to no binding authority to support the position that the Permits have "automatically lapsed." Thus, even if the Commission improperly found it had the power to make determinations under SMA Rule 10 in the Director's stead, the Commission has no authority on which to issue a declaratory order determining the Permits have automatically lapsed. 8 These development efforts have come at substantial cost. Between March 10: 2015, and March 10, 2017, PCG loaned $4,946,433.81 in response to draw requests for the Coco Palms Resort development, including $2.88 million in demolition costs between March 10, 2015, and March 10, 2017, and an additional $272,516.48 in demolition costs shortly thereafter. Since March 2017, PCG, relying on the Commission's continued approvals, has paid $3,132,320.65 towards construction and development of the Coco Palms Resort. Schram Dec. ,r 10. 12 15811525\000001\122822653\V-4-12/28/22 In Chang v. Plan. Comm 'n. of Maui Cnty., the Supreme Court ofHawai'i noted when a petitioner asked the Maui Planning Commission for a declaratory ruling to find that a party's SMA Use Permit was "automatically" stayed, the Maui Planning Commission denied the petition. 64 Haw. 431,450 n.5, 643 P.2d 55, 60 n.5 (1982). This case is the only final Hawai'i appellate court decision addressing a petitioner seeking declaratory relief before a county planning commission on the issue of"automatic" lapse or stay of an SMA Use permit. The theory of "automatic lapse" advanced by Petitioners is not supported by any binding Hawai'i precedent. It is based only on Petitioners' misapplication of the West Sunset Order. F.Petitioners' Reliance on West Sunset is Misplaced The Petition falsely analogizes the West Sunset Order approved by a Kaua'i Circuit Court to the Coco Palms Resort Permits. See Petition Memo at 7 (citing Appellants West Sunset 32 Phase 1, LLC et al. Findings of Fact and Conclusions of Law, Civil No. 5CC191000105 (June 9, 2020) (Exhibit 7). Petitioners effectively ask the Commission to conclude that because the Kaua'i Circuit Court found that other permits lapsed on a different property under different circumstances, the Commission must make the same finding here. The actual contents of the West Sunset Order differ significantly from the facts surrounding the Coco Palms Resort such that the West Sunset Order has no persuasive value here. RP21 Coco Palms urges the Commission to reject the Petitioners' specious argument. A property owner in West Sunset constructed improvements without any required permits. West Sunset Order, Findings of Fact ("FOF") at 'ii 29. Almost a decade later, a subsequent owner submitted an application to rectify zoning violations, and later asked for an extension and design.modifications. The application for extension and design modifications contained a letter stating substantial progress had been made under the relevant permits, without substantive detail. Notably, the development at issue in West Sunset was abandoned after nine years. The Commission granted the extension. Id. at 'ii 30-66. The West Sunset court overruled the Commission's grant because the Commission failed to make findings supporting the extension, and because substantial progress was not made within two years of the issuance of the permits with no deadlines set beyond two years of the issuance of the permits. West Sunset Order, Conclusions of Law ("COL") at 'il'il 26-33, 34-47, 48-53. The application to amend and modify the permits was also granted upon improper procedure. Id. at 'il'il 74-76, 100-02. 13 1581 l 525\000001\122822653\V-4-12/28/22 West Sunset is inapplicable here. In contrast to West Sunset, RP21 Coco Palms has made substantial progress regarding the Coco Palms development within two years of the SMA Permit issuance, accordi�g to two County Planning Directors. Further, RP21 Coco Palms has not abandoned the property, and is proactively complying with all requirements under the Permits. RP21 Coco Palms offers the following table to distinguish facts from the West Sunset Order with supporting citation to facts and documents relevant to the Coco Palms Resort: WestSu,iset Summary/Quotation of Relevant ' ··· Dis'tj.ngµishing Factors from:>_Ordef.:'-fOF/COL.i_nWestSunse(:; •. ·--. ·::cocoPalmsRe�ort<\ <;. '.. ·.·F'_·o·-···F/C'.,_.o' L ... ·. ·.. .. '·" .. - ' -·-· .... ,.. ., ,:· - ,,,-·:-_-_ :,I'.#'.., •. :_ .. ·'... '· . ·. ·, FOF if 51 FOF if 52 Hendrikus, one of the developers of a project in West Sunset, "did not state that any of the work he had performed occurred within two (2) years of the issuance of [the permits; including an SMA Permit, Class IV Zoning Permit, and Use Permit], nor did he state that the Planning Director made a determination that substantial progress had been made on the development within two (2) years of the issuance of [the permits]. .. Instead, Hendrikus stated that after almost nine years of continuous work, he realized that it was not financially feasible for him to construct the single family residence, so he sold [the property to another buyer]. Various development requirements under the permits at issue in West Sunset were incomplete, not performed, or not finalized. 14 15811525\000001\122822653\V-4-12/28/22 This case is distinguishable from the Coco Palms Resort; RP21 Coco Palms' predecessor performed substantial work within the requisite two-year time period. In addition, the Director and the Commission have approved amendments to the Coco Palms Resort permits, thereby extending their validity. See Schramm Deel. ,r,r 11-14; Ex. 1 at 26-2,7 (Minutes to Nov. 2018 Hearing); Exhibit 2 (2018 Permit Amendment). The West Sunset project is distinguishable from the Coco Palms Resort; numerous progress reports have been submitted pursuant to development condition no. 29 confirming completion or ongoing work with respect to the development conditions attached to the Coco Palms Resort Permits. See, e.g., Exhibit 3 (June 30, 2022, Progress Report). West Sunset Order . . . FOF/COL. # FOF ,r 70 COL ,r 51 ·Summ'ary/Quotation of Relevant FOF/COL:in West Suiiset .. Somers, a party in the West Sunset matter, filed a Petition for Revocation of the permits at issue. COL in West Sunset found "There is no evidence that Hendrikus made substantial progress on the development, as determined by the Director, within two years of the issuance of the permit." .pisting11is�i�g Facto.rs fro� Coco:P�lms Resort(- This fact and procedural action by Somers in West Sunset is distinguishable from the matter before the Commission here; Petitioners unequivocally state, "To be clear, Petitioners are not seeking a revocation or modification of the permits[.]" Petition Memo at 7.Instead, the Petition seeks an improper declaratory order. Id This legal conclusion is distinguishable here; this memorandum outlines statements and actions by the current and former Director evidencing compliance with development conditions and determinations of progress with :respect to the Coco Palms Resort. Further, the reconstruction and removal of asbestos containing materials from structures on the property are evidence of substantial progress regarding the development. Schramm Deel. ,r,r 11-14; Exhibit 3 (June 30, 2022 Progress Report). The West Sunset Order is the only legal authority Petitioners rely on to support their theory that the Permits "automatically lapsed." But because the West Sunset case is so clearly distinguishable, Petitioners' theory fails. The Circuit Court's decision in West Sunset is currently on appeal before the ICA, and the County ofKaua'i has argued on appeal that the court in West Sunset made an erroneous ruling.9 If and when the ICA reverses the circuit court's ruling in 9 See Respondents/Cross-Appel/ants County of Kaua 'i's Opening Brief, West Sunset 32 Phase 1, LLC et al. v. County of Kaua 'i Planning Commission et al., 2020 WL 10357072 (Hawai'i App. Dec. 3, 2020); HRAP Rule 35 ("Memorandum opinions and unpublished dispositional orders are not precedent[.]"). 15 15811525\000001\122822653\V-4-12/28/22 West Sunset, a declaratory order by the Commission in favor of Petitioners here would be reversible to the extent it would be based on abrogated authority. Even if the holding of West Sunset were upheld, the specific facts and circumstances of this dispute are so clearly distinguishable as to render West Sunset inapplicable here. Commission Rule 10 (Orders disposing of Commission Rule 10 petitions are "strictly limited to the factual situation described in the petition"). G.The Commission Does Not Have Jurisdiction to Grant Other, Extraneous Relief Sought by the Petition Finally, the Commission does not possess authority nor has jurisdiction to grant other extraneous relief sought by Petitioners, as Petitioners' counsel admitted at an October 11, 2022 hearing. 10 Petitioners posit that extension of Ordinance No. 961 (which Petitioners refer to as the 2013 Hurricane Iniki Ordinance) is "unconstitutional special legislation", citing Sierra Club v. Dep't ofTransp. (Superferry I), 115 Hawai'i 299,343, 167 P.3d 292,336 (2007) and Sierra Club v.Dep 't ofTransp. (Superferry JI), 120 Hawai'i 181,202 P.3d 1126 (2009). However, the Petition contains no citation to any legal authority undermining the validity of Ordinance No. 961. Instead, the Petition attaches Ordinance No. 961 as Exhibit H to the Petition, Section 4 of which states "This Ordinance shall take effect twenty-four (24) months after its approval." Exhibit H to the Petition (Ordinance No. 961). The Ordinance was approved by the County Council, and the Mayor of the County ofKaua'i on December 23, 2013. Thus, as a duly enacted Ordinance, Ordinance No. 961 is entitled to a presumption of validity. See Save Sunset Beach Coal. v. City & Cnty. of Honolulu, 102 Hawai'i 465,473, 78 P.3d 1, 9 (2003) (citing Lum Yip Kee, Ltd v. City & Cnty. of Honolulu, 70 Haw. 179, 187, 767 P.2d 815, 820 (1989)). Further, duly enacted legislative actions must be interpreted to give them effect, rather than to arbitrarily repeal them without jurisdiction to do so as the Petitioners request the Commission to do here. See Richardson v. City & Cnty. of Honolulu, 76 Haw. 46, 54-55, 868 P.2d 1193, 1201-02 (1994) ("[L ]egislative enactments are presumptively valid and "should be interpreted [in such a manner as] to give them effect."). Petitioners' citation to Superferry I and Superferry II where a state 10 RP21 Coco Palms notes that Petitioners' claims related to the unconstitutionality of Ordinance No, 961, and other extraneous and unsupported statements implicating HRS Chapter 343 would be subject to, including but not limited to, the doctrine of laches and applicable statutes of limitations. 16 I 5811525\000001\122822653\V-4-12/28/22 law enacted under entirely distinct facts was found unconstitutional in no way rebuts the presumption of validity of Ordinance No. 961. Nor do Petitioners cite any authority granting the Commission the power to rule on the legitimacy nor constitutionality of an ordinance. When asked by the Commission whether review of the constitutionality of an ordinance was properly before the Commission, Counsel for Petitioners admitted that the Commission lacked the authority to review the ordinance on October 11, 2022. Exhibit 8 (Oct. 11, 2022, Commission Minutes) at 24. The Commission must decline to rule on this issue. V.CONCLUSION For the foregoing reasons, RP21 Coco Palms respectfully requests the Commission to · deny the Petition, and issue a declaratory order affirming the Planning Director's finding that RP21 Coco Palms has made substantial progress, and that no violation of SMA Rule 10 has occurred. DATED: Honolulu, Hawai'i, January 1, 2023. 17 15811525\000001 \122822653\V-4-12/28/22 Attorneys for Permittees RP21 COCO PALMS, LLC BEFORE THE PLANNING COMMISSION OF THE COUNTY OF KAUA 'I In The Matter Of SPECIAL AREA USE PERMIT SMA (U)-2015-6; PROJECT DEVELOPMENT U-2015-7; VARIANCE PERMIT V-2015-1; CLASS IV ZONING PERMIT 2015-8 (for RP21 COCO PALMS, LLC) DECLARATION OF RICHARD M. CRUM DECLARATION OF RICHARD M. CRUM I, Richard M. Crum, declare and state under penalty of perjury that the following facts are true and correct: 1.I am an attorney with DENTONS US LLP and am counsel of record for Permittees RP21 COCO PALMS, LLC ("RP21 Coco Palms") in the above-captioned matter. 2.I make this Declaration based upon personal knowledge and am competent to testify as to the matters set forth herein. 3.I make this Declaration in support of RP21 Coco Palms' Opposition to Petition for Declaratory Order Regarding Special Area Use Permit SMA (U)-2015-6; Project Development U-2015-7; Variance Permit V-2015-1; Class IV Zoning Permit No. Z-IV-2015-8, dated August 23, 2022 (the "Opposition"). 4.On October 11, 2022, I appeared as counsel for RP21 Coco Palms at a Hawai'i Revised Statutes ("HRS") Chapter 92 public hearing (the "Oct. 11 Hearing") before the Kauai Planning Commission (the "Commission"), and made statements to and answered questions from the Commission as part of the scope of niy representation regarding the Petition for Declaratory Order Regarding Special Area Use Permit SMA (U)-2015-6; Project Development U-2015-7; Variance Permit V-2015-1; Class IV Zoning Permit No. Z-IV-2015-8, dated August 22, 2022 (the "Petition"). 5.Attached as Exhibit 1 is a true and correct copy of excerpts from the Minutes to the November 13, 2018, Kauai Planning Commission Regular Meeting, available to the public 15811525\000001 \122822653\V-4-l 2/28/22 online via the Commission's website at https://www.kauai.g v/Govem ment/Boards-andCommissions/Planning-Commission. 6.Attached as Exhibit 2 is a true and correct copr. of a Letter dated December 31,2018 from the Commission signed by Planning Director Ka'aina Hull addressed to Coco Palms I Hui LLC amending the development conditions to Class IV Zoning Permit Z-IV-2015-8, Project Development Use Penni! PDU-2015-7, Variance Permit V-2rl5-l and Special Management Area Use Permit SMA (U)-2015-6 issued by the Commission on March 10, 2015 (the "Permits"). l 7.Attached as Exhibit 3 is a true and correct cop of a June 30, 2022, ProgressReport in the form of a Letter entitled "Coco Palms Permit Cbnditions Matrix Status Report as of June 30, 2022" delivered by Coco Palms Hui LLC to the colmission. 8.Attached as Exhibit 4 is a true and correct cop� of excerpts from the DraftMinutes to the August 23, 2022, Kauai Planning CommissioJ Regular Meeting, available to the public online via the Commission's website at https://www.kkuai.gov/Govemment/Boards-andCommissions/Planning-Commission. 9.Attached as Exhibit 5 is a true and correct copy of a Letter dated March 10, 2015,from the Commission signed by former Planning Director Mi. Michael A. Dahilig approving thePermits, subject to certain enumerated development conditioAs. 10.Attached as Exhibit 6 is a true and correct cop� of the Coco Palms Hui LLCApplication for the Permits dated October 17, 2014. t 11.Attached as Exhibit 7 is a true and correct cop of an approved Findings of Factand Conclusions of Law from in West Sunset 32 Phase I, LL , v. County of Kaua 'i Planning Commission, Civil No. 5CC I 91000 I 05 (June 9, 2020). This rocument was introduced in part as Exhibit G to the Petition. The entire document is attached here for the convenience of the Commission. 12.Attached as Exhibit 8 is a true and correct copr of excerpts from the DraftMinutes to the October 11, 2022, Kauai Planning Commission Regular Meetirig, available to the public online via the Commission's website at https://www.kkuai.gov/Govemment/Boards-andCommissions/Planning-Commission. 2 15811525\000001 \122822653\V-4-12/28/22 BEFORE THE PLANNING COMMISSION OF THE COUNTY OF KAUAI In The Matter Of SPECIAL AREA USE PERMIT SMA (U)-2015-6; PROJECT DEVELOPMENT U-2015-7; VARIAN CE PERMIT V-2015-1; CLASS IV ZONING PERMIT 2015-8 (for RP 21 COCO PALMS, LLC) DECLARATION OF BEN.JAMIN SCHRAMM DECLARATION OF BENJAMIN SCHRAMM I, Benjamin Schramm, declare and state under penalty of perjury that the following facts are true and correct: 1.I make this Declaration based upon personal knowledge and I am competent to testify as to the matters set forth herein. 2.I make this Declaration in support of Permittee RP21 Coco Palms, LLC's Opposition to Petition for Declaratory Order Regarding Special Area Use Permit SMA (U)- 2015-6; Project Development U-2015-7; Variance Pennit V-2015-1; Class IV Zoning Permit No. AZ-IV-2015-8, dated August 22, 2022 (the "Opposition"). 3.I am an attorney, and I am the Vice-President of Private Capital Group, Inc., ("PCG"). 4.PCG syndicates, underwrites, and services loans in the residential and commercial real estate markets. 5.On or about May 2, 2016, PCG as agent for certain lenders ("Lenders'') entered into a loan agreement with Coco Palms Hui, LLC, to finance the development of Coco Palms US_ACTIVE\ 122638613\V-1 US _ACTIVE\ 1227 45226\V-2 Resort (the "Loan"). 6.Coco Palms Hui, LLC failed to repay the Loan and defaulted on the loan agreement and promissory note with PCG and the Lenders. 7.On July 26, 2021, Coco Palms Resort was sold at auction to PCG as agent for the Lenders. 8.On October 26, 2021, the Fifth Circuit Court for the State of Hawai'i confirmed the sale, authorizing the commissioner in foreclosure to execute and deliver a deed conveying the Coco Palms Resort to RP2 l Coco Palms LLC, an entity owned by the former Lenders. 9.Between March 10, 2015, and March 10, 2017, the Lenders funded approximately $5 million dollars to Coco Palms Hui, LLC, for the redevelopment of Coco Palm Resort, including approximately $2.9 million paid to Pacific Concrete Cutting and Coring, Inc. for demolition, site preparation and removal of asbestos containing materials prior to March 10, 2017, with an additional approximately $270,000 in demolition costs paid shortly thereafter. I 0. On or about June 3, 2016, I personally visited Coco Palms Resort and while performing the site-visit, took pre-demolition pictures of the property attached as Exhibit A. 11.On or about September 30, 2016, I personally visited Coco Palms Resort and took post-demolition pictures of the property attached as Exhibit B. 12.The demolition work of Coco Palms Resort was expensive, extensive, and critical to the project. In fact, the entirety of the development completely relied on the successful demolition, reconstruction, and removal of asbestos containing materials at the Coco 'Palms Resort, which has occurred. 13.Pacific Concrete Cutting and Coring, Inc. completed the majority of the development related activity at the Coco Palms Resort in late Summer/early Fall of 2016. US_ACTIVE\122638613\V-1 US_ACTIVE\122745226\V-2 - 2 - US_ACTIVE\122638613\V-1 US_ACTIVE\122745226\V-2 -3- BEFORE THE PLANNING COMMISSION OF THE COUNTY OF KAUAI In The Matter Of SPECIAL AREA USE PERMIT SMA (U)-2015-6; PROJECT DEVELOPMENT U-2015-7; VARIANCE PERMIT V-2015-1; CLASS IV ZONING PERMIT 2015-8 (for RP 21 COCO PALMS, LLC) DECLARATION OF CHAD DECOURSEY DECLARATION OF CHAD DECOURSEY I, Chad Decoursey, declare and state under penalty of perjury that the following facts are true and correct: 1.I make this Declaration based upon personal knowledge and I am competent to testify as to the matters set forth herein. 2.I make this Declaration in support of Permittee RP21 Coco Palms, LL C's Opposition to Petition for Declaratory Order Regarding Special Area Use Permit SMA (U)- 2015-6; Project Development U-2015-7; Variance Permit V-2015-1; Class IV Zoning Permit No. AZ-IV-2015-8, dated August 22, 2022 (the "Opposition"). 3.I am an attorney, and I serve as the Managing Director of Legal and Risk Management for Reef Capital Partners LLC, the parent company of Reef Private Credit LLC, f/k/a Reef-PCG LLC ("RPC''). RPC is the manager of RP2 l Coco Palms LLC, the present owner of the Coco Palms Resort. 4.On October 11, 2022, I attended a Hawai'i Revised Statutes ("HRS") Chapter 92 public hearing (the "Oct. 11 Hearing") before the Kauai Planning Commission (the "Commission"), and made statements to and answered questions from the Commission. 5.During the Oct. 11 Hearing, the Commission requested that the Parties (meaning RP21 Coco Palms, LLC and the Petitioners) meet to discuss a possible settlement. 6.The Parties met to discuss possible settlement on October 21, 2022, via videoconference. 7.The Parties met again to continue discussions surrounding a possible settlement on November 1, 2022, via videoconference. 8.The Parties were unable to agree on an amicable resolution to the dispute raised by the Petitioners. 9.The Petitioners have declared that they would like to purchase the Coco Palms Resort, but to date they have not made an offer to purchase the Coco Palms Property, nor provided any indication that they have the financial ability to do so. I declare under penalty of law that the foregoing is true and correct. EXECUTED: Utah County, Utah, December 21, 2022. c��� 2 KAUA'! PLANNING COMMISSION REGULAR MEETING November 13, 2018 The regular meeting of the Planning Commission of the County of Kaua 'i was called to order by Chair Apisa at 9:20 a.m., at the LThu'e Civic Center, Mo'ikeha Building, in meeting room 2A- 2B. The follo wing Commissioners were present: Chair Donna Apisa Vice Chair Glenda Nogami Streufert Ms. Kanoe Ahuna (left at 12:54 p.m.J Mr. Elesther Calipjo Mr. Roy Ho Mr. Kimo Keawe Mr. Sean Mahoney The following staff members were present: Planning Department -Director Michael Dahilig, Chance B ukoski, Dale Cua, Leslie Takasaki; Office of the County Attorney -Deputy County Attorney Jodi Higuchi Sayegusa; Office of Boards and Commissions -Commission Support Clerk Darcie Agaran CALL TO ORDER Chair Apisa called the meeting to order at 9:20 a.m. ROLL CALL Planning Director Michael Dahilig: Commissioner Ho. Mr. Ho: Here. Mr. Dahilig: Vice Chair Streufert. Ms. Nogami Streufert: Here. Mr. Dahilig: Commissioner Mahoney. Mr. Mahoney: Here. Mr. Dahilig: Commissioner Keawe. Mr. Keawe: Here. 1 EXHIBIT 1 2 HEARINGS AND PUBLIC COMMENT Mr. Robinson: And by that time, if you are interested in this thing that I'm sending to the DLNR, by that time you can have copies of this and look it over. Mr. Dahilig: Okay, that would be great. Mr. Robinson: If you are interested. Okay, thanks a million, folks. Have a great one. Ms. Ahuna: Motion to move Agenda Item I.1., request for extension to operate a helicopter landing site near ... Mr. Dahilig:. It will be a different. .. Ms. Ahuna: Different site that will be revised to move to November 26, 2018. Mr. Mahoney: Second. Chair Apisa: All in favor? (Unanimous voice vote) Any opposed? (None) Motion carried 7:0� Mr. Dahilig: Thank you, Madame Chair. In the Matter of Class IV Zoning Permit Z-IV-2015-8, Project Development Use Permit PDU-2015-7. Variance Permit V-2015-1. and Special Management Area Use Permit SMA(U)-2015-6. Tax Map Keys: (4) 4-1-003:004 (par.). 005. 007, 011. and 017and (4) 4-1-005: 014 and 017 = Coco Palms Hui. LLC. (Deferred 9/25/18.)Mr; Dahilig: We are on Item I.3. This is in the matter of Class IV Zoning Permit Z-IV-2015-8, Project Development Use Permit PDU-2015-7, Variance Permit V-2015-1, and Special Management Area Use Permit SMA(U)-2015-6 at Tax Map Keys: (4) 4-1-003 Parcel 004, Parcel 005, Parcel 007, Parcel O 11, and Parcel O 17, and ( 4) 4-1-005 Parcels O 14 and O 17 -Coco Palms Hui, LLC. This matter was deferred on September 25, 2018, regarding my second petition to modify or revoke the applicant's permits and issue an order to show cause. Madame Chair, the Department has circulated a stipulation between the two parties -myself and Mr. Pang on behalf of Coco Palms Hui, LLC -and these items ... again, our revocation request was premised upon the incomplete submittal of vertical building plans to the Building Division. So based off of discussions that we've had in the interim between myself, my deputy director, as well as Mr. Pang, we have made and suggested changes to Items 15, 16, and 21 of the permit conditions. In particular, that the submittal deadline will be August 31, 2019, now, for all the building permits, and that there is a good-faith effort that the applicant is required to move forward when it comes to pursuing completion of the request from the Building Division to complete that building permit process. We have also discussed maintenance regarding the site and that line screening shall be properly maintained in a manner acceptable to the Director until such time as the applicant has completed all vertical improvements, so we are talking about maintenance of the site, as well as Item No. 21, which r.elates to the subdivision of the property to have that widening along Haleilio Road on January 31, 2019. So those were items that I think, for us, was the Department's concern. I will ask Mr. Pang to come up and he can clarify a little 17 21 s1 COMMITTEE REPORTS COMMUNICATION {For Action) UNFINISHED BUSINESS (For Action) ADJOURNMENT 62 PLANNING COMMISSION THE COUNTY OF KAUA''I KA 'AINA S. HULL, CLERK OP TlJ;E COMMISSION December 31, 2018 Coco. Palms Hui LLC 1050 Bishop Street, Suite-303 Honolulu, Hawaii 96813 Attn: Mr. Tyler Greene DannaApisa CHAIR Glenda Nogami Streufert VICECHAlR KanoeAmina 'Elesther Callpjo RoyHo I<imo M. Keawe ScanM.-ihoney MEMBERS RE: Class IV Zoning Permit Z-IV-2015-8, Project Development Use Permit PDU-2015-7, Variance Permit V-2015-1 and Special Management Area Use Permit SMA{U)-2015-6 at Tax Map Keys4-1-003: 004 (por.), 005, 007, 011, and 017 and 4-1-005: 014 and 017. Coco Palms HL!i, LLC, Applicant Kauai Planning CommJsslon Actlon·August 11, 2015 Dear Sirs, This letter memorializes the action taken by the Kaua'i Planning Commission effective November 13, 2018 concerning the dismissal of the enforcement-related order to show cause and acceptance of stipulated amendments to the above subject permits. The conditions below reflect the permit In Its entirety. Notwithstanding those improvements and/or alterations required under the subject permits' additional conditions of approval, the resort facility and associated structures and uses shall be generally constructed and operated as represented. Any changes to the SU?Ject building'and/or operations shall be reviewed by the Department to determine whether Planning Commission review and action is required. The conditions of approval are as follows: 1.The applicant shall contribute $50,000.00 to the County of Kauai to assist the Planning Department's historic preservation mission via its �fforts to perpetuate the cultural and historic significance of the Wailua/Waipouli region consistent with the Department's historic preservation program, Including the creation of educational programs and signage. This contribution was paid to, and received by, the County of Kauai on October 17, 2015. 2.The applicant shall contribute $50,000.00 to the County of Kauai to assist the County with its current piacemaking efforts, ·including moku and ahupuaa signage of the Wailua area. This contribution was paid to, and received by, the County of Kauai on October 17, 2015. www.kauai.gov 4444 Rice Street Suite A473 • Lihu'e, Hawai'i 96766 • (808) 241-4050 (b) • (808) 241-6699 (f) An Equal Opportunity Employer EXHIBIT 2 .· •, / l 3.Prior to building permit approval, the applicant' shall meet the requirements and standards of the Department of Land and Natural Resources '(DLNR), State Historic Preservation Division (SHPD). The applicant is further advised that should any archaeological or historical resources be discovered during ground disturbing/construction work, all work In the area of the archaeological/historical findings shall Immediately cease and the applicant shall contact the State Department of Land and Natural Resources, Historic Preservation Division and the Planning Depar tment to determine mitigation measures. The Planning Department has reviewed the comments of the State Historic Preservation Division, and under its independent Chapter 6E and related Hawaii Constitutional obligations and duties, requires the following historic preservation measures be fulfilled by the applicant. a.A revised sow for the project, including any proposed work with potential to affect the historic lagoon, including staging areas, construction of new bridges, dredging, or filling In of areas near the lagoon; b.Information regarding any potential federal funding or federal permits that may be required, especially relative to the historic lagoons; c.An Intensive-Level Survey (ILS) that identifies and assesses all remaining architectural historic properties and their potential ellglbllltyfor the Hawaii and National Registers; d.A Burial Treatment Plan (BTP) that meets HAR §13-300-34(b), and following a determination by the KIBC regarding burial treatment, a Burial Site Component of a Data Recovery Plan (BSCDRP) that meets HAR §13-300- 34(b}(3)(B); and e.A Revised Archaeological Monitoring Plan (AMP) that includes provisions for addressing architectural monitoring concerns and ineets HAR §13-279-4, including ongoing monitoring during construction and 90 days after completion of construction. As of June 2016, the Applicant has received approval from SHPD with respect to their HRS 6E-42 review and required mitigation actions. However, Applicant Is also advised that should any human remains be discovered as a consequence of digging activities, WORK MUST IMMEDIATELY STOP IN THE VICINITY OF THE FIND AND SHPD AND THE PLANNING DEPARTMENT MUST BE NOTIFIED. 4.Applicant shall submit a Construction and Demolition Debris Management Plan, and have the plan reviewed and concurred with by the Department of Public Works, Solid Waste Management Division. Applicant Is encouraged to employ broad diversion efforts in its waste management plan. This condition 4 is satisfied. 5.Applicant is aware that any final construction plans involving the former Seashell Restaurant site that deviates substantially from the conceptual plans presented to the State Department of Land and Natural Resources may trigger compliance with the statutes and regulations under the juri�diction of the Office of Coastal and Conservation Lands, Hawaii State Department of Land and Natural Resources if final development is proposed within the shoreline area. Applicant Is on notice that, if any such final plans proposes development within the shoreline area, this permit action may be deemed 10. 11. Invalid and require modification and re-approval only after compliance with Chapter 343, Hawaii Revised Statutes, Is attained. In order to minimize adverse impacts on the Federally Listed Threatened Species, Newell's Shearwater and other seabirds, all external lighting shall be only of the following types: shielded lights, cut-off luminaries, indirect lighting or other types permissible under applicable Federal Law or otherwise approved by the United States Fish and Wildlife Service. Spotlights aimed upward or spotlighting of structures, landscaping, or the ocean shall be prohibited unless otherwise permissible under Federal Law or approved by the United States Fish and Wildlife Service. To the extent possible within the confines of union requirements and applicable legal prohibitions against discrimination in employment, the applicant shall seek to hire Kauai contractors as long as they are qualified and reasonably competitive with other contractors, and shall seek to employ residents of Kauai in temporary construction and permanent jobs. It Is recognized that the applicant may have to employ non-Kauai residents for particular skilled jobs where no qualified Kauai resident possesses such skills. For the purposes of this condition, the Commission shall relieve the applicant of this requirement if the applicant is subjected to anti· competitive restraints on trade or other monopolistic practices. The applicant shall Implement to the extent possible sustainable building techniques and operational methods for the project, such as Leadership In Energy and Environmental Design (L.E.E.D.) standards or another comparable state-approved, nationally recognized, and consensus-based guideline, standard, or system, and strategies, which may Include but is not limited to recycling, natural lighting, extensive landscaping, solar panels, low-energy fixtures, low energy lighting and other similar methods and techniques. All such proposals shall be reflected on the plans submitted for bulldlng permit review. As part of the building permit application, the applicant shall comply with the building code requirements applicable to the construction plans submitted for the vertical Improvements for the project. Any revisions shall be identified accordingly on the final site development plan and vertical building construction plans for building permit review and processing In accordance with applicable building code requirements. The Appllcant shall contribute $10,000.00 to the County of Kauai Transportation Agency to assist with the construction of a new bus stop along Kuhio Highway in the Wailua area. This contribution has been paid to, and received by, the County of Kauai Transportation Agency on October 17, 2015. Applicant shall coordinate project plans with the Department of Public Works Wastewater Management Division to ensure that connection to a public sewer system Is accomplished properly. Applicant shall also submit a current wastewater preliminary engineering report, as per County Sewer Standards, identifying details of sewer connections. Prior to building permit approval for vertical construction, applicant shall / i ' 12. 13, 14. submit construction plans for any necessary sewer Improvements and if applicable, pay any required wastewater sewer system fees. Applicant shall submit a detailed water demand (both domestic and Irrigation) calculations along with the proposed water meter size. Water demand calculations submitted by your engineer or architect should also include fixture count and water meter sizing worksheets. The Department of Water may require the payment fees specified in the existing County of Kauai ordinances as a consequence of the approved water demand calculations that are In addition to t he existing water allocated to the property. Applicant shall prepare and receive the Department of Water's approval of construction drawings for the necessary water system facilities and construct said facilities. These facilities shall include but not be limited to: ·a) the interior plumbing with the appropriate backflow prevention device; b) the dom estic service connection, if appllcable; c) the fire service connection, If applicable. Requests for additional water meters or increase in water meter size beyond water meters already allocated to the property will be dependent on the adequacy of the source, storage and transmission facilities existil')g at the time. Applicant acknowledges affordable housing requirements apply to this proposal, and in compliance with Chapter 7A, Kauai County Code (1987), Applicant has entered into, and will perform its obligations under, that certain Housing Agreement (for Coco Palms) dated December 4, 2015, directly with the Kauai County Housing Agency, which has been fully executed and recorded on February 9, 2016. 15.Applicant shall submit by August 31, 2019 plans to for all remaining building permits for the construction of vertical improvements on the project site, and will thereafter diligen�ly work in good faith with the Kauai Division of Buildings ("Building Division") to obtain final bulldlng permit approval for all remaining permits. Construction shall commence within one year after the date of final approval of the referenced building permits. Further, pursuant to POU requirements in the CZO, construction shall commence within one year after the date of full approval of such building permits. Also, Applicant shall pull all such building permits within six months after the approval of the final building permit. 16.Screening of the construc tion site during construction along Kuhio Highway and Kuamoo Road to be aesthetically consistent with current construction standards on Kauai while maintaining compatibility with the nature of the site sitting at a coastal gateway for the area. Screening shall be properly maintained In a manner acceptable to the Director until such time as the Applicant has completed all vertical improvements. Further, the Applicant shall work with the State Department ofTransportation to provide landscaping along the strip of land fronting the property fronting Kuhio Highway and. properly maintain this landscaping in perpetuity. 17.Applicant shall substantially complete the demolition work described In the existing demolition permits issued for the property by March 31, 2017 subject to extension caused by the occurrence of force majeure events. This condition 17 is satisfied. Applicant agrees that, if the concrete structures that remain on the property after the demolition work is completed is not incorporated into the construction of the vertical improvements by June 30, 2021, the Applicant shall, at Its sole cost and expense, secure such concrete structures in full compliance with all health and safety requirements set forth in all applicable laws and ordinances. 18.Applicant shall provide 20 public parking spaces at the North end of the project site with signage identifying their use by beachgoers and those using public transit when the operator opens to the public the building of the project that Is closest to the parking lot containing such public parking spaces. Further, the applicant shall provide 20 stalls for parking with slgnage Identifying their use by public beachgoers along the south end of the project. These stalls shall be clearly marked for public beachgoers use only. Also, the applicant at its own expense shall work with the county to site, design, construct, and mai_ntain in perpetuity, a comfort station consisting of restrooms and showers for beachgoers. This comfort station shall be located adjacent or approximate to this public beachgoers parking area. 19.All parking for guests, customers, and employees shall be accommodated on site. No parking on Kuamoo, Haleilio or Apana roads shall be allowed. No use of parking lots on adjacent property shall be allowed as well. 20.Given outstanding evaluation of the Traffic Impact Analysis Report (TIAR) by both the Department of Public Works and State Department of Transportation, In the Interim, the Applicant shall provide the following to mitigate traffic impacts created by the development: a.Provide, at the Applicant's expense, a shuttle for eighteen (18) months beginning when the hotel operator opens the main lobby, at lea�t 277 guest rooms and the food and beverage facilities and services of the project to the public as a pilot program to facilitate transit to and from the Lihue Airport and the development; b.Provide, at the Applicant's expense, a circulator shuttle for eighteen (18) months beginning when the hotel operator opens the main lobby, at least 2n guest rooms and the food and beverage facilities and services of the project to the public to move patrons from the hotel to Lydgate and Wallua Beach Park, the Seashell Restaurant Site, the Coconut Marketplace and other destinations within the main Kapaa transit corridor that shall be determined by the County of Kauai Executive on Transportation at least 90 days before such shuttle service Is scheduled to begin. c.Provide, at the Applicant's expense, a bike share program operated by Applicant or a render selected by Applicant for patrons of the resort to allow guests to ride bikes into Kapaa Town and other destinations without driving; d.The appllcant shall work with the State Department ofTransportation and Department of Public Works to resolve pedestrian crossing, sidewalks and vehicular traffic demands created by the development, and bear Implementation costs r' ----, 21. proportional to the impact that arises, Including the Installation of a continuous public sidewalk on the Kuhio Highway frontage between Kaumoo and Haleilio; and e.Provide the Planning Department, Department of Public Works and State · Department of Transpor tation an update to the TIAR on_e (1) year after receiving the last certificate of occupancy for the project evaluating traffic impacts created by the resort and analyze the need for additional bus stops. f.Provide the Department with a report on the Applicant's efforts to work with the Department of Land and Natural Resources to obtain permission to use the lands held by lease for a mauka access, either vehicular, or bike/pedestrian, to allow movement of residents between Kuamoo road and Halelllo Road. Should the updated TIAR, as accepted by the three agencies, determine a significant adverse_ change in the traffic conditions resulting solely from project beyond the traffic conditions anticipated In the original TIAR, Applicant is aware that this permit is subject to reasonable modification by the Planning Commission that Applicant may be responsible for the proportionate costs for any impacts of such significant adverse change for which a nexus to the additional anticipated traffic conditions may be identified. Applicant shall work with the county and bear the costs of the following improvements: a.Provide an in lieu payment of $93,750 to the County of Kauai by June 30, 2017 for the cost of a dedicated right turn lane on Haleilio Road, from Apana Road to Kuhio Highway In addition to an existing through lane. This $93,750 lieu payment was paid to, and received by, the County of Kauai on June 30, 2017. The County shall design and complete construction of continuous public sidewalks along Apana Road to Halellio Road and along Haleillo Road to Kuhio Highway fronting the Applicant's property. Sidewalks must be a minimum of s feet wide and shall be dedicated to the County to the extent owned by Applicant.The portions of said right turn lane owned by Applicant shall be dedicated to the County;provided that the Applicant shall have the reserved right of entry over the dedicated areas in connection with its project. By January 31, 2019, the Applicant shall submit plans for the subdivision of the portions of its land to be dedicated to the Kauai Planning Deparment and shall thereafte.r diligently work in good faith with the Planning Department to obtain final subdivision approval of such plans, and to dedicate such subdivided por tions to the County. a.Design and complete construction of widening Apana Road to be wide enough for two-way vehicle travel from the project entry on Apana Road to Haleliio Road. The Applicant will work with the County of Kaua'i Department of Public Works on the width, length, and other design details for this improvement, which shall be dedicated to the County of Kauai to the extent owned by Applicant; provided that the Applicant shall have the reserved right of entry over the dedicated areas In connection with its project. b.Design and complete construction of "Do Not Block" markings along the eastbound lanes of Haleilio Road at the Intersection with Apana Road, similar to the striping at Kuamo'o Road and Wailua Road. The Applicant shall retain a surveyor to survey the portions of the Applicant's land over which the right turn lane right-of-way and sidewalks to be constructed pursuant to _subparagraphs a-b above that will be dedicated to the County, then prepare and record the necessary title documents. The County, Planning Department and Departmen·t of Public Works will cooperate fully to process all necessary subdivision and dedication approvals on an expedited basis. 22.If requested by the Transportation Agency due to increased ridership demand caused by the development, appllcant shall prqvide proportional support for one (1) additional bus stop and shelter for the Kauai bus. 23.Form and character of the development shall reflect the prior history of the resort and the brand standards of the hotel operator Including the usage of similar looking roof and fa�ade material, color and landscaping. Further, non-reflective materials are necessary to promote the seashore area aesthetics. Prior to building permit application for reconstruction or new construction of buildings and landscaping, the Applicant shall submit renderings and plans for departmental design review. 24.Applicant shall encourage employees to utilize the County's Transportation Agency transit services to mitigate commuter trips to and from the development. The Applicant shall work with the Transportation Agency on promotional events encouraging usage of the transit system at Coco Palms, including selling bus passes on behalf of the agency, signage, etc. 25.The applicant is advised that In connection with the issuance of building permits for the vertical improvements of the project, additional conditions from the reviewing government agencies may be Imposed. It shall be the applicant's responslbllity to resolve those conditions with the respective agency(ies). 26.The Planning Commission re.serves the right to add or delete conditions of approval in order to address or mitigate unforeseen Impacts that any subsequent changes to this project as proposed by Applicant may create, or revoke the permits through the proper procedures should conditions of approval be violated. 27.During September 15 through December 15, construction shall only occur during daylight hours. Where possible as to not compromise safety of seabirds identified to be protected under Federal Law, exterior facility lights should be positioned low to the ground, be motion-triggered, and be shielded and/or �ull cut-off. Effective light shields should be completely opaque, sufficiently large, and positioned so that the bulb Is only visible from below. Staff at the development shall be educated, and shall educate visitors with lnformatlon regarding such endangered or protected seabird fallout and response protocols for staff to recover downed birds. Design elements shall also minimize collision by such protected seabirds with objects that protrude above the vegetation layer, such as utility lines, guide wires and communication towers. Should development yield conditions leading to any take of protected species, Applicant is on notice that an Incidental take permit is required. 28.Appllcant sh�II seek guidance from the Fish and Wildlife Service for the Applicant to develop and Implement measures (e.g. monitoring, etc.), In order to avoid and minimize impacts t_o Hawaiian waterbirds during construction and operation of the development. 29.On or before June 30th of each year until all conditions have been satisfied, the Applicant sha!,I submit an annual report to the Planning Commis sion of the status of and progress on, each unsatisfied condition, particularly conditions with workforce hou sing requirements and transportation requirements, These conditions shall be modified by the Planning Commission to reflect the satisfaction of any condition. Should you have any questions, please do not hesitate to contact me at the information above. Me Ke Aloha Pumehana, Kauai Planning Commission Coco Palms Permit Conditions Matrix Status Report as of June 30, 2022 Dev elopment Permits: Class IV Zoning Permit Z-IV-2015-8, Project Development Use Permit PDU-2015-7, Variance Permit V-2015-1 and Special Management Area Use Permit SMA(U)-2015-6 at Tax Map Keys 4- 1-003: 004 (par.), 005, 007, 011, and 017 and 4-1-005: 014 and 017, with approval conditions as set forth in letter dated December 31, 2018 from the Planning Commission of the County of Kauai Applicant: Coco Palms Hui LLC Count Completed Condition: 8 Conditions 1, 2, 3, 4, 5, 10, 28, 29 Ongoing: 14 6, 7, 8, 9, 11, 12, 13, 14, 15, 17, 21 (except 21.b), 23, 25, 26, Forthcoming: 7 16, 18, 19, 20, (21.b), 22, 24, 27 29 Condition 1. The Applicant shall contribute $50,000.00 to the County of Kauai to assist the Planning Department's historic preservation mission via its efforts to perpetuate the cultural and historic significance of the Wailua/Waipouli region consistent with the Department's historic preservation program, including the creation of educational programs and signage. 2. The Applicant shall contribute $50,000.00 to the County of Kauai to assist the County with its current place making efforts, including moku and ahupuaa signage of the Wailua area. 301131313355779_7 EXHIBIT 3 Status Complete Complete Comments to County This contribution was paid to, and received by, the County of Kauai on October 17, 2015. This contribution was paid to, and received by, the County of Kauai on October 17, 2015. Coco Palms Permit Conditions Matrix Status Report as of June 30, 2021 Page 2 of 13 3. 3.a 3.b 3.c 3.d 3.e Condition Prior to building permit approval, the Applicant shall meet the requirements and standards of the Department of Land and Natural Resources (DLNR), State Historic Preservation Division (SHPD). The Applicant is further advised that should any archaeological or historical resources be discovered during ground disturbing/construction work, all work in the area of the archaeological/historical findings shall immediately cease and the Applicant shall contact the State Department of Land and Natural Resources, Historic Preservation Division and the Planning Department to determine mitigation measures. The Planning Department has reviewed the comments of the State Historic Preservation Division, and under its independent Chapter GE and related Hawaii Constitutional obligations and duties, requires the following historic preservation measures be fulfilled by the Applicant. A revised SOW for the project, including any proposed work with potential to affect the historic lagoon, including staging areas, construction of new bridges, dredging, or filling In of areas near the lagoon; Information regarding any potential federal funding or federal permits that may be required, especially relative to the historic lagoons; An Intensive-Level Survey (ILS) that identifies and assesses all remaining architectural historic properties and their potential eligibility for the Hawaii and National Registers; A Burial Treatment Plan (BTP) that meets HAR §13- 300-34(b), and following a determination by the KIBC regarding burial treatment, a Burial Site Com ponent of a Data Recovery Plan (BSCD RP) that meets HAR §13- 300-34(b)(3)(B); and A Revised Archaeological Monitoring Plan (AMP) that includes provisions for addressing architectural monitoring concerns and meets HAR §13-279-4, including ongoing monitoring during construction and 90 days after completion of construction. 30113/3/3355779. 7 Status Complete Complete Complete Complete Complete Complete Comments to County As of June 2016, the Applicant has received approval from SHPD with respect to their HRS 6E-42 review and required mitigation actions. However, Applicant is also advised that should any human remains be discovered as a consequence of digging activities, WORK MUST IMMEDIATELY STOP IN THE VICINITY OF THE FIND AND SHPD AND THE PLANNING DEPARTMENT MUST BE NOTIFIED. I Coco Palms Permit Conditions Matrix Status Report as of June 30, 2021 Page 3 of 13 Condition Applicant shall submit a Construction and Demolition Debris Management Plan, and have the plan reviewed and concurred with by the Department of Public Works, Solid Waste Management Division. Applicant is encouraged to employ broad diversion efforts in its waste management plan. Applicant is aware that any final construction plans involving the former Seashell Restaurant site that deviates substantially from the conceptual plans presented to the State Department of Land and Natural Resources may trigger compliance with the statutes and regulations under the jurisdiction of the Office of Coastal and Conservation Lands, Hawaii State Department of Land and Natural Resources if final development is proposed within the shoreline area. Applicant is on notice that, if any such final plans proposes development within the shoreline area, this permit action may be deemed invalid and require modification and re-approval only after compliance with Chapter 343, Hawaii Revised Statutes, is attained. In order to minimize adverse impacts on the Federally Listed Threatened Species, Newell's Shearwater and other seabirds, all external lighting shall be only of the following types: shielded lights, cut-off luminaries, indirect lighting or other types permissible under applicable Federal Law or otherwise approved by the United States Fish and Wildlife Service. Spotlights aimed upward or spotlighting of structures, landscaping, or the ocean shall be prohibited unless otherwise permissible under Federal Law or approved by the United States Fish and Wildlife Service. 30113/3/3355779.7 Status Complete Complete Ongoing Comments to County This condition 4 is satisfied. No current plans for development within the shoreline area. No external lighting being used at this time. Coco Palms Permit Conditions Matrix Status Report as of June 30, 2021 Page 4 of 13 Condition 7.To the extent possible within the confines of union requirements and applicable legal prohibitions against discrimination in employment, the Applicant shall seek to hire Kauai contractors as long as they are qualified and reasonably competitive with other contractors, and shall seek to employ residents of Kauai in temporary construction and permanent jobs. It is recognized that, the Applicant may have to employ non-Kauai residents for particular skilled jobs where no qualified Kauai resident possesses such skills. For the purposes of this condition, the Commission shall relieve the Applicant of this requirement if the Applicant is subjected to anti-competitive restraints on trade or other monopolistic practices. 8.The Applicant shall implement to the extent possible sustainable building techniques and operational methods for the project, such as Leadership in Energy and Environmental Design (L.E.E.D.) standards or another comparable state-approved, nationally recognized, and consensus-based guideline, standard, or system, and strategies, which may Include but is not limited to recycling, natural lighting, extensive landscaping, solar panels, low-energy fixtures, low energy lighting and other similar methods and techniques. All such proposals shall be reflected on the plans submitted for building permit review. 9.As part of the building permit application, the Applicant shall comply with the building code requirements applicable to the construction plans submitted for the vertical Improvements for the project. Any revisions shall be identified accordingly on the final site development plan and vertical building construction plans for building permit review and processing In accordance with applicable building code requirements. 10.The Applicant shall contribute $10,000.00 to the County of Kauai Transportation Agency to assist with the construction of a new bus stop along Kuhio Highway in the Wailua area. 30113/3/3355779,7 Status Ongoing Ongoing Ongoing Complete Comments to County Upon approval of building permits for the Hotel Site, applicant will solicit bids from local contractors in accordance with this condition. Building Specifications for the Project are being developed, to the extent possible, with sustainable building techniques and operational methods, which may include recycling, natural lighting, solar panels, low-energy plumbing and electrical fixtures. 18 of the 25 Building Permits for the Hotel Site have been approved and issued as of June 27, 2022. A total of $ 145,360 for Plan Review and Building Permit fees have been paid to date. Architect and Consultant's fees of $ 1,296,898 have been paid. This contribution has been paid to, and received by, the County of Kauai Transportation Agency on October 17, 2015. Coco Palms Permit Conditions Matrix Status Report as of June 30, 2021 Page 5 of 13 11. 12. 13. Applicant shall coordinate project plans with the Department of Public Works Wastewater Management Division to ensure that connection to a public sewer system is accomplished properly. Applicant shall also submit a current wastewater preliminary engineering report, as per County Sewer Standards, identifying details of sewer connections. Prior to building permit approval for vertical construction, Applicant shall submit construction plans for any necessary sewer improvements and if applicable, pay any required wastewater sewer system fees. Applicant shall submit a detailed water demand (both domestic and irrigation) calculations along with the proposed water meter size. Water demand calculations submitted by your engineer or architect should also include fixture count and water meter sizing worksheets. The Department of Water may require the payment fees specified in the existing County of Kauai ordinances as a consequence of the approved water demand calculations that are in addition to the existing water allocated to the property. Applicant shall prepare and receive the Department of Water's approval of construction drawings for the necessary water system facilities and construct said facilities. These facilities shall include but not be limited to: a) the interior plumbing with the appropriate backflow prevention device; b) the domestic service connection, if applicable; c) the fire service connection, If applicable. Requests for additional water meters or increase in water meter size beyond water meters already allocated to the property will be dependent on the adequacy of the source, storage and transmission facilities existing at the time. Ongoing Completed Completed DPW/WMD has approved 18 of 25 permit applications for the Hotel Site. The remaining 7 permits for the Hotel Site have been pending WMD approval since June of 2021. Applicant agreed with WMD to pay$ 1,500,130.00 for capacity and connection fees. An agreement and a payment of$ 155,013.00 was forwarded to WMD. The remaining 7 permits are anticipated to be approved by WMD in 3 months. DOW has approved all 25 permit applications for the Hotel Site. DOW has approved all 25 permit applications for the Hotel Site. Collectively, the water demand of all 25 Buildings do not exceed the capacity of the installed 4-inch water meter. Coco Palms Permit Conditions Matrix Status Report as of June 30, 2021 Page 6 of 13 Condition 14. Applicant acknowledges affordable housing requirements apply to this proposal, and in compliance with Chapter 7A, Kauai County Code (1987), Applicant has entered into, and will perform its obligations under, that certain Housing Agreement (for Coco Palms) dated December 4, 2015, directly with the Kauai County Housing Agency, which has been fully executed and recorded on February 9, 2016. 15. Applicant shall submit by August 31, 2019 plans to for all remaining building permits for the construction of vertical improvements on the project site, and will thereafter diligently work in good faith with the Kauai Division of Buildings ("Building Division") to obtain final building permit approval for all remaining permits. Construction shall commence within one year after the date of final approval of the referenced building permits. Further, pursuant to PDU requirements in the CZO, construction shall commence within one year after the date of full approval of such building permits. Also, Applicant shall pull all such building permits within six months after the approval of the final building permit. 16. Screening of the construction site during construction along Kuhio Highway and Kuamoo Road to be aesthetically consistent with current construction standards on Kauai while maintaining compatibility with the nature of the site sitting at a coastal gateway for the area. Screening shall be properly maintained In Status Ongoing Ongoing a manner acceptable to the Director until such time as Forthcoming the Applicant has completed all vertical improvements. Further, the Applicant shall work with the State Department of Transportation to provide landscaping along the strip of land fronting the property fronting Kuhio Highway and properly maintain this landscaping in perpetuity. Comments to County Housing Agreement with County Housing Agency recorded on February 9, 2016. The Applicant intends to comply with the Housing Agreement. The first submittal of all building permit plans was complete on or before August 31, 2019. 18 of the 25 permit applications for the Hotel Site have been approved and issued on June 27, 2022. The balance of 7 permit applications have been pending WMD approval. Applicant is eagerly waiting for WMD final approvals so a construction schedule can be set. DOT is currently using the Coco Palms site along Kuhio highway as a staging area for road widening project. New screening is expected to be installed upon DOT completion of road widening project. Coco Palms Permit Conditions Matrix Status Report as of June 30, 2021 Page 7 of 13 17. 18. 19. 20. Condition Applicant shall substantially complete the demolition work described In the existing demolition permits issued for the property by March 31, 2017 subject to extension caused by the occurrence of force majeure events. Applicant agrees that, if the concrete structures that remain on the property after the demolition work is completed is not incorporated into the construction of the vertical improvements by June 30, 2021, the Applicant shall, at its sole cost and expense, secure such concrete structures in full compliance with all health and safety requirements set forth in all applicable laws and ordinances. Applicant shall provide 20 public parking spaces at the North end of the project site with signage identifying their use by beachgoers and those using public transit when the operator opens to the public the building of the project that Is closest to the parking lot containing such public parking spaces. Further, the Applicant shall provide 20 stalls for parking with signage identifying their use by public beachgoers along the south end of the project. These stalls shall be clearly marked for public beachgoers use only. Also, the Applicant at its own expense shall work with the county to site, design, construct, and maintain in perpetuity, a comfort station consisting of restrooms and showers for beachgoers. This comfort station shall be located adjacent or approximate to this public beachgoers parking area. All parking for guests, customers, and employees shall be accommodated on site. No parking on Kuamoo, Haleilio or Apana roads shall be allowed. No use of parking lots on adjacent property shall be allowed as well. Given outstanding evaluation of the Traffic Impact Analysis Report (TIAR) by both the Department of Public Works and State Department of Transportation, in the interim, the Applicant shall provide the following to mitigate traffic impacts created by the development: 30113/3/3355779.7 Status Ongoing Forthcoming Forthcoming See below. Comments to County Except as to three 3-story concrete structures, demolition was completed by March 31, 2017. Demolition of the remaining three 3-story concrete structures has been incorporated into the plans submitted for building permits. There will be 20 identified parking spaces for public beachgoers and those using public transit at the North and South end of the project. A Building Permit for a Comfort Station adjacent to the South Parking lot has been approved and issued. Parking spaces shown on the site plans shall be for all guests, customers and employees. No parking on public roads will be allowed Coco Palms Permit Conditions Matrix Status Report as of June 30, 2021 Page 8 of 13 Condition 20.a Provide, at the Applicant's expense, a shuttle for eighteen (18) months beginning when the hotel operator opens the main lobby, at least 277 guest Status rooms and the food and beverage facilities and Forthcoming services of the project to the public as a pilot program to facilitate transit to and from the Lihue Airport and the development; 20.b Provide, at the Applicant's expense, a circulator shuttle for eighteen (18) months beginning when the hotel operator opens the main lobby, at least 277 guest rooms and the food and beverage facilities and services of the project to the public to move patrons from the hotel to Lydgate and Wailua Beach Park, the Forthcoming Seashell Restaurant Site, the Coconut Marketplace and other destinations within the main Kapaa transit corridor that shall be determined by the County of Kauai Executive on Transportation at least 90 days before such shuttle service is scheduled to begin. 20.c Provide, at the Applicant's expense, a bike share program operated by Applicant or a vendor selected by Applicant for patrons of the resort to allow guests Forthcoming to ride bikes into Kapaa Town and other destinations without driving; 20.d The Applicant shall work with the State Department of Transportation and Department of Public Works to resolve pedestrian crossing, sidewalks and vehicular traffic demands created by the development, and bear implementation costs proportional to the impact that Forthcoming arises, including the installation of a continuous public sidewalk on the Kuhio Highway frontage between Kuamoo and Haleilio; and 20.e Provide the Planning Department, Department of Public Works and State Department of Transportation an update to the TIAR one (1) year after receiving the last certificate of occupancy for the project evaluating Forthcoming traffic impacts created by the resort and analyze the need for additional bus stops. 30113/3/3355779.7 Comments to County Coco Palms Permit Conditions Matrix Status Report as of June 30, 2021 Page 9 of 13 Condition 20.f Provide the Department with a report on the Applicant's efforts to work with the Department of Land and Natural Resources to obtain permission to use the lands held by lease for a mauka access, either vehicular, or bike/pedestrian, to allow movement of residents between Kuamoo road and Haleilio Road. 20 Should the updated TIAR, as accepted by the three con't agencies, determine a significant adverse change in the traffic conditions resulting solely from project beyond the traffic conditions anticipated in the original TIAR, Applicant is aware that this permit is subject to reasonable modification by the Planning Commission that Applicant may be responsible for the proportionate costs for any impacts of such significant adverse change for which a nexus to the additional anticipated traffic conditions may be identified. 21. Applicant shall work with the county and bear the costs of the following improvements: 30113/3/3355779.7 Status Comments to County Forthcoming Forthcoming See below. Coco Palms Permit Conditions Matrix Status Report as of June 30, 2021 Page 10 of 13 Condition 21.a Provide an in lieu payment of $93,750 to the County of Kauai by June 30, 2017 for the cost of a dedicated right turn lane on Haleilio Road, from Apana Road to Kuhio Highway In addition to an existing through lane. The County shall design and complete construction of continuous public sidewalks along Apana Road to Haleilio Road and along Haleilio Road to Kuhio Highway fronting the Applicant's property. Sidewalks must be a minimum of 5 feet wide and shall be dedicated to the County to the extent owned by Applicant. The portions of said right turn lane owned by Applicant shall be dedicated to the County; provided that the Applicant shall have the reserved right of entry over the dedicated areas in connection with its project. By January 31, 2019, the Applicant shall submit plans for the subdivision of the portions of its land to be dedicated to the Kauai Planning Department and shall thereafter diligently work in good faith with the Planning Department to obtain final subdivision approval of such plans, and to dedicate such subdivided portions to the County 21.a Design and complete construction of widening Apana (sic)Road to be wide enough for two-way vehicle travel from the project entry on Apana Road to Haleilio Road. The Applicant will work with the County of Kauai Department of Public Works on the width, length, and other design details for this improvement, which shall be dedicated to the County of Kauai to the extent owned by Applicant; provided that the Applicant shall have the reserved right of entry over the dedicated areas in connection with its project. 30113/3/3355779.7 Status Ongoing Ongoing Comments to County This $93,750 lieu payment was paid to, and received by, the County of Kauai on June 30, 2017. Subdivision plans submitted to Kauai Planning Department on January 18, 2019 deadline. Condition satisfied. Final Subdivision approval issued by the Kauai Planning Commission on Jan. 28. 2020, including modification waiving requirement of Applicant to provide curbs, gutters and sidewalks. Surveyor's Affidavit recorded February 27, 2020 as Doc. No. A-73620668. Condition of Title Guarantee has been issued by Old Republic Title and submitted to the Planning Dept. The form of the dedication deed was delivered to the Planning Dept. on November 12, 2020 for review and comment; currently awaiting approval. The $93,750 lieu payment was paid to, and received by, the County of Kauai on June 30, 2017. Completed, except for pending dedication of subdivided portion to County with a reserved of right of entry to Applicant. Coco Palms Permit Conditions Matrix Status Report as of June 30, 2021 Page 11 of 13 Condition 21.b Design and complete construction of "Do Not Block" markings along the eastbound lanes of Haleilio Road Status at the intersection with Apana Road, similar to the Forthcoming striping at Kuamo'o Road and Wailua Road. 21.The Applicant shall retain a surveyor to survey the con't portions of the Applicant's land over which the right turn lane right-of-way and sidewalks to be constructed pursuant to subparagraphs a-b above that will be dedicated to the County, then prepare and record the necessary title documents. The County, Planning Department and Department of Public Works will cooperate fully to process all necessary subdivision and dedication approvals on an expedited basis. 22.If requested by the Transportation Agency due to increased ridership demand caused by the Ongoing development, Applicant shall provide proportional Forthcoming 23. support for one (1) additional bus stop and shelter for the Kauai bus. Form and character of the development shall reflect the prior history of the resort and the brand standards of the hotel operator including the usage of similar looking roof and facade material, color and landscaping. Further, non-reflective materials are necessary to promote the seashore area aesthetics. Prior to building permit application for reconstruction or new construction of buildings and landscaping, the Applicant shall submit renderings and plans for departmental design review. 30113/3/3355779. 7 Ongoing Comments to County Marking to be performed upon completion �f new Haleilio Road right turn lane project. Final Subdivision approval issued by the Kauai Planning Commission on Jan. 28. 2020, including modification waiving requirement of Applicant to provide curbs, gutters and sidewalks. Surveyor's Affidavit recorded February 27, 2020 as Doc. No. A-73620668. Condition of Title Guarantee has been issued by Old Republic Title and submitted to the Planning Dept. The form of the dedication deed was delivered to the Planning Dept. on November 12, 2020 for review and comment; currently awaiting approval. The resort will reflect the prior resort with similar looking roof, color, and landscaping. Submitted building plans address this requirement. Coco Palms Permit Conditions Matrix Status Report as of June 30, 2021 Page 12 of 13 Condition Status Applicant shall encourage employees to utilize the County's Transportation Agency transit services to mitigate commuter trips to and from the development. The Applicant shall work with the Transportation Agency on promotional events Forthcoming 25. 26. 27. encouraging usage of the transit system at Coco Palms, including selling bus passes on behalf of the agency, signage, etc. The Applicant is advised that in connection with the issuance of building permits for the vertical improvements of the project, additional conditions from the reviewing government agencies may be imposed. It shall be the Applicant's responsibility to resolve those conditions with the respective agencies. The Planning Commission reserves the right to add or delete conditions of approval in order to address or mitigate unforeseen Impacts that any subsequent changes to this project as proposed by Applicant may create, or revoke the permits through the proper procedures should conditions of approval be violated. During September 15 through December 15, construction shall only occur during daylight hours. Where possible as to not compromise safety of seabirds identified to be protected under Federal Law, exterior facility lights should be positioned low to the ground, be motion-triggered, and be shielded and/or full cut-off. Effective light shields should be completely opaque, sufficiently large, and positioned so that the bulb is only visible from below. Staff at the development shall be educated, and shall educate Ongoing Ongoing visitors with Information regarding such endangered Forthcoming or protected seabird fallout and response protocols for staff to recover downed birds. Design elements shall also minimize collision by such protected seabirds with objects that protrude above the vegetation layer, such as utility lines, guide wires and communication towers. Should development yield conditions leading to any take of protected species, Applicant is on notice that an incidental take permit is required. Comments to County All comments on building permits have been addressed in resubmitted permit applications. No additional Development Permit conditions have been imposed to date. No additional Development Permit conditions have been imposed to date. Coco Palms Permit Conditions Matrix Status Report as of June 30, 2021 Page 13 of 13 Condition 28. Applicant shall seek guidance from the Fish and Wildlife Service for the Applicant to develop and implement measures (e.g. monitoring, etc.), in order to avoid and minimize impacts to Hawaiian waterbirds during construction and operation of the development. 29. On or before June 30th of each year until all conditions have been satisfied, the Applicant shall submit an annual report to the Planning Commission of the status of and progress on, each unsatisfied condition, particularly conditions with workforce housing requirements and transportation requirements. These conditions shall be modified by the Planning Commission to reflect the satisfaction of any condition. Status Comments to County US Fish and Wildlife Service provided its comments on the CPH application to the Complete Planning Commission in a letter dated March 2015 and will be addressed during construction and operation. Status report submitted on Complete June 30, 2022. EXHIBIT 4 Chair Cox: Thank you. Any corrections or comments about the minutes? If not, do we want a motion to address all of them at once, other than the May l 0? Ms. Apisa: It's nice to see we're getting caught up. I make a motion to approve the minutes of the May 24, 2022, meeting, the June 14, 2022, Agenda l, June 14, 2022, Agenda 2 and the June 28, 2022, minutes. Ms. Otsuka: Second. Chair Cox: All those in favor say, aye? Aye (Unanimous voice vote). Any oppose? Motion carried 6:0. HEARINGS AND PUBLIC COMMENT Mr. Hull: Next, we have no new Receipt ofltems for the Record. We have no Continued Agency Hearing. No New Agency Hearing. No Continued Public Hearings. NEW PUBLIC HEARING Mr. Hull: Moving on to Agenda Item F.2. ZA-2023-1: A bill for an ordinance amending Chapters 8, 12, and 13, Kaua'i County Code 1987, as amended, relating to Comprehensive Zoning Ordinance (CZO), Building Code, and Electrical Code respectively. The purpose of the ordinance is to establish parking requirements involving electric vehicle charging infrastructure in the CZO, Building and Electrical Codes = KAUAI COUNTY COUNCIL. Mr. Hull: This is the Public Hearing portion. We have one individual here in-person who has signed up to testify. Chair Cox: Can I make a statement before you go to testimony? Mr. Hull: Okay. Chair Cox: I'd like to make a regarding the proposed item that we're on now. In my other volunteer work, I'm the Chair of the Kaua'i Climate Action Coalition, which is a nonprofit organization for the purpose of educating the public as well as direct action and working on policy to address the climate crisis and on July l81h, in my capacity as Chair, I submitted to the Kaua'i County Council a piece of written testimony in support of this bill. I've had no other involvement with this proposed Bill, but I wish to disclose this. I don't feel that this impacts my ability to consider this zoning amendment as Chair and member of the Planning Commission but if other Commissioners have no objections, I'd like to proceed. However, if you have concerns, please let me know now. Commissioner Apisa: No concerns. Commissioner DeGracia: No objection. Chair Cox: Okay, in that case we'll go ahead. Also, mahalo to the members of the public who have come to this meeting to provide or to listen to public testimony regarding the Status Report from Coco Palms Hui. Mr. Hull: Chair, that would be the next agenda item. Chair Cox: Oh, I thought you wanted me to do it at the beginning. 3 4 21 Mr. Hull: Yes, for the members of the public that are still with us, the Planning Commission has been reconvened from their Executive Session, now it's reconvened back into Planning Commission but it's 12:30, and I think there's a desire from the Commission to take a brief lunch break, so we'll be back at l p.m., Madam Chair? Chair Cox: (inaudible). Mr. Hull: (inaudible). Chair Cox: Okay, so we will reconvene at lp.m .. Can I have a motion to adjourn? I mean to ... Mr. Hull: Recess. Chair Cox: Recess. Ms. Barzilai: (inaudible). Chair Cox: So, we should just do it? Okay, well, recess till l o'clock. The Commission recessed this portion of the meeting at 12:36 p.m. The Commission reconvened this portion of the meeting at 1:02 p.m. Chair Cox: We will recommence our Planning Commission meeting and I believe we time for further discussion, if Commissioners have more questions they would like to ask or discussion points (inaudible). Ms. Otsuka: I have one. I have a question, I've heard several times today that permits have lapsed, can anyone, do you know anything about it, can you discuss it? Mr. Hull: Yes, absolutely (inaudible) Commissioner. Yeah, there were a (inaudible) made that the permits have lapsed, and it was actually a reference to a recent court case in which the SMA rules and regulations were utilized, in that there is a two-year window that SMA permits are entitled to and ifno subsequent action is taken within that two-year window, the permits are null and void. And a recent court ruling did affirm that. But what was not presented by the members of the public that discussed the two-year lapse (inaudible) is that the SMA rules and regulations for the County ofKaua'i have a two-year window on the permit unless the Planning Commission grants a time period otherwise. And so, when you look at these specific permits that were granted in 2015, there were specific deadlines for specific actions to occur that go beyond the two-year window from 2015 to 2017. In particular, building permits being applied for in 2019, demolition actions to occur in 2017, and so on and so forth. And that after all the building permits have been finalized and approved, the applicant also has one year to commence substantial construction. So, the Planning Commission in 2015 essentially took action to extend the life span of these pennits beyond the two-year window, set in the rules and regulations and the Planning Commission had the authority to do that at the time. Ms. Otsuka: Thank you, Ka'aina. Chair Cox: Are there questions, concerns? I wondering ifwe can get (inaudible). Mr. Hull: We're not taking public testimony at this time sir. Male from audience: Okay. Chair Cox: So, I'm wondering ifl can ask you another question, Parker. Would that be, okay? 30 Chair Cox: Okay. Mr. Hull: With that, the following regularly scheduled Planning Commission meeting will be held at 9:00 a.m., or shortly thereafter, on September 27, 2022. The Planning Commission anticipates this meeting to be held in-person at the Lihue Civic Center, Moikeha Building, Meeting Room 2A-2B, 4444 Rice Street, Lihue, Hawaii 96766. The Commission also anticipates providing a virtual platformcapability for members of the public to testify remotely. The Commission will announce itsintended meeting method via an agenda electronically posted at least six days prior to the meeting date. With that, Madam Chair, we're ready for adjournment. ADJOURNMENT Chair Cox: Would somebody like to motion so that we adjourn? Ms. Otsuka: Move to adjourn. Ms. Apisa: Second. Chair Cox: All those in favor say, aye? Aye. (Unanimous voice vote). Anybody oppose? None. Motion carries. 6:0. Chair Cox adjourned the meeting at l :32 p.m. 38 Angela Anderson Chai1' Sean Mahoney Vice-Chair Louie Abrams Hartwell Blake Wayne Katayama Jan Kimura Amy Mendonca Members Mr. Michael J. Belles, Esq. 4334 Rice Street, Suite 202 Lihue, Hawaii 96766 PLANNING COMMISSION County ofKaua'i, Sfatc ofllawai'i 4444 Rice Street Kapule Building, Suite A-473 Lihu'e, Hawai'i 96766-1326 TEL (808) 241-4050 FAX (808) 241-6699 MAR 1 0 2015 Michael A. Dahilig Clerk of the Commission [ffi IE t lE��IE [D) MAR 13 2015 BELLES GRAHAM PROUDFOOT WILSON & CHUN, LLP RE: Class IV Zoning Permit Z-IV-2015-8, Project Development Use Permit PDU- 2015-7, Variance Permit V-2015-1 and Special Management Area Use Permit SMA(U)-2015-61;1t Tax Map Keys 4-1-003: 004 (por.), 005, 007, 011, and 017 and 4-1-005: 014 and 017. Coco Palms Hui, LLC, Applicant Kauai Planning Commission Action Dear Mr. Belles, This letter memorializes the action taken by the K.aua'i Planning Commission effective March 10, 2015 concerning approval of the above subject permit, as amended. Approval, per your ·consent, is subject to the following conditions: Notwithstanding those improvements and/or alterations required under the subject permits'additional conditions of approval, the resort facility and associated structures and uses shall begenerally constructed and operated as represented. Any changes to the subje�t building and/or operations shall be reviewed by the Department to determine whether Planning Commission review and action is required. The conditions of approval are as follows: 1.The applicant shall contribute $50,000.00 to the County of Kauai to assist thePlanning Department's histmic preservation mission via its efforts to perpetuatethe cultural and historic significance of the Wailua/Waipouli region consistentwith the ;Department's historic preservation program, including the creation of educational programs and signage. This contribution shall be provided uponapplication of the first building permit after commission approval. 2.The applicant shall contribute $50,000.00 to the County of Kauai to assist theCounty with its current placemaking efforts, including moku and ahupuaa signage of the Wailua area. This contribution shall be provided·upon application of the first building permit after commission approval. EXHIBIT 5 Mr. Michael J. Belles March 10, 2015 Page 2 of7 3.Prior to building permit approval, the applicant shall meet the requirements and standards of the Department of Land and Natural Resources (DLNR), State Historic Preservation Division (SHPD). The applicant is further advised that should any archaeological or historical resources.be discovered during grounddisturbing/construction work, all work in the area of the archaeological/historical findings shall immediately cease and the applicant shall contact the StateDepartment of Land and Natural Resources, Historic Preservation Division and the Planning Department to determine mitigation measures. The PlanningDepartment has reviewed the comments of the State Historic Preservation Division, and under its independen t Chapter 6E and related Hawaii Constitutional obligations and duties, requires the following historic preservation measures be fulfilled by the applicant. a.A revised SOW for the project, including any proposed work withpotential to affect the historic lagoon, including staging areas, construction of new bridges, dredging, or filling in of areas near thelagoon; b.Information regarding any potential federal funding or federal pennits that may be required, especially relative to the historic lagoons; c.An Intensive-Level Survey (ILS) that identifies and assesses all remaining architectural historic properties and their potential eligibility for the Hawaii and National Registers; d.A Burial Trefl,tment Plan (BTP) that meets HAR §13-300-34(b), andfollowing a detenitlnation by the'KIBC regarding burial treatment, a Burial Site Component of a Data Recovery Plan (BSCDRP) that meets HAR §13-300-34(b)(3)(B); and e.A Revised Archaeological Monitoring Plan (AMP) that includes provisions for addressing architectural monitoring concerns and meets HAR §13-279-4, including ongoing monitoring during construction and 90 days after completion of construction. Applicant is also advised that should any human remains be discovered as � consequence of digging activities, WORK ON THE SITE MUST IMMEDIATELY STOP IN THE VISCINITY AND SHPD AND THE PLANNING DEPARTMENT MUST BE NOTIFIED. 4.Applicant shall submit a Construction. m1d Demolition Debris Management Plan, and have the plan reviewed and concurred with by the Department of PublicWorks, Solid Waste Management Division. Applicant is encouraged to employbroad diversion efforts in its waste management plan. 5.Applicant is aware that any final construction plans involving the former Seashell Restaurant site may trigger compliance with the statutes and regulations under thejurisdiction of the Office of Coastal and Conservation Lands, Hawaii State Y:\20 l.S Ma.:;tcr Filcs\Rcgulalory\Zoning 'Pcrmits\C!11u lV\Z-lV-2015-8\LETTER-lA Conditions or ApproV3I MAD OJ l0l5.docx Mr. Mjchael J. Bel1es March 10, 2015 Page 3 of7 Department of Land and Natural Resources if final development is proposed· within the shoreline area. Applicant is on notice that thls permit action may be deemed invalid and require modification and re-approval only after compliance with Chapter 343, Hawaii Revised Statutes, is attained. 6.In order to minimize adverse impacts on the Federally Listed Threatened Species,Newell's Shearwater and other seabirds, all external lighting shall be only of the following types: shielded lights, cut-off luminaries, or indirect lighting. Spotlights aimed upward or spotlighting of stmctures, landscaping, or the ocean shall be prohibited. 7.To the extent possible withln the confines of union requirements and applicable legal prohibitions against discrimination in employment, the applicant shall seek to hire Kauai contractors as long as they are qualified and reasonably competitive with other contractors, and shall seek to employ residents of Kauai in temporary .construction and permanent jobs. It is recognized that the applicant may have to employ non-Kauai residents for particular sldlled jobs where no qualified Kauai resident possesses such skills. For the purposes of this condition, the Commission shall relieve the applicant of this requirement if the applicant is subjected to anticompetitive restraints on trade or other monopolistic practices. 8.The applicant shall implement to the extent possible sustainable building techniques and operational methods for the project, such as Leadership in Energy and Environmental Design (L.E.E.D.) standards or another comparable state approved, nationally recognized, and consensus-based guideline, standard, or system, and strategies, which may include but is not limited to recycling, natural lighting, extensive landscaping, solar panels, low-energy fixtures, low energy lighting and other similar methods and techniques. All such proposals shall be'reflected on the plans submitted for building pennit review. 9.Prior to building permit application, the applicant shall address the concerns of Agencies holding applicable regulatory authority regarding thls development as referenced to and noted herein under the subject permits. Any revisions shall be identified accordingly on the final site development plan and buildingconstruction plans for building permit review and processing. 10.The Applicant shall contribute $10,000.00 to the County of Kauai TransportationAgency to assist with the construction of a new bus stop along Kuhio Highway in the Wailua area. This contribution shall be provided upon application of the first building pe1mit after commission approval. 11.Applicant shall coordinate project plans with the Depaitment of Public WorksWastewater Management Division to ensure that connection to a public sewer system is accomplished properly. Applicant shall also submit a cun-ent V;\2015 M,ster Files\Regularory\Zocing Pennits\Clm IV\Z-IV-20JS-8\LETIP.R-IA Cond�ions of Approval MAD 031015.docx Mr. Michael J. Belles March 10, 2015 Page4 of7 wastewater preliminary engineering report, as per County Sewer Standards, identifying details of sewer connections. Prior to building permit approval, applicant shall submit construction plans for any necessary sewer improvements and if applicable, pay any required wastewater sewer system fees. 12.Applicant sha11 submit a detailed water demand (both domestic and irrigation)calculations along with the proposed water meter size. Water demand calculations submitted by your engineer or architect should also include fixture count and water meter sizing worksheets. The Department of Water may require additional exactions as a consequence of the approved water demand calculations 13.Applicant shall prepare and receive the Department of Water's approval of construction drawings for the necessary water system facilities and construct said facilities. These facilities shall include but not be limited to: a) the interiorplumbing with the appropriate backflow prevention device; b) the domesticservice connection, if applicable; c) the fire service connection, if applicable. Requests for additional water meters or increase in water meter size will be dependent on the adequacy of the source, storage and transmission facilities existing at the time. ' 14.Applicant aclmowledges affordable housing requirements apply to this proposal Applicant shall resolve compliance with Chapter 7A, Kauai County Code (1987)directly with the Kauai County Housing Agency, including the execution of anaffordable housing agreement. 15.Applicant shall submit for all remaining permits necessary_for construction within one year from commission action. Further, pursuant to PDU requirements in theCZO, construction sh all commence within one year of full approval. Also, the Applicant shall pull all building permits within three months of final building permit approval. 16.Screening of the construction site during construction along Kuhlo Highway and Kuamoo Road to preserve and match the aesthetic and cultural sensitivity shall be installed with design approval from the Planning Department. All necessary permits for screening must be applied for within four months from commission action and installed within four months of agency approval of all necessary permits. Further the Applicant shall work with the State Department ofTransportation to provide landscaping along the strip ofland fronting the propertyat Kuhio Highway and properly maintain this landscaping in perpetuity topreserve the aesthetic and gateway aspect of the area. 17.Applicant shall apply for all necessary permits to demolish all strnctures proposedto be replaced in this development within four months from commission action V:\201S .Mn.ster Filcs\R�ulatory\Zouing Permi1s\Class IV\Z-IV-2015-8\I.llrrER-tA Conditions of Approval MAD OOI0lS,dccx Mr. Michael J. Belles March 10, 2015 Page 5 of7 and complete demolition within six months of agency approval of all necessary permits for demolition. 18.As early as reasonable during the project construction, Applicant shall provide 20 public parking spaces at the North end of the project site to be used for beachgoers and those using public transit. Further, the applicant shall provide 20. stalls for parking exclusively for public beachgoers at TMK:441003017, along the south end of the project. These stalls shall be clearly marked for public beachgoers use only. AI�o, the applicant at its own expense shall work with the county to site, design, construct, and maintain in perpetuity, a comfort station forbeachgoers. This comfort station shall be located adjacent or approximate to this public beachgoers parking area. 19.All parking for guests, customers, and employees shall be accommodated on site. No parking on Kuamoo, Haleilio or Apana roads shall be allowed. No use of parking lots on adjacent property shall be allowed as well. 20.Applicant shall work with the County to accommodate and ifrequired, provide aneasement for land necessary :for the continuation of the Wailua bike and pedestrian path through the former Seashell Restaurant site at TMKs 441005014and 441005017. 21.Given outstanding evaluation of the Traffic Impact Analysis Report (TIAR) by both the Department of Public Works and State Department of Transportation, in the interim, the Applicant shall provide the following to mitigate traffic impacts created by the development: a.Provide, at the Applicant's expense, a shuttle for eighteen (18) months after receiving ce1iificate of occupancy as a pilot program to facilitate transit to and from the Lihue Airport and the development; b.Provide, at the Applicant's expense, a circulator shuttle for eighteen (18) months to move patrons from the hotel to Lydgate and Wailua Beach Park, theSeashell Restaurant Site, the Coconut Marketplace and other destinations within the main Kapaa transit co1Tidor as detennined by the Executive on.Transportation;c.Provide, at the Applicant's expense, a bike share program for patrons of theresort to allow guests to ride bikes into Kapaa Town and other destinations without driving; d.The applicant shall work with the State Department of Transportation and Department of Public Works to resolve pedestrian crossing, sidewalks and vehicular traffic demands created by the development, and bear implementation costs proportional to the impact that arises, including theinstallation of a continuous public sidewalk on the Kuhio Highwa y frontagebetween Kuamoo and Haleilio; and V;\20 IS M,i.1cr Filcs\Rcgula1ory1Zon;ng Pmnin\Class lV\Z•IY-2015-811.El'TER-1 A Conditions of Approval MAD D31 D15.doox Mr. Michael J. Belles March 10, 2015 Page 6 of7 e.Provide the Planning Department, Department of Public Works and State Department of Transportation an update to the TIAR one (1) year after receiving certificate of occupancy evaluating traffic impacts created by the resort and analyze the need for additional bus stops. f.Provide the Department with a report on the Applicant's efforts to work with the Department of Land and Natural Resources to obtain pennission to use thelands held by lease for a mauka access, either vehicular, or bike/pedestrian, toallow movement of residents between Kuamoo road and Haleilio Road. Should the updated TIAR, as accepted by the three agencies, dete1mine a change in the traffic conditions, Applicant is aware that this permit is subject to modification before the Planning Commission to address these impacts, and acknowledges they may be responsible for the proportionate costs for any impacts for which a nexus to the activity may be identified. 22.At issuance of any building permit subsequent to this commission action,Applicant shall work with the county and bear the costs of the following improvements: a.Design and construction of continuous public sidewalks along Apana Road toHaleilio Road and along Haleilio Road to Kiihio Highway fronting the Applicant's property. Sidewalks must be a minimum of 5 feet wide.b.Design and construction of a dedicated right turn lane on Haleilio Road, fromApana Road to Kii.hi6 Highway in addition to an existing through lane. c.Design and construction of widening Apana Road to be wide enough for two way vehicle travel. The Applicant will work with the County of Kaua 'i Department of Public Worlcs on the width, length, and other design details for this improvement. d.Design and constmction of"Do Not Block" markings along the eastbound lanes of Haleilio Road at the intersection with Apana Road, similar tci the striping at Kuamo'o Road and Wailua Road. 23.If requested by the Transportation Agency due to increased ridership demand caused by the development, applicant shall provide proportional support for an additional bus stop and shelter for the Kauai bus. 24.Fonn and character of the development shall reflect the prior history of the resort including the usage of similar looking roof and fayade material, color andlandscaping. Further, non-reflective materials are necessary to promote theseashore area aesthetics. Prior to building permit application· for reconstruction ornew construction of buildings and landscaping, the Applicant shall submit renderings and plans for departmental design review. V;\2015 M,,..,. Flles\Jleg11lato1y\Zoning!'erll1iU\Clus TV\Z,IV-20U-SILEITER-1A Cou<lilions of Approval MAD 031015:doox Mr. Michael J. BellesMarch 10, 2015Page 7 of725.Applicant shall encourage employees to utilize the County's Transportation Agency transit services to mitigate commuter trips to and from the development. The Applicant shall work with the Transportation Agency on promotional eventsencouraging usage of the transit system at Coco Palms, including selling buspasses on behalf of the agency, signage, etc.26.The applicant is advised that prior to construction and/or use, additional government agency conditions may be imposed. It shall be the applicant'sresponsibility to resolve those conditions with the respective agency(ies).27.The Planning Commission reserves the right to add or delete conditions of approval in order to address or mitigate unforeseen impacts this project may create, or revoke the permits through the proper procedures should conditions ofapproval be violated or adverse jmpacts be created that cannot be properlyaddressed.28.During September 15 through December 15, construction shall only occur duringdaylight hours. Where possible as to not compromise safety, exterior facilitylights should be positioned low to the ground, be motion-triggered, and be shielded and/or full cut-off. Effective light shields should be completely opaque, sufficiently large, and positioned so that the bulb is only visible from below. Staffat the development shall be educated, and shall educate visitors with infonnation regarding seabird fallout and response protocols for staff to recover downed birds. Design elements shall also minimize collision with objects that protrude above thevegetation layer, such as utility lines, guide wires and communication towers. Should development yield conditions leading to any take of protected species,Applicant is on notice that an incidental take permit is required.29.Applicant shall seek guidance from the Fish and Wildlife Service for the Applicant to develop and implement measures (e.g. monitoring, etc.), in order toavoid and minimize impacts to Hawaiian waterbirds during construction andoperation of the development.Should you have any questions, please do not hesitate to contact me at the information above.Me Ke Aloha Pumehana,/j,/� () 'MICHAEL A. D�IL�Clerk Kaua 'i Planning Commission V:120 LS Moster Flles\Rcgul•tory\Zoniog Pennit,\Clm IV\Z-IV-20 I S-8\LEITE.R-IA Cooditloo, o!" Approval MAD OJ 1015.docx st EXHIBIT 6 House Lots, Fourth Series"; portion Lot S4, ) area 1.008 acres, more or less, of the ) "Wailua House Lots, Fourth Series", ) collectively Tax Key No. 4-1�03:007; por. ) Lot 13-A of the "W ailua House Lots, Third ) Series" and Remnant Lot A, collectively Tax ) Key No. 4-1-05:014; and RP. No. 6020, ) L.C. Aw. No. 3561, R.P. No. 5489, L.C.) Aw. 3111 and 3559, area 18.880 acres, Tax ) Key No. 4-1-03:004:por.; and Lot 13-A-1 of ) the "WailuaHouse Lots, Third Series"; lands ) covered under General Lease S-4878 ) containing 14.834 acres, more or less, Tax Key No. 4-1-03:005; fonds covered under Revocable Permit No. S-7678 containing 460 sq11are feet, more or less, Tax Key No. 4-1-03:017; and lands covered underRevocable Penn it No. S-7613 containing5,244 square feet, more or less, Tax KeyNo. 4-1-05:017.) ) ) ) ) ) ) ) APPLICATION COMES NOW COCO PALMS HUI LLC, a Hawaii limited liability company, Applicant in the above-captioned proceedings, by and through its undersigned attorney, and hereby submits the following Applica1ion: I.OWNER/APPLICANT.1.PR JI COCO PALMS LLC, a Delaware limited liability company, is theowner of the properties identified above and fmiher described in Exhibit ''A" hereto ("Owner"). COCO PALMS VENTURES, LLC, a Delaware limited liability company, is the lessor or licensee of those propeities described in Exhibit "B". COCO PALMS Hill LLC, a Hawaii limited company ("Applicant"), and the Owner ate in contract for the sale and acquisition of the properties, the {W:/DOCS/28225/l/W0 13 5911.DOC} arrangement for which will also involve the assignment or transfer ofleases or licenses or, in some cases, obtaining new Revocable Rights of Entry from, the Board of Land and Natural Resources for lands adjoining the privately-owned parcels. The Owner, Coco Palms Ventures LLC and the Applicant have each authorized Michael J. Belles of Belles Graham Proudfoot Wilson & Chun, LLP, as counsel for AppHcant, to :file this Application on behalf of the Applicant pursuant to the Authorizations at tached hereto and incorporated herein as Exhibits ''C" and 11D", respectively. 2.Those properties that are leased/Jicensed to Owner that have historically been inc orporated as part of the Coco Palms Resort are more specifically described in Section II(l)(d) below. II.DESCRIPTION OF PROPERTY AND LAND USE DF_,SJGNATIONS. 1.The descriptions of the Properties are as follows: a.Locati9.n. The Properties are located at Wailua (Puna), Kawaihau, lsland and County of Kauai, State of Hawaii, as shown on the Location Map, attached hereto and incorporated herein as Exhibit "E", and on the Kauai Tax Maps, attached hereto and incorporated herein as Exlnbits 11F11 and "G". b.Area. The Properties contain a collective area of28.523 acres, more or less, 12.834 acres, more or less, of which is privately owned, and 15.689 acres, more or less, of whlt:h is covered by State lease/license. c.Lot Descriptions. The owned Properties are a mix of registered (i.e., Land Court) lands and regular system lands, identified in Exhibits 11A" and 11n 11, and summarized as follows: {W:IDOCS/28225/l/W01359ll.DOC} -3- i.TMK 4-1-03 :007 consist of: Lot 2, area 2.444 acres as shown on Map 1 filed jn the Office of the Assistant Registrar of the Land Court of the State of Hawaii with Land Court Application No. 1667ofVeda Wamcr Hills. Lot 1, area 6.713 acres as shown on Map 1 filed in the Office of the Land Court of the State of HawaH with Land Court Application No. 1667 of Veda Warner Hills. Lot 1-C-2-A, being a portion of Lot 1 of the "Wailua Rice and Kula Lots", containing an area of 28,549 square feet, more qr less. Lot 10 of the "Wailua House Lots, 1st Series", containing an area of 12,072 square feet, more or less. All of that certain parcel of land (being all of the land described in and covered by Royal Patent Number 4826, Land Commission Award 3568, Apana 2 to Kelani), containing an area of 7,923 square feet, more or less. Lot 53 of the "Wailua House Lots, Fourth Series tt, containing an area of 1.424 acres, more or less. Lot 54 of the 11Wailua Houge Lots Fourth Series", containing an area of 1.008 acres, more or less. ii.TMK 4-1-05:014 consist of: Lot 13-A-1, being also all ofLot 13-A of the "Wailua House Lots, Third Series" and Remnant Lot A, containing an area of8,893 square feet, more or less. {W:/DOC,S/28225/l!W0135911.DOC} -4- iii.TMK: 4-1-03:004 consist of: All of that certain parcel ofland (portio ns of the lands described in and covered by Royal Patent Number 6020, Land Commission Award Number 3561 to Iosia Kaumualii and Royal Patent Number 5489, Land Commission Awards 3111 and 3559, Apana I to Debora Kapule), containing an area of 18.880 acres, more or less. d.State-Owned Lands. There are leases or rights of entry covering State lands (11State Properties") that are adjacent to the Properties, as follows: TMK: 4-1-03:005, containing 14.834 acres, more or less, under General Lease S-4878, for landscaping (this parcel also contains the Chapel and walkways through the coconut groves). TMK: 4-1-03:017:por., containing 460 square feet, more or less, under Revocable Pennit No. S-7678, for vehicular access purposes. TMK: 4-1-05 :O 17, containing 5,224 square feet, more or less, under Revocable Permit No. S-7613, for restaurant, landscaping and maintenance purposes. e.State Land Use District. The Properties and State Properties are classified by the State Land Use Commission (11SLUC11) in the Urban and Conservation Districts. f.Kauai General Plan. The Properties are designated by the County of Kauai General Plan in the Resort C1assification. g.CZO Districts. The zoning of the Properties is as foIIows: {W:/DOCS/28225/IM'0l3591 I .DOC} TMK: 4-1-03 :007 Resort (RR20) TMK: 4-1-05:014 Residential (R-10) TMK: 4-1-03:004 Conservation and Open (0) -5- h.VDA. The Properties are located in the Visitor Destination Area. i.Kapaa-Wailua Develomnent Plan. The Properties and State Properties are located within the Wailua-Kapaa Development Plan area. J.SMA. The Properties and State Properties are located within the Special Management Area ("SMA") of the County of Kauai. k. CZO Constraint Districts. Portions of the Properties and State Properties are located within the CZO Tsunami Constraint District (S-TS) and within the CZO Shore Constraint District (S-SH). 1.Shoreline Setback. A portion of the Properties and State Properties are located within the Shoreline Setback Area (TMK.4-1-05:014 and 4-1-05:017). Ill. PRESENT USES OF SUBJECT PROPERTY. 1.The Properties are the site of the Coco Palms Resort, initially opened in January 1953 and expanded in the mid-1970s. The old reso1t incorporated lands owned by the State of Hawaii (the coconut grove areas with th.e Chapel which were effectively an adjunct of the resort, access and parking areas). The Coco Palms Resort sustained damage from Hurricane Iniki in 1992, and has neither been repaired nor operational since that time. At the time of Iniki, the Coco Palms Resort was operating with 398 hotel units. 2.The pre-Iniki Resort consisted of 18 buildings (a commercial building, the lobby building, four 3-story multi-unit buildings whh hotel rooms, a restaurant and bar, the Queen's Audience Hal1, the Kfog's Lagoon Building, the Queen's Lagoon Building, a chapel, and some maintenance/utility and accessory buildings) and 11 stand-alone cottages as shown on the Site Plan attached hereto as Exhibit "H". At the time of Iniki, a total of 212 stalls for parking for cars were {W:/OOCS/28225/l/W0I359I] .DOC} -6- located to the north and south of the Resort project, and in the basements of the Shell, Ali'i Kai I and Ali'i Kai JI buildings. 3.TI1e Resort facilities (using the pre-I:niki footprints and statistics) arenonconfonning (with respect to the CZO) in the following respects: right-of-way. theCZO. a.The commercial building has no setback from the Kuhlo Highwayb.TI1e lot coverage exceeded the 50% lot coverage allowed underc.The first floors of the buildings do not have the required elevationsabove the Base Flood now applicable to the Properties. d.The number of staJls prov ided given the number of rooms and otheruses did not meet the required parking requirements established by the CZO. e.Two of the King's Cottages, and the Queen's Audience Hall, do notmeet the required boundary setback with the property on which part of the coconut grove is located. f.The Queen's Lagoon Building (for the spa) does nothavethernquiredsetback from the southern property line. IV.PROPOSED USE OF SUBJECT PROPERTY.I.The Applicant proposes to repair and restore the Coco Palms Resort projectusing existing building footprints, while modernizing the exterior and interior design to adapt to tastes that have significantly changed since the 1950s-1970s, when darker colors for interiors and exteriors were favored. The new resort will be known as the Coco Palms by Hyatt, which will be used for hotel and resort-related purposes. {W:/DOCS/28225/l/W0135911.DOC} -7- 2.The Applicant intends to rebuild the resort buildings to accommodate350 reconfigured units (as earlier noted, there were previously 398 units on the Properties, hence, a reduction by 48) consisting of: a.105 units in the Shell Build ing (Building 1 on Exhibit 11 H11), 9 of which wi11 be suites; b.90 units in the Ali'i Kai I Building (Building 2 on Exhibit "H"),10 of which will be suites; c.87 units in the Ali'i Kai JI Building (Building 3 on Exhibit "B 11), 13 of which will be suites; d.25 units in the Top of the Palms located in the Lagoon Building(Build ing 4 on .Exhibit "H"), 2 of which will be suites; c.22 units in the Cottages (5 King Cottages with a total of 10 units,4 Queen Cottages with a total of 8 units and 2 Prince Cottages with a total of 4 units, all of which will be suites; see Building Complexes 5, 6 and 7 on Exhibit "H"); and f.21 units in the King Lagoon Building, all of which will be suites(Building 8 on Exhibit 11H 11). Exhibit "B."); 3.In addition, the following repairs/rebuilds are intended:a.the Lotus Restaurant and the "Flame Room Bar (Building 4 onb.the commercial building (Building 11 on Exhibit "IT'');c.three (3) swimming pools ( one to the rear of the Shell Building, oneto the rear of Ali'i Kai I and one to the rear of Ali'i Kai II, all as shown on Exhibit "ll"); {W:/DOC'.S/28225/l/W0135911.DOC} -8- d.the Queen's Audience Hall (Building 12 on Exhibit "B");e.the Pa1ms Lanai (Building 14 on Exhibit "II");£ the Utility Building and the Maintenance Building, which will be combined into one Warehouse for storage and maintenance (Building 15/16 on Exhibit uH''); g.the Sea Shell Restaurant (Building 17 on Exhibit "R11);h.the Chapel in the Palms (Building 18 on Exhibit 11B11); i.2 of 4 bridge crossings over the Lagoons as depicted on Exhibit "B:"(2 existing bridge crossfogs will be eliminated); and j.rebuild of the Queen Lagoon Building, which had been demolishedbefore Iruld, which will house spa and gym facilities (Building 9 on Exhibit "H"). 4.The Applicant intends to rebuild the Coco Palms Resort incorporating some ofthe old Hawaii style but brightening the facilities to give a more contemporary, open appearance. The new resort's primary visual focus, t>ince W ailua Beach js located across Kuhio Highway from the Properties, will be the Lagoons and the numerous coconut groves and trees that have always been the recognized feature of the place. For upper level rooms in the Shell, Ali'i Kai I and Ali'i Kai II buildings, the.re will be ocean views. Existing rooflines, floral railings, lava rock walls and ocean theme elements will be retained. All multi-level buildings will have access for persons with disabilities via elevators. The Lotus Restaurant and Flame Room Bar, and the Qneen's Audience Hall, will be open to the Lagoons. The commercial building will be connected to the lobby by an overhead walkway. The iconic pointed arch of the Lobby Building will be repeated on the rear of the commercial building (that will face Kuhlo Highway). Rooms will be provided with inset lanais and balconies to ensure that no portions of the new buildings will extend beyond the existing footprints. {W:/DOCS/l8225fl/W01359ll.DOC} 5.As part of the repair and restoration, the Applicant proposes to repair,reconstruct and/or construct the following structures, and to establish the following uses, on the Properties (all of which proposed uses are shown on the Site Plan attached as Exhibit 11 H"):a.Hotel Facilities. Because the proposal involves using footprints of thebuildings that were the old Coco Pa]ms Resort, there are a number ofbuildings that will have hotel units. With the reconfiguration of the rooms, however, instead of 3 98 units, there will be 350. The new resort will consist of nine (9) building complexes (iden:tified as the Shell Building, Ali'i Kai I, Ali'i Kai II, the Top of the Palms, the King and Queen Lagoon Buildings, the Lobby and Restaurant/Bar, the Queen's Audience Hall, the House in the Palms, and the Palms Lanai), and 11 cottage structures each containing 2 units which will have guest rooms. Shell Building will be a 3-story building with a basement, containing 105 units (96 rooms/9 suites), together with the addition of a roof top bar of2,953 square feet, depicted on Exhibits "I-1" through 1 1 1-7 11). Ali'i Kai I will be a 3-story building with a basement, containing 90 units (80 rooms/10 suites), together with the addition of a roof top exercise area containing 1,880 square feet, depicted on Exhibits "J-1 1' through "J-6 11• Ali'i Kai II will be a 3-story building with a basement, containing 87 units (74 rooms/13 suites), d epicted on Exhibits "K-1" through 11KM6''). Top of the Palms in the Lagoon Building attached to the Lobby, will be on the second floor, containing 25 units (23 rooms, 2 suites), depicted on Exhibits "L-1" through "L-5". {W:/DOCS/28225/l/W013591 l.DOC} -10- (no spaces, treatment remaining restroom commercial cont�ining the Lagoon Building, a 3-story building that will house the Flame Room Bar, the Lotus Restaurant, the Top of the Palms Rooms (on the 2nd floor) and office spaces (Building 4, connected to Building 10, which is the Lobby Building), depicted on Exhibits "L-1" through ".L-5". the Queen's Audience Hall, which will be used for a spa, gym and banquet hall/ballroom, containing23 ,056 square feet, more or less (Building 12 on Exhibit '1R", depicted on Exhibits 11T-l" through 11T-4").the House in the Palms, a bar, containing 4,950 square feet, more or less (Building 13 on Exhibit "H"), depicted on Exhibits "U-1" and "U-2"). the Palms Lanai, a bar, containing 1,720 square feet, more or less (Building 14 on Exhibit "H"), depicted on Exhibits "V-1" and "V-2". a storage/warehouse building (previously a uti1ity building and a maintenance building 1hat will now be combined) to be elevated above the base flood elevation (Building 15/16 on Exhibit "H"), depicted on Exhibits "W-1" through "W-3". the Chapel in the Palms (subject to obtaining the consent of the Board of Land and Natural Resources as it is located on leased land identified as Tax Key No.: 4-1-03:005) (Building 18 on Exhibit "H"), depicted on Exhibits 1'X-l" and "X-3".the Sea ShellRestaurnnt, containing4,800 square feet, more or less (parking for employees and diners will be located on the mauka resort property with shuttle service to and from the restaurant) (Building 17 as shown on the plot plan attached as Exlubit "Y-1 "), depicted on Exhibits "Y-:2" through "Y-3 1'). {W:/DOCS/28225/1/W0135.911.DOC} -12- b.Parking. The Applicant intends to provide a total of 399 parking spaces as follows: 212 (this was the original number of stalls for the entire old Resort) on TMK No. 4-1-03:007 (including basement stalls in the Shell Building, the Ali'i Kai I building and the Ali'i Kai II building) along with an additional 109 new spaces on the same parcel, 50 stalls on TMK: 4-1-03:017 covered by a State revocable pennit, 12 of which will be marked and reserved for public parking, and 28 stalls on TMK: 4-1-03:005 (existing) largely for employees as it is somewhat removed from the hotel operations. 187 more stalls than existed at the time of Iniki will be provided. C, Bridges (spanning the La.goon). Pre-Inik:i, there were a total of four (4) bridges spanning the Lagoon, as shown on Exhibit "Z". All of these bridges are in very poor condition given the lack ofrepairs/maintenance over the intervening 22 years since Iniki. The Applicant intends to rehabilitate/rebuild two of the bridges (identified as Bridges 1 and 2), the locations of which are as shown on Exhibit "Z", to provide reasonable access within th,e resort area since it is bisected by the Lagoon. The footings of these bridges will be in the locations that the existing footings are located ( outside of the boundaries of the Lagoon, wh ich is the registered State Historic Site), and will be raised/elevated to allow the safe passage of canoes within the Lagoon proper. The Lagoon was placed on the State of Hawaii Historic Register (identified as the Weuweu-Kawaiki Fishpond, Site 50-30-08-680), on April 25, 2009. See letter from the State of Hawaii Historic Preservation Division ("SHPD") attached hereto as Exhibit "AA-1". The Lagoon proper is the historic site, as depicted on Exhibit "Bn-111 • With the footings outside of the registered site, the integrity of the Lagoon will be maintained. {W:/DOCS!l822S/l/W013591 I.DOC} -13- The Applicant is in the process of obtaining confirmation from SHPD that the proposed removal of two of the substantially damaged bridges, and rebuild of two bridge crossings for the Lagoon, are acceptable as it relates to the historic Lagoon. d.Underground Utilities. The Applicant intends to use existing, and/orto install new, underground facilities for water, sewer, electric, telephone, communications, and cable television servicing the various improvements and operations within the Property, some of which are connected through easements in favor of tl1e Property from the State of Hawaii. The Applicant also seeks to install covered parking in the north parking lot area for a photovoltaic system aimed nt providing some of the power for the resort operations. See Exhibits "CC-l II and "CC-2 11 showing the location of the proposed PV panels and depicting the typical profile of the support structure for the photovoltaic array, respectively. e.Landscaping Activities. The Applicant intends to save some existinglandscaping, and to install or plant additional ornamental landscaping suited for the soil types and exposures throughout the resort portion of the Property ("Landscaping'1). In addition, a ]ease from the State of Hawaii (for landscaping and maintenance of premises for aesthetic, park and recreation purposes) through2048 over Tax Key No.: 4-1-03:005 (in the State Land Use Urban District, zoned Open), which contains many coconut trees that are part of the grove that has historically been considered to be a part of the resort operations, will allow the Applicant to continue to maintain existing trees and pla1_1t replacement trees as and when the trees age out or become diseased. The grove extends onto Tax Key No.: 4-1-3:004, which is owned by Coco Palms Ventures, LLC. This property also contains coconut trees and, many years ago when the resort was in operation, had a small zoo (admittance was free). A portion of this parcel is classified {W:/DOCS/2822S/l/W0135911.DOC} -14- Urban and zoned Open (0), with the majority of the parcel in th e State Land Use Conservation District. Although it cannot be addressed in connection with this Application, Applicant desires to proceed with such steps as are necessary to install a photovoltaic system on Tax Key No.: 4-1-3-004, to enable the generation of power for its operations. f.Elevators. The Applicant intends to install elevators in the followingbuildings: Shell Building, All'i Kai I and Ali'i Kai 11, Lagoon Building, Kings and Queens Lagoon Buildings. These new Elevators will provide better access to all rooms and guest amenity areas, and will meet applicable ADA requirements. g.Boundary Wall. A concrete masonry wall, 6' in height, is proposedalong the frontage of the Property along Kuhio Highway. Plantings along both the mauka and rnakai sides of this wall will provide screening to reduce its visibility. 6.The above-described structures and improvements will be collectivelyreferred to as the 11Improvemcnts". The Improvements (with the exception of the ·underground Utilities) are shown on the Site Plan (Exhibit 11H").V.LOCATION OF SUBJECT PROPERTY AND DESCRIPTION OF SURROUNDING LANDS.1.The resort Properties are bounded by Kuhlo Highway along its eastern edge,and the parcels containing the coconut groves at its eastern edge. To its north are lots that are part of the Wailua Houselots residential area and the County's sewage lift station. To its south is Kuamoo Road (a State highway). A strip ofland (TMK: 4-1-03 :039) fuat runs nearly the entire length of the Property along its boundary with Kuhio Highway, was conveyed in 2006 to the State of Hawaii as {W:/DOCS/.28225/1/W0135911.DOC} part of the public right-of-way, and future highway improvements planned by the State Department of Transportation will include that "reserve'' area. VI.HURRICANE INIICT ORDINANCE.1.Section 4 of the Hurricane Iniki Ordinance (Ordinance No. 716) provides inrelevant part as follows: "SECTION 4. Nonconfonning Buildings, Structures, and Uses. A. Nonconfonning Buildings and Structures. Notwithstanding Section 8-23.l(c) of the Kauai County Code 1987, as amended, and any other ordinance to the contrary, any legally nonconforming building or structure that was damaged or destroyed by Hurricane Iniki may be reconstructed or repaired to the condition the nonconforming stmctu.re or building was in on September 10, 1992 upon obtaining a permit in the manner specified in this ordinance. hnproved design specifications or the use ofhigher grade materials to better withstand the effects of high winds may be incorporated into the nonconforming building or structure as prut of the repair or reconstruction authorized by this subsection. In no event shall any reconstruction or repair authorized by this subsection be construed to allow: 1) the construction of any structural alterations to the legally nonconforming building or structure that did not exist on September 10, 1992 except to repair or reconstruct a building with higher grade materia]s or improved design specifications to better withstand natural disasters; 2) a greater floor area than existed on September 10, 1992; 3) any reconstruction or repair that would increase the no nconformity of the building or structure beyond what existed on September 10, 1992. The reconstruction or repair to the legally nonconfmming structure or building allowed by this section shall be completed within the time frame allotted under a valid permit issued in accordance with this ordinance. B.Nonconfonuing Uses. Notwithstanding Section8-23.2(b) and 8-232(c) of that Kauai County Code 1987, as amended,and any other ordinance to the contrary, any legally nonconforminguse that has ceased, by reason. of the damage or destruction to thebuilding or strncture in which the use was conducted by Hurricanelnik:i, may be resumed if a valid pennit is obtained and reconstructionor repair is completed within the time frames of that permit.{W:/DOCS/28225/l/W013591 l .DOC} -16- C.Federal and State requirements, including but notlimited to flood plain management regulations, shall apply." 2.The Hunicane Iniki Ordinance allows the reconstruction of nonconfonningbuildings and structures damaged by Hurricane Iniki (all buildings on the Property that were formerly part of the Coco Palms Resort) provided that such reconstruction does not result in: (a) structural alterations ( except to construct a building with higher grade materials or. improved design specifications to better withstand natural disasters); (b) greater floor areas; or (c) increases in the nonconformity of structures. 3.At the time it was damaged by Hurricane Iniki, the old resort wasnonconforming in the following respects: Tax Key No.: 4-1-03:017 (the parcel leased from the State) -lot coverage of 42.9% in the Open District. Tax Key No.: 4-1-03:004(por.) -with the old tennis courts there was 61.5% lot coverage in the Open District. Tax Key No.: 4-1-03:007 -the old resmt structures had a total Jot coverage of 307,572 square feet at the time of Iniki. Tax Key No.: 4-1-05:014 and 4-1-05:017 (the Sea Shell Restaurant)-the lot coverage was/is 66% on Parcel 14, which contains the restaurant proper and some lanai/paved areas, and was/is 25% on Parcel 17, which contains more lanai/extension and stairs and a trash enclosure area. The restaurant use is on Residential R-10 property, and the improvements are located within what is now the Shoreline Setback Area. {W:/DOCS/28225/l/W0l35911.DOC} -17- VII.PERMITS REQUESTED AND REQUIRED.The following permits will be required for the proposed construction, development and uses of the Properly and Improvements which are not exempted by the Hurricane Iniki Ordinance ("Development"): 1.SMA Use Permit. The Subject Property is located in the SMA. The total costof the proposed Development,' which encompasses more than one parcel ofland within the SMA, will exceed $500,000.00. Therefore, in order to proceed with the Development, the Applicant needs a SMA Use Pennit as defined in Section 7.3 C. of the SMA Rules. 2.Proiect Development Use Permit. A Project Development Use Permit is beingrequested pursuant to CZO Article 18 to allow the Applicant to vary from the requirements of the CZO with regard to reconstructing the Queen's Lagoon Building, and for parking requirements and lot coverage limitations consistent with the provisions of the Iniki Ordinance. 3.Variance Permit. A Variance Permit is being requested pursuant to CZOArticle 21 to allow the Applicant to vary from the limitations of land coverage for aspects of the Development. In particular, construction of the wall that runs parallel withKuhio Highway and the new spa building on the site of the Queen's Lagoon Building (this was demolished sometime after Hunicane Iwa), together with increasing the number of parking sta11s1, will require some deviation from lot coverage standards. I Although providing more parking stalls will increase lot coverage, the Applicant has been unable, given the existing improvement footprints and the limitations of the lots in question, to provide sufficient parking to meet current CZO requirements. If, in the future, the State Board of Land and Natural Resources allows the Applicant to expand use of TMK: 4-1-03:005 for parking purposes, the Applicant will be able to provide ndditional unimproved parking spaces (graveled). {W:/DOCSl28225/I/W0135911.DOC} 4.Class N Zoning Permit. A Class IV Zoning Pennit is a proceduralrequirement for a Project Development Use Permit. See CZO Sec. 8�18.5. It is also required for development on a parcel in the CZO Resort District large enough to qualify for more than twenty.five (25) dwelling units. See CZO Sec. 8-4.6(a)(4). VIII.IMPACTS OF PROPOSED DEVELOPMENT.1.Botanical Resources and Wildlife. The vegetation on the Property consistsalmost entirely of introduced landscape plantings or weedy species. There are, however, eight native species including the pandanus or hala, kou, beach naupaka, hau, popolo, ricegrass and inoa. No threatened or endangered plant species were observed upon any of the parcels involved. Most of the mauka portion of the resort is planted with hundreds of coconut trees with heights averaging 50 feet, with the older trees reaching heights of 60 to 70 feet. There are also octopus trees, Java plum, pink tecoma, kukui, some other pa;lm spe<..'ies, milo, bamboo, Chinese banyan, shell ginger, crinum lily, Guinea grass, koa baole, sourbusb, Macaranga and Indian pluchea. The makai part of the resort has plumeria, hibiscus, a number of palms, Tahitian gardenia or tiare, Queen Emma lily, cerbera, maile�scented fern or lauae, croton, shell ginger, bird of paradise, painted cooperleat: bougainvillea und a large .Barringtonia asiatica tree. There are a number of weedy species given the lack of maintenance. Along Kuhio Highway, possibly partially within tl1e State right-of-way, are vitex sluubs, Madagascar olive trees, a few coconut trees, tree heliotrope, ironwood and pandanus or hala. {W:/DOCS/2.8225/l/WOl3591 l.DOC} -19- Along the Lagoon there is St. Augustine grass and Japanese lawngrass or zoysia, coconut trees, crinum lily, noni shrubs, umbrella sedge, beach naupaka, milo 1auae, wedclia, octopus tree, koa h.aole, sourbush, Indian pluchea, Christmas berry, Java plum and Macaranga. Tax Key No.: 4-1-05:014, which has the Seashell Restaurant, has plumeria and coconut trees, with a few false kamani or Chinese almond, and octopus trees. Small clumps of wedelia, lauae, ti, crinum lily and Philodendron vines are near the entrance to the site, while on the beachside, there is a thicket of beach naupaka with a few cerbera, milo and heliotrope trees. Because the Properly had been developed, the vegetation types do not provide a suitable habitat for native avian species. Exotic avian species might be found within the Property. The threatened Newell Shearwater flies over the Property seasonally. Mammals that might be found include the fetal cat, house mouse and rat. The Property does not abut nor is it situated within a Natural Area Reserve or Wildlife Refuge or Sanctuary. There are no wetlands on the Property (there are no areas dominated by wetland indicator species, the soils are not listed on the hydric soils list, and standing water drains rapidly). 2.Archaeological/Historical Resources. The "Archaeological Inventory Surveywith Subsurface Testing at the Coco Palms Resort" (11AIS") was issued by Cultural Surveys Hawaii, Jnc. in April 2005 (see Exhibit "DD"1 ") and the "Archaeological Inventory Survey Addendum for the Coco Palms Resort" (11AIS Addendum") was issued in July 2006 ( Exhibit ''DD-2"). The AIS involved a ground survey of parcels identified as Tax Key Nos.: 4-1-03:04, 005, 007, 011, 017 and 4-1-05:014 and 017. Subsurface trenching consisted of a total of 80 trenches (77 within the resort{WJDOCS/28215fi./W0 13591 l.DOC} -20- which displays can be installed and shown, such displays to be jointly coordinated with the resort management and subject to management's approval. 3.Air Quality/Noise. The proposed Development will have no long-termimpacts on the air quality and ambient noise levels in th� area. During construction, however, noise and some fugitive dust areunavoidab]e. However, air quality standards are regulated by compliance with the State of Hawaii Department of Health Administrative Rules, Title 11, Chapter 60 (Air Pollution). And noise mitigation measures including, but not limited to, properly muffled construction equipment and vehicles and compliance with State DOH construction noise limits pursuantto Title 11, Chapter46 (Community Noise Control), willbeimpleroented. Limitations, too, are placed by govennnent on days and hours of construction, to allow some respite to the nearby residences and businesses. All vehicles or equipment of the Applicant's contractors during construction will be properly muffled, housed and maintained to reduce any noise impacts or emission impacts. However, some required safety features in thes� vehicles will generate noise (back-up signals being an example). With prevailing tradewinds blowing seaward, air quality will be reasonably good. The ambient traffic nofae on the Kuhio Highway corridor, however, is beyond the Applicant's control. 4.Flooding and Drainage. The Flood Insurance Rate Map ("FmM11) designatesthe Property in zones 11VE11, "AE11 and "X". The 11VE" zone, located near the coast, along the eastern part of the Property, is defined as "coastal flood with velocity hazard (wave action); base flood elevations determined". The base flood elevation for the ''VE" zone on this Property is 15 feet, near the Seashell Restaurant. {W:/DOCS/28225/1/W0135911.bOC} -23- The "AE" zone is located directlymauka of the "VE" zone and encompasses most of the Property. The "AE" zone is desciibed as "Special flood hazard areas inundated by the 100-year flood with base flood elevations detennined 11 • The base flood elevation for the "AE" zoneis 15 feet. The remainder of the Property is within Zone "X", defined as the "Areas determined to be outside 500-year flood plain". With respect to any structures within the 11 VE" or "AE" zones, the finish floor elevations for the hotel units will be elevated to +15 feet on/over existing concrete pads to meet the base flood elevation. Existing ground elevations for the Property range from +7 to +11 feet. Basement parking below+ 15 feet will be wet flood proofed. Any equipment below elevation +15 (elevator equipment, utilities, kitchen equipment, ventilation equipment for basement parking) will be dry flood-proofed. In flooding conditions, access to such equipment will be secured with water tight doors, in order to be compliant with the County's Floodplain Management Ordinance and Federal Flood Insurance Program requirements. A pump station ( currently inoperable) will be rebuilt to pump flood water that might impact the Property, into the existing drainage canal that runs through the Property. Applicant's consultant has determined that that drainage canal is capable of handling most run-off from the Property, so the rebuilt pump station would only become necessary during extraordinary events. 5.Utilities. The Property will be served with the existing water service from theDepartment ofWater of the CountyofKauai, electric service from Kauai Island Utility Cooperative, and telephone and internet service from a provider(s) yet to be determined. Existing power and {W:/DOCS/28225/l/WO 13591 I.DOC} -24- water faciliti es are presently adequate to provide the demand for such services that will be generated by the proposed Development. 6.Wastewater Treatment and Disposal/Solid Waste. The Property will be ableto connect with the existing County wastewater facilities located within the Lydgate complex for treatment and disposal of wastewater. The Department of Public Wcrrks' Wastewater Division has reviewed wastewater data provided by the Applicant, confirmed that the Property is within the County's sewer service area and that the Wailua WastewaterTreatmentPlantcurrentlyhas sufficient capacity for the restoration of sewer service to the Department. Nonetheless, the Wastewater Division has reserved the right to formally comment upon the routing of tlus Applicatio n to the various agencies. Solid waste collection wm be provided by private contractors. 7.Fire and Police Services/Schools. Fire services in the vicinity are located inWaipouli, approximately one mile from the Property. Police services are available in Kapaa, approximately three miles from the Property. The close proximity of these fire and police services to ·the Property will minimize response times in the event of an emergency. The proposed Developmentof the Property will not significantly increase the need for existing fire and police services.The closest schools are Kapaa Middle School, K.apaa Elementary School and Kapaa High School. The proposed Development will not generate any significant additional enrollment in these schools. 8.Traffic Circulation. The major road which services the Properties is KuhioHighway, with Kuamoo Road (State) and Haleilio/ Apana (County) Roads providing the connections. Although in the past, the primary direct access for ihe Properties was Kuamoo, discussions with the {W:/DOCS/28225/I/W0I 35911.DOC} -25- -26- IX.SMA CONSIDERATIONS. 1.Recreational Resources, The proposal involves reconstruction of a resort project and existing stmctures that have been present since the early 1950s, and will not adversely impact coastal recreational activities that occur at Wailua Beach, located directly makai from the Property across Kuhio Highway. The Seashell Restaurant is located adjacent to (or on) Wailua Beach. Other parks in the vicinity include Lydgate Park (County), and the Wailua River Park (State). The rebirth of the Coco Palms resott will not demand a substantial demand for parks, and the Applicant will provide recreational amenities for its guests. The proposed Development will not increase the burden on the Wailua Beach, Lydgate Park or Wailua River State Park and will have no greater impacts on its facilities than those that previously existed when the old res011 was in operation. No public access would be necessary over the Property to access any of the parks in the vicinity, as the Property does not abut any of these parks. However, in cooperation with the County, the Applicant proposes to designate, mark and maintain 12 pubJic parking stalls on the Property at the southern end ( on TMK: 4-1-03:017, which is owned by the State of Hawaii). 2.Historic Resources, The pmposedrebuilding/renovation of the resort will not have any impact on any existing historic, cultural or archaeological resources located on or near the Property. The historic pond (Lagoon) registered as SIHP Site# 50-30-08-680 has been an integral pa1t of the resort since it was first opened, and will continue to be maintained by the Applicant as an {W:/DOCS!l8225/L/W0135911.DOC) -27- adjunct of its operations. The human remains that have been reinterred on site will continue to have the plaque and monuments kept and maintained by the Applicant. If any other remains are discovered during reconstruction/renovations (hopefully kept to a minimum as the Applicant proposes to use existing footings/pads, the Applicant, in conjunction with its consultant Cultural Surveys Hawaii, will coordinate proper treatment/reinterment through the State Historic Preservation Division. Monitoring will take place during constmction by staff of Cultural Surveys Hawaii as recommended in the AIS that was accepted by the State Historic Preservation Division on May 5, 2005 (in connection with previous permits, since revoked, for the rebuild of the resort project). 3.Scenic and Open Space Resources. The proposed Development, whichintends to incorporate existing footprints, will have no greater impacts on the scenic and open space resources on and around the Property than the old resort. Existing public views (from Kuamoo Road or K.uhio Highway) are of Wailua Beach and the coastline area, Wailua River and the commercial area near the Ha1eilio Road/Kuhio Highway junction. Mountain views from Kuhio Highway are largely blocked by the existing resort buildings. Toe rebuilt resort will: ( a) be compatible with and blend into the surrounding area; (b) not interfere unreasonably with any views toward the shoreline; and ( c) have no greater impact on views from public roads to the shoreline than the old resort, What will change will be the removal or trimming of the plants/trees along the Kuhio Highway right of way that have over the years emphasized the abandoned resort, and the replacement of buildings that are increasingly deteriorating with new buildings. TI1e rebirth of the resort will be an improvement over the appearance of the closed resort with respect to aesthetic qualities. {W:/DOCS/28225'/l/W013 59 l l .DOC} -28- 4. Coastal Ecosystems. TtvIK; 4-1-05:14 (the Seashell Restaurant property) is part of the coastal ecosyst�m of that area, However, a rebuild of the restaurant will have no significant negative impact on this ecosystem as it was a preexisting use and structure on an existing footprint. The parcels that ore located mauka ofKuhio Highway, although within the shoreline area (now that a shoreline area is defined as being within 500' of the shoreline) are not technically part of a coastal ecosystem. Since the mauka parcels are at a lower elevation than Kuhio Highway, and separated from Wailua Beach by the highway, the Development is unlikely to endanger the coastal ecosystem or have any negative impacts on it. 5.Economic Uses. The Property was once a thriving resort employing, at one time, between 240 to 375 persons.2 During the construction phase, for the short-term, direct economic benefits will result from purchasing ofmatedals from local suppliers, and employment of local labor. Indirect economic benefits expand to other local retail businesses who benefit from the spending of the workers. Long tenn economic benefits will be realized with job opportunities for management, middle management, skilled and other employees whose services will be necessary to manage, operate and maintain 1h.e facilities and its amenities. It is anticipated that the resort will employ approximately 550 full-and part time staff (hotel administrative, food and beverage �ervices, retail positions, room and facilities maintenance, etc., most of whom will be doing shift work because of the nature ofhote] operations), which will haven positive effect on the economy of the County of Kauai and of the State of Hawaii. 2 The number fluctuated over the history of the reso11 operations and reportedly reached the maximum during the 1980s, then dropping in the late 1980s after the retirement of Mrs. Guslander, {W:/DOCSfl.1\225/l/W0 135911.DOC) -29- 6.Coastal Hazards. Portions of the Property are situated within or near n floodzone (Zone VE, Elevation 15 feet and Zone AE, Elevation 15 feet) as shown on the Flood Insurance Rate Maps. Elevations of the Property mauka of the highway range from 10 to 13 feet above mean sea level (msl), with a slope towards the existing Lagoon. Elevations near the Lagoon range from S to 7 feet abovemsl. ·Elevations in the coconut grove areas range from S to 8 feet abovemsl. Surface water flows will tend to flow towards the Lagoon given existing elevations {keeping in mind that Kuhio Highway is elevated in relation to the Property). 111e Seashell Restaurant site was built up from surrounding grade. The finish floor elevation of the existing building is approximately 17 feet above msl (the periineter elevations of the site range from 6 to 11 feet above msl). The proposed Development will cause little, if any, increase in flooding on or around the Subject Property. Surface water flows caused by the restaurant improvements when it is reconstructed will not be any greater than flows existing at this time. Preliminarily, the DepaTtment of Public Works concurs that the Development will be compliant with the Federal Emergency Management Act ("FEMA") guidelines. None theless, as is standard, the Department is reserving its right to formally comment when this Application is submitted to it pursuant to the CZO. 7.Compliance with SMA. The rebuilding/repair of the resort on the Propertywill have no significant negative impact on the SMA. The proposed Development: (a) will be compatible with existing uses in areas on or around the Property; (b) wil1 not have substantial, negative impacts on scenic or open space resources within the SMA; and (c) will not significantly increase runoff or otherwise endanger the coastal ecosystem. The Property is located in a coastal hazaTd area. All Improvements on the Property will be designed and constructed consistent with {W:/.DOCS/28225/ltWO 13591 l.DOC} -30- requirements applicable to development within flood or tsunami areas. The proposed Development will have no significant ad verse effects on recreational, historic or economic resources and will not create any greater impacts than those that existed when the old Coco Palms Resort was in operation. With less rooms than the old reso1t, the impacts, to the extent that they existed at all, will be lessened. 8.Drainage. Esaki Surveying & Mapping, Inc. has assessed the matter ofdrainage as it relates to the drainage canal that runs through the Property, and determined that the canal will be able to handle run-off resulting from most rain events. A pump house, that is damaged (as shown on Exhibit irH", in the vicinity of the Queen's Lagoon Building), will be rebuilt to pump flood water into the drainage canal during times of emergency. X.FLOOD PLAIN MANAGEMENT ORDINANCE.l.Section 15-1.7 oftheFlood PlainOrdina,nce, as codified in Article 15 oftheKauai County Code, 1987 ("KCC"), provides as follows: 11Scction 15-1.7 Nonconforming Structures. Any nonconforming structure exis ting o the effective date of this Article, March 31, 1987, may continue subject to the follovring conditions: (1)Any repair, reconstruction, improvement, oraddition to a nonconforming structure, if it is considered to be substantial improvement, shall comply with the applicable standards for the special flood hazard areas; provided, however, that substantial improvement of a damaged, destroyed, or demolished structure located in a flood way will not be allowed unless a variance from the flood requirements is obtained. (2)All relocated structures shall comply with theapplicable standards for 1he special flood hazard area." {W:/DOCS/2&225/l/W0l35911.DOC) -31- 2.KCC Section 15-1.3 provides in relevant part as follows:"Substantial Improvemcnt11 means anyrepair, reconstruction,improvement, or addition to a structure, tlie cost of whichequals or exceeds fifty percent (50%) of the market value ofthe structure either: (a) before the improvement or repair isstarted, or (b) if the structure has been damaged and is beingrestored, before the damage occurred. For the purposes ofthis definition, substantial improvement is considered to occurwhen the first alteration of any wall, ceiling, floor, or otherstructural part of the building commences, whether or not thatalteration affects the extemal dimensions of the structure.The value of any substantial improvement shall be determinedby the County Engineer or his authorized representative. Theterm does not, however, include either: (a) Any project forimprovement of a structure to correct existing violations of astate or local health, sanitary, or safety code specificationswhich have been identified by the local code enforcementofficial and which are the minimum necessary to assure safeliving conditions, or (b) any alteration of a "historicstmcture," provided that the alteration will not preclude thestructure's continued designation ns a "historic structure."3.The Property is located within Flood Zones 'AE and VE. The Flood PlainOrdinance requires new structures in such areas to be built above certain Base Flood Elevations ("BFE 11 ). All buildings will be elevated on existing footprints/slabs such that the lowest floors confor m with minimum elevations established in the VE and AE zones, with the exception of basements, which will be flood-proofed and used only for parking and storage. As noted above in Section IX(5), the Department of Public Works concurs that the Development will be compliant with the .Federal Emergency Management Act ("FEMA") guidelines. Nonetheless, as is standard, the Department is reserving its right to formally comment when this Application is submitted to it pursuant to the CZO. {W:/DOCS/28225/1/W013591 l.DOC} XI.PROJECT DEVELOPMENT USE PERMIT.1.The Applicant is requesting that a Project Development Use Permit beapproved for the Development on the Property for the following purposes: a.Parking. Attached as Exhibit "EE" is a Parking Requirement Analysisthat shows: (i) the proposed uses on the Property; (ii) the number or areas of such uses; (iii) the CZO parking requirement<; for such uses; and (iv) the Applicant's proposed parking plan for such uses. The Applicant intends to provide a total of 371 parking spaces on the Property. Prior to Iru1d, the number of sta11s available was 212 spaces, all located on TMK: 4-l-03:007. Pursuant to Applicant's calculati ons, the total CZO requirement for a new resort (with the same square footage, number of rooms, commercial spaces, etc.) would be 561 spaces, and theApplicantis seeking a modification of this requirement given the site limitations resulting from its proposal to rebuild using the existing footprints and lot coverage of the damaged buildings. In that regard, the Applicant believes that the CZO requirement for parking should be modified for the following reasons: (i) pre�Iniki, the number of stalls, was far less for more rooms than are now proposed; (ii) the mnnber of stalls to be provided will be increased by 159; (iii) the Iniki Ordinance a11ows the rebuild of the resort as a nonconforming use (subject to meeting standards for flood and building integrity). b.Lot Coverage. The mauka portion of the Property (TMK No.:4-1-03:007) contains a total of 12.630 acres, more or less, based on the total land area from a total ofseven (7) parcels. The parcel on which the Seashell Restaurant is located (TMK No.: 4�1-05:014 and 4-1-05:017) contains 8,893 and 5,301 square feet, more or less, respectively. The lot coverage pre-Iniki exceeded current CZO limitations, as the components of the old Resort had been built before the adoption of the CZO. The Applicant seeks to {W:/DOCS/28225/1 /W01359 l l.DOC} -33- maintain the lot coverage that existed during the height of the old Resort's operations, including rebuilding a structure on the footprint of the Queen's Lagoon Building, located along the Kuamoo Road side of the Property, for a spa building. The Applicant's request for a Project Development Use Permit meets the requirements for such a pennit contained in CZO Article 18 in for all of the following reasons: (i)The Properties to be developed:(1)are located in the SLUC Urban and ConservationDistricts and within the CZO Resort and OpenDistricts (as to the Property are located mauka ofKuhio Highway);.. (2) has a nonconforming structure with a nonconforming use that existed p1ior to Iniki (as to the Property on which the Seashe1l Restaurant is located, which is within the SLUC Urban District and the CZO Residential (R-10) District); (3)is under one o\Vll.ership;(4)is in excess of one (1) acre in size ( as to theProperties located mauka of Kuhlo Highway);(5)will be compatible and complimentary to generallypermitted uses in the CZO Resort, Open a11dResidential Districts and to uses on lands adjacent tothe Properties and in the general vicinity;(6)will not create conditions that un reasonably impactexisti11g public transport systems, utility systems, orother public facilities;(7)conforms to the intent of the General Plan ResortClassification;(8)will create an environment of sustained desirabilityand stability, and will be compatible with thecharacter of the surrounding neighborhood;{W:/DOCS/28225/1/W0 135911.DOC} �34- (9)will result in an intensity ofland coverage and densityof dwelling units no higher than otherwise permittedin the CZO Resort, Open and Residential Districtspursuant to the Inild Ordinance and otherwise allowedby a Project Development Use Permit;(10)will be of a harmonious, integrated whole; and(11)will preserve uses and structures that were inexistence and that were fully operational before Iniki.(ii)The Applicant intends to substantially commence constructionof the Development within one (1) year from the date of full approval of all permits. (iii)The contemplated arrangements and uses proposed in theDevelopment of the Properties justify the application of regulations and requirements differing from those ordinarily applicable within the CZO Resort, Open and Residential Districts, and enable the preservation of uses and structures that were in existence and were operational at the time the Iniki event occurred. xn. VARIANCE PERMIT. 1.The Applicant is requesting that a Variance Permit be approved for theDevelopment on the .Property in order to allow greater than allowable land coverage based on the fact that most of the structures were either destroyed by Iniki ( or one, most recently, by a fire of as yet\lllknown origin), one of the structures is proposed to be placed on the footprint of a previously existing structure (the Queens Lagoon Building), and because lot coverage will be increased by the Applicant's plan to install as many parking spaces as can reasonably be accommodated to serve employee, guest and public needs. {W:/DOCS/28225/l/\V01359ll.DOC) The-permitted land coverage in !he CZO Resort District is 50% of the size of any given lot, the pennitted land coverage in the CZO Open District is 10%, and in the Residential District is 50%. As a resu]t, the total permitted land coverage for the Property (parcel by parcel) and the proposed lot coverage (parcel by parcel, is as follows: TMK: TMK: TMK: TMK: TMK: 4-1-03:007 4-1-03:017 4-1-03:004 4-1-0S:014 4-1-05:017 12.63 acres .855 acre 3.69 acres .2041 acres .1217 acres (550,163 s.f.) -(31,243 s.f.) -(15,900 s.f.) -(5,545 s.f.) -(5,301 s.f.) - RR�20 Open Open/Conservation R-10 R-10Lot coverage is Lot coverage is Lot coverage is Lot coverage Lot coverage is 330,872 s.f. 20,655 s.f. 15,900 s.£ is 5,545 s.f. 1,399 s.f. (60%) (66%) (9.9%) (62%) (25%) The land coverages charted above, then, trigger the requirement of a variance for TMK.Nos.: 4-1-03:004, 4-1-03:007 and 4-1-05:017. For the three parcels forwhich a variance is necessary, lot coverages exceeded the maximums that were put in place in 1972 with the adoption of theCZO. 2.The Property is adjacent to properties located in the CZO Residentia1 andOpen Districts and State Land Use Conservation District. It has, however, been in resort and resort-related uses predating 1952 (it was then the Coco Palm Lodge). When Grace Guslander arrived to manage the resort Island Holidays, Ltd., there were 24 rooms. Jthas been an iconic resort that thrived until Jniki. 3.The requested V nriance meets the Standards for Variances contained in theCZO Section 8-21.2. The variance being sought seeks to preserve the locations and footprints of buildings that have been in pl ace from the time the resmt began to grow undet the Gus1ander vision. {W:/DOCS/.l&225/l/W013591 ! .DOC} -36- It is because of the desire to establish additional parking, that lot coverage for the rnauka parcels will be greater than existed before Iniki. The proposoo development will not cause hann to property and improvements in the neighborhood, nor will it create a significant probability of a substantial • harmful enviromnentnl consequence. The vmiance will not provide the Applicant with any special privileges not enjoyed by other properties in the vicinity, and instead will allow the Applicant to utilize the Property consistent with privileges and uses that have been in place for over 5 O years, or otherwise enjoyed by other properties in the Waipouli-Wailua area. XIII.HRS CHAPTER 343 (ENVIRONMENTAL IMP ACT STATEMENTS).1.The provisions of HRS Chapter 343 (Environmental Impact Statements) donot apply to the Development activities proposoo in this Application. Although the Lagoon itselfis a historic site, the proposal to rebuild/renovate the resort facilities does not propose an action within a historic site. Rather, the proposed activities would occur outside the site designated on the Hawaii Register. XIV.CULTURAL PRACTICES.1.The Development will have no impacts on any known cultural practices,including any traditional or customary practices of native Hawaiians. There are no known cultural practices and/or traditional or customary practices of native Hawaiians that are presently occurring on or upon the Properties. There are no special gatheri_ng practices taking place on or upon the Properties. The Development will not detrimentally affect access to the shoreline, to the mountains, or other adjacent areas. There arc no known rnligious pr actices taking place on or upon the Properties. Except for the Lagoon, there are no known cultural or historic sites or resources located {W:/DOCS/28225/l/W0135911.DOC} -37- on or upon the Properties, and the proposed activities will have no negative impact on any cultural historic sites or resources located in adjacent areas. With the reopening of the resort, access to the Lagoon will be renewed, as the Properties have been protected by fencing since shortly after Iniki to discourage vandalism and limit liabilily. XV.COMPLIANCE WITH APPLICABLE LAND USE DESJGNA TIONS.1.The use of the Prope1ties for resort and ac cessorypurposes is compatible withthe SLUC Urban District designation. Hawaii Revised Statutes Sections 205-2. 2.The use of the Properties for resort and accessory purposes is compatible withboth the General Plan Resort Classification and the Kapaa-W ailua Development Plan, since both the General Plan and the Development Plan designate resort uses in these areas. General Plan, KCC Section 7-3.3(d)(5); Kapaa-Wailua General Plan, KCC Chapter 10, Article 1. 3.The use of the Properties for resort and accessory purposes is compatible withthe CZO Resort District, since the CZO allows as permitted uses in the Resort District the utili7.ation of property for resort and accessory uses. CZO Sections 8-4.3 and 8-4.4. 4.The use of the Properties for resort accessorypurposes is allowable within theCZO Residential District with a Project Development Use Permit, and will allow the retention and reuse of a 51:ructure that has been a restaurant since it was built in approximately 1965. CZO Section 8-18.1. 5.Under the Iniki Ordinance, the Applicant will be allowed to continue with usesand shucturcs that were in existence before the Inik:i event. {W:/OOCS/'28225/1/W0 135911 .DOC} -38- 6.The proposed Development on the Properties within the SMA fulfills theprovisions of the SMA Rules in that: a.The Development will not have any substantial environmental orecological effect, except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interests; · b. The Development is consistent with the objectives, policies, and guidelines set forth in HRS Chapter 205A and Sections 3.0 and 4.0 of the SMA Rules; and c.The Development is consistent with permitted uses in the SLUC UrbanDistrict, the Kauai General Plan, and the CZO. 7.The Applicant will meet the procedural requirements for the issuance of aClass IV Zoning Pennit as set forth in CZO Sections 8-19.6 and 8�8.S(d). 8.The proposed Development satisfies the standards as set forth in theIniki Ordinance. 9.The proposed Development is consistent with the standards for the issuanceof a Project Development Use Permit as contained in CZO Article 18. XVI.CONCLUSION.The Applicant respectfully requests that the Planning Commission: 1.Find that the Development will ·uot have any substantial environmental orecological effects, except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interest. {W:/DOC'-S/28225/1M'0l35911.DOC} -39- 2.Find that the Development is consistent with the objectives, policies, andguidelines set forth in Hawaii Revised Statutes Chapter 205A and Sections 3. 0 �md 4. 0 of the SMARules.3.Find that the Development is consistent with permitted uses in the SLUCUrban District, the Kauai General Plan Resort Classification, and the CZO Resort, Open andResidential Districts, and consistent with the goals of the Kapaa-Wailua Development Plan.4.Approve the issuance of a SMA Use Permit for the development of thehnprovements on the Property as described herein. subject to such reasonable conditions as thePlanning Commission may impose.5.Approve the issuance of a Class IV Zoning Permit for the development of theImprovements on the Property.6.Approv� the issuance of a Variance Permit.7.Approve the issuance of a Project De velopment Use Permit.DATED: Lihue, Kauai, Hawaii, 10/17/2014{W:/DOCS/28225/l/W01359l 1.DOC) BELLES GRAHAM PROUDFOOTWILSON & CHUN, LLPBy�MICHAEL J. BELLES Attorney for Applicant, COCO PALMS HUI LLC, a Hawaii limited liability company-40- EXHIBIT LIST (SPECJAL MANAGEMENT AREA USE PERMIT SMA; PROJECT DEVELOPMENT USE PERMIT; V ARJANCE PERMIT; AND CLASS IV ZONING PERMIT FOR COCO PALMS) ITEM EXIIIBIT Description of Privately-Owned Lands A Description of State-Owned Lands, Under Leases or Rights of Entry B Authorization (Coco Palms Hui LLC) C Authorization (Belles Grahom Proudfoot Wilson & Chun, LLP) D Location Map E Tax Map 4-1 -03 F Tax Map 4-1-05 G Site Plan H Shell Building Floor Plans 1-1 thru I-7Ali'i Kai I Floor Plans J-1 thru J-6Ali'i Kai II Floor Plans K-1 tbru K-6Palms (Lagoon Building) Plans L-1. thru L-5King Lagoon Building Floor Plans M-1 thru M-4King Cottages Floor Plans N-1 thru N-3Queen Cottages Floor Plans 0-1 thru 0-3Pdnce Cottages Floor Plans P-1 thru. P-3Lobby Building Floor Plans Q-1 thru Q-4Queens Lagoon Building Floor Plans R-1 thru R-6Commercial Building Floor Plans S-1 thru S-5--Queen's Audience Hall Floor Plans T-1 thru T-4(W:/DOCSrl8225/1/W0I35504.DOCX} EXHIBIT LIST (SPECIAL MANAGEMENT AREA USE PERMIT SMA; PROJECT DEVELOPMENT USE PERMIT; VARIANCE PERMIT; AND CLASS IV ZONING PERMIT FOR COCO PALMS) ITEM EXHIBIT House in the Palms/Bar Floor Plans U-1 thru U-2Palms Lanai/Bar Floor Plans V-1 thruV-2Storage/Warehouse Building Floor Plans W-1 thru W-2Chapel in the Palms Floor Plans X-1 tbru X-3Sea Shell Restaurant Plot Plan/Floor Plans Y-1 thru Y-3Bridges Map z State Historic Preservation Letter dated June 30, 2009 AA-1 Historic Site Map BB-1 Map/Elevation showing location of Photovoltaic Parking Lot Coverage CC-1Archaeological Inventory Survey with Subsurface Testing (April 2005) DD-1 thru DD-3Archaeological Invent01y Survey Addendum (July 2006) SHPD Letter dated November 4, 2013 Parking Requirement Analysis Map EE-1 {W:/DOCS/28225/l/W0 135504.DOCX} -2- EXHIBIT "A" EXHlBIT "B" I. - AUTHORIZATION OWNER OF TAX KEY NOS.:(4) 4-1-03:004AND 007. 4-1-05i014 Name: Address: PR II COCO PALMS LLC, aoela,ware limited liability company c/o Prudential Real Estate Investors 4 Embarcadero Center: Sulte 2100 San Francisco1 California 94 fi 1 ll.LESSEE/LICENSEEOFTAXKEYNOS,; (4)4-1-03:005.AND 017,4-1-05:0171Name: Address: PR n COCO P A.LMSJ.LC,-a. Delaware limited liability.company c/o Prudential Real Estatelnvestors 4 :Embarcadero Center, Suite 2700 San Fra,ncisco,'Califomia 94111 m.AUTIIORIZED AGENTS.l.Name:Address: Telephone: Facsimile: Email: IV. PROPERTY. COCO PALMS HUI, LLC, ·a Hawaii limited liability company, by and through BELLES GRAHAM PROUDFOOT WILSON & CHUN, LLP Michael i, Belles Lorna A. Nishitnitsu. 4334RiceStreet; Sµite 202 Lihue, Kauai, Hawaii 967 66 (808)246-6962(808)245;.3277 mib@ka:uai#1aw.com lnn@kauai-law.com Tax Key Nos. (4) 4-1 -03:004, :005:por., .:007, :011 �d :017,,and 4-1-03:014.and :017 Portions of Wailua House Lots, Kawaihau,Kauai, HawaiiThe leases/Jicenses/rev9Cahle ponnits for lands owned by tho State of Hawaii have been assignee! fromCoco Palms Ventures, LLC to PRil Coco Palms LLC (the" Assignment''); however; �onsent of the Assignment hl\s not yet been received by the Board oft.and and Natural Resources ("Board"), The Boarcl has stated a preferencethat the back-to-back consent to assignments or transfers (from Coco Palms Ventures,. LW to PR n Coco PalmsLLC, then from PR II Coco Palms_ LLC to Coco Pa)ais l-Iul, LLC) be handled at the same time. As such, ApplicantCoco Palms Hui, LLC anticipates that the act of getting fonnal Board approval wm not be forthcoming until after the Planning Commission has considered the redevelopment action for the properties subject of this Authorization,fW:/DOCS/'l822S/I/W0133003.l:>OC) 4974746_2 EXHIBIT ''C" V.AUTHORIZATION.The Owner and the Lessee of the above-referenced properties does hereby authorizeCOCO PALMS HUI, LLC, a Hawaii limited liability and company, by and throughBelles Graham Proudfoot Wilson & Chun, LLP, as the Authorized Agent to act on itsbehalf and to ftle and process on the its behalf the following applications necessary toobtain governmental permits relating to the Property:1.Building pemtlts, grading permits, prnject development use permits, use permits,variance permits, zoning permits, shoreline setback permits, Special Permits, andSpecial Management Area permits issued by any department, agency, board orcommission of the County of Kauai, with an address of Attn: _________ __, ---------2.Permits and approvals issued by agencies of the State of Hawaii, including theDepartment of Transportation and the Department of Health, with an address of---------�Attn: _________ .3.Permits and approvals issued by the Board of Land and Natural Resources of theState of Hawaii and/or the Department of Land and Natui-al Resources of the Stateof Hawaii, with an address of __________ , Attn:4.Permits and approvals issued by the Land Use Commission of the State ofHawaii, with an address of _________ __, Attn:Notwithstanding the foregoing to the contrary, Authorized Agent shall (i) provide copies of any and all items described above to Owner, and (ii) obtain the written consent of Owner prior to submitting, formally or informally, drafts and final forms for any such item. Additionally, Owner reserves the light to (i) consent to any proposed conditions of approval arising from any of the items described above, and (ii) have a representative attend each meeting or hearing regarding the items described above and have such representative negotiate any conditions of approval on behalf of Owner. VI.MISCELLANEOUS.The terms and conditions of this Authorization may be amended or expanded only by thewiitten consent of the Owner. This Authorization may be terminated unilaterally by written notice of Owner and such termination shall be effective upon receipt. [Signature on the following page] {W:/DOCS!28225/l/W0133003.DOC} -2-4974746_2 {W:/DOCS/2822S/J/W0133003.DOC} By:_��""""'=o,1-'------,-r------'---- 4974746_2 AUTHORIZATION I.OWNER. PR TI COCO PALMS LLC, a Delaware limited liability company 1 Address: c/o Prudential Real Estate Investors 4 Embarcadero Center, Suite 2700 San Francisco, California 94111 II.AUTHORIZED AGENT. Name: COCO PALMS HUI tLC, a Hawaii limited liability company c/o Michael J. Belles Belles Graham Proudfoot Wilson & Chun, LLP Address: 4334 Rfoe Street, Suite 202 Llhue, Kauai, Hawaii 96766 · 'l'elepho11e: (8"08) 246-6962 Facsimile: (808) 245"'.3277 Email� rt1ib@kauai.Jaw.com Ill. PROPERTffiS. TMK: +l-03:007, 4-1-05:014 and +1-03:004 TMK: 4 .. 1-03:005 .AND 017, 4-1-05:017 (leased, licensed or subject ofrevocablerightsof entry from the State of Hawaii) IV. AUTHORIZATION. The Owner hereby authorizes the Authorized Agent, by and through Michael J. Belles ofBelles Graham Proudfoot Wilson & Chun, LLP, to ad on the bwnds behalf und to file The Je�ses/llcensesirevocable permits for lands owned by the State of Hawaii have been assigned fromCoco Palms Venture$, LLC to PRU Coco Pal.ms LLC (the "Assignment"); however, consent of the Assignment has not yet been received by the Board of Land 11nd Natural Resources ("Board"). The Board has stated II preference that the back-to�backconsentto �slgnments or transfers (from Coco Palms Ventures,LLC to PR II .Coco Palms LLC; then from PR Il Coco Palms LLC to Coco Palms Hui, LLCJ be handled at the same time. • As such, Applicant Coco P111ms IIul, LLC anticipate$ thatthe act of getting fonnal B oilrd approval will not be forthcoming until after the Planning Com.tnissio'n has considered th¢ redevetop1nent action for the properties subject of this Authorization. {W:/DOCS/28225/liw0I33082.DOC } 4977165_2 EXHIBIT 11 D" and process on the Owner's behalf the · following applications necessary to obtain governmental permits relating to the Properties: 1.Building permits, grading permits, use permits, variance permits, zoning permits,project development use permits, shorel ine setback permits and SpecialManagement Area permits issued by any depart.tnent, agency, board orcommission of 'the County of Kauai with an address of 4444 Rice Street, Suite275 (ac; to the Department of Public Works for building and grading permits) andSuite A-473, Lihue, Kauai, Hawaii (as to the Planning Department and PlanningCommission).2.Pennits issued by the Department of Health of the State of Hawaii with addressesas follows: a) Kauai District Office, 3040 Umi Street, Llhue, Kauai, Hawaii9667 and b) Kinau Hale, 1250 Punchbowl Street, Honolulu, Hawaii 96813.3.Permits issued by the Board of Land and Natural Resources of the State of Hawaiiand/or the Department of Land and Natural Resources of the State of Hawaii, withan address of Kalanimoku Building, 1151 Punchbowl Street, Honolulu, Hawaii96813.Notwithstanding the foregoing to the cqntrary, Authorized Agent shall (i) provide copies of any and all items described above to Owner, and (ii) obtain the written consent of Owner prior to submitting, formally or informally, drafts and final fonns for any such item. Additionally, Owner reserves the right to (i) consent to any proposed conditions of approval arising from any of the items described above, and (ii) have a representative attend each meeting or hearing regarding the items described above and have such representative negotiate any conditions of approval on behalf of Owner. V.MISCELLANEOUS.The terms and conditions of this Authorization may be amended or expanded only by thewritten consent of the Owner. This Authorization may be terminated unilaterally by written notice of Owner and such termination shall be effective upon receipt. [Signature on the following page] {W:/DOCS/28225/l/W0133082,DOC } -2-49nt65_2 -DATED_: ----------· _(W:/DOCS/2822S/1/W0133082.DOC} OWNER: PR Il COCO PALMS LLC, a Delaware limited . liability company By: The Prudential Insurance Company of ,America, a New Jersey corporation, its sole member By:_4/ff��=----=--r-----Name:.-H,�.=.... ........ .,_--1-1��----Title: 497716S_2 . EXHIBIT "E" mr X I. OJ � -ti \. ,, . 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'\.., <= +:-1.--',5 : 17 (SEA SHELL SITE .1217 ocre) 56.00 JP.ii�'\.·� \ • . : r:·.:p , •• 0., � , :, , :;�·� .. , -�-, ,. ·: > ' ·, ..!j;���<. ; ' . _-., ' . " .. " ,.,,,,,, --< ._}«'_'.',_ .. �¥.:.:...""·',_ ...... - � � .Jlt' .. sbb BeSTAUBANt s1·r1: !OL,AN EXH 161i "SP-L4' ....f m 5: Xw ..... �,...,..� / EXHlBIT "Y •2" ! ,,.., f ,,_,, i 2Z·t 1 r ➔ () z EXHIBIT "Y-3" , .. t ·t·t !le'-! nn1;�� ilil EXHIBIT ''Z" To: Michael J, Belles, Esq. Page8 'IJNHLINCut 00� '46\W.W U!JIIIJ,1111'1.IIH �..:��� Re: STATE OF HAWAII tlEP>.ltTllfENr OF LAND i'M) NATURAL lUISOURCTS June 30, 2009 David ShldeJet Cultural Surveys H1nypli, Inc. P.O.Dox.1114 Kaltua, H11waii 96734 Dear Mr. Schideler: STATll!IISTORl'Cl'llllSl!RVl,l'ION DIVJSlOI'{ 601 KAMOKILA BOULBVAro>, ROOM 555 tc:Al'OLllr, UAW All 96W1 LOO: 2009.2783 DOC: 0906RS78 �=�� Manylhanks for the photographic documentation your office submitted for lhe Weuweu•Kawai• iki Fi�hpond (Coco Palms), Site 50-30.08·680, TMK: (4) 4-1-003:001. Thi! nomtMllon (or the Hawall Register of mstoric Places Is complete, As you are a.ware, the Weuweu•Kawltl-Ud Flsnpond was placed on the Register os of Apxil 25, 2009, We look forwar(l to worldrtg with you on 11ddl1ional projects in the .f'utui'e. 8rYJ �CL Administrator Hawaii Historic Preservntion Division, DLNR EXHIBIT "AA�1" CLILTLIRALSLIR.VE.YSHAWAJ'I EXHIBIT "BB-1" :aenct ru] SIHP #' S0;.S0-08-680 ZI 20 ft Preserve Buffer Zone 0 20 40 Metera· ••• 0 40 SO Feet � 1131 re Map: 201 O Google Earth Imagery.. ·�;.,.,. ...... r.,::1-1 Cuft1.1r.1! Surveqs /1awai'i, I I � •IIIIII EXHIBIT "CC-1" (NJ PY 11:Jrul:. m'. 2fl_'-O' H� STEE.. BEAK, 'IYP. S>ji 9� ------------------------�- M COiWER'iER eox MOiJNW TO STEa BEAM, T!'F. P/Xf;' 5il:EL ca.Lm T'!I'. FINISH GRADE PARKING 6TRUCTURl: PV 5l.5'.LAilQ�Q �11:t'•r•r 9 •• •• •••. ------i-----•--••--•--••---•-•-•-?-ql-••-•-••"' .. ;:., h l=fE:...O PY ELEVATION& tc,.u,t•r...,· b'-5%' FV Hor:«£, 'IYP. 4X4 SlffL P0'3TS _, .... Z>'Xl2' 2-Fl.'RLINS Q 5'-o" OC. MAX, TYP, � _, �IB!r�,1• &::IL,AR.i-o�L.,& Archaeological Inventory Survey with Subsurface Testing at the Coco Palms Resort WaHua Ahupua' a, Puna Disbict, Island of Kaua 'i (TMK:4-01-003: 004, 005, 007, 011, 017; 4-01-005: 014, 017) by Tracy Hoffman, M.A. David W, Shideler, M.A. Constance R. O'Hare, B.A., Jeffrey Fong, B.A. and Hallett H. Hammatt, Ph.D. Prepared for Wilson Okrunoto Corp. Artesian Plaza 1907 S. Beretanla St. #400 Honolulu, HI 96826 by Cultural Surveys Hawai'i, Inc. April2005 EXHIBIT "DD-1" Effect (APE) Regul�tQry Table of Contents TABLE OF CONTENTS MANAGEMENT SUMI\1ARY ........................................................................................................ .i LIST OF FIGURES ....................................................................................................................... iii LIST OF TABLES., ......................... , ........................................ , .... , .................................. ,,,,, .. , .. , ................ , vii I.INTRODUCTION .................................................................. ,, ............................................................. 1 A.Project Background ....... : ............................................................................................. 1 B.Scope of Worlt: .............. , ............................................................. , ..................................... 1 C.Methods ....................................................................................................................... 4 D.Natural Setting ............................................................................................................. 4 ll lilSTORICAL BACKGROlJND ........................................................................................... 9 A.Mythological and Traditional History ......................................................................... 9 1.Origin of the Place Name � Wailua ............................................................................. 9 B.Early Historic Period .. ,,. .............. , .................... , ................ , .... , .................... ,. ............ ,, ...... 11 C.The M.ahele Period ............ : ................................................ ,., ....... , ................................ 13 1.Wailua Al1upua'a, ..... ,., .......... ,,,,,,,, ....................................................... ,u,,, ..••••. ,, ............ l3 2.Land Commission Award Testimony within the Project Area .................................. 16 3.Land Use Patterns as Indicated in Land Commission Award Testimony ................. 20 D.Post�Mahele Period .................................................................................................... 23 E.Summary of Settlement Patterns ........... , ................................................................... 24 III.PREVIOUS ARClIAEOLOGICAL WORK ....................................................................... 26 A.Previous Archaeological Research and Finds in Wailua Ahu_pua 'a .......................... 26 B.Archaeological Research within the Ctment Project Arca .. , ........................... : ......... 26 IV.RESlJI.,TS OF FIELDWORK .............................................................................................. 41 A.Description of Project Area ....................................................................................... 41 B.Stratig:raphy ..... , ..................................... , ............................................ , ............................ 41 V.LABORATORY ANALYSIS ........................... , ..... , ................................... , ............... , ........ 132A.Artifact and Midden Analysis .................................................................................. 132 B.Radiocarbon Dating ....................................... , ............................................................ , .. 136 C.Pollen Atialysis ........................... , ...... ◄ ••••••••••••• ,,.,, •• ,.,, •• , ............. , ...................••••• , •••••• 136 i Table of Contents VI.SITE DESCRIPTIONS .................................................... ,,, ...... ,, ..... , ........................... , .................................. 140 VII.SIGNIFICANCEEVALUATION ..................................................................................... 145 VIII. SU11MARY DISCUSSION .............................................................................. , ............... 146 A.Stu11Inar)' of Worlc ................ , ..................... , .. ,, .. ,., ....................................... , ............ : .............. , ........ 146 B.· Cht·onology ........................................................................................................................... , ........................ , ... 11, .................. , ••• 147 C.Paleo-environmental Change ................................................................................... 151 D.Weakness of Expression of the Cultural Layer ....................................................... 153 E.Recommendations ............................................................... , .... ,, ........ , ..... , .. ,.,, .. ,., .......................... 154 1.Preservation of the Water Feature in the Locntion of Kapule's Fishponds ............. 154 2.Qn ... site Archaeological Monitoring .. , ............................................... ·; ... , ... � ................... 155 3.Continuing Consultation with the Kaua'i/Ni'ihau Islands Burial Council .............. 155 4.Recommendation to Minimize Subsurface Impacts in the Southeast Comer of CocoPa]ms 155 5.Oata Recovery Work Prior to Future Modifications at the Coco Palms Resort ...... 155 6.No Further Work at the Seashell Restaurant ........................................................... 156 'IX. RBFERBNCES., ................................................. , .............. ,, , .. ,, ............................................ , ........... 157 APPENDIX A-RADIOCARBON ANALYSIS RFSULTS ....................................................... 164 APPENDIX B-POLLEN ANALYSIS RESULTS ..................................................................... 165 ii i ! List of Figures LIST OF FIGURES Egure 1. U.S. Geological Survey map (2002), Kapa'a Quad, showing project area ..................... 2pjgure 2. Composite of TMK (Tax. Map Key) 4-1�03 and part of -05, showing the project area ....................... , .............. , ................................................................................................................. , ................. , ............... 3 Figure 3. Diagram of Coco Palms project ai-ea showing locations of backhoe tJ:enches and pollen cores ............................ , ... , ....................... ,.,, ............................................................................. , ........... S Figure4. No1theastem comer of the Coco Palms project area (fMK; 3-1-004:007)disp1aying boundary area for a prop osed parking structure, locations of backhoe Fi6ure 5.Figme6. Figure 7. Figure 8.Figure 9. Figure 10. Figure 11. Figure 12. Figure 13. Figure 14. Figure 15: Figure 16. Figure 17. Figure 18. Figure 19. Figure 20. trenches excavated in 2004, and six additional trenches ex:cavated in 2005 ................... 6 Diagram of the Seashell Restaurant project area showing the locations of backhoe Trenches 78-80, ............................. , ......................................................................................... 7 Map of the configw:ation of Wailua Complex of Heiau National Historic Lan.dmai"k. ......................................... , ...................... , , ........ , ......... , , .. ,; . ,, .. , ......................... 10 Portion of Lydgate 1920 map of W ailua Kai, showing Land Commission A wards (LCAs) and project area boundary ......................................................... � ....................... 14 Close up eastern portion of Lydgate 1920 mn_p of Wailua Kai, showmg LCA awards .............................................................................................................. , ................................ ,, 17 Tracing of sketches in 1922 Field Notebooks of Thos. J. K. Evans, showing northern and southern sections of LCA 3111 & 3559:3 (Note breuk around Point 139, possibly showing the division between the northern and southern fishponds) ..... 21 Po1tion of 1923 Thos. J. K. Evans map ofWailua Kai .................................................. 22 Prevfous archaeological studies in coastal Wailua Ahupua 'a ....................................... 32 Map showing archaeological sites in coastal Wailua Ahupua'a with the project area outlined inred .............. : ....................................... _,,, .. , ..................................... : ................. 39 Plaque marking location of reburials · found during hotel consttuction at Coco Palms ................................................................................................................................. "40 Diagrrun of project area showing backhoe trenches where sediments were significantly dlsturbed by modern constmction activities ............................................. 42 Diagram of project area showing backhoe tl'enches that included cultural remains or Stratum III, a cultural lnycr ......................................................................................... 44 Diagram of project area showing backhoe trenches with boulder fills or clays/gleyed sediments indicating fonnerly low lying areas ......................................... 45 Profile of Trench 1, west vrall ......................................................................................... 46 Profile of Trench 2, east wall ........................................................... : .............................. 47 Profile of 'I'reuch 3, west \vall ......................................................................................... 48 Profile of'I'rench4, west wall ......................................................................................... 49 iii List of Figures Figure 21. Profile of 1'rench 5, \Vest wall ......................................................................................... 50Figure 22. Profile of Trench 6, west wall ......................................................................................... 51 Figure 23. Profile of Trench 7, east wall .......................................................................................... 52 Figure 24. Profile of Trench 8, west wall. ........................................................................................ 53 Figure 25. · Profile of Trench 9, east wall ...................................................................................... : ... 54 Figure 26. Profile of Trench 10, east wall ........................................................................................ 55 Figure 27. Profile of Trench 11, east wall ........................................................................................ 56 Figure 28. Profile of Trench 12, east wall .............. ,. ........................................................................ 57 Figure 29. Profile of Trench 13, west wall ....................................................................................... 58 Figure 30, Profile of Trench 14, west ,vall,,,, ...................... ,.� ..... ,,,, ......... ,. ................................. , ..... ,59 Figure 31. Profile of Trench 15, west wall ......... : ............................................................................. 60 Figure 32. Profile of Trench 16, east wall ........................................................................................ 61 Figure 33. Profile of Thencll 17, cast wall ............. ,., .................................. ,,,,,,,., .............................. ,,.,.62 Figure 34. Profile of Trench 18, west wall ....................................................................................... 63 Figu.re 35. Profile of Trench 19 1 west wall .................. u ......... ," .................................................. , •• , ... 64 Figure 36. Profile of Thench 20, west wall ............. , ... u .............. -.... , ... , .. u,.,, .......... ,1,,,.,t., .. ,.,., ........... 65 Figure 37. Profile of Trench 21, east wall ........................................................................................ 66 Figure 38. Profile of Trench 22, east wall ........................................................................................ 67 Figure 39. Profile of Trench 23, east wall ........................................................................................ 68 Figure 40. Profile of Trench 24, east wall. ....................................................................................... 69 Figure 41. Profile of Trench 25, east wall ........................................................................................ 70 Figure 42. Profile of Trench 26, east wall. ....................................... : ...... , ........................................ 71 Figure 43. Profile of1'rench 27, east wall ........................................................................................ 72 Figure 44. Profile of Trench 28, east wall ........................................................................................ 73 Figure 45. Profile ofT'rench 29, east wall. ....................................................................................... 74 Figure 46. Profile of Trench 30, east wall ........................................................................................ 75 Figure 47. Profile of Trench 31, east wall. .................... , .................................................................. 76 Figure 48. Profile of Trench 32, east wall ........................................................................................ 77 Figure 49. Profile of Trench 33, west wall ....................................................................................... 78 Figure 50. Profile of 'I'rench 34, east wall .................. , ..................................................................... 79 Flgute 51. Profile of Trench 35, east \Vall ........................................................................................ 80 Figure 52. Profile of Trench 36, enst wall ........................................................................................ 81 Figure 53. Profile of Trench 37, east wall ........................................................................................ 82 iv 66. 50, 69. 56, V Table 1. Table 2. Table 3. Table 4. Table 5. Table 6. Table 7. Table 8. List of Tables LIST OF TABLES Land use recorded in Wailua Land Commission Awards ............................................. l5 Prnvious ih'chaeological studies in coastal Wailua Ahupua'a (see Figure 11) .............. 27 Archaeological sites in coastal Wailua Ahupua'a (see Figure 12) ................................ 33Artifact catalog .............................................................................................................. 133 Midden catalog ..................... , ........................................................................................ 133 Catalog of radiocarbon samples (see Appendix A) ...................................................... 136 Summary of sites and significance evaluations fox project area .................................. 145 Radiocarbon dates reported for east Kaua 'i ................................................................. 147 vii Introduction I.INTRODUCTION A, Project Background At the request of Wilson Okamoto Corporation, Cultural Surveys Hawal'i, Inc. (CSH) conducted an archaeological inventory survey with subsurface testing of seven parcels of land: the site of the Coco Palms Resort, consisting of five contiguous parcels on the west (inland) side of Kuhia Highway (TMK 4-01-003: 004, 005, 007, 011, 017): and, and two contiguous parcels for the Seashell Restaurant on the east (seaward) side -0f Kiihio Highway (TMK 4-01-005: 014, 017). All seven parcels are within Wnilua Ahu_pua'a, Puna District, Island of Kaua'i (Figure 1 and Figure 2). Both the Coco Pnlms parcels and the Seashell Restaurant parcels are owned by Wailua Associates of California. Coco Palms (0.3197 acres) is currently developed with a coconut tree grove in the mauka (inland) portion, a modified historic fishpond, and hotel buildings. The Seashell Restaurant property (0.3197 acres) is mostly covered with buildings and a cement lanai. All seven parcels (35.6367 acres total) were surveyed and tested with backhoe trenches in areas not covered by current structures. B.Scope of WorkThe inventory survey and accompanying report serve to document the historic propertieswithin the subject parcels and provide significa11ce evaluations to the State Historic Preservation Division (SHPD). Given the size, location, and known presence of significant subsurface cultural deposits, subsurface testing with a backhoe was decided on to provide the most effective means of subsurface inventory. Backhoe testing focused on locating and evaluating subsurface deposits, such as butied cultural layers and/or deposits, human remaillB, and paleo-environmentally significant dcpos:its that could not be located by surface pedestrian inspection. The following archaeological inventory survey scope of work was followed to satisfy the State nnd County requirements: 1. A complete ground sutvey of the entire project area for the purpose of site inventory, Allsites were to be located� described, and mapped with evaluation of function.interrelationships, and significance. Documentation would include photographs and scaledrawings of selected sites and complexes. All sites wew to be assigned State fuventory ofHistodc Pl�ces site numbers,2.Subsurface testing using a backhoe and hand coring device to determine if subsurfacedeposits are located in the project area, and to evaluate their significance, Appropriatesamples from these excavations were analyzed for chronological and paleo�environmental information.3.Research was conducted on historic and urchaeological background, including search ofhistoric maps, written rocol'ds, and Land Commission Award documents. This researchfocused on the specific area with general background on the ahupua'a and district andemphasized settlement patterns.4.Preparation of a survey report, including the following:a.A topographic map of the survey area showing all archaeological sites and siteareas;1 0.25 0 1 KILOMETER 1MILE I I. 0 l " .., ... '/_.,_,,,..,, ,,',:; �_,.--...,. -·· �:..-....,. -,_ ......... l. 1 -�-,- 'Ii {)• ··t, .. -··· . -.1•� �-."6SA"!; i } I.., -------- �<◄,-.. 0 • ,,....,� ...... ;,;,p'� I i . .. \ ·:~/ � .. �{)�,(' �. �--. _,,,. • t,' e· ,... t c-l( ?" / t � -�·. . -�,. �--. . ..... ,,... ·-- ,,,., �\ 1) �> t \� Introduction ·.u ..... ..,� -��---,..,,..,_._.... ............ , ���� \'\ .. ,.... ........ ��� _,,,,,,..,_....,,, ... ..,1·· ____ ...:..,......,.'. l_:,A••M•W- :,, : l,d.:.-.::::--- ';'· ' TAX)1lq_, ---------4 T !!:.!_ 03 -��- Figure 2. :-composite of TMK (fax Map Key) 4-1-03 and part of .os. showing the project area 3 Introduction b, Descriptions of all archaeological sites with selected photogmpbs, scale drawings, and discussions offunction; c.Historical and archaeological backgrotmd sections summarizing prehistoricand historic land use as they relate to the archaeological features;d, A summary of site categories, their significance in an a,i:chaeological and historic context; and, e.Recommendations based on nll infonnation generated> which specify whatsteps should be taken to mitigate impact of development on archaeologicalresources � such as data recovery (excavation) and preservation of specificareas. These recommendations have been developed in consultation with theclient and the State Historic Preservation Division (SHPD).This scope of work also includes full coordination with SHPD and Kaua'l County relating to archaeological matters. C.MethodsBetween March 23 and April 6, 2004, fieldwork was undertaken on the seven project parcels.Four archaeologists under the supervision of David Shideler were responsible for the fieldwork, which included a visual inspection of the properties and subsurface testing. Testing was conducted with a backhoe and a total of 80 trenches were excavated, 77 (Trenches 1-77) on the Coco Palms property (Figure 3) and three (Trenches 78-80) on the site of the Seashell Restaurant (Figure 5). The trenches were approximately 75 cm (centimeters) wide and, where space allowed, approximately eight m (meters) long. Al] trenches were drawn in profile and photographed, and all soils were described. Eight samples of organic sediments were taken for radiocarbon dating, and samples of gleyed sediments were taken for pollen analysis. Two sediment cores were also taken, one within the existing fishpond, and one adjacent to the current channel for the pond (see Figure 3). The cores were obtained with a five-centimeter diameter hand-held coring device. Only six trenches (Trenches 58-61, 76-77) were excavated in the northeastern cornet of the project are·a in 2004, since large portions of the southern section of this corner were covered withasphalt, and the northern portion of this comer was heavily vegetated and difficult ta access witha large backlioe, An additional six trenches (Trenches 81-86) we1:e placed in this ai:ea on March 22, 2005, after area for three trenches was cut through the asphalt, and a small backhoe was usedto assess the heavily vegetated area (Figure 4), These trenches were also 75 cm wide and four to eight meters long. The trenches were placed in a 12.67-acre parcel (TMK 4-1-003:007), the site for a proposed parking lot. D.Natura) SettingWailua Ahupua'a, located on the eastem side of the island of Kaua'I, is exposed to theprevailing northeast trade winds and thus experiences 40 to 50 inches of rainfall annually at the seashore. The Wailua River and its tributaries comprise the major drainage system for the central area of the Lib.u'e basin. TI1e l.Ih.u'e basin is bounded by the Ha'upu Mountains to the south, Wni'ale'ale to the west ·and the Makaleha mountains to the north. Sea level changes in recent geologic time on this side of Kaua'i have submerged the eastern edge of the Lihu'e basin, 4 h9Gnd \ipe J,.ocatlan ofNumhotod \ Archaeolos;ikalt111tTlllno:h� \xx Numbar1,lo,1t1onofCSU200S , \ Arch1�loglcalTe1l Trenches ·�r,'' Slte!l0-90-t\3-1711 . \,,. '"--....., .,,.. Introduction ·.LCA3◄06:2 f'µfa ---LC,\3303:21 Maka1k1 ..i;..--�-----FonnarExi1ntor Fhhpond (1920) i-i-H---i.cA3340:1 Nawal -�t-""'"'f-it--l'o!len Core 1-'-fn'-r-=-�!-1---LCAnw Kalani Figure 3. Diagram of Coco Palms project area s.how1ng locations of backhoe trenches and pollen cores .5 ""-- � Existing �phalt PilVement (i) \ �x Trench Excavat19ns 2004 N Introduction \ . . . 0 .10 20ni }:X Trench ExcavatiOIJS 2005 ._.____, Figure 4. Northeastern comer of the Coco Palms project area (TMK; 3-1-:004:007) displaying boundary area for a proposed parking structure, locations of backhoe trenches. excavated Jn 2004, and six additional trenches excavated in 2005 6 J fJ . / �I t � l , --,.,. I.OTts:-,a, 1:16-Z, 5GI l"i "Introduction ·1 l,,,,,,,,::,,,,,,,,,y,j T T 1 ... --------...� .,,..., .. -·.,;.- •• _...-<'.'··� '•"" �..,_,.,,... -..... .,,.,,.,,./ Figure 5. Diagram of the Seashell Restaurant project area showing the locations of backhoe Trenches 78-80 7 Introduction resulting in the deposition of alluvium, beach and dune sand, and lagoonal clays and marls along the seaward (eastern) side of the Kalepa-Nounou Ridge through which the Wailua River flows The ahupua'a of Wailua is situated in the old moktt (or district) of Puna, but today is located in two separate judicial districts. North of the Wailua River is the district of Kawaihau and south of the river is Lihu'e District. Waikta is the largest ahupua'a in both clistrict systems, totaling 20,255 acres. Stretching from the shoreline to its mauka extent at Wai'ale1ale (elev. 5080 ft.), the ahupua'a encompasses most of the small streams and tributaries that flow into the Wailua River - the lnrgest and singular navigable river in the state (Handy and Handy 1972:425). 8 Historical Background Il, IllSTORICAL BACKG.ROUND A. Mytbofogicml and Traditiona] History1.Origin of the Place Name -WailuaThe most popular and literal meaning of the place name Wailua is "two waters," supposedlyreferring to the two main forks (north and south) that flow together to form the Wnilua River. However, as Lyle Dickey says (1917:15) "this explanation never seems to occur to n native Hawaiian." Other meanings include "water pit', referring to the pools at the bottom of several waterfolls along the river's course (Damon-1931:360) and "ghost or spirit', (Kikuchi 1973:5). Perhaps even more plausible is the explanation that it comes from the name of the high chief -Wailuanuiaho 1ano. Krunakau (1976:7) states:Wailuauui-a-Ho 1 ano was born in 'Ewa, O'ahu, and his descendants went to Kaua'i and to Maui, and wherever they settled they called the land after the name of their ancestor. Wailua was a song of La'akona, ancestor qf the 'Ewa family by Kaho'ano-o-Kalani. His name, Wailullllui-a-Ho'ano, came from adding the name of his mother. 2.Mythological and Traditional Accounts ofWailuaArchaeological and ethnographic evidence reinforce one another and indicate that Wailuawas the religious and political center of Kaua'i during ancient times. There were more heiau (temples) in Wailua than in other ahupua'a on Kaua'i (See Bennett 1931). The lower poi:tion of the river valley, makai (seaward) of Nounou· rldgeline to the north and Mauna Kapu to the south, was known as Wailuanuiho'ano (Wailuanuiaho 1 ano) or alternately \yui.luamiilaut It was an area so sacred that it was kapu (tabµ) to maka 'iiinana or commoners. Only the alri (chiefly class), their kahuna (priests), and retainers could l'eside or visit here (Dickey 1917). Also, there have been at least seven majo1· heicm recorded in this relatively small area of the ahupua 'a (Ching 1968:28). This complex of heiau was declared a National Historic Landmark in 1962 (Figure 6), A survey of traditional mythological literature shows Wnilun prominently associated with some of the most famous legendary and historical figures including Maui, Kawelo, Pikoiaknala, La'ieikawai, Mo'1keha, Ln'atnaiknhiki and Kaililauokekoa (Dickey 1917; Fornander 1917�19; KaHi.kaua 1888; Rice 1923). These associations suggest an ancient and continuous occupation of the area. Martha Yent (1989:1)' suggests that because of the traditional connection of several Wailua heiau with Mo'ikeha as well as the mythical menehune, this religious compleK may have been constructed circa AD. 1200. A famous O'ahu chief, Mo crkeha (dates ca. A.D, 1340-1360 by the 20 years per generation count), according to tradition, sailed off to Kahiki (Hawaiian homeland) and on his return settled in Wailua, Kaua'i, where the Puna family of chief's welcomed him. "On the death of Puna, Mo'ikeha became the principal chief (ali'i nui) of Kauai, and remained thel'e the balance of his life" (Fomnnde1· 1969:54). There is a. chant associated with Mo'ikeba's favorite son, Kila (by the Kaua'i chiefess Ho'oipolkamalani), who also traveled to KahikL Kila was sent to seek a new chief and at each 9 Historical Background � \ ' ·\, Q /· ·�� .... , ,,/. ' ... , " ,· ,is.,, • ,. ·. i,\l�ku��J... ,, .t'f! ' . . lui'I· _.;--, ft ' �·:· ' ,\'& ..... ( :.:·1i"' j ... � -thtiii· ·_{' . -)�"'�' ',, • 1{ .. -�P � ·fi�it--D.1$1'. ;foot . . .) ��• ... 'l'lli/1'1.:. if. ·1ir1itm •.• · ��·,..,. .·· . u • � <1 f,f.UAt ,,, .. \ . 4-�1 . -....:.:�.. .�l�s�--._ , .. , .. � •� \ . .-.� 1fl;a-..::1\J-':tw1 ol<a'la ') 2 ' . \ .• one:,_� . , ,, I ....... , J ' A.itJV .... ,-.: .. .:;,,-· .. '�� . / J/1 Figure 6. Mnp of the configuration of Wailua Complex of Heint1 National Historic Landmark 10 Historical Background place he sto_pped along the way, he was asked who he was and what had become of Mo'lkeha. He answered that Mo'1kehu was alive and "Dwelling at ease on Kaua'i where the sun rises and sets; where the surf of Makaiwa curves and bends; by the changing blossoms of the kukui of Ptma; by the broad waters of Wailua, he will live on Kaua 1 i and die on Knua'i" (Beckwith 1970:355-356). Also pointing to the great antiquity and importance of the settleme11t at Wailua is that the area is, in recorded traditions, the site of many "firsts." Dickey recorded claims that the first kalo (taro) and 'uala (sweet potato) on Kaua'i were said to be planted by Mo'ikeha here (Dickey 1917:24). Mo'Ikeha's hanai (foster) son, Lu'amaikahild, brought the first temple drum to the 1s1ands and placed it at the heiau of Holoholokii at Wailua (Pomander 1878-85:II:62). Here also were introduced the first hmi trees on Kaua'i at Hihiaknlahau along the river below Poli'ahu Heiau, and the first coconut tree in the islands at Molohua, just north of the river mouth (Dickey 1917:16, 24, 30). 18. Eady Historic PeriodFew Westerners visited Wailua in the ye ars just aftet Cook's arrival and detailed de scrjptionsof the area are scarce. Most of the voyagers during the late eighteenth and early nineteenth centuries landed at Waimea, on the southwestern side of the island, a location that would eventually overshadow Wailua in its royal importa nce because of the opportunities there to associate and trade with these foreigners (Lydgate 1920). However, in March 1793, Wailua was still the "capital" of Kaua'i and Capt. George Vancouver, who had ah'eady visited the island several times, both under Capt. James Cook and later as c1tPtain of his own expedition, knew this fact well and tried to land there. Although conditions prevented him from anchoring, Vancouver observed the area from off shore and gave this description: This part seemed to be very well watered, ns three otbei· rapid small streams were observed to flow into the sea within the limits above mentioned, This portion of Attouai, the most fertile and pleasant district of 1he island, is the principal residence of the King, or, in his absence, of the superior chieft who generally truces up his abode in an extensive village, about a league to the southward of the north-east point of the island. Here Enemo the regent, with the young prince Tamooerrie [Kaumuali 'i], were now living ... [Vancouver 1798:221-222]. Within decades of western contact the aiea lost its ancient importance, and likely its population also. The all'i who enjoyed and benefited from thek contact with westerners, spent more time in Waimea -the prefc1Ted anchorage fol· visiting ships. Also tho complex of heiau at Wnilua lost their great significance after the abolishment of the kapu system. Missionary Hiram Bingham passed tlu-ough Wnilua twice in 1824 and visited the birthplace of King Kainnuali'i (the pohaku ho 'ohlinau site), a holua slide and the lower falls on the south fork of the river, but left no c1ues as to the size or extent of the settlement there (Bingham 1847:220, 231). In October 1840 members of the U.S. Exploring Expedition came to Wailua and recorded the following: 11 to Historical Background Debora Kapule was a member of Kaua'i's royalty. Kapulc,. the former wife of Kaua'i sovereign, Kaumuali'i, took up residence in Wailun in 1835, She was given the lands in 1825, shortly after the rebellion of 1824 in which Kaumuali'i's son George led a revolt, which was put down by forces loyal to Kamehameha II. Debora, who remained loyal to Kamehamehn II, was granted these lands by Ka 'ahumanu, 'fathina nui or regent of the islands. The fishponds mentioned above were located on the property of the cun:ent Coco Palms. Today a similar fishpond/lagooii exists in its place, but the exte,it of modification in historic times is unceitain. 1.Wailua Ahupua'aDuring the 1848 privatization of land in Hawai'i, lmown as the Mahele, only fifty-oneparcels totaling approximately 75 acres were awarded to twenty-seven individual claimants h1 Wailua. These parcels comprise 122+ lo'i (ponded fields). 5 mo'o (ships of cultlvated land), 24 house lots, and 8 laila (typically pasture clnims) (Table 1). All of the parcels are within approximately a mile of the shore. Of the parcels on which kalo was cultivated on the north side of the Wailua River, most were watered by 'aZJWal (irrigation canals) sourced in 'Opneka'a (or Wailuaiki) Stream, as shown in the Lydgate Map of 1920 (Figure 7). There are 11 other ahupua'a on Kmia'i with greater numbers of claims at the time of the Mahele (1848-1853). Vlhen it was the former religious, economic and social center of Kaun'i, more land would have been under cultivation, not only for the lo'i and kula, but other traditional crops, such as wauke and nonl, bananas, woods, and fishponds. The fact that so few claimed land in Wailua at the time of the Mahele, no doubt reflects W nilua' s changed status after trading ships and missionaries arrived. Communities grew up around the new social and economic centers, especially on the south side of the island and drew people away from their fonner establishments, By the mid-1800s, only a small population, de cimated in part by disease, existed in the Wailua River Valley within a mile from the sea. They were displaced within decades by imported farmers and crops. Almost all of the kuleana (land claim) awardees originally received their land from Debora Kapide "in the days of Kaildoewa" or "in the days of Ka'ahumanu'' indicating a rather sho1t tenancy since at'ound 1825 or later. It is generally understood that following the suppression of the Kaua 'i Rebe1lion of 1824 by the forces loyal to Kamehameha II, there wns a massive redistribution of Kaua'l lands. Apparently when Debora Kap1tle received the Wailua lands from Ka'ahumanu, she served as konohiki (overseer) for the ahupua'a, or in her own words, the haku 'alna or landlord (Native Register 1848:lX:55-56). In Wailua, she claimed a house 101, taro patches and two fishponds. These two fishponds, as mentioned above, still exist, though modified into one Long water feature (called "the lagoon") on the grounds of the Coco Palms Resort. Both fishponds were of the loko pu 'uone type, which "were formed by the strnnding of a body of water by a natural sand barrier. Some of these ponds were later altered by digging ditches which allowed the sea to enter and exit during times of high tide" (Kikuchi 1987a:9). In the early 1840s, Kapule's house complex was situated near the Wailua River. The complex consisted of substantial thatched buildings, nnd the area was fenced with stakes. Extensive tnro (Colocasia esculenta) patches and fishponds were located behind her house [Jarves 1844:150]. 13 'WaJlua Conlplerof Helall Hat!C1131 HistDric:al Lariifmar!t Dlsbt'ct (S0,,3�) � •-.An::haeclogla!SII& 11-1.D'l •• o,yi..ot a--Kula +.Hou$etol A•Gnrte ,..F� �-�·? ...... ·-- ---------,---·-------·-·-----� Historical Background ·�·- f"Aft'i--t:Jr· :-.!'-·'" •.WAIL'CJ�'. KA,�,;.,,:=-:"• l!!!!! Hdmlr-., .. :;,::z:. .... �·� ..... �"',;,.,.,.,. 1� t=;; .. • uaoT.I . ..-.!I!:� -�,.;..��.-..-�-! �·. �-··' Figure 7. Portion of Lydgate 1920 map of WailuaKai. showing Land Com:mission Awards {LCAs) and project area boundary. 14 Historical Background Table 1. Land use recorded in Wail-ua Laud Commission Awards LCA# Claimant 'Iii of 'Ahum,a 'a Land iise No. of 'Apana 1 (4 acres, 2 roods, Kapeleula Pakoli 9 rods) 1 (3 acres, 3 Kaimoki Kawaiiki house lot 2 lo 'i roods, 15 rods) 1 (5 3111 Kapule, Debora Pohoula 2 fishponds acres, 29 rods) 1 (1 acre, 3 mods, 7 house lot, 4 lo 'i and rods) 1 (4 ucres, 2 3226 Chanin Oliva Kue1nanu Paoohaku kula roods 32 rods) Kahakoa Village 1 (36 rods) 1 (2 3238 Hawea / Kawea Kahihei / Heikei sleeping house. 1 lo 'i roods, 17 rods) Hannlea/ Hanale/ claims in Nawiliwili, 3248 Hanare/ Henrv " lives in Wailua -(1 acre, 2 roods, 22 rods) 1 (2 roods 34 3264 Lanikaula Hio.Katnani 1 lo 'i, house lot rods) Wahine/ Kahakoa Luaiokama/ 1 (30 rnds) 1 (1 3281 Wahineai Inaiokama house lot, 2 lo 'i acre 29 rods) Halcpuola Kahakoa 1 (3 acres, 3 roods) 3282 Wahapuu, Sera Village 2 lo 'i, house lot 1 (14 rods) 1 (27 rods) 1 (1 Kahakoa Village acre, 1 rood, 20 3302 Maawe / Maawi Puhauula house lot, 6 lo 'i rods) Makaiki/ Kapalai (Waioo) 1 (2 roods, 20 rods) 3303 Makaike Kaouaiomolohua 5 (1 *) lo 'i, house lot 1 (27 rods) Kapalai Knhakoa 1 (1 acre, 31 rods) 1 3345 Nakai Village 2 lo 'i, house lot (32 rods) 3346 (See Kulaakapueo 3 lo 'i, 1 dry lo 'i, also 3345) Nawai Makunapanone houselot I 1 3 lo 'i and kula, house 1 (2 roods, 9 rods) l 3367 Noi Hapuu.puu Knhakoa lot (35 rods) 3 lo 'i, house lot (also mentions a claim in Waimea, containing 1 (2 roods, 22 rods) 3368 Nakaakai Maulili Palakawai a heiau) 1 (2 roods, 4 rods) I (1 acre, 1 rood, 18 Kapubai 3 lo 'i and kida, house rods) 1 (1 rood, 1 3403 Pahio Malaihauono lot rod) Kaiwaiiki / 3405 Poka Halilauhau 3 lo 'f and house lot 1 (1 rood. 4 rods) Kapuaiomolohua house lot, 5 lo 'i and I (29 rods), 1 (1 3406 Pula Village Waioo kula acre, 8 rods) Kehenui/ house lot, 1 lo 'i and 1 (1 acre) 1 (3 acres, 3551 Knihenui Noleha Pa1auhulu 2mo'o 1 rood. 4 rods) Kuula / Nakaula -3552 died in epidemic --Kekalo I IGkolo left 3553 the land � -3555 Kiaioali Malaehakoa/ house lot, 10 lo 'i 1 (1 rood, 7 rods) 1 15 Historical Background LCA# Claimant 'Ili of 'Ahwua 'a Land use No. of 'Avana Melehakoa N aliha (2 acres, 15 rods) 1 (1.75 acres, 14 3556 Kekua Kaoalai 3 Jo'j rods) 1 (2 roods, 26 rods) 3557 Kaniwi / Kaniui Kahakoa Lanioaa house lot 14 lo 'i 1 (2 acres, 20 rods) 3559 see 3111 K.apule --" - 1 (3 acres, l rood, Kauakahi/ Pua/ Puna Puuiki 3 lo 'i and kula 16 rods) 1 (1 rood, 3560 Kanakahi Village (pasture), house lot 12 rods) 12 lo 'i, kula, 2 Kaumualii, houses and grave, 8 1 (17.75 acres, 2& 3561 Josiah Papaalai or 10 lo 'i and kula rods) 7 lo 'I (4 taro and 3 2 (1.25 acres, 18 3567 Kaiaoa Hammnuu brush) and house lot rods) K.awaiiki on shore 1 (29 rods) 1 (1 3568 Kelani Waioo house lot. 5 lo 'i acre, 3 roods) 3569 (LCA lists as 1 (1 acre, I rood, 24 3568) Kupalu Paki Pahoula 3 lo 'i. house lot rods) 1 (19 rods) Amara/ Amata/ 3756 Amaia ( died) --- Alulike Kauakah.iuna 3759 Alika Village 4 lo 'i. house lot 11 Kupapaupapa 4 mo 'o a lihi (wf 3 1 (4 acres, 16 rods) 3909 Nahinu, I. Pelehuna orange trees) 1 (16rods) Kamaluolrukui 2 lo 'i and kula house 4146 Kaliu Kaulupalau lot 1 (2 roods. 26 rods) 0 Number of lo 'i differs among Native Register, Natin Testimony and Foreign Test/many Kamehameha III awarded the ahup11a 'a 0 " 6 53 'lipana clalms-51 awarded Claimed: more than 122 lo 'i, 24 house lots, 8 larla, 2fishponds 5 mo 10, 1 grave yard, 1 burial ground, 3 oran1<e trees 2.Land Commission. Award Testimony within the Project Area Within the project area were four common.er land claims for house lots: 3303:2 to Makaiki (Makaikai), 3346:2 to Nawai, 3406:2 to Pula, and 3568:1 to Kelani (Figure 3). The house lots of Makaiki, Nawai and Pula were on the cast (makai) margin of tho fishponds and the house lot of· Kelani was on the west (mauka) margin of the ponds. The cardinal directions reported in the following accounts are consistently skewed 90° clockwise (hence the pond that is to the west is reported to the north, and so on). 16 Historical WAIL�A�. Historical Background Pula (LCA 3406) claimed two parcels: lo'i land ('lipana 1) and a house lot ('apana 2). The Foreign Testimony from Kaniwi asserted that the house lot was "in the village of Kapuaimolohua" surrounded by a stone fence nnd was bounded to the north by a pond called "Weuweu," to the east by kula of Kapuaimolohua, south by road from Wnilua to Kapa'a s.nd west by latla. The Native Testimony of K.aniui asserted that the house lot was in the 'ili of Waioo and was bounded mtmka by Weuweu pond, ko'olau by Kapuafomolohua pasture, makai by Knpuniomolohua pasture and kona by «walk road." Although the house lot is reported as "in the village of Kapuaimolohua'' no neighbors are mentioned and the indication is that the s1m-ounding lands were undeveloped kula (lands suitable for pasture or dryland agriculture). Pula's agricultural lands were a short walk (but well outside of the present project area) to the west. Makaild (LCA 3303) claimed two parcels ('apana): lo'i land ('lipana 1) and a house lot ( 'lipana 2). The Foreign Testimony from a certain Kaniwi asserted that the house lot was "in the village of Kapuaimolohua" and was bounded to the north by a pond called "Weuweut to the cast by the kula ofMolohua, to the south by a road leading to Kapa'a El!ld to the west by the lmlaof Molohua. The Native Testimony by a certain Kaniui for this application asserted that the house lot was in the 'ili of Kapuaimolohua and was bounded mauka by Weuweu pond, ko'olau by Molohua pasture, makai by "leading to Kapoo [understood to refer to Kapa'a], a road," and kona by Molohua pasture. These two accounts are completely consistent in emphasizing a road makal parallel to the coast (that would become present day KUhio Highway) and the fishpond mauka the name of which is recorded as ''Weuweu.'' The only other landscape mentioned is the pasture of Molohua. Dickey has identified Molohua as a locality name for the area just north of the mouth of Wailua River (Dickey 1917:16). Although the house lot is reported as "in the village of Kapuaimolohua" no neighbors are mentioned and the indication is that the surrounding lands were 1U1developed kula. Makaiki's agricultural lands were a short walk (but well outside of the present project area) to the west. Nawai (LCA 3346) claimed two parcels: lo 'i land ( 'iipcma 1) and a house lot ( 'lipana 2). The Foreign Testimony from Kaniwi asserted that the house lot was in the 'ili of Mahunapuoni and was bounded to the north by a pond called Kaimiki, cast by the house lot of Pau, south by the seashore and west by burying ground. The Native Testimony of Kaniui asserted that the house lot was "at Kunapuuone'1 and was bounded mauka by Kaiuiki Pond, ko'olazt by Pau's house lot, makai by beach, and kona by cemetery. Both the Foreign Testimony and Native Testimony cite a burying ground/cemetery on the kona (actually south side) of the house lot. "Kaiu1d" is yet another variant spelling of the pond. The place names reported as "Mahunapuoni., and ''Kunapuuone•• almost certainly refers to sand dunes (pu'uone) and are probably the same place name reported as "Mahuapuoni" and "Mahunapuuone" in the testimony for the house lot of Maawe (LCA 3302) (located outside the project area) discussed further below i n the burying ground discussion. Kelani (LCA 3568) claimed two parcels: lo 'i land ( 'lipana 1) and a house lot ( 'llpana 2). Tue Foreign Testimony from Kaniwi asserted that the house lot was in the 'ili of "Kaiuld, on the seashore" and was bounded to the no:rtl1 by T�ula of village of Wailua, east by kula of village of Wailua, south by pond called "Kaiwiki," and west by "halekula!' The Native Testi mony of Knniui asserted that the house lot was in the ahupua'a of Wailua and was bounded mauka by Wailua kula, ko 'olau by Wailua kula, makai by Wailua pond, and kona by Wailua pond, The reference to the pond by t he name "Wailua pond" is understood as geographic and generic and not as reflecting a formal name for the pond. The reported name of the pond as 18 Historical Background "Kaiwild" is close to the reported name of the 'ili ("Kaiuki"), and close to the recorded name of the pond as "K aimiki" in Nawai 's claim, desclibed above. These may all be errors in transcription or variant names for tho pond. In the testimony of Debora Kapule for her fishponds , she recorded that her fishponds were in the 'ili of Kawai-iki. To the south of the fishponds is the village of Wailua, with a cluster of seven LCAs. In the testimonies for LCA 3405: 1 and 3557:1 (two most southern LCAs in Figure 8), the common boundru-y is noted as the 'auwai (inigution ditch) of Kawai-iki. Lloyd J. Soehren (2002:84), who has conducted extensive research into place names in Kaua'i, believes that the correct name for all of these features is Kawai-ild, meaning "the small water," which may have originally been assigned to the 'auwai that connects the southern pond to the Wailua River, and then to the pond itself, and thus to the surrounding 'ili. The Foreign Testimony for Kelnni's house lot claim nlso mentions n halekula or missionary school on the south side of his property. The Native Testimony makes no mention of any school, citing only the pond and pasturage. Stauffer (1993:32) believes that no land award was specifically set aside for this school since all of the general fonds of Wailua had already been set aside for the government. The schoolhouse may have been set up before 1835, or at 1835, when Debora Kapule and several retainers moved from Waimea to Wailua to establish a branch church through the encou ragement of the newly arrived New England missionaries. The first teacher of this school was Simeon Ka 1ui, husband of Debora Kapule, but his tenure was short, since he died in the same year. Classes continued after his death, under the supervision of missionades living at the Koloa station (Stauffer 1994:82-90). John Lydgate (1925:96), of the Kaua'i Historical Society, conducted an interview with a Mrs. Polani in 1915. She was the daughter of a man named Kauohi, who had been a teacher at Wailua and the kahu (caretaker) of the children on Abner Wilcox, a missionary stationed nt Wai'oli, Kaua'i from 1846 to 1869. Whether these lessons were conducted in the same building south of the fishponds, or were moved to another location is unknown. By 1867, the area around Kapule's land and the fishponds had become depopulated and Kapule's house had been. demolished, although the foundations may have remained-La Paz visited the area in 1867, and noted on the north bank of the Wailua River a "hamlet of native houses," which wa s pointed out to him as the former residence of Kapule, but nothing of her house remained. ''The fou.11dations of ruined buildings were scattered nil ulong our way to the left, giving evidence of a former large population." Tlie project area appears to include a portion of Josiah (losia) Kaumuali'i's 17�acre parcel (LCA 3561), which extends into the northwester comer of the Coco Palms property, near the present tennis courts. Kaumuali 'i claimed 20 to 22 lo 'i, two kula, and mentions "the grave of my Makunkane" [his father, Simeon Ka1 iu, last husband of Debora Kapule] as one boundary mark for his claim. Stauder et al. (1976:19), who have researched the possible origins and functions of the structures found at the east end of Pu'u Kt Ridge, believe that this grave is probably near the southwestern corner of Josiah's LCA, in a one acre section set aside as a cemetery (called Holoholoku Cemetery in historic land documents). At this comer, there is a small enclosure with a large sandstone slab at one end that was investigated by the Kaua'i Historical Society in the 1930s (KHS 1934:115). The members of the society interpreted this stopc as a ''taboo" stone,associated with the nearby birthing stones (Pohaku Ho'ohanau), where women went to give birth to high ali'i children. As noted, Stauder et al. (1976:19) be\ieve that this is actually an historic structurej associated with HoloholokU Cemetery, possibly marking the exact grave of Simeon Ka'ui. 19 Historical Background 3.Land Use Patterns as Indicated in Land Commission Award Testimonya.The FishpondsClearly there were two fishponds that were prominent geographic reference points in the areain 1848. Reported names for the two ponds include; Weuweu Weuweu Kaimiki Kaiuiki Kaiwiki Wailuapond Testimony of Knniwi and Kaniui for Makaiki (LCA 3303) Testimony of Kaniwi and Krutlui for Pula (LCA 3406) Testimony of Knniwi for Nawai (LCA 3346) Testimony of Kaniui for Nawai (LCA 3346) Testimony of .Klmiwi for Kelani (LCA 3568) Testimony of Kaniui for Kelani (LCA 3568) Thus it would seem clear that the name for the noi-thein pond was Weuweu, which means "herbage,'' possibly referring to limn (seaweed), In all probability the southern pond had one clear name but that interpretations of pronunciation or haudMiting lead to the variant spellings of ''Kaimiki,11 ''l(aiuiki," and "Kaiwiki." Kaniwi in the testimony for Kelani (LCA 3568) reports Kelani' s house lot as in the 'ill of "Kaiu1ci" -yet another variant. It seems likely the name of tMs southern pond lent itself to the vicinity. As previously discussed, Soehron (2002:84) believes that the correct name for th.e pond, the 'auwai from the pond to the Wailua River, and the 'ill itself was Kawai-iki ("small water'). Based on a 1923 map drawn by J.M. Lydgate1 which shows only a ditch parallel to where the ponds were once located, Kawachi (1993:16) concluded the ponds were no longer extant in 1923. This is somewhat hard to reconcile with the J.M. Lydgate 1920 map (see Figure 8) that nppenrs to show the fishpond extant just three years earlier. While it is certainly conceivable that the pond was filled in between 1920 and 1923, it may be that the pond was not filled in, but had been so choked with vegetation that it was no longer recognizable as a pond or ponds. Confinnation of this can be found in the 1922 survey field book of T. J. K. Evans (Figure 9), who drew the outlines of these ponds in his survey field books and labeled the areas as"swamps." These notebooks also show a narrow break between two ponds, which is illustrated ns a small inlet no1th of Wailua House Lot No. 5 on a 1923 Evans map (see Figul'e 10) With traditional Hawaiian fishponds it was a common practice to divide or partition the pond to segregate. growth stages of fish with a nursery pond for fry segregated from a grow-out pond. This may have been the case here. explaining two different names for what appears on the Lydgatc 1920 map as one elongated pond, or two closely interconnected ponds. The testimony from the Wilkes Expedition (Wilkes 1846:IV:68-69) nlso mentions ponds of "different degrees of saltiness." The location and the names of the ponds may reflect these different functions, with the no1them pond the saltier of the two (Weuweu possibly referring to marine seaweed), and the southern one (Kawai-iki possibly refcnin g to fresh water), which was connected by a ditch to the Wailua River, as the less salty one. b.Residential PatternThe informant Kaniwi asserted that the house lot of Makaild (LCA 3303) and tho house lot ofPula (LCA 3406) were "in the village of Kapuaimolohua" suggesting greater density of settlement in the vicinity than the land commission award record would otherwise suggest. Rather notably both informants list no neighboring house lotB in the vicinity of these homes mentioning only kula land, the fishpond, and the road. Both the Native Testimony and Foreign 20 . SL!g�Cmt;; ···---�··�_;;�S<ula-·--·-••1-""-•··swalJ?? nr�·-. .,,,,. ....... "-.... ..-.-.�--'//11 8b i,, ..;. .. rtt."' ,, .. Cotonut. Trees □ t:I □ J • .,. =� -!-� ., .. •·�· 1• • .Swal)npj•, . . :I •' J;v#·l�Nnt� ��.:Noi1h.Ei;&o( Deticrn: Ka!it'ik•d;eA:31!.1 •&3559:l (Ovdl31lS m;li.�7i .illld.Po�(Pt.f09 . -· Historical Background ... --a:�· ,,..,.... .. :,• '·' :Pt.139' / i!O ef. . . l .. .. •., .,l�.:· tv t·-·= � -LC I . l 1·. _.,l . .: . : :; ,.;!;Q\ (CA l i111& • �� ./3559':3 1p J J SY1amr, 'f � . . �-1�/I i:Mms mzt .. 'ot--..book:-.Page 71,,·�Ei;!dcf Debota-Kapule!s�\:3 ill '&3559'.l'(Ov:rruip� v.-ifu,!'__��cl-� •�-?Figure 9. Tracing of sketches in 1922 Field Notebooks of Thos. J. K. Evans. showing north.em and southern sections of LCA 3111 & 3559:3 (Note break around Point 139, possibly showing the division between the northern and southern. fishponds) 21 Historical Back __ ---�--����:�=��gr�o�unr1dd �- � -·�•' . .. ; �� ... ��1:' . .. . ' . . . - ' . , _. �� '�- . \",!' '' .) � . . ' • n'l :-=' � .. _;,;;;:�;- os, J. K. Evans ������------_ Portion of 1923 Th . . . . . map of Wailua Kai 22 Historical Background Testimony for Nawai 's house lot (LCA 3346), however, make reference to a neighboring house lot of a certain ''Pau'' which would have been just to the northeast, also located on the southeast edge of the fishpond and in line with the homep of Nawai, Makaild and Pula. Jt seems probable that prior to western contact, the density of settlement around the margins of the pond was greater than the 1848 record reflects. This may have been a preferred residential area of centuries duration. The density of settlement may always have been greater, however, between the pond nnd the river just to the south, where the house lots of Maawe, Wahapuu, Nakai, Noi, Nawea, Wnbineai, Knniwi, and Poka within the village ofKaha"!roa were awarded in the Mahele. c.The Burial GmundReferences to a burying ground or cemetery are given by botlt informants in the testimony for Nawai (LCA 3346). This burying ground was to the south of Nawai's house lot between the fishpond and the sea. Another refe1:ence to this same burying ground would appear to be given in the testimony for the house lot of Maawe (LCA3302). His house. lot was south (o utside of the present project area). The Foreign Testimony in support of Maawe' s claim (again from Kan.iwi) asserts that the parcel was bounded ''East by burying ground of Mahuapuoni." Again the consistent dh"ectlonal correction puts this burying ground more properly to the NNE. The Native Testimony for Maawe's claim (again from Kaniui) describes the ko'olau boundary of his house lot as "Mahunapuuone." Although there is no reference to burials in the Native Testimony for Maawe's claim, Knniui is using a very similar place name. It seems likely that the transcription of the name associated with this burying ground is more accurate in the Native Testimony with pu 'ieone being a clear 1·eference to a "sand dune'' and perhaps !tuna referring to the ''hidden" burials there. It is also possible that pu'uone refers to the fishponds (loko pu'uone) owned by Debora Kapule, north of this burying ground. These names ("Mahuapuoni" and "Mahunapuuone") for the no1thern boundary of Maawe's house lot are quite similar to the spelling of the place of Nawai's (LCA :3�46) house lot repo1ted as "Mnhunapuoni" and "Kunapuuone." It seems likely the burying ground was named, in present orthography, "Mahunapu'uone" which may have meant "at the hidden (burial) sand dunes," While the extent of this burying ground is uncertain, in general terms it may be·understood as including an area of low sand dunes between the fishpond and the sea extending north from Maawe's house lot to, and possibly into Nawni's house lot This is consistent with the fmdc; reported by Kikuchi (1973), the location of the present burial re-interment site with a marke1· plaque, and the location of the human remains l'ecovered in the present study. JI). Post�M�b.cl� Period. Like most well-watered areas in Hawai 1 i, rice crops began taking over former lo'i kalo in the second half of the 1800s. This sharing of the land by the Chinese rice farmers and native kalo growers continued through the end of the century. Knudsen (1991: 152) visited Wailtu1. in 1895 and wrote: We rode through. the Lihue Plantation cane fields, passed through Hanamaulu and came to the Wailua River. What a sight! The great rive!' lay clear and placid -winding away up toward the mountains with 1'ice fields and tam patches filling all the low lands. 23 Historical Background By 1935, Handy (1940:67) found no kalo being cultivated. The terraces had been taken up by rice, sugar cane. sweet potato and pasture. However; Kapa.1 a, Waipouli, Olohena. and Wailua are districts which hnve broad coastalplains bordering the sea, any part of which would be suitable for sweet potato plantings; presumably a great many used to be grown in this section. There nre a few flourishing plantations in Wailua at the present time [H�dy 1940:153]. The project aren was left by Debora Kapule in the early 1850s when she chose to move back to Waimea. Upon her death in 1853, her lands in Wailua, as well as those of her son, Kanmuali'i, were wHled to her adopted daughter Kaluaipihana. By 1867 a Mr. LaPaz indicated that nothing re m ained of Kapule's complex (cited in Kikuchi et al. 1976:7). This was echoed by Gerald Fowke in the early 1920s: Near the mouth of the Wailua River , •. is the former abode of the royal family, The place is so overgrown, except in the few cultivated spots, that no examination of it can be made. No traces of the residences are apparent although the stone boundary walls of the grounds are still standing [Fowke 1922, quoted in Kikuchi et al. 1976: llJ. In fue mid 1890s, Emst Lindeman leased Kapule's kuleana and planted the 2,000-trec coconut grove for which the Coco Palms Resort is famous. The site was planted with nuts from Samoa for the purpose of harvesting copra (coconut meat), The venture was apparently not profitable, and the coconut grove and plantation lodge were sold in 1952 to Lyle and Grace Guslander, The 24-roo m lodge was opened as a small hotel on January 25, 1953. Grace Guslander managf'..d the Coco Palms, expanding the reso1t to a maximum capacity of 416 rooms. The resort was very well known in its heyday and served as the set for several movies including ''Blue Hawaii" starring Elvis Presley. The wedding chapel that currently stands on the property was built by MGM for the film "Miss Sadie Thompson" with Rita Hayworth, and was then donated to Coco Palms. The Coco Pulms Resort was badly damaged by Hunicane Iniki in 1992, and has stood empty since. The property is currently unused except for daily movie tours that stop at the property. The chapel is also used several tunes a month for wedding ceremonies. The property of the Seashe11 Restaurant, across Kuhi6 Highway from Coco Palms, has also been unused since September 1992. E. Summary of Settfoment Patterns The Wailua River, along both shores, was the most important high-status area on Kaua'i inpre-Contact times. This area was the royal cente1· where the high chiefs and chiefesses carried on their business when they were not traveling about the islnnd(s), and where they entertained visitors. Today we see a small portion of this royal center when we look at the remnants of five of the heiau (where official decision making was canied out), the Hau'ola Pu't!honua (place of refuge), the birthstones, the royal coconut grove, the bellstone and the royal fishponds. There exist no visible surf ace remnants of the chiefly homes, the suppo1tiug lo 'i and kula lands, the places of recreation, the burial place called Mahunapu 'uoni Gust makai of Kapule's fishponds), the fish traps, or the canoe landings, 24 Historical Background The Waihta Complex of Heiau, on both sides of the River, was the focus of political and religious activity. Among the seven heiau of Wailua, the Malae Heiau (at the river mouth on the south side) and Poli'ahu Heiau (on the north side of tbe river inland atop Poli'ahu Ridge) were two large companion heiau. The makai section of the ahupua'a near the rivel' mouth was the focus of d�ily life for the royal families. Some house sites were s01.tth of the river on the dunes (mcikai of the present highway), but the majority of house sites were on the north s.ide of the 1iverjust mcnika of the highway_ between the Coco Palms Resort and the river, A burial area is associated with these house lots on the dune and archaeological work shows there are still present remains of the· habitation layer and the burials. A p01tion of Knpule's fishponds, just behind the sand berm, still e:xists on the grounds of the Ceco Palms Resort. The choicest house area, according to the Mahelo documents, is probably the area in and around the coconut grove, where Debora Kapule (LCA 3111), Oliva Chapin (LCA 3226), Naakaakai (LCA 3368) and Kupalu, wife of Kaniwi (LCA 3568) had their homes, Inland, along the floodplain, are remnants of the many lo 'i parcels and other house sites as well. There is archaeological e,tldence that ngricu1tural use of the land stretched far mauka along the Wnilua River and its tributaries, and supported a l'Clatively large population at an earlier time. Archival records mention other resources, including bananas, wood for canoes and housing, and kukui (candlenuts) for lights as coming from farther inland, Archaeological research shows evidence of adze !Illlnufacture inland. Within the current project area land claims (Foreign Testimony, Native Testimony and Native Register) and previous archaeological research have identified a traditional burial ground and a pre-Contact cultural layer. On the basis of this background research, we would expect to find a traditional cultural layer in-parts of the site, though the extent of it is uncertain. Based on Mahele documents and on previous archaeological research, we expect additional human burials. Most of the previously identified burials have been found in an area that was formerly a sand dune in th e makai portion of the project area (Kikuchi 1973). An historic era burial, however, was also found in a completely separate part of the project area, on the northem edge of the property (Elmore and Kennedy 2000). This fact and the intensive u.�e of this nrea by Kaua'i ruling class indicate that burials may be encountered outside of the known burial ground. 25 Previous Archaeological Work III.PREVIOUS ARCHAEOLOGICAL WORK A.Previous Arclltneologicaff Research and Finds in Wailua Almpua'a The following tables and figures outline the archaeological l'esearch and archaeological sitesidentified in Wailua Ahupua'a. Table 2 provides a list of archaeological research conducted within Wru1ua Ahupua'a, including colutnnS for source, location, nature of study, and findings. The locations of these archaeological studies are shown in Figure 11. Table 3 is a list of known archaeological sites within the ahupua'a and includes colutnns for state site numbers, site type, location, nnd reference. The locations of identified sites within Wailua Ahupua'a are shown in Figure 12. B.ArchaeologicaU Research within the Current Project Area. The first mention of the project area in an archaeological context comes in Bennett's 1931Archaeology of Kauai. Bennett's (1931:127) site 106 is a "Heiau and sacred coconut grove, on the north bank of the Wailua River." Eth.el Damon (1934) noted a couple of years later that "on the north bank of this rivel' is an extensive cocoanut grove which now looks so venerable thnt it is often mistaken for an ancient, perhaps also, a sacred grove, As a matter of fact, it was planted as an experiment in 1896, and is therefore of no great antiquity." Apparently Bennett mistook the grove on the property for one of traditional date and significance. During the building of the Coco Palms resort, an unknown number of human burials were encountered and reburied at the front of the hotel, In 1973, a new wing was being added to the hotel and more human remains were encountered in sand deposits. William Kikuchi (1973) was called to document the findings, In all, 34 sets of human remain.c; were documented by Kikuchi, though the actual number of individuals disinten-ed may be ns high as 85 (Valentin Ako, personal communication). All of these humnn remains were reinterred at the site of the previous reburials, and a plaque was attached to a boulder on the spot to mark it (Figure 13). Kikuchi's report notes that there were two general groupings of remains, a northern group and a southern group. The northern group had a dark coloration on the outside of the bones and were found at or below sea level. The bones recovered from the southern group were clean and in very good condition. No conclusion was made us to the implications of these differences. Also found were several pieces of logs and a large helmet sbeU (Cassis cornuta) that had been roodified. While examining the sides of the excavation pit, Kikuchi also mnde note of several small pits. ''These pits, seen as black filled outlines, were probably the imu, tmdel'ground cooking ovenS. Most seem to have been of small size, a foot or two in diameter and not over a foot in depth. Several pits still had the cooking or heating stones within them, but there was little or no sign of any midden" (Kikuchi 1973:4). Dming an inventory survey of three alternate routes for a Kiihio Highway By-pass, Cultural Surveys Hawai'i excavated ten backhoe trenches in the mauka portion of the Coco Palms property (Hannnatt et al. 1997). No cultural remains were fo1ro.d. Another burial Wl.lS discovered in the project area when contaminated soil near n diesel tank was being excavated in 2000 (Elmore and Kennedy 2000). The burial was designated State Inventory of Historic Places (SIHP) site 50-30-08-660, and was associated wifu several glass beads. Despite the historic �ate of the burial, the investigators concluded that the remains were 26 Previous Archaeological Work Table 2. Previous archaeological studies in coastal Wailua Ahllpua'a (see Figure l) Source Location Nature of Study Findings Mouth of Waihia Lists 4 heiau: Malae, Poli'ahu, Thrum 1906 River Listing of heiau Holoholokfi and Hikinaakala Descn"bes 6 sites" Site 103: Dune burials, Site 104: Malae Heiau, Site Archaeological 105: Hikinaakala Heiau, Site 106: reconnaissance Holoholokfi Heiau and sacred grove, Bennett Mouth of Wailua survey of heiau and Site 107: Poli'ahu Heiau and Site 1931 River place ofrefuge 109: an unnamed heiau Wailua River Valley including Locates and briefly describes 34 Soehren No1th and South sites with B .P .B.M. site numbers 1967 Forks Field Trip Report Al-1 to Al-34 Wailua River Locates and briefly desciibes Valley including Soehren's (1967) 34 sites and adds No11h and South sites 35-58 with B.P.B.M. site Ching 1968 Forks Surface Survey numbers Al"l to Al-58 Archipelago" wide, discuss Handy and Wailua Native Planters Discuss agricultural pattern at Handy 1972 Ahupua'a Study WailuaAhupua'a Coco Palm Hotel, north of Wailua River, Kikuchi mauka ofKflhi.5 Discusses 34 burial finds, other 1973 Highway Burial Study features and ai-tifacts Kikuchi Mouth ofWailua 1974 River Heiau Studv Hikinaakala Heiau Lydgate State Park Pavilion Project, south of Assessment and sub-Walton and river mouth, surface testing (7 Spilker makai ofKuhio post hole digger Testing did not locate any 1974 Highway excavations) archaeological materials Holoholo-kii and Study of oral Kikuchi et Pohaku documentation and Compendium ofinfo1mation al. 1976 Ho'ohiinau historical records regarding these sites WailuaGolf Burial Recovery I 3 burials located (Sites -542 to w Coxl977 Course project 546 and "819) North side of Bellstones located, described and makai portion of Evaluation of traditions are given along with Yent 1980 Wailua River bellstone preservation recommendations 27 ·Previous Archaeological Work Source Location Nature of Study Findings Survey ofpetroglyphs noted 36 figures, more possibly in river and Kikuchi South of Mouth Mapping of bulldozer damage from clearing 1984 of Wailua River Petro glyphs mouth of river Malae Heiau, Kikuchi South of mouth Discusses adze fragments from 1987b of Wailua River Adze study MalaeHeiau Demolition of old comfort station and South of Mouth cori11gs for new No subsurface cultural deposits Yent 1987 of Wailua River comfo1t station located National Register of Historic Places Dunbar Wailua Complex Inventory-"One of the most important site 1988 ofHeiau Nomination Form comolexes in the Hawaiian Islands" South side of the mouth ofWailua River Mapping and testing Conclu ded 2 periods of occupation, Hikinaakala of Site 50-30-08-one historic, and an earlier period Heiau and 105 in 1986 (6 lm2 may or may not be associated with Yent 1989a Bau'ola area excavations) heiau building Hammatt Wailua River 1991 Mouth Subsurface Testing No cultural deposit observed Eastern margin of Sleeping Giant Mountain 011 the north McMahon edge of Wailua Archaeological 1991 Ahunua'a Investigations No significant findings Work on both sides of Kfihi5 Hwy.Atthe Archaeological Walker et south end of the inventory survey for al. 1991 ahupua'a a master plan Identified no sites Although several fill layers and extensive grmmd alteration was indicated, a possible pre-contact Mouth ofWailua Archaeological cultural deposit was noted; no site Yent 1991a River Testing number was assigned MalaeHeiau Discusses Malae Heiau in context of South of mouth proposed incorporation into Wailua Yent 1991b of Wailua River Park Planning River State Park South side Wailua River Summary of petroglyph site 50-30- Yent 1991c Mouth Damage Assessment 08-l0SA 28 Previous Archaeological Work Source Location Nature of Study Findings Wailua County Examination of exposed strata Folk and Golf Course revea1ed no cultural material; Hammatt from coast to Assessment for informants described burials in the 1992 KUhio Highway Fiber Optic Cable golf course area. Island-wide, Kikuchi and BOOS on north Remoaldo bank of makai Cetneteries of Identifies site 50-30-08-B00S-1992 Wailua River Kaua'i Poli'ahu Japanese Cemeterv North ofWailua River mouth, makai of KUhio Sub-surface Testing No significant findings; two Spear 1992 Highway (7 backhoe trenches) charcoal lenses noted. State of Hawai'i Interpretive Signage 1992 Poli'ahu Heiau Plan Summarizes data on Poli'ahu Heiau Mouth of Wailua Hurricane Damage Yent 1992 River Assessment Damage report Kaua'i Community Correctional Center west of Kuhio Highway Erkelens and the Wailua and Welch County Golf Archaeological Summarizes literature and notes 1993 Course assessment probability of burials Kawachi Mouth ofWailua Survey of river Discovered ·unreported submerged 1993 River mouth (4-1�04:01) petroglyph, no site number assigned Kaua'i Community Correctional Center west of KGhi5 Highway One burial designated Site -9357 and the Wnilua regarded as part of Bennett's site 50-Beardsley County Golf Suh-surface testing 30-08-103 but no other significrmt 1994 Course for sewer line findings Wailua County Archaeological Golf Course Inventory Stirvey Folk et al. from coast to with sub-surface 1994 K'Cihio Highway testing No significant finds 29 Source Hammatt et aL 1994 Carpenter andYent 1995 Flores 1995 Folk and Hammatt 1995 Hammatt et al. 1997 Yent 1997a Yent 1997b Yentl997c Bush et al. 1998 Fager and Spear2000 Shideler et al. 2000 Location Lands mauka of Kuhio Highway North Fork of the Wailua ruver Malae (Malaeha'akoa) Heiau; south of Wailua River mouth, maulca of Kuhio Highway Wailua County Golf Course from coast to Kuhio Highway Lands mauka of Kuhlo Hh!hway Extreme south, coastal Wailua, makai ofKiihio Highway Malae Heiau, south of Wailua River, mauka of KUhio Highway MalaeHeiau Parcel between Papaloa Road and beach Wailua Golf Course Lydgate Park Previous Archaeological Work Nature of Study Findings Identifies archaeological concems including: I) impact on the Wailua Complex of heiau, 2) impact on potential burial sites in the Wailua Golf Course and the Coco Palms Resort area, and 3) impact on existing and former Wailua marshlands in the vicinity of the Archaeological County Correctional facility and on Assessment the north side ofWailua River Archaeological Notes high potential for extensive Reconnaissance archaeology Data on the heia:u (Site 50-30-08-Historical and 104) and Wailua Ahupua'a in Cultural Research general is presented Found remain s of eight individuals Monitoring fiber-from disturbed, possibly secondary, optic cable conduits deposits Archaeological Inventory Survey for Kiihio Highway 1 new site found north ofriver, 50-widening 30-08-756; a terrace Plans to attend proposed. work at a Burial Treatment temporary automobile storage and Monitoring Plan facility close to Dune Burials sites Vegetation Removal Outlines methodology and and Landscaping guidelines for vegetation removal at Plan MalaeHeiau Vegetation Removal Report Summarizes work Inventory Survey No cultural finds Archaeological Monitoring Report Documents several burials Recommends monitoring during Inventory Survey proposed construction of bike trail 30 Previous Archneological Work Source Location Nature of Study Findings Identifies at·chneological concerns including: I) impact on the Wailua Complex of_heiau, 2) impact on potential burial sites. in the Wailua Golf Course and the Coco Palms Resort area, and 3) impact on existing and former Wailua marshlands in the vicinity of the Hammatt et Lands mauka of Archaeological County Correctional facility and on al. 1994 Kuhio Highway Assessment the north side of Wailua River Carpenter and Yent Nolih Fork: of Archaeological Notes high potential for extensive 1995 the Wailua River Reconnaissance archaeolo!!v Malae (Malaeha' akoa) Heiau; south of Wailua River Data on the heiau (Site 50-30-08-mouth, mauka of Historical and 104)and Wailua Ahupua•a in Flores 1995 Kuhio Highway Cultural Research general is Presented Wailua County Folk and Golf Course Found remains of eight individuals Hammatt from coast to Monitoring fiber--from disturbed, possibly secondary, 1995 Kuhlo Highwav ootic cable conduits deposits Archaeological Inventory Survey for Hammatt et Lands mauka of Kuhio Highway 1 new site found north of river, 50-al. 1997 Kuhio Highway widening 30-08-756; a terrace Extreme south, coastal W nilua, Plans to attend proposed work at a makai of KUhio Btll'ial Treatment temporary automobile storage Yent 1997n Highway and Monitoring Plan facility close to Dune Burials sites Malae Heiau, south ofWailua Vegetation Removal Outlines methodology and River, mauka of and Landscaping gui del ines for vegetation removal at Ycnt 1997b Kuhi� Highway Plan MalaeHeiau Vegetation Removal Yent 1997c MalaeHeiau Report Summarizes work Parcel between Bush et al. Papal oa Road 1998 and beach Inventorv Survey No cultural finds Fager and Wailua Golf Archaeological Soear2000 Course Monitoring Reoort Documents several burials Shideler et Reco1mnends monitoring during al. 2000 Lydgate Park Inventory Survey proposed constmction of bike trail 31 Figure 11. Previous archaeological studies in coastal WnHuaAhupua'n ·Previous Archaeological Work Table 3. Previous archaeological studies in coastal Wailua Ahupua'a (see Figt1re 1) Source Location Nature of Study Findhlgs Mouth ofWailua Lists 4 heiau: Malae, Poli'ahu, Thrum 1906 River Listing of heiau Holoholoku and Hikinaakala Describes 6 sites-Site 103: Dune burials, Site 104: Maine Heiau, Site Archaeological 105: Hikinaakala Heiau, Site 106: 1·econnaissance Ho1oholoku Heiau and sacred grove, Bennett Mouth of Wailua survey of heiau and Site 107: Poli'a huHeiau and Site 1931 Rivel' place of refuge 109: an unnamed heiau Wailua River Valley including Locates and briefly describes 34 Soehren North and South sites with B.P .B.M. site numbers 1967 Forks Field Trip Report Al-1 to Al-34 Wailua River Locates and briefly desc1ibes Valley including Soehren's (1967) 34 sites and adds North and South sites 35-58 with B.P.B.M. site Ching 1968 Forks Surface Survey numbers Al-1 to Al-58 Archipelago-wide, discuss Handy and Wailua Native Planters Discus1'; agricultural pattern at Handy 1972 Ahupua'a Studv Wailua Ahupua'a Coco Palm Hotel, no1ih of Wailua River,· Kikuchi mauka of K.Uhio Discusses 34 burial finds, other 1973 Highway Burial Study features and atiifacts Kikuchi Mouth of Wailua 1974 River Heiau Study Hikinaakala Heiau Lydgate State Park Pavilion Project, south of Assessment and sub-Walton an d rivet· mouth, surface testing (7 Spilker ma/mi ofKiihio post hole digge r Testing did not locate any 1974 Highway excavations) archaeological materials Holoholo-ki:i and Study of oral Kikuchi et Pohaku documentation and Com pendium of information al. 1976 Ho'ohanau historical records regarding these sites Wailua Golf Burial Recovery 13 burials located (Sites -542 to -Cox 1977 Course project 546 and -819) Nortl1 side of Bellstones located, described and ma/cai portion of Evaluation of traditions are given along with Yent 1980 Wailua River bellstone preservation recommendations 33 Previous Archaeological Work Site No. 50-30-Site Type/ 08-Name (if any) Location Size/Comments Reference Part ofWailua Complex of Tlmun Heiau National Historic 1906:40; Wailua River State Landmark -defined area Bennett 107 Poli'ahu Heiau Park 49.140 SQ ft., in State Park 1931:127 217 S.of makai portion(Soehren ofWailua River,Virtually no data, size and Kauhihalau eastem quarter unclear, further work in Ching agricultural occupied by Wailua area indicated; in State Ching Site 10) site State Marina Park 1968:16 247 (Soehren Virtually no data, size and Kamalau unclear, further work i11 Ching agricultural N.ofMauna Kapu area indicated; in State Ching Site 33) site on flats Park 1968:16 250 (Soehren Virtually no data, size and Hau'ola unclear, furthe1· work in Ching agricult ural N.of makai portion area indicated; in State Ching Site 11) site ofWailua River Park 1968:16 Just North of Confluence of North and Soufu Forks, Wai1ua Soehren 321 River (associated 1967; Ching (Soehren with sites 218 and 1968:16; Yent and 250)along base of Little data, length unclear,1989a:7; Ching 'Auwai, valley wall in dense fmther work in area Carpenter i:md Site 12) earthen ditch hau mdicated; in State Park Yent 1997:35 N of Mauna Kapu, at mauka end of site -24 7 one rock Site consists of two storied 325 Kamalau and in middle ofriver rocks; description (Ching Kulaina storied below Poli'ahu insufficient for Ching Site 38) rocks Heiau identification; in State Park 1968:16�18 N ofMauna Kapu, at mauka end of site-247 one rock Site consists of two storied 326 Kamalauand in middle of river rocks; description (Ching Kulaina storied below Poli'ahu insufficient for Ching Site 39) rocks Heiau identification; in State Park 1968:16�18 34 Previous Archaeological Work Site No. 50-30-Site Type/ 08-Name (if any) Location Size/Comments Reference North of makai'Ahuhuuli, portion ofWailua reported home River "near the and burial little hillock, ground of Ahuhauli, where Kumauna/ the one (lone) tall Virtually no datai size Ching 329 Lono coconut tree unclear, further work in 1968:14, (Ching Kelekoma stands" (Salisbury, area indicated; in State Salisbury Site 42) family 1936) Park 1936 Kaluamokila legendary cave through hill fromNto S, south end just above water level; sealed with a stone, Virtually no data, may only 330 land entrance North of makai be legendary, further work (Ching opening is portion of Wailua in area indicated; in State Ching Site 43) small River Park 1968:13 North of mouth of Wailua River,just Still stood in 1953, only 331 mauka of Smith's foundations are left, testing (Ching and Dads' old boat and marker recommended; Ching Site 44) Old Rice Mill la nding in State Park 1968:12�13 "On the makai tip of a hill near theeastern end of the Pohaku'ele'ele promontory Heiau (and between the two Virtually no data, some several other northern branches uncertainty about the Dickey 334 sites reported of the Wailua location, size unclear, 1916:29; (Ching by Dickey River'' (Dickey further work in area Ching Site 47) [1916:29]) 1916:14) indicated; in State Park 1968:14-15 Part of Wailua Complex of 335 North ofmakai Heiau National Historic (Ching portion of Wailua Landmark -defined area Ching Site 48) Bellstone(s) River N.A.: in State Pal'k 1968:14 Hihiakalahu "the place 337 where the first North ofMauna Seemingly just a legendary (Ching hautrees of Kapu, south of hau tree grove, size Ching Site 50) Kaua' i grew" Poli'ahu un clear: in State Park 1968:16 35 Previous Archaeological Work Site No. 50-30-Site Type/ 08-Name (if any) Location Size/Comments Reference Agricultural Ten-aces North of "indicated as confluence of Virtually no data, size 340 being in rice in North and South unclear, further work in (Ching 1900 and Forks, Wailua area indicated; in State Ching Site 53) 1923" River Park 1968:18 Agricultural flat "appears as rice land on Monsarratt's Virtually no data, size 342 map of 1900 North of makai unclear, further work in (Ching and Wall's pmtion of Wailua area indicated; in State Ching Site 55) map of 1923" River Park 1968:13 Kula "indicated as Virtually no data, size 343 kula land on South side of makai unclear, further work jn (Ching Wall's map of portion ofWailua area indicated; in State Ching Site 56) 1923" River Park 1968:16 Pr e-contact Extent oftbe cultural layer Morawski and 356 cultural laver Lvdgate Park remains unlmown Dega2003 1962 National Register of Flistoric Places; 1981 Includes five discrete Hawai'i Wailua parcels, sites: -104, -105, -Register of Cornplexof Mouth of the 106, -107, -335; in State Historic 502 Heiau Wailua River Park Places Burials understood as part North part of of Site -103 consultation Wailua County and monitoring in vicinity 542 Burial Golf Course indicated Cox 1977 Burials understood as pmt North part of of Site -103 consultation Wailua County and monitming in vicinity 543 Burial Golf Course indicated Cox 1977 Burials understoo d as part North part of of Site -103 consultation Wailua County and monitoring in vicinity 544 Burial Golf Course indicated Cox 1977 36 Previous Archaeological Work Site No. 50-30-Site Type/ 08-Name (if any)Location Size/Comments Reference Burials understood as patt North part of of Site -103 consultation Wailua County and monitoring in vicinity 545 Burial Golf Course indicated Cox 1977 Burials understood as part Nmthpart of of Site -103 consultation Wailua County and monitoring in vicinity 546 Burial Golf Course indicated Cox.1977 Extensive wetlands, 130-acre; further former lo 'i North bank of archaeological work Hammatt et 634 area Wailua River indicated al. 1997:68,70 N end of Coco 1 historic burial, Palms property N consultation and Elmore and of Wailua River monitoring in vicinity Kennedy 660 Burial mouth indicated 2000 Adjacent to north side of pasture access road mauka Approx. 2 m by 5 m long, of Smith's Tropical fmther archaeological work Hammatt and 667 Linear Terrace Paradise indicated Shideler 2003 Cement slabs North central An area 4 m by 5 m.,inscribed with portion Smnh's further archaeological work Hammatt and 668 year 1926 Tropical Paradise indicated Shideler 2003 ·East end of Pu'u KTRidge above Po li'ahu Pohaku Ho'ohlinauJapanese and Holoholokii (formerly known as 50-30-Hammatt and 675 Cemetery Heiau 08-B005) Shideler 2003 Greatly modified as a contemporary Recent modifications make sacred site -it difficult to discem what Alignments possibly former is a traditional Hawaiian Hammatt and 676 and enclosures Heiau construction Shideler 2003 Just S ofKuamo'o Road in the N side of Pu'u KI 100 m No cultural material Wof Pohaku observed but traditional use Hammatt and 677 Two lava tubes Ho'ohanau likely Shideler 2003 central Pu'u KI modest alignment on top of Hammatt and 678 Terrace mirnmit ridge ridge Shideler 2003 37 Previous Archaeological Work Site No. 50-30-Site Type/ 08H Name (if any) Location Size/Comments Reference N bank ofWailtUl No cultural material Overhang i-ock River, SW portion observed but traditional use Hammatt and 679 shelter of Pu'u KI ridge likely Shideler 2003 In State Park, 30 m by 12 N01th bank of m-further archaeological Hammatt et 756 Te1Tace Wailua River work indicated al 1997:68,70 Notth bank of Consultation and Ida and Wailua River monitoring in vicinity Hammatt 761 Burial mouth indicated 1998 Burials understood as part North part of of Site -103 consultation Wailua County a11d mo11itoring in vicinity 819 Burial Golf Course indicated Cox 1977 Buffum and Dega2002; Dega and Extent of cultural layer Powell 1711 Cultural layer Coco Palms Resort remains unknown 2003:38-49) Wailua County Golf Course east of County Correctional Folk and Facility, halfway Minimum number of eight Hammatt 1980 Butial to the sea individuals encountered 1995 Burial understood as part of County Site -103, consultation and Con'ectional monitoring in vicinity Beardsley 9357 Burial Facilitv indicated 1994 38 -- • i Previous Archaeological Work . -�" �-��\ �<;11 o.s Figure 12. Mnp showing ru:chaeological sites in coastal Wailua Ahupun'n with the project area outlined in �ed 39 during the of retu1ned 11nd 1-einterment Ii:i 2002, a 9ultural layer was identified at Palms during the monitoring of the perimeter single century. "Feature 3, n hearth, argued to temporary use of the strip" Results of Fieldwork IV.RESULTS OF FIBLlDWORK A. Des�ll'iptil'.l>n of Project Area The project area currently consists of two separate segments of land each composed of two ormore TMK parcels. The larger area contains the remains of the Coco Palms Resort and the smaller eastern segment contains the Seashell Restaurant. The Seashell Restaurant is adjacent to the seashore, on a raised basalt outcrop about three meters (10 feet) above sea level. The prope1ty is largely developed with the restaurant structure and a cement lanai (see Figure S). The remainder of the property consists of slope leading down to the shore. The area was visually inspected and no surface traces of historic properties could be identified. The Coco Palms Reso1t tJ:act is developed with hotel buildings and cottages, a coconut grove, tennis courtst i:t water feature (referred to as a lagoon), and asphnlt paved driveways and parking areas (see Figure 3). The coconut grove covers most of the mauka side of U1e property, west of the lagoon. The grove contains approximately 2000 coconut trees planted in rows. North of the coconut grove is the area of the tennis courts and, to their southeast, the zoo. The tennis courts included both asphalt and clay court swfaces. The zoo consists of fenced-in cages, some with concrete floors. Between the lagoon (former fishpond) and the grove is a line of cabins, including one that is famous for being El vis Presley's favorite. The trees in. this area of the grove have plaques marking their planting by notable guests of the hotel, including actor Gene Autry and archaeologist Kenneth P. Emory. 'I11e lagoon is in more or less the same location as Debora Kapule's fishpond, though it has been modified in modern times. The lagoon, is now lined with cement boulder walls, and includes several footbridges spanning it. East of the pond are the main resort buildings, including the lobby, dining areas, swimming pools and hotel buildings. On the east side is an asphalt driveway that leads to paved parking areas at the north and south ends of the hotel. At the extreme north end of the project area is the remains of an old wooden stmcture on a concrete pad that is the remains of the old clubhouse, This clubhouse was used as n check-in place for visitors to the grove and the zoo; it also once hnd a small cafeteria located inside fo:r the visitors. Visual inspection of the entixe property did not identify any historic cultural properties, with the exception of the fishpond, which has been signnicantly modified from its original �'tate into a :i:esort water feature, B.Strntiglt'aphy Following are stratigraphic profiles for backhoe trenches as excavated in the field. h1 general,two main types of stratigraphic sequences were encountered within the exposed walls of the backhoe trenches. The first type included many of the trenches excavated near the resort l;mildings, which were disturbed or backfilled during construction activities (Figure 14) and contained fill layers of red clay loams. In Trenches 75, 76, atid 86, this fill was found around an old wooden stmcture that was used as a clubhouse and a visitor c;heck-in center when the hotel and zoo were open. The ground below the clubhouse was artificially raised about 3 feet above the surrounding area by the placement of this fill. In Trench 86, this fill extended to a depth of 130 cm and greater. In some cases, undisturbed marine sand sediments remained below disturbed layers. None of these trenches showed any traces of in situ historic cultural features, 41 !Agaod \lQC Location bf N11mbercd \ ·Archmlogtca!Tetnenchu \xx Nun,ber&loatlonofCSHMarch200S \ Arch�eolog!calTestTrenches ;Trenches with disturbance due to inodeni comtruclforiattMtles · �,. • .• •,,.,.. ···• •• l .., 0 .. ,.. -01 >,,,,,. , . o too . 200 ;100 . <100 soot, Results of Fieldwork Figure 14. Diagram of project area showing backhoe trenches where sediments were significantly disturbed by modem const111ction activities 42 Results of Fieldwork In general. the natural stratigraphy of the project area �nsisted of three major layers. The first was a dark brown loamy-sand topsoil (Stratum 1). Below that was ru.1 olive yellow loose medium coralline sand layer (Stratum TI). The deepest deposjt was generally a compact fine sand, in some areas cemented into pebbles, varying in color from light yellow to gray (Stratum IV). ln several trenches to the south and the northwest of the coconut grove, a dark giayish brown sandy loam layer was found between Strata II and r.v. This layer was associated with the few cultui-al remains on the property and is therefore identified as a cultural layer (Stratum ill)conesponding to State Inventol'y of Historic Places site. number 50-30-08-1711 (Buffum and Dega 2002). None of the trenches excavated in 2005 in the northeastern comer of the project area contained Stratum m. Additionally, several trenches included clays or gleyed sediments, usually below a sand lnyet (Sttatum V); again. none of the six trenches excavated in 2005 contained any clay or gleyed layers. Patterns that cnn be seen from the trenching include the historic landscape, nnd arens of traditional cultural activity, Figure 15 indicates areas within the project area where Stratum Ill, a cultural layer, was identified. Figure 16 indicates which backhoe trenches had either boulder fill or clays and/or gleyed sediments. Clays and gleyed sediments are fonned'in low energy, wet environments, and in thls case probably indicate a marsh fonnerly existing within the project area. Boulder fill layers indicate _previously low-lying areas of Hie site that were later filled (sometime in the late nineteenth century) to create a level landscape on which to plant the coconut grove. Both boulder fill. layers and clay layers indicate the remains of a low-lying marsh located behind the fishpond (see Figure 16). The location of the Seashell Restaurant was also tested with three backhoe trenches (see Figure 94. Figure 95 1 and Figme 96). These backhoe trenches indicate a natural basalt outcrop with a layer of fill upon which constmction of the restaurant took place. No cultural remains were encountered. 43 \ Archaeofogk•I Test T"nches hx· Numb11r &Locatllln of CSH 2005 ,�· Arcl1Hologk:aJT�itTrend1es Trenches With tUhllnll rem!lns • 0 0. 100 200 300 �00 SOO/t I \ J\rchaeologlcol Test Trenches l Arthaeologka!Tot1tT1enches · o 100 200 aoo ,ioo SOOfi 45 0 ....... ------------------------------------------, 50i- S!r.llI Str.IVb Str.I Sn; II Str.lVa Trench2 k I 47 ir,,,cfa3 0-3 !nC:ffTIMEl'ER:$ l /fti/•'") Results of Fieldwork O,;;--------------------------------------------------'"------ 50�� - 100 !Sll cm Figure 19. Profile of Trench 3, west wall Sttatum I: 10 YR 3/2 very dark grayish brown sandy loam, loose, structureless modem A-horizon with numerous roots and rootlets Stratum II: 2.5 Y 6/6 olive yellow, loose, structureless fine to medium coralline beach sand Stratum !Vb: 10 YR 712 ligbt grey, fine, compact beach sand with small lens� of lithilied sand and streaks of olive fme sand48 ile!lth4 :s .. c� !! Results of Fieldwork 0 ........ --------------------------------------------------------,= .. 111'l 150 en Figure 20. Profile of Trench 4, west wall Strarum.I: 10 YR 3/1. very dark grayish brown sandy loam, loose, structureless modem A-horizon with numerous roots and rootlets Stratum II: 2.5 Y 6/6 olive yellow, loose, strucilJreless fme to medium coralline beach sand Stratum IVb: 10 YR 7/2 light grey, fine, compact beach sand with small lenses of lithified sand 49 TrenchS 0 2S SO ct:!'lT1METERS { t *i Results of Fieldwork 0·..,_---------------------------------7 Str.I S!io!I sir.n 50 Stem StIV cm Figure 21. Profile of Trench 5, west wall Stratum I: Stratum.II: Stratum III: Stratum IV: 10 YR '212 very dark brown sandy loam. loose. structureless modem A-horizon with numerous roots and rootlets 2.5 Y 6/6 olive yellow, loose, structureless fine to medium coralline beach sand .10 YR 4/2 dark grayish brown sandy loam. weak, fine, crumb structure 10 YR 7/2 light gray, fine. compact beach sand with small lenses oflithified sand 50 0 2S MC!a)JTIIEW\$ 51 1 iror.dl7 rootlets pale silt loam. blocky structure, very plastic Trenc.'18 Str.U Trecch9 very rootlets n.nch ll ii ::!S socn.-m= Figure 27. Profile of Trench 11, east wall Results of Fieldwork Stratum I: 10 YR ·2/2 very dark brown sandy loam, loose. stractureless modem A-horizon with numerous roots and rootlets. Two pits extended into Stratum Il, which were probably the :remains of old coconut trees Stratum II: 2.5 Y 6/6 olive yellow, loose, structureless medium coralline beach sand Stratum m:10 YR 4/2 dark grayish brown sandy loam, weak, fine, crumb structure. Stratum m here contained flecks of charcoal, and a sparse amount of midden, and was bounded by several small boulders Stratum IV: 10 YR 7 !2 light gray, fine, compact beach sand with small lenses of lithi:fied sand 56 Results of Fieldwork Troncb12 D .... _ .�5 ._S9C� a�----------------------------,.---r----------------------------, Str.I SIT.I cm Figure 28. Profile of Trench 12, east wall Stratum.I: Stratum II: Stratum III: 10 YR 2/2 very dark brown sandy loam, loose, structureless modem A-horizon with numerous roots and rootlets, pit features appear to be the remains of coconut trees. 2.5 Y 6/6 olive yellow, loose, structureless medium coralline beach sand 10 )'R 4/2 dark grayish brown sandy loam, weak, fine, crumb structure. This is identified as a cultural layer, a single basalt flake (Ace# A-1) was recovered from this layer. Pit features appears to be the remains of a coconut tree Stratum IV a: 5 Y 5/3 olive, fine, compact beach sand with small lenses of lithified sand Stratum !Vb: 10 YR 7/2 light gray, fine. compact beach sand 57 Results of Fieldwork Tr>:nch13 IL 2!i !Ocen!£T8\S 0 --�..... Sin( EC 100 103 c,a o a0 Oo 0 is,,,.n 0 D 0 0 CJ 0 () Figure 29. Profile of Trench. 13, west wall Strannn.I: 10 YR 2/2 very dark brown sandy lonm. loose, sttuctureless modem A-11orizon with numerous roots and rootlets. Metal artifact, possibly part of a hinge. was found in the upper part of Stratum l Stratum JI; 2.5 Y 6/6 olive yellow. loose, structnreless medium coralline beach sand. Stnm:un II contained many medium sized boulders that e1;.tended into Stratum IV making the boundary between the two difficult to discern. Stratum IV: 10 YR 7 /2 light gray. fine, compact beach sand with small lenses of lithified sand, with a few basalt boulders 58 Trendi1� ·�-,,,.. � Results of Fieldwork S,,-,1 ODO�n'voo() \] �Va �D DoOa��Rol) Q\J 0 \l -c;� ... Figure 30_ Profile of Trench 14, west wall Stratum I: 10 YR 2/2 very daik brown sandy loam, loose, structureless modem A-horizon with numerous roots and rootlets Stra1nm II: 2.5 Y 6/6 olive yellow, loose, structureless medium coralline beach sand. Stratum II contained many medium sized boulders as fill Stratum IV: 10 YR 7/2 light gray, fine, compact beach sand with small lenses of lithlfied sand 59 S<?.l 616 Trench 16 0 25 50 CENllMEERS I. \f@MdMii Yj Results of Fieldwork 0-,-------------------------------------------, Sir.I 100 � _....,.,....,. �������'%.�����,�,m an Figure 32. Profile of Trench 16, east wall Stratum I: 10 YR '112 very dark brown sandy loam. loose, structureless modem A-horizon with numerous roots and rootlets Stratum Il: 2.5 Y 6/6 olive yellow. loose, structureless medium coralline beach sand. Pit feature is probably the remnant of . a coconut tree Stralnm IV a: 5 Y 5/3 olhre, fine, compact beach sand Stratum Nb; 10 YR 7 /2 ligb.t gray, rme, compact beach sand with. small lenses of llthified sand 61 Tte:i<:hn o __ ,,. -"'�_. 50 l'!tl 1oti-JS1r.Il\ ( SX,,1!1 CD Sl.X Figure 34. Profile of Trench 18, west wall Results of Fieldwork .,... Stratum I: -10 YR 2/2 very dark brown sandy loam. loose, structureless modem A-horizon with numerous roots androotlets Stratum II: 2.5 Y 6/6 olive yellow, loose, strucn.u-eless medium coralline beach sand Pit 1: 10 YR 6/6 brownish yellow loamy sand, medium granular structure Pit 2: 10 YR 3/4 dark yellowish bro\Vll structureless medium sand Stratum III: 10 YR 4/2 dark grayish brown sandy loam. weak, fine, cromh structure 63 Tre.'lch19 o 25 ro csm1'!!!JE!'S l e-1 Results of Fieldwork 0 S�J 50�'-1_ -- _, VCJ CTo05 C)o OOGOQ D () )) Srr.o.]I <J n �DO f::." ?::=G �(5 Q O 9 -� �� '()"' � () I- s,r.n � Illl Or--. o a 0'1 1ro �o en, Figure 35. Profile of Trench 19, west wall Stratum I: 10 YR 2/2 ver:y dark brown sandy loam, loose, structm:eless modem A-horizon with numerous roots and rootlets. A �all pit feature at the center of the trench had a few flecks of charcoal Stratum II: 25 Y 6/6 olive yellow, loose, structureless medimn coralline beach sand with small to medium. boulders as fillin.most of trench Dark lens: 10 YR 3/2 very da:rk. grayish brown medium sand Black lens: 5 YR 2.5/1 black medium sand Stratum IV a: 5 Y 513 olive, fine compact beach sand Stratum IVb: 10 YR 7 /2 light gray, fme, compact beach sand with small lenses of lithified sand Fill: 10 YR 3/2 ver.y dark grayish brown medium sand with pebbles64 oL�o 616 :;o lC!J a:, Trf!ldt:12 0 25 SllCEWII.EEm I.I D Q P. O � O u8 f} <qoo �o�� o _ -oo o o. Results of Fieldwork S:l:I cfii)o Figure 38. Profile of Trench 22, east wall Stratum.I: Stratum II: Fill: Stratum IV: Gley: 10 YR 212 very dark brown sandy lo� loose, stroctareless modem A-horizon with nmnerous roots and rootlets 2.5 Y 6/6 olive yellow, loose,. structureless medium coralline beach sand 7.5 YR 5/6 strong brown loamy sand with 15% basalt cobbles and pebbles 10 YR 7 n light gray, fme, compact beach sand with small lenses of litbified sand 5 GY 4/1 dark greenish gray silty clay 67 Results of Fieldwork T"""'123 o·.--------------------------------------------------, so 100 Cftl SbeIV• So,.l Ill:! Figure 39. Profile of Trench 23, east wall Stratum. I: 10 YR 212 very dark brown sandy loam, loose, structureless modem A-horizon with numerous roots androotlets Fill: mixed layer, 2.5 Y 6/6 oli'Ve yellow, loose. medium beach sand with numerous basalt cobbles and boulders, numerous roots and rootlets, and inclusions of 10 YR 4/3 weak red clay Stratum IVa: 5 Y 5/3 olive, fine, compact beach sand Darker lenses: 10 YR 4.5/� dark gr,ey fine compact beach sand 68 TrO!ldi24 0,-,---------------------------------------------------------------,,. Results of Fieldwork Tr,:m:h2S Stt..I -� - � ,Cs ... rn �Figure 41. Profile of Trench 25, east wall Stratum I: 10 YR 2/2 very dark brown sandy loam. loose, structureless modern A-horizon with numerous roots androotlets Stratum II: 2.5 Y 6/6 oli've yellow, loose, structureless medium coral.line beach sandDark sand lens: 10 YR 3/3 daik brown, loose, fme sand Stratum IV a: 5 Y 5/3 olive. fine, compact beach sand with lenses of lithified sand Stratum IVb: 10 YR 7 /2 light gray, fine, compact beach sand with smrul lenses of lithified sand Gley: 5 GY 4/1 dark greenish gray silty clay 70 Sir.I �ncll2S 0 2$ fill ceaf.l!elSS ' 1 D S�l Figure 44. Profile of Trench 28, east wall Results of Fieldwork Stratum.I: 7.5 YR 3/2 dark brown sandy loam, loose, structureless modem A-horizon with numerous roots and rootlets, ;wifu cobbles on north end of trench Stratwnil: Fill: 2.5 Y 6/4 olive yellow, loose, structureless medium coralline beach sand 5 YR 4/4 reddish brown very gravelly loamy sand 73 Trench.29 � .. �� Results of Fieldwork 111,;J Figure 45. Profile of Trench 29, east wall Stratum.I: Stratum.TI: Fill: 7.5 YR 3/2 dark brown sandy loam, loose, structureless modem A-horizon with nmnerous roots and rootlets 2.5 Y 6/4 olive yellow, loose, structureless medium coralline beach sand 2.5 Y 6/6 olive yellow, loose, structureless medium. coralline beach sand with small to medium boulders as fill in most of trenchStratum IV: 2.5 Y 7/3 pale yellow, fine, compact loamy sand, vvith small lenses of litbified sand 74 Trend131 •� ECcerr.'� Results of Fieldwork Figure 47. Profile of Trench 31, east wall Stratwnl: Pit: Stratum.II: Fill: StratumV: 10 YR 2/2 very dark brown sandy loam. loose, structureless modem A-horizon with numerous roots and rootlets mix. of sediments from Strata I and II, probably the remnant of a coconut tree25 Y 6/6 olive yellow, loose, structureless medium coralline beach sand 10 YR 5/3 brown sandy loam, weak g,:anulru: stroctur� 2.5 Y 7 /3 pale yellow silt loam, weak blocky structure, very plastic Stratum IVa: 5 Y 5/3 olive, fine, compact beach sand 76 ·Results of Fieldwork.Tienm32 il---,----------------------------------------------------------, 5ll 1CO cm Figure 48. Profile of Trench 32. east wall Stratum I: 10 YR 2/2 very daik brown sandy loam, loose, structureless modem A-horizon with numerous roots and rootlets Pit 1: mix of sediments from Strata I and n. probably the remnant of a coconut tree Stratum Il: 2.5 Y 6/6 olive yellow, loose. structureless medium coralline beach sand Stratum Va: 2.5 Y 5/3 light olive brown silty clay, weak blocky structure Pit 2: mixed Strat.a II and Va Stratum Vb: 2.5 Y 8/2 pale yellow sandy clay, weak granular structure 77 '!lerol� �� Results of Fieldwork. 01,-------------------------------------------------------,,� tu 11!1> 1e) CD Figure 49. Profile of Trench 33. west wall Stratum I: Stratum II: Stratum IV: Stratum V: 10 YR 2/2 very dark brown sandy loam, loose. structureless modem A-horizon with numerous roots and rootlets 2.5Y 6/6 olive yellow, loose, structureless medium co�alline beach sand 25 Y 713 pale yellow, fine, compact sand, with small lenses oflithified sand 2.5 Y 7/3 pale yellow silt loam, weak blocky structure, very plastic 78 -· -· ... ··-···"-•-----------------------------------Results of Fieldwork Tren::hl4 n .s Sl ca-m:A= lmii..i!- S,,:J 6l cm Figure 50. Profile of Trench 34, east wall Strarum I: 10 YR m very dark brown sandy loam, loose, structureless modem A-horizon with numerous roots and rootlets Stratum Na: 5 Y 5/3 olive, fine, compact beach sand 79 L_____ls ___ soceNr.lEWls So:.I 100 'Til:n<lllS . ,. �-.,,,,...Figure 52. Profile of Trench 36, east wall Results of Fieldwork Stratum I: 10 YR '1J2 very dmk brown sandy loam, loose, structureless modem A-horizon with numerous roots and :rootlets. Pit features are probably the remains of coconut trees Stratum II; 2.5 Y 6/6 olive yellow, loose, strucl.llreless medium coralline beach sand Stratum IV: 2.5 Y 7/3 pale yellow� fine, compact loamy sand, with small lenses oflithified.sand 81 Tr�ch37 Straruml: Trenc:h3S Tcvnch31l Q_____l'!I 111e� Figure 55. Profile of Trench 39, east wall Results of Fieldwork.Slnl Stratum I: 10 YR 212 very dark brown sandy loam,. loose, structureless modem A-llorizon with numerous roots and rootlets Stratum, II: 2.5 Y 6/6 olive yellow, loose, .structureless medium oomlline beach sand 84 Figuie 57. Profile of Trench 41, east wall Results of Fieldwork Stratum I: 10 YR 2/2 very dark brown sandy loam, loose, structmeless modem A-horizon with numerous roots and Stratum IV a: Y 5/3 olive. fine, compact beach sand Fill: mixed Strata I and IV a with numerous roots and rootlets Gley: 5Y 4/2 olive gray sandy clay, weak subangular structLn"e, vecy sticky Trendl-42 0 2S 50CB<T1'1En'l".3 •;;a., I Results of Fieldwork 0.....---------------------------------------------------------------= �It �t L -----;;�lc-;;;rY ----------·��� Wota- Figure 58. Profile of Trench 42, west wall Stratum.I; 10 YR 2/2 very dark brown sandy lo� loose. structureless modem A-horizon with numerous roots and rootlets Stratum II: 2.5 Y 6/6 olive yellow, loose, structureless medium coralline beach sand. Pit is mixed Strata I and II. probably the remnant of a coconut tree Stratum IV: 2.5 Y 7/3 pale yellow, fine, compact sand, with small lenses oflithified sand 87 0 2S !!CC=i(T= 1�0 an Sttjy Y 616 OF-�� - Trench46 D 25 e:J CEM".1,!ETE.'t9 I ! ! Results of Fieldwork S!r.l 50--t----. 1Cl) 1:U C!IJ -��---Figure 62. Profile of Trench 46, east wall Stratum I:10 YR 2/2 very datk brown sandy loam. loose, structmeless modem A-horizon with numerous roots and rootlets. Pit features are most likely the remnants of coconut trees Stratum.II: 2.5 Y 6/6 olive yellow, loose, structureless medium coralline beach sand 91 s, 100 .,,, TrencM7 �=Results of Fieldwork. 1'11 .... iv Figure 63. Profile of Trench 47, west wall Stratum I; 10 YR Z12 very dark brown sandy loam, loose, structureless modem A-horizon with numerous roots and rootlets Pit: mix of strata I and JI Stratum II: 2.5 Y 5/4 light olive brown, loose, structureless medium coralline beach sand Stratum IV: 2.5 Y 7/3 pale yellow, fine, compact sand, with small lenses oflithffied sand 92 Figure 64. Profile ofTrench48, east wall very sandy rootlets yellowish brown. fine. compact Stratum very gray silt loam, weak blocky stmcture Stratum VII: 10 YR 4/2 grayish "brown structureless medium sand gray loamy 11!!1 cm T!1'ni:lt50 so,1 Sir.IV• very loose, A-horizon with light light Trend,53 o :,s sa�s Results of Fieldworlc 0....,..,---------------------------------------------------------------... Gl 100 cm Figure 69. Pro.file of Trench 53, east wall Stratum I: 7.5 YR 2.5/3 very dark brown sandy loam, weak granular structure, modern. A-horizon with numerous roots and rootlets Stratum II: 2.5 Y 6/6 olive yellow. loose, structureless medium coralline beach sand Stratum IV a: 5 Y 5/3 olive, fine, compact beach sand Stratum !Vb: 10 YR 7/2 ligb.t gray, fine, compact beach sand with small lenses of lithified sand ·98 1lench:S:t 0 25 E3C8/r.Y.ElERS b w a !3 Results of Fieldwork 0 .... -----------------------------------------------------------, St!:.l i -= au-tS=mp!c,�,hn(/� SlcII ---.::::: � S!l<m Sb.m> � � Figure 70. Profile of Trench 54, east wall Stratum I: 7.5 YR 3/3 daik. brown clay loam, moderate. fme blocky structure with numerous roots and rootlets Stratum II: 10 YR 212 very dark brown structureless loamy sand. A charcoal concentration was collected from this level for radiocarbon dating (sample WAlL7-02). Results indicate a modern date for this level. Stratum Ilb: 2.5 Y 613 light yellowish bro'Wll strnctureless medium sand Stranlln III! 10 YR 3/1 very daxk gray silty clay, weak blocky structure. A sample of sediment ·with charcoal was collected for radiocarbon dating (sample W AIL7-0l). Results indicate a date range of A.D. 1430 -1500 (see Appendix A). Stratum IV: 2.5 Y 6/4 light yellowish brown compact fine sand Stratum V: 5 YR 3/4 dark. reddish brown gravelly silt loam, moderate blocky structure Stratum VIa: 2.5 Y 6/2 light brownish. gray structureless loamy sand Stratum V.Ib: 2.5 Y 5/4 light olive brown structureless medimn sand Stratum VII: 10 YR 4/2 dark grayish brown loam, weak granular structure 99 Trench55 O 25 50 CENTIMETERS 0 25 50 CENTIMETERS Trench57 Figure 73. Profile of Trench 57, west wall TienchS!I Figure 74. Profile of Trench 58, north Stratum II: very sandy rootlets with small of lithified TA?nch59 fOO� .104 1rand>ro o '25 SCCENTffiEIERS Results of Fieldwork Q Stl,l illD 1eu Clll -��������������-=a..������----:����======�J.a:fD!Ctm.eatcrJS:i.a/ --. .._ ,,_ ,,- �tr.I.Va Figure 76. Profile of Trench 60. north wall Stratum.I.: 10 YR 2/2 very dark brown sandy loam, loose, structureless modern A"horizon with numerous roots and rootlets Stratum Na: 5 Y 5/3 olive, fine, compact beach sand with a lens oflithified sand Stratum VI: 5 Y 4/1 dark gray compact strucrureless loamy sand with numerous marine shells and small pieces of cmal 105 Trench62 0 25 60 CENTIMETERS &;uiiiJ?"':• ':"i Results of Fieldwork ·o"r'=============-=�-====-=====-==-�===--=--==-==---=, Sir,I 50 100-,_ - - - - - 150 cm Figure 78. Profile of Trench 62, east wall Stratum I: 10 YR m very dark brown sandy loam, loose, structureless modem A-horizon with numerous roots and rootlets Sand fill: 10 YR 5/4 medium loose sand fill Strata.m IV: 2.5 Y 7 /3 pale yellow, fine., compact sand, with small lenses of lithified smd 107 0 � Results of Fieldwork Trench65 50 110 Trer1�h66 o 2S 5!l CENTIMETERS l 4 Results of Fieldwork 0�= �-------�=-=:d :'i: 50 Fllll 100 Gl.yU -Wata'fsble--- - 150 .200 �'"""�""''""'"'""-�'-'0.'-'"""'""'"'"'"�"»'-'�""'""""""'"'"""''"""'�"'""-""'""'"'�"'"'\S',,'-"-'""""'�""""""''''""""''"'"''"'-''"''"'�'''''''�'"''''� an Figure 82. Profile of Trench 66, north wall Stratum I: Fill 1: GleyII 10 YR 3/3 dark brown silty sand, weak fine crumb structure with abundant roots 7.5 YR strong brown structureless fine sand construction fill with abundant roots 7.5 YR 3/4 darlc brown structureless clay loam 111 Results of Fieldwork Trencl\67 • 2! s:JC9/!1� .;;;.;;;;;e::s 0,-,--------------------------------------------------:;i c,.,,,mrU4!llrS,,,C,:'n::1< Figure 83. Profile of Trench 67, north wall Fill 1: Fi112: Gleyll: 10 YR 4/2 dru:k grayish brown loose structureless sandy loam fill 15 YR 5/1 gray loose structureless sandy loam fill 10 YR 2/1 black structureless sandy clay 112 ____ lf�"f::ii'bl• ---- �Coaatte Results of Fieldwork T11!nch69 0 __ 25 ��� Fllll 0 l'VCFl;t :str.tv = -Figure 85. Profile of Trench 69, east wallFill I:10 YR 5/4 yellmvish brown structureless sandy loam fill Stratum IV: 25 Y 7/3 pale yellow, fine, compact sand, with lenses of 10 YR 5/4 yellowish-brown, 10 YR 413 brown, and 10 YR 8/4 very pale brown fine snnds 114 50 100 150 115 V "" !lOCENTIMET9.S 116 Trench72 0 ;zs 5:>CENliMaERS \y , .HQ.9'¥45iri#4j Results of Fieldwork 0 l-1 n n o St:-.I ___ -== � 00 100 150 an Figure 88. Profile of Trench 72, west wall Stratum I: 10 YR 3/3 dark bro'WD. silt loam, loose, structureless modem A-horizon with mnnerous roots and rootlets Stratum II: 2.5 Y 6/6 olive yellow. I oose, structureless fine sand Stratum VI: 5 Y 4/1 dark gray compact structureless loamy sand 117 Tiench73 Trench 74 0 25 50 CENTIMETERS 50.--+..'-''" 100 cm very and 119 Trench75 D 25 50 Cl:NTlMETERS leir t¥1@f&1iiki:!1 Results of Fieldwork 0-...-------------------------------------------------- 50 100 cm C: ModcmimnPit Str.IVa Str.I �migat,,d 'Jin 0 0 Modern Imnl'itFigure 91. Profile of Trench 75, north wall Stratum.I: ImuPit: 10 YR 'JJ2 very dark brown sandy loam, loose, structureless modem A-horizon with numerous roots androotlets Mixed tqpsoil and sand with small boulders and a piece of conugated tin. The groundkeeper :informed us that this was the location of the imu pit or underground oven for the resort's luau in modem times. Stratum IVa: 5 Y 5/3 olive, fine, compact beach sand Stratmn IVb: 10 YR 712 light gray, fine, compact beach sand 120 Trendl7li G 15 ,o Cl':ttfMm:!>.S 0 ------- CII � Figure 92. Profile of Trench 76, west wall l'llll FnH Fill 1: 10 R 3/4 dusky red clay loam fill, moderate blocky structure Fill 2: 2.5 YR 4/6 red silty clay loam fill, weak blocky structure with modem trash inclusions 121 Results of Fieldwork Trnnch77 0 "5 .., CENT1!,SERS E 9 Results of Fieldwork 0 ...... --------------------,----------------------------------------------""1 m1: C.o=le Figure 93. Profile of Trench 77. north wall Fill 2: 2.5 YR 4/6 red silty clay loam fi11, weak blocky structure with modem trash 'inclusions 122 Trench 78 0 25 50 CENTIMETERS Results of Fieldwork Figure 94. Profile of Trench 78, north wall Fill I: 2.5 YR 4/4 reddish brown clay loam fill, fine crnmb structure with 25% cobbles and boulders. Inclusions of modern construction rubbish 123 Trench79 0 25 50 CENTIMETERS Luiaw,tfl!:V4WPGj 0-.:----...::::-------------------------, 100 150 cm Figure 95. Profile of Trench 79, east wall '-FnD.Il - - - -, ____ __ - - Results ofFieldwork Fill II: 7 .5 YR 4/6 strong brown .structureless silt. 75% cobbles and boulders, overlying natural basalt outcrop 124 0 25 50 CENTIMETERS Results of Fieldwork � 25 ·sll.OSr-tnM�s�iF4 n em .. ===� = �:; : == � = : j ±== == := .. - � �1:,-y _ _:.:�ci-T.ibl!> _ ...... , �-�----· '� 15m:i•Frn?. �mIV Figure 97. Profile of Trench 81, north wall Asphalt smfacing Sand Fill 10 YR 6/4 light yeJlowish brown. loose, structureless, very coarse sand human deposit as base layer for asphalt surfacing above Stratum!: 10 YR 3/2 dark brown loose, structureless, very gritty, silty clay with numerous (palm) roots -possible fill layer Stratum IV: 10 YR 6/3 pale brown, loose structureless medium coarse natural beach sand Stratum v� 10 YR 5fl gray, loose, structureless, fine sand forming namral bottom layer; lower boundary for this stratum was not reached but water table was en.colllltered at 184 cm below surface at 1:30 p.m., March 22. 2005 126 Q. 25 50cm !\lr,Il $1dV Figure 98. Profile of Trench 82, north wall Fill 1: Asphalt surfacing Fill 2: Gravel Results of Fieldwork 1:ilU F'iU.· Fffil E!l.4 Fill 3: 10 YR 4/6 strong brown sandy loam; weak, medium subangular blocky structure; friable when moist; slightly sticky and non-plastic Fill 4: 10 YR 7/2 light gray medium sand with coral gravel with granular structure and has a loose consistency Stratum II: 10 YR 6/6 brownish yellow, structureless fine sand with some lithified cobble-sized sections Stratum N: 10 YR 7 /2 light yellowish brown. structureless, coarse sand Stratum V: 5 YR 4/1 dark gray compact, structureless sand; lower boundary for this stratum was not reached but water table was encountered at 170 cm below surface at 12:00 p.m., March 22, 2005 127 0 � :&,,c:,:i. i;;;;.,.-?S Results of Fieldwork: ... f -" ::.:__ -:: ::=§= ,;,; A:e�; . :: - :: : : :: : : J-m• .!,10t1lll mi too Figure 99. Profile of Trench 83, east wall Fill 1: Fill 2: Fill3: Stratum.IV: Asphalt surfacing 10 YR 6/6 brownish yellow, loose, ve:ry coorse sand used as base course for asp.halt surface above 10 YR 2/1 black, loose sandy loam; human fill layer 10 YR 3/1 very dark grey, loose, structureless pebble/gravel layer used as base course for asphalt 10 YR 6/4 light yellowish brown. loose, fine to medium natural sand layer; lower boundary for this stratum was not reached but water table was encountered at 120 cm below surface at 11:30 a.m., March 22, 2005 128 o '25 50cm twWil!� Results of Fieldwork O�rn�.-----�� S!:r..ln �em 100,cm.J,,_. 150 i;m V/Lll///ll/////////////ll/ll///1.//'//llll// ,r ll/llllJf /Fll///ll.rllllllJ/LQUf#{/.LEUE.£ll:!ZVf'fA Figure 100.Pro:ftle of Trench 84, east wall Stratum Ia: 10 YR 2/2 very dark brown, strucrureless., loose. sandy loam that is slightly plastic; terrestrial topsoil with high amount of palm roots Stratum IV; 10 YR 7/4 very pale brown. structureless, loose, fine to medium sand with abundance of palm roots; old beach sand layer Stra.tmn V: 10 YR 5/2 grayish brown, structureless, loose, medium coarse natural sand layer with no roots present; lower boundary for :this stratum was not reached but water table was encountered at 110 cm below surface at 10:30 a.m., Match 22, 2005 129 0--., 1•· .0 25 50cm �� Results of Fieldwork Sir. i! F'tll4 Ste.IV 100� Figure 101. Profile of Trench 85, west wall Stratum.I: Fill 3: 10 YR 2/2 very dark bro� structureless, loose, slightly plastic. silt loam containing high am.mm.ts or palm and fem roots as well as other plant debris IO YR 4/4 dark yellow brown, loose, structureless� sandy loam containing root structures tbroughout; profile of pit shape discemab1e, probable filled area frommodem day activitiesFill 4: 10 YR 7 /4 very pale brown, structureless, loose, medium to coarse sand with some palm and fem roots presentStratum IV: 10 YR 3/2 very dark grayish brown. loose, structureless sandy loam with some palm roots: lower boundary forthis strntum was not reached but water table was encountered at 138 cm below surface at 10:30 a.m., March 22, 130 Results of Fieldwork Laboratory Analysis V. LABORATORY ANALYSIS A.Artifact and Midden AnalysisCultural materials were very sparse over the extent of the project area (Table 4 and Table 5).Only five trenches yielded cultural finds. Trench 11 contained a probable hearth, as it contained flecks of charcoal and a small amount of midden and appeared to be lined with boulders. Trench 12 contained a basalt waste flake (Ace# A�l, Figure 103) and a small amount of midden. A modified "hump-back" cowrie shell (Cypraea maculifera) used as part of an octopus lure (Ace#A-3, Figu re 104) was found in Trench 25 during backhoe excavation. The cowrie shell :measures10 cin in length and has small perforations on the adapical and abapical ends of the dorsalsurface. The ventral inner lip of the shell has also been broken off. The breakage pattern of theinner lip is a signature of the normative traditional Hawaiian pattern of meat extraction. Thedorsal perforations are the traditional Hawaiian pattern for the manufacture of octopus lures. Noother cultural remains were observed in this trench. Trench 45 yielded by far the most culturnlmaterial. Two basalt waste flakes (Acc. # A-4 and A-5, Figure 105 and Figure 106)1 a smallamount of midden, and charcoal were found in StJ:atum Ill or near its upper boundary. Trench SOcontnined a hearth feature. but did not yield any midden or artifacts.The relative paucity of cultural materials across the site and the discontinuous nature of Stratwn III indicate that in traditional times the site may have been used on a temporary basis, The artifactua1 record supports this conclusion, as most artifacts recovered consisted of small basalt flakes that could have been used for single tasks and then discarded. Another explanation for the lack of cultural traces may also be due to the fact that most of the ptoject area behind the fishpond appears to have been a marsh in the past. In examining the distribiltion of cultural remains, this explanation seems very plausible as the traces of human occupation occur on the edges of what would have been the marshy area. An e�ception to the transient artifact record is the cowrie shell octopus lure. This artifact is difficult to place as it was found during backhoe trenching and not in situ, and no other cultural remains were found here. The species used is less common than the more frequently encountered Cypraea maculifera (Reticulated Cowrie) shells used in octopus lures and the artifact is a particularly large specimen. This artifact is reminiscent of the large helmet shell found during excavations in 1973. Both are excellent examples of their type and fit well with the idea that this area was reserved for royalty in late traditional times. Trench 13 also yielded an artifact of historic orig.in (Ace # A-2), This artifact is a hollow metal tube with two flanges with holes for small screws or nails on the underside (Figure 107), The function of this object is unknown; it may be part of a hinge, 132 Laboratory Analysis Table 4. Artifact catalog Ace Depth Length Width Thickness Weight Artifact # Trench Stratum (cmbs)-(cm) (cm)(cm)(gm) Mat.erial Tvoe Photo waste Figure A-1 12 ill 60 2.8 1.7 0.4 2.9 basalt flake 1 Figure A-2 13 I 10 9 1.3 1.3 46.2 metal binge? 5 modified cowrie shell ( Cypraea octopus Figure A-3 25 IV 40 10.1 6.8 5.4 135.8 maculifera) lure 2 waste Figure A-4 45 ill 75 3.2 1.6 0,3 1.3 basalt flake 3 waste Figure A-5 45 m 85 2.5 1.6 03 1.2 basalt :flake 4 Table 5. Midden catalog Species Trench/Stratum ( amounts given in !!rams) Trench 11 Trench 12 Trench25 Trench45 Stratum.III Stratum.ID Stratum IV Strata IV /III Stratum.ill Marine Neritina wcmosa 4.8 0.2 unidentified bivalve 11.2 unidentified fish 0.3 Terrestrial unidentified mammal 1.1 1.4 unidentified nut/gourd shell 0.4 Totals 5.9 0.2 0.3 12.6 0.4 133 .. -� . ., . � . . ! . .. ·• . . �. . .. ·,Flgure 103. Photograph of 11rtifact Ace# A• 1, basalt flake Figure 104. Photograph of artifact Ace# A-.3, cowrie shell iure 134 Laboratory Analysis 135 Laboratory Analysis D.Radiocru:bon Dating In total, eight charcoal and sediment samples were sent to Beta Analytic in :Miami, Florida for radiocarbon dating (Table). Two samples were from Pollen Core 2, one sample was from a gleyed layer that was also submitted for po11en analysis, and .five were from charcoal rich sediments located during backhoe trenching. 1\vo of these samples yielded dates that fell within modern times, Sample (Beta Lab No.) 191237 from Stratum II in Trench 54, and Sample 191239from Stratum IV in Trench 45. · · Samples 191236, 191240 and 191241 were associated with a cultural layer or with cultural finds. Dates from all three samples fall between A.D. 1400 and 1500. A single date obtained for a cultural layer in front (east) of Coco Palms along Kuhio Highway was calibrated to A.D. 1520- 1590 (40%) andA.D. 1620-1670 (27.3%). Iftheactual date of that feature falls within the earlier of the two possibilities, it indicates a very discreet chronological period for this cultural layer, despite its spatial discontinuity. Samples 191238, 191242, and 191243 are discussed below, in their relation to pollen samples and analysis and further in the summary discussion on chronology. Table 6. Catalog ofradiocarbori samples (see Appendix A) Beta Provenience of Measured 13C/12C Conventional Two Sigma Annlytic Sample 14CAge Ratio 14CAgc Calibrated Age Lab. (B.P.) (B.P.) Rangc(95% Number probabilltv) 191236 BIIT 54; St. III; 460+/-30 -27.2 %c 420 +/-30 A.D. 1430-1500 92-98 cmbs 191237 BHT 54; St II; 0 -26.2 %0 0 modem 50-65 cmbs 191238 BHT 40; Gley I;320 +/-40 -21.2 %0 380 +/-40 A.D. 1440-1640 100-110 cmbs 191239 BHT 45; St. IV; 190 +/-50 w20.5 %a 270 +/-50 A.D. 1490- 1680 69-85 cmbs A.D. 1770-1800An. 1940-1950 191240 BHT 45; St. III; 410 +/-50 w21.3 %0 470 +/� 50 A.D. 1400-1490 95-103 cmbs 191241 BHT 50; St. IV, 510 +!-30 -24.6 %0 520 +/-30 A.D. 1400-1440 Feature 1; 32-44 cmbs 191242 Core 2; 92-95 630+/-40 -25.2 %a 630+/-40 A.D. 1290-1410cmbs 191243 Core 2; 153-156 1490 +/--25.9 %0 1480 +/-40 A.D. 530-650 cmbs 40 1.2 Pollen Analysis Five subsurface soil samples were sent to Paleo Research Institute in Golden, Colorado for pollen analysis (see Appendix B: Paleo Research Institute Technical Report 04-46). Samples were chosen from two contexts, both near the existing fishpond. Smnples 1 m1d 2 were taken 136 110cmbs 160cmbs ,-----TREes ----, Laboratory Analysis �CllARCOAL #' ❖qi • � ,;-, 4-<f!" rY � � o-/. ••J> . - • . - - / ,#' "" ��ff#,;><> ,. ,I: .. .,,. &{[� "" - � / �· � ,I' �'!Wt�a:.f /,/i}JjJAJtJ? /At,�#,,/;�.,/· l, ,.. �# / "' • · �rrf-rr++H p.j!.-���" .. (!_"'&_4? :..#1 (,.Ji r:fi .;#' ,,,� .n-:7 ��- ,..p:- 0 i.;___i.;.1 r • 1 ,0 1(, °"' ,..-l'-0 , ..,,.o- ,111 u. r 7 � I ( + fl t A -I + . .A 3 I I t I r I I. I I I l ·l l t" I • j I I )f I I P [ • 41 11 I I l I I I I I I I 111 ·�lll_Llllllllllll ·L rr Figure 109. Results of pollen analysis from (pollen) secliment core sample 2 139 ' I 11 10001 1-HiB I 62711531 251 5701 137 I 3915 I 13005 I 552.5 I !X'.Xl I 5:1 I S34 I Trencht.O .. 41 4051 555f 2531-43f10Dl11148.i 0 0 .0 :!64 0 1600 0 38000 0 1:320 :1803 95 0 0 612 168 0 0 152 ST . 5 0 60 250B I Corc2 -0. 0 98 , 1639,. Site Descriptions VL SITE DESCRIPTIONS A total of two new sites and one previously documented site were recorded within the project aroa (Figure 110). Tile newly designated sites are two historic fishponds, now combined into one water feature as SIHP Site 50-30-08-680, and an historic burial ground understood as including the finds documented by Kikuchi in 1973 and now designated Site 50-30-08-681. The previously recotded site consists of an intermittent traditional cultural layer (Site 50-30-08"1711) first described by Buffum und Dega (2002) and Dega and Powell (2003). One additional site (Site 50-30-08-660), consisting of a seemingly isolated, single, historic burial was previously documented(Elmore and Kennedy 2000) in the north portion of the project area.SII:IP Site#: 50 -30-08-680 Site Type: Fishponds Function: Aquaculture, aristocracy status enhancement Features (#): 1 Age: Pre-contact, with substantial .xnodifications in the nineteenth and twentieth centuries Description: Site 50-30-08-680 is a water feature that was once two historic fishponds belonging to Debora Kapule, a member of Kaua'i's royalty. The fishponds' original extent and shape are currently unknown, but a map from 1920 indicates 1he size to be approximately �71 meters by 50 meters. A description of the pond from 1840 states: Near Debomh's residence are extensive fishponds belonging to her, which have been made with great laboiu:: they are of different degrees of saltiness. The fish are taken from the sea when young and put into the saltiest pond; as they grow larger, they are removed into one less salt, and are finally fattened in fresh water [Wilkes 1846:IV:68]. While the po11ds are much associated with Debora Kapule, and are understood to have undergone substantial renovation during her times, it seems a -virtual certainty that the ponds were functioning as fishponds much earlier. It seems likely that the ponds were a treasured property of the aristocracy of Kaua•i of long-standing. A 1923 map appears to show that Kapule's fishponds had been completely filled in with only a narrow "Wailua Coconut Grove Drainage Ditch" remaining on the northwest (mauka) side of the former ponds. This drainage ditch shown in 1923 would be basically the same as the dltch feature that parallels the mauka side of the .pond today (see Figure 3). Kawachi (1993:16) concluded the ponds were no longer extant in 1923. This is somewhat hard to reconcile with the ''Part of Wailua Kai Kaua'i" map by J.M. Lydgate dated March 1920 (Tracing by Jos. Ino Aug. 1922), which appears to show the fishponds (see Figure 7 and Figure 8) extant just three years earlior, While it is certainly conceivable that the ponds were filled in between 1920 and 1923, it may be that the ponds were overgrown with vegetation and could no longer be recognized as distinct ponds, as is suggested by Evans 1920 map, which labels the pond areas as "swamps." In the �930s, the ponds were dredged by their current. owner, A. D. Hill (Aki 1931:1), and additional modifications were made during its use as a omnmentnl "lagoon" by the owners of the Coco Palms Hotel (Flores 2000:III-7-8). It mny have been during one of these times that the original separation of the two ponds was destroyed. 140 Site Descl'iptions O t 00 .200 300 -loo 500ft .I Figul'e 110. Dlngmm of Coco Palms Rei;ort project nrea indicating locution of identified hlstoric · properties 141 Site Descriptions Today the ponds exist as an ·ornamental lagoon on the Coco Palms property. It has been dredged and reconstructed in modern times, but exists in essentially the same place as Kapule's fishpond. Attempts to core the pond for historic sediments failed due to the extensive dredging in modem times, but trenches and a pollen core truce just south of the existing pond indicate that there may be pond sediments under the current ground surface that date to early pre-contact times that may provide further infmmation on the nature and extent of the pon�. SIHP Site #: 50-30-08-681 Site Type: Burial ground (Mahunapu'uone) Function: Human interment Features (#): unknown Age: pre-contact into nineteenth century Description: Site 50-30-08-681 is a traditional Hawaiian burial ground mentioned in Mahele documents (specifically the testimony for LCA 3302 awarded to Manwe and for LCA 3346 awarded to Nawai) from 1848. The M"ahele documents relate that this burying ground (known by a name close to "Mahunapu•uone") lay no1th-northeast of Maawe's house lot (on what is now the south edge of K.unmo'o Road) extending up ruid possibly into Nawni's house lot (located in the vicinity of the e:dsting main hotel lobby entrance). Within this area, interments were likely mndo in somewhat of an ad hoc manner, and the pl'ecise extent of the burial ground is unknown. The current research did not encounter any in situ burials, but construction activities associated with the establishment of the resort (1953) and subsequent improvements (particularly those ill. 1973) disturbed many burials that appear to be pre-contact in date. Burials unearthed during early construction of the Coco Palms resort appear to be undocumented. Kikuchi (1973) briefly documents 34 sets of human remains from a major renovation effort in 1973, but infonnant testimony suggests that the actual number of remains disinterred in 1973 was approximately 85. As far as we know, all burials from this site were re-fu.ten:ed in an area in front of the "shell" building where a plaque marks the spot today. The post-contact burial (Site 50-30-08-660) documented by Elmore and Kennedy (2000) in the north end of the proje<:t area isunderstood to be quite distinct from the Mahuna_pu 'uone burying ground.Construction activities associated with the establishment of the hotel in 1953 and particularly the l'enovations of 1973 substantially impacted the core area of the site. The southern portion of the existing two entryway buildings (connected by a covered connecting overpass) and the southern hotel wing (the "shell" building) with a very large subterranean parking garage appear to have been developed on this site (accounting for most or all of the disinten:ed burials documented by Kikuchi and referred to by informants familiar with the 1973 construction). Virtually the entire area of the Mahunapu'uone burying ground (as indicated in Mahele records) is pres�ntly covered with hotel structures, asphalt roads and driveways, or concrete walkways, Four trenches (trenches 41, 69, 70 and 71) were excavated in the vicinity of where the burial site is believed to be. Isolated human remains recovered from fill deposits (fill understood as associated with hotel construction and/or renovation) of Trench 70 would appear to relate to this designated site. Trenches 41, 69 and 70 showed evidence of historic disturbance and · fill so�ewhat blurring the historic record. Trenches 41, 69 Ellld 71, however showed significant exposures of what appear to be natural sand deposits without blllials. Trench 71 in particular might have been anticipated to have been in the burying ground, but appeared to reveal entirely in situ natural sand deposits with no human remains. 142 Site Descriptions Thus the extent of the presently intact Mnhunapu'uonc Burial ground, here designated as site 50�30-08�681, is uncertain. It may be that the vast majority of human remain s associated with this native Hawaiian burying groun d have been previously disinterred and relocated to the burial marker area. It seems highly probable, however, that intact human burials in undisturbed sand deposits and isolated human remains in fill deposits associated with this burying ground are present at this designated site in the southeast corner of the present project area. A good faith effort was made to test open areas in the vicinity (trenches 40, 41, 69, 70, 71). This testing was sufficient to show that there has been a great deal of excavation and fill activity in this area associa te d with coruitructio.t:i above and beyond the footprints of the existing buildings. While small fragments of what appear to be human remains were found in these fill deposits, most of these fi11 deposits are free of human remains, Large expanses of in-situ. sand deposits it) this area appear to be free of human remains (as reflected in the excavation of Trenches 41, 69 and 71). This is consistent with the general pattern of traditional Hawaiian burials of a dense core area(s) of interment with a few scattered outlier burials. Again it should be emphasized that the area of this designated site has been massively impacted by previous construction activities. Virtually the entire southeast corner of tho project is covered with buildings, asphalt roads and driveways. concrete walkways, and utility lines. The desirability of additional testing in this m:ea was discussed in an informational presentation to the Kaua'i/Ni'lliau Burial Council. In the absence of any clear plans for development, no Council member recommended cutting into existing asphalt roads and concrete walkways to test for human burials. Because there appear to be large areas free of humnn rem ains in the southeast come,: of the project area (no in situ remains were found in testing), there appears to be no clear rationale for preservation recommendations at this time. On the other hand, any new significant construction intmsion into the top two meters of soil in the vicinity of the existing �'Shell" wing of rooms, particularly to the east and south, has n high probability of encountering both in situ bmials and previously disturbed human remains associated with this designated site. It is 1·ecommended that consideration be given in planning to minimizing subsurface impacts in this area, and that all subsurface excavation work in the vicinity be attended by an archae ological monitor. SIHP Site#: 50-30-08-1711 Site Type: Cultural Layer Function: Habitation Features (#): Unknowti (intermittent expression) Age: Approximately fifteenth to sixteenth century A.D. Description: Site 50-30-08-1711 is a traditional cultural layer originally identified in 2002 (Buffum and Dcga 2002). The precise extent of the cultural layer is unknown and it is clearly disc ontinuous, appearing intermittently across the project are�. This layer is generally about 20 <-'Ill thick, and is characterized by dark grayish brown sandy loam sediments, sometimes with inclusions of charcoal. Radiocarbon dates indicate occupation in the fifteenth to sixteenth centuries A.D. The cultural layer appears to indicate ten.1porary use of the l�d extending back from the seashore. Artifac ts associated with the layer include a small adze prefo1m (Buffum and Dega 2002), and a few basalt flakes. The layer is also associated with hearth features (Dega and Powell 2003:38-40; Kikuchi 1973), Compared to other cultural layers documented in the Ha'enannd Waipouli areas of Kaua'i, this cultural layer has thus far proven to be quite weak in 143 Significance Evaluation Section 1 SIGNIFICANCE EVALUATION Three historic properties (Table) were identified during the present inventory survey, a precontact cultural layer associated with SIHP site 50-30-08-1711, a traditional burial ground, and the remains of two historic :fishponds that belonged to Debora Kapule. State site -1711 is significant according to Criterion D as designated by the State Historic Preservation Division (SHPD). The burial ground, SlHP site -681 is significant according to Crite1ion E, and the fishponds, site number-680 is considered significant according to Criterion B. These criteria are as follows: To be considered significant, a historic property shall possess integrity of location, design, setting; materials, workmanship, feeling, and association and shall meet on or more of the following criterion 1)Criterion "A"-Be associated with events that have made fill important contdbution to thebroad patterns of our history; 2)Criterion "B"-Be associated with the lives of persons important in our past; 3)Criterion "C,,-Embody the distinctive characteristics of a 1ype, period, or method ofconstruction, represent the work of a master, or possess high artistic value; 4)Criterion "D"-Have yielded, or is likely to yield, information important for research onprehistory or history; or 5)Criterion "E"-Have an important value to the native Hawaiian people or to anotherethnic group of the state due to associations with cultural practices once carried out, or still carried out, at the property or due to associations with traditional beliefs, events or oral accollilts--these associations being important to the group's history and culturalidentity [Hawaii Administrative Rules 13: 13 :27 5 :6]. Table 7. Summary of sites and significance evaluations for project men Significance SIBP Site Number Descrintion Evaluation Recommendations 50-30-08-680 Historic fishponds Criterion Band D Preservation,;: 50-30-08-681 Burial ground Criterion D and E Monitoring Traditional cultural 50-30-08-1711 !aver CriterionD Monitoring 145 Summary Discussion VIII.SUMMARY DISCUSSIONA. Summary of WorkCultural Surveys Hawai 'i conducted an archaeological inventory survey with subsurfacetesting for seven parcels of land adjacent to Kiihio Highway in coastal Wailua Ahupua'a, Puna District, ls]and of Kaua 'i: the current site of the Coco Palms Resort and the site of the Seashell Restaurant The fieldwor k took place over a period of three weeks in March and April, 2004. Additional testing was conducted on MaTch 22, 2005. In total, 86 trenches were ex.ca.vated with a backhoe and two s .. cm diameter sediment cores were taken for paleo-envh'onmental (radiocarbon dating and pollen) analysis. The Coco Palms site cui1·ent1y l1as an approximately 2,000-tree coconut grove, a modified water feature that was once two historic fishponds, and buildings and infrastmcture for the resort, which has stood essentially unused since September 1992. Previous archaeological finds on the property include 34 burials briefly described by Kikuchi in 1973 and found during the construction of a new wing of the resort lodgings. a single bui:ial.{State Inventory of Historic Places [SIHP] site 50-30-08-660) encountered in 2000 during clean up of contaminated soils surrounding a gas tank, and a cultlll'al layer (SIHP site -17ll) designated in 2002 (Buffum and Dega 2002) and fmther documented in 2003 (Dega and Powell 2003). During the current research, a discontinuous cultural layer was identified across the site, and was found in trenches grouped on the south and northwest edges of the project area (see Figure 14). Radiocarbon te sting indicates a date for this cultural layer of between approximately A.D. 1400 and 1500. Archaeological finds associated with 1he cultural layer consist of several basalt flakes, midden including seventl small pieces of mammal bone, one piece of burnt cut bone, shells, a piece of burnt nut or gourd shell, and a small hearth or imu. The identified cultural layer is associated with SllIP site -1711. An octopus lure cowrie shell was nlso found ns an isolated find in one backhoe tre nch. Considering the large number of trenches excavated, cultural remains were yery sparse, and no further archaeological data recovery at this time is recommended. The current research did not encounter any btll'ials, though two small fragments of bone were found while excavating Trench 70. These fragments were found just makal of the "shell" building of the Coco Palms Resort in a sand fill layer, and are likely to be fragments of human bone not collected during the 1973 construction activities thnt were inadvertently reburied within the backfill. The remains were transfe1Ted to the Kaua'i/Ni 1ihm.1 Islands Burial Couricil for interim curation prior to reinterment. Due to the large number of burials already documented, and the mention m historical documents of a burial site in thls location, SII-IP site number -681 has been assigned to this known burial ground. While pre-contact Hawaiian cultural remains were relatively scarce during the course of this inventory survey, this site is known to have significant historical associations with Debora Kapule, a -prominent chiefess of Kaua'i in the mid�1800s. Her fishponds were famous in the region and are mentioned in some of the earliest histol'ic accounts of the area (see Wilkes l846). Though heavily modified,. a water feature (refexred to as a lagoon in hotel brochures) still remains on the property in the area of K.apulo's historic fishponds, This site has been assigned SU-IP site number -680. 146 Summary Discussion While no data recovery work is recommended for the Coco Palms property, the known presence of burials and a cultural layer on the property indicate the possibility of future archaeological finds. For this reason, CSH recommends an archaeological monitot be present on site for any ground disturbing activities associated with further development or modification of the property. The property of the Seashell Restaurant, ma!cai of Knhio Highway, was also surveyed and tested with backhoe trenches. No cultural remains were found, and no further work is recommended. B.Chronology The eight radiocarbon dates recovered in the inventory survey of this project have beenpresented and discussed in the "Carbon Dating Analysis" section of this report. We know of surprisingly few previously rep011ed carbon dates for Wailua Ahupua'a (Hammatt et al. 1997 rep01i one date and Dega & Powell 2003 report one date), but at least thirty-five other radiocarbon dates have been reported for east Kaua'i (Olohena, Waipouli, and Kapa'a Ahupua'a). These dates are presented in Table, and the relationship of the present dates to this assemblage is discussed further below. Table 8, Source Rosendahl &Kai 1990 Rosendahl &Kai 1990 Rosendahl &Kai 1990 Rosendahl &Kai 1990 Rosendahl &Kai 1990 Rosendahl &Kai 1990 Rosendahl &Kai 1990 Radiocarbon dates reported for east Kaua' i Beta Analytic Ahupua'c,/ Lab.# Provenience Olohena/BT-115, HF-I, Layer II, 25740 40-75 cmbs Olohena/BT-116, HF-1 Layer IV 27537 65-90 cmbs Olohena/BT-118, HF-1 Layer II, 50-27538 70 cmbs Olohena/BT-118 Layer IV 80-90 27539 cmbs Waipouli/BT-30, HF-1 Layer n, 20-27542 64 ctnbs Waipouli/BT-30 1ayer Ill, 20-38 27543 cmbs Waipouli/BT-31, HF-I, Layer IV, 27544 65 cmbs 14CAge (B.P.) 270 +/-80 510 +/- 110 440 +/-90 230 +/-60 300 +/-70 120 +/-80 250 +/-60 13C/ 12C Adjusted Calibrated Ratio 14CAge Age Range (%0) ffi,P.) (A.D.) -18.6 380 +/-80 1410-1660 460 +!--28.0 110 1280-1650 -19.1 540 +I-90 1270-1490 1450-1670 1752-1796 -21.0 300 +/-60 1944-1954 1430-1670 -23.1 340+/-70 1949-1952 1528-1556 -23.l 150 +/-80 1630-1955 -30.1 170+/-60 1640-1955 2 Source Rosendahl &Kai 1990 Folk et al. 1991 Folk et al. 1991 Folk et at. 1991 Folk et al. 1991 Hammatt, 199th Hammatt, 1991b Toenjes et al. 1991 Toenjes et al. 1991 Toenjes et al. 1991 Toenjes et al. 1991 Toenjes et al. 1991 Toenjes et al. 1991 Toenjes et al. 1991 Hammatt, Ida& Folk, 1994 Creed et al. 1995 Beta Analytic Lab.# 27545 41885 41886 41887 41888 43639 43640 46653 46654 46655 46656 46657 46658 46659 63823 85560 Ahupua'al 14CAge Provenience (B.P.) Waipouli/BT-37, Layer IB 40 cmbs 0 WaipouH/Tr. 46, II, 60-70 170 +/-60 Waipouli/ Tr. 13, Fe 3, Il, 25-40 270+/-50 Waipouli Tr. 13, Fe 2, II, 70-90 190+/-60 Waipou]i/ 16, Fe 8, II 10-35 90+/-50 Kapa'a/ Tr. 13, JI, 30-50 50 +l-60Kapa'a/ H14, II, 40-50 300 +/-70 Waipouli/ Tr 21 FeD (20-30) 100 +l-60Waipouli/ Tr 26 Fe 1 (44-46) 0 Waipouli/ Tr 27 Fe 2 (43-46) 200 +/-50 Waipouli/ Tr 22 (45-50) 120+/-50 Waipouli/ Tr 30 (45-50) 200+1-80 Waipouli/ Tr 25 (55-65) 190 +/-60 Waipouli/ Tr 25 (75-85) 30 +/-60 Kapa'a/ Fe 1, 120 280+/-80 Kapa'a/Inia 30 m. S of Park, II 350 +/-70 148 Summary Discussion 13C/ 12C Adjusted Calibrated Ratio 14CAge Age Range (%0) (B.P.) (A.D.) -25.8 0 Modem -24.5180 +/-60 1630-1950 1500-1675, 1715-1805, -27.2 240+/-50 1930-1950 -26.1 170+/-60 1640-1950 670-1730,-27.2 60 +/-50 1795-19351680-,1705, 1810-1850, -27.410 +/-60 1880-1920 -25.4 290 +/-70 1435-1665 NIA 130+/-60 1650-1950 NIA 0 Modern NIA 180+/-50 1630-1950 NIA 340 +/-50 1420-1650 1420-1815, NIA 270 +/-80 1840-1885 1525-1570, 1605-1815, 1840-1885, NIA 200 +/-60 1916-1950 1675-17 10, NIA 30+/-1805-1930 1420 -1950 (1446--25.0 280 +/-80 1705) 1445-1680, 1755-1805, -27.6 NIA 1940-1950 Summary Discussion 13C/ Betn 12C Adjusted Calibrated Analytic Ahupua'a/ 14CAgo Ratio 14CAge Age Range Source Lab.# Provenience <B.P.) (%0) (B.P.) (A.O.) Creed et K.apa'a/Ulu al. 1995 85561 Burial # 1, pit fill 350 +/-70 -24.3 NIA 1425-1665 Kapa'a/ 1297 Ulu 1495-1695, Creed et 23 m.N. of 1725-1815, al. 1995 85562 Mamane, II 260 +/-60 -25.4 NIA 1920-1950 Creed et Kapa'a/ 4532 al. 1995 85563 Lehua 360 +/-60 -25.9 NIA 1435-1665 Creed et Kapa'a/ Lehua & al. 1995 85564 Niu 770 +/-80 -26.6 NIA 1165-1400 Kapa' a marsh Hammatt Trench 1 50-55 1680 +/-1660 +/-et al. 1997 79327 cm 60 -26.4 60 245-550 Kapa'a marsh Hammatt Trench 1 60-65 2770 +/-2230 +/-400-75et al. 1997 79328 cm 70 -27.6 70 B.C. K.apa'a marsh Hammatt Trench 1 65-70 2300 +/-2240+/-395-175et al. 1997 79329 cm 50 -28.8 so B.C.Kapa'a, Ching Hammatt lease trench 160-et al. 1997 79330 170 140 +/-50 -22.3 190 +/-50 1645-1950 Hammatt W ailua core 2B 3160 +/-3150 +/-1520-1275 et al. 1997 79331 35-95 cm 60 -25.7 60 B.C.Hammatt O1ohena Core 1et al. 1997 79332 15-38 cm 0 -17.6 0 modern Dega& Powell Waipouli? Site 1450-1530 2003 171087 1848 Feat. 5A 350 +I� 40 -23.9 370 +/-40 1580-1630 Dega& Powell Waipouli? Site 1520-1590 2003 171088 1848 Feat. SB 280 +/-so -24.4 290 +/M 50 1620-1660 Dega& Powell Wailua Site 1711 1520Ml590 2003 171089 Feature 3 hearth 280 +/-40 -25.2 280 +/-40 1620-1670 Dega& Powell Kapa'a Site 1849 1650-1680 2003 171091 Feature 9 180 +/-40 -23.9 200+/-40 1730-1810 Present BHT 54; St III; Study 191236 92-98 cmbs 460 +/-30 -27.2 420 +/-30 1430-1500 Present BHT 54; St II; Study 191237 50-65 cmbs 0 -26.2 0 modern 149 Summary Discussion l3C/ Beta 12C Adjusted Calibrated Analytic Ahupua'a! 14CAge Ratio 14CAge Age Range Source Lab.# Provenience (B.P.) (%0) (B.P.) (A.D.) Present BHT 40; Gley I; Study 191238 100-110 cmbs 320 +/-40 -21.2 380 +/-40 1440-1640 1490-1680 Present BHT 45; St. IV; 1770-1800 Studv 191239 69-85 cmbs 190 +/-50 -20.5 270 +/-50 1940-1950 Present BHT 45; St. III; Studv 191240 95-103 cmbs 410 +/-50 -21.3 470 +/� 50 1400-1490 BHT 50; St. IV, Present Feature 1; 32-44 Study 191241 cmbs 510 +/-30 -24.6 520+/-30 1400-1440 Present Core 2; 92-95 Study 191242 cmbs 630 +/-40 -25.2 630 +/-40 1290-1410 Present Core 2; 153-156 1490 +/-1480 +/- Studv 191243 cmbs 40 -25.9 40 530-650 Of these forty-five dates for east Kaua'i, twenty-two (49%) are modem or range well into the twentieth century. It is assumed that all of these dates represent post-contact or late pre-contact activities. The same interpretation is given to the two samples (Beta Analytic# 46657 & 171091) that range into the nineteenth century. 'Three of the samples range entirely before the Common Era and long before the early Polynesians are thought to have arrived on any of the Hawaiian islands. Thus these three appear to reflect pre-human environments. The remaining eighteen samples, which yielded date ranges entirely within the pre-contact period, appear to be rather clumped. The ranges of fifteen of these pre-contact dates fall entirely in the relatively concise span of A.D. 1270 to 1670. This may be a result of sample bias in which most dates processed were from the base of the cultural layer. TI1is bias often occurs in attempts to obtain the earliest date for a site. As a result it appears that a burst of activity occurred with a decl ine later, but in fact, it may be a sampling error of the archaeologist. It is clear, however, that dates with ranges extending prior to A.D. 1270 are quite the exception. Of the three earlier date ranges reported, one (Beta# 85564) is only slightly earlier (A.D. 1165-1400). The two oldest dates reported (one from the present study) predate the span of all the other dates by several centuries, and, notably both corne from organic sediments in marshy environs, raising some question whether the dates indeed reflect human activity. In the case of the Kapa'a marsh date (Beta Analytic# 79327), "samples were chosen on the basis of organics visually observed" (Hammatt et al. 1997: 101), and the only conclusion drawn from this date was that "the marsh was well established and close to its present configuration by the times the first Polynesians arrived." No association with human activity is suggested with this date. The data thus suggest the onset of permanent habitation in the coastal Wailua-OlohenaWaipouli-Kapa'a area in the fourteenth to mid sixteenth centuries A.D. The earliest.date reported from a cultural context (Beta Analytic ti 85564, range A.D. 1165-1400, mean A.D. 1283) ranges well into the fourteenth century and may be part of this onset of permanent habitation or may indeed be a couple of centuries older and relate to earlier initial forays into the area. 150 Summary Discussion The oldest date obtained in the present study (Beta Analytic# 191243), dating to AD. 530-650, is of some interest as it was obtained from a stratum (Stratum XII) understood as a buried A-horizon overlying a pollen sample that proved to be relatively rich in charcoal particles. It isassumed that charcoal particles in such an environment and time could only have been the resultof human-induced burning. Clearly the1'e was some migration downward or mixingcontaminating thls sample as a trace of hlstoricnlly introduced Prosopis pollen (kiawe) wasidentified within the sample. It is certain ly possible that charcoal particles migrated downthrough a wet environment into a far older organic deposit It also appears possible that theseparticles reflect human-induced burning in lower Wailua Valley prior to A.D. 650 " manycenturies before the first dated cultural deposit, It has long been suggested that Polynesiansettlement may have begun with nuc1eated settlements in windward valleys (Kirch 1985:301).The large well-watered, relatively level flood plain of Wailua may have 'been particularlyattractive for early settlement, and early settlement may have been a factor in the prominence ofthe river valley in the social history of the island in pre-contact times. Given that the founderpopulation would have remained very small for quite some time, evidence of burning might beexpected to pre-date datable cultural deposits by centuries.The hypothesis that charcoal particles in a deposit pre-dating AD 650 In the floor of Wailua River Valley, Kaua'i may reflect early J.>olynesian settlement and burning activity is hardly radical. Most archaeologists in Hawai'i would be surprised if Hawaiians were not cleaiing with fire at Wailua. Kau�'i before A.D. 650. Tb.is interpretation is, however, suggested most tentatively as contamination from overlying, younger deposits. It is suggested, thought, that the Wailua River might be a particularly good place to look for evidence of early Hawaiian colonization, and that evidence in the fol'm of charcoal particles in a datable strati graphic record might be fairly wide spread. Because of the substantial history of modem distul'bance at the Coco Palms parcels, this line of inqwry tnight best be pursued in other portions of the valley floor. Although the possibility of arc1rneologist sample bias has been previously discussed, it does seem stl'iking that five of the eight carbon dates l'ecovered in the present study have date ranges e-.ntirely within the period of 1290 to 1640. This is consistent with earlier dates from east Kaua 'iwhich have given rise to the conclusion of substantial activity and growth circa the fourteenth century. On the other hand, the possibility is suggested that demographic factors such as out migration to other localities on Kaua 'i or social factors such as increasingly strict kapu that may have restricted commoner access and residence may have inhibited or restricted natural population growth at Wailua in late pre-contact ti:tnes. C.Paleo-env!ronmental ChangeThe results of polle n analysis and carbon datin g of core sample sequences developed in thepresent study offer only a glimpse of Kaua'i's past. Core 2 yielded a pollen sample (#3) that dates post-AD. 1290 and an older pollen sample(# 5) that dates pre-A.D. 650. Such a datable sequence was very much what was hoped for. Regrettably, the intermediate pollen sample was void of pollen for reasons that are not all together clear ("absolutely no pollen was observed"), but it is the upper and lower samples that should in theory be most informative on paleoenvironmental change. There is less difference between these samples than might have been anticipated in the light of previous dated pollen studies. One major marker of Polynesian induced environment transformation, the drop in Prftchardia (Laulu palm) pollen does fadeed appear to be present. 151 Summary Discussion A combination of these factors may well be at work but we are jnclined to suggest thnt the mari;hes of coastal east Kaua'i may have favore d the growth of grasses and sedges to an extent that would have been uncommon in the Hawaiian Islands in pre Polynesian times. It is somewhat intriguing to consider the possiblo attractiveness of ex.tensive riparian grasslands to Polynesian settlement. Given the difficulty of clearing climax forest by chopping with stone tools and the difficulty of burning climax forest in wet environs, riparian grasslands may have looked quite good to early Polynesian settlers. The ability to clear well-watered coastal grasslands with fire dtning dry summers may have been an addition.al attraction of early settlement in the coastal Wailua River Valley. D.Weakness of Expl'ession of the Cultural LayerThe absence of midden, artifacts, and features in thi& project area is far more notable, thusfar, than their presence, It seems extraordinary that an inventory survey of these lands would recover a total of only five (traditional and post-contact) artifacts and less than an ounce of midden. This weak expression of the cultural record was initially somewhat of a sul'prise given the importance of Wailua in K.aua'i's traditional history and the time depth of occupation anticipated (and indeed documented). In our experience there are usually discemablc explanations for the relative .absence of cultural deposits in areas that would initially appear to have been well suited for intensive and extensive permanent habitation over centuries duration. This area of Wailua Valley is well watered by rainfalf and the prospect for irrigation would appear to have been excellent. The project lies virtually adjacent to what maybe argued to be the best river in the state and just back from an expanse of beacb, somewhat protected bay waters and reefs. The prospects for early and continuous relatively high density settlement drawing upon riparian and marine resources and utilizhig the tremendous agricultural capacity of Wailua would initially appear to have been excellent. Tradition and the hiRtoric recotd indicate that coastal Wailua Valley was particulru:ly important for Kaua 1 i's adstoCJ.'acy. and evidence of high status occupation and remnants of the bustle of a royal court might have been expected. One might have reasonably expected a plethora of features in tho way of house foundations, earth ovens, post holes, fire pits, and burials as well as high concentrations and diverse assemblages of midden and artifacts. The reasons for the extraordinary paucity of finds are not altogether clear, The most common explanation. for the absence of al'chaeological evidence of traditional Hawaiian occupation in areas that appear particularly well-suited for traditional Hawaiian activity is propensity to flooding and/or tsunami inundation. The Tsunami Evacuation Kaua'i Map 4 shows the shaded evacuation zone as extend-Ing up the Wailua River some distance but extending just slightly north of Kuamo'o Road. The .zone is shown as extending into the 1muth side of the present study area but just slightly and the vast majority of the project area is shown as clear of th.is zone. We found no indications within the test tr enches .of tsunami inundation. The land commission nward residerttial pattern clearly shows some settlement within the project area and significantly more (the village of Kahakoa) south of the present Kuamo'o Road (within the evacuation zone), It does not appear that conccms for flooding/tsunami inundation was a major factor restricting settlement. To some extent the absence of finds does undoubtedly involve the modem history of the study parcels, The most likely area for finds is the documented 1848 house lots, other areas on the margins of the old fishpond, and the area indicated as the Mahunapu'uone burying ground. 153 Summary Discussion These areas had been massively impacted by resort development by 1974. As best we can determine, the vast majority of the house lots lie under presently extant resort structures and the subsurface deposits in these areas have been massively impacted or obliterated in some cases. Subsurface testing shows that the development impacts extend well out from the footprints of the buildings in this core area of traditional cultural use. Consultation with the Kaua 'i/Ni'ibau Island Burial council showed no suppo1t for testing under existing resort infrastructure for Mahunapu'uone burials in the absence of any clear development plans for this area. In evaluating the general lack of findings it seems geimane to reflect on the point noted earlier that there are 11 other ahtepua 'a on Kaua 'i with greater numbers of land claims at the time of the Mahele (1848-1853) than WailuaAhupua 1a. CiearlyWnilua was not particularly well populated at tbat time. The 1:1:aditional explanation for this has tended to emphasize that pattems of trade, enterprise, and western residence (wfth associated churches, better schools and opportunity) had largely made W ailua a demographic backwater. It seems clear that there is some truth to this, that native Hawaii ans were moving to Waimea, Koloa, Hanalei, and Honolulu in search of opportunity and 1 'bright light.s". The traditional relative absence of habitation at Wailua, "Kaua 1i's capital", may have been overlooked. This p01tion of Wailua appears to fall within Wailua-nui-a-ho'ano "great sacred Waihia" which certainly included a number of kapuplaces to which casual access or residence by hol polloi was restricted. As a popular �ork discussing coastal Wailua valley asserts "As this area was sacred, only the high born or Al!'i were allowed to enter here" (Smith 1955:20). Another old-timer related a tradition regarding Kuamo 10 Road and the lower river lands The kings were always carried up this {Kuamo'o] l'o11d, so that their royal feet would not have to touch the ground. The Wailua River likewise was kapu to all but kings. 'The only commoner who might be taken along the river or highway was an expectant mother [Guslander n.d.]. It seems quite possible that n kapzi associated with the neighborlng Holoholokn, Ka Lei o Manu and/or Pohaku Hanau sacred sites and/or a more prosaic kapu associated with the fishponds of a ruling chief may have discouraged commoner resldenc.e within the project area in late pre-contact times. Possibly concems about spirits of the dead (0wailtta") discouraged late pre-contact settlement in the area. It seems likely that some social factors discouraging commoner residence were operative in late pre�contact times. E.Recommendations 1.Preservation of the Water Feature in the Loc ation of Kapule's FishpondsIt is recommended that the one pond that now exists in the location of Debora Kapule's twofishponds be preserved. This was an important landmark and feature of the cultural landscape. The two fishponds (Weuweu and Kawai-iki) are associated with the high chi.efess Debora Kapule, an important figure in Hawui'i's past. While the fishponds are s01netilnes said to have been built for Debora Kapule, it seems probable that they were rehabilitated or reconfigured in her time. The ponds may have been completely filled in either circa 1900 as Ernst Lindeman was developing his 2,000-tree copra plantation, in the early 1920s, when the pond Atea was dredged by A.D Hill, or later during modifications of the water feature by maintenance crews of the Coco Pa1ms Hotel The. existing water feature may have little true relationship to :Kapule' s ponds other 154 Summary Discussion than being in the same place and approximately the same shape. Given the history of change, itwould seem reasonable that there could be flexibility in allowing some reconfiguration of the present pond, if desired. 2.On-site Archaeological MonltoringA monitoring progr/ifil with on-site archaeological monitoring, with provisions for burialfinds, is recommended for: any initial ground disturbing activities above the water table on the Coco Palms property. The presence of an intermittent cultural layer, a known traditional Hawaiian. burial ground, and an isolated historic burial find nil point to the possibility, of encountering cultural remains during constmction or modification on this property. Subsurface testing did not indicate any areas for data recovery, but monitoring would compensate for the possibility of encountering intact cultural matedals or burials that are currently under tho resort's buildings or infrastructure .. 3.Continuing Consultation with the Kaua'i/Ni'ihau Man<ls Burial CouncilIt is recommended that the Kaua'i/Ni'ihau Islands Burial Council be kept infonned ofdevelopment plans as they become more specific. It is recommended thnt the Council also be promptly informed of any discoveries of human remains that may occur. 4.Recommendation to Minimize Subsurface Impacts in the Southeast Comer of Coco PalmsThe vast majority of the Coco Palms parcels are believed to be free or relatively free ofarchaeological constraints that would pose significant problems for development. While no insitu burials were found in the present study, it is highly probable that both intact burials in sand and isolated human remains in fill exist in the area bounded by the Coco Palms lobby entrance overpass on the north, Kfihio Highway on the east, Kuamo1 0 Road on the south and the water feature on the west, The area east and south of the existing "Shell" wing is of pa1ticular concern. It is recommended that development planning take tl1is into consideration and that efforts be made to minimize subsurface impacts in this area. 5.Data Recovery Work Prior to Future Modifications at the Coco Palms ResortIn a letter (JOB NO: 2004.2113, DOC NO: 0406NM:32) dated August 121 2004 from theDLNR/SHPD, it was recommellded that a program of data recovery should talce place in the future before any new excavations or constructions talces place at the Coco Palms Resort. Of immediate concem were the plans for a new parking lot at the northeastern end of the project area. A new parking lot is planned in tl1e near future at the northem end of the project area. Although eight trenches were excavated in this area during tho 2004 field project, trenches could not be placed in a central area covered by asphalt or in a mrthem section (north of a chain-link fence) that was heavily vegetated. In March of 2005, six additional trenches were excavated in this northern end to better cover the area of the proposed-parking lot (see Figure 4); two were placed south of the asphalt, two were placed within tho asphalt nrea (after it had been cut), nnd one more was placed at the north end, which could only be reached by n small backhoe in this heavily vegetated area. None of the siic trenches contained any cultural material, cultural strata, or the gleyed_ layers found in other nrens that indicate a pond or marsh environment. The trench 155 ·Summary Discussion(Tr -81) placed north of the chain link fence contained a clay loam fill to a depth of 135 cm. The 3 ft elevated area north of the fence was artificially raised by the Coco Palms maintenance crew in the past as the foundation for a club�ouse, the remains of which are still standing in this area. The August 12 letter also l'ecornmended that data recovery should take place before any modification to the "lagoon," the former fishponds once owned by Debora Kapule, take place. An extensive background research on land document<J, historic maps, newspaper articles, and informant interviews has been recently conducted by E. Kalani Flores (2000) on the Coco Palms Resort. This report includes information on tl1e possible historic and recent modifications to the water feature (former fishponds). Prior to any reconstruction work at the fishponds, data recovery, including additional background research based on the previous work of Flores, and some data recovery work is recommended to better define the nature and construction sequence of the existing water feature at Coco Palms is recommended. The data recovery field work could include additional coring within and around the existing "lagoon," and the exposure of stone walls with. backhoe trenches. It would be especially interesting to pl.ace a backhoe trench or core in the possible area between the northern and southern ponds (about where the lagoon<'bends" to the northeast; see Figure 9 and Figure 10) to see if a wall or gate stmcture once separated the two ponds. 6.No Further Work at the Seashell RestaurantNo further work is recommended for the property of the SensheU-Restaurant, which appearsto have modem fill and constmctions on a bedrock ridge or outcrop. 156 IX.REFERENCESAki,Ruth References 1931 Modem Menehunes Constmct Fishpond near Wailua River under Novel Conditions . . The Garden Island, October 13, 1931. p. I Beardsley, Felicia Rounds 1994 Dtr.ne Burials and Landscape Change: Archaeological Subsurface Testing Inventory Survey, Kaua'i Community Correctional Center and Wailua Golf Course Sewage Force Main Project, Wailua, [(aiia'i, International Archaeological Research Institute, Inc,, Honolulu. Beckwith, Martha W. 1970 Hawaiian Mythology. 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The Pacific Commercial Advertiser XII (4):1. July 27, 1867, Lydgate, John M. 1920 Wailua � Home of Kings. The Garden Island March 16, Lihu'e, Kaua'i. 1925 Kauai Childhood Days. Thrum's Hawaiian Annual for 1925:96�98. McMahon, Nancy -1991 Archaeological Investigations at the Proposed Nounou Mountain Trail Parking Area, Wailua, Kawaihau, Kauai, 4-1-012:10, 11, 12. State of Hawai'i, Department of Land and Natural Resources, Historic Preservation Division, Kapolei, Rawat 'i. Morawski, Lalll'en, and Michael Dega 2003 Archaeological Monitoring Report During Construction of the Lydgate Park Bikeand Pedestrian Path, County of Kaua'i, Wailua Ahupua'a, Lihue District, Kaua'i Island (TMK: 3-09-06-01 and :3-09-02-34). Scientific Consultant Services, Honolulu. Rechtman� Robe1t B., and Matthew R. Clark 2001 An Arcltaeologlcal lnwmtory Survey of TMK 1-4-03:02 Wailua Ahupua'a, Puna District, Island of Kaua'L Copy on file at the State of Hawai'i. Department of Land and Natural Resources, Historic Pteservation Division, Kapolei, Hawai'i. Rice, William Hyde 1923 Hawaiian Legends, Bernice P. Bishop Museum Bulletin 3, Honolulu. SalisbuL'y, Mory 1936 Wailua, Valley of Kaua'i Kings and Priests; Rich in Splendor. Honolultt Star Bulletin Septembel' 5, 1936, Honolulu. ShideleL', David W,, Victoria S. Creed, and Hallett H. Hammatt 2000 Archaeological Inventory Survey of a Corridor for a Proposed Blke Path in Lydgate State Park, Wailua Ahupua'a, Puna District, Island of Kaua'i (TMK: 3-0-06). Cultlll'al Surveys Hawai'i, Inc. Kalina, Hawai'i. 2001 Archaeological Assessment of a Corridor for a Proposed Bike Path in Lydgate State Park, Wailua Ahupua'a, Puna District, Island Of Kaua'i (TMK: 3•0�06). Cultural Surveys Hawai'i, Inc. Kailua, Hawai 'i. 161 References Smith, Walter J. 1955 Legends of Wailua. Printing Services Corporation, Lihu'e, Kaua'i. Soehren, Lloyd J. 1967 Field Trip Report, Wailua, Kaua'i. State of Hawai'i, Department. of Land and Natural Resources, Division of State Parks. Honolulu. 2002 A Catalog of Kaua'i Place Names, Including Ni'ihau, Lehua and Ka'ula. Collected and annotated by Lloyd J. Soehren, Honoka'a, Hawai'i. Spear, Robert L. 1992 Kuhio Highway Improvements: Haleilio Road to Uhelefmwa Bridge and the Parking Area near Kuamoo Road District of Kawaihau Island of Kaua'i, Scientific Consultant Services, Honolulu. State of Hawaii, Department of Land and Nntural Resources 1992 Installation of Interpretive Signs in the Poli'ahu Heiau of Wailua River State Park 4-2-03:8 Honolulu. State of Hawai'i. Department of Land and Natural Resources,Division of State Parks. Honolulu.Stauder, Catherine, Byron Cleeland, and Frances Frazier· 1976 A Study of Two Sites at Wailua, Kaua'i from Oral Documentation and Historical Records. Archaeology on Kaua'i Vol. 5, No. 3:4-27. Stauffer, Bob 1993 The Mtihele Documents of Wallua, Kaua'i. Department of Land and Natural Resources, Division of State Parks, State of Hawai 'i, Honolulu. 1994 Debora Kapule of Wailua, Kaua'i. Department of Land and Natural Resources, Division of State Parks, State of Hawai 'i, Honolulu. Thrum, Thomas G. 1906 Heiaus and Heiau Sites throughout the Hawaiian Islands. Hawaiian Almanac andAnnual 1907, pp. 36-48, Honolulu. Vancouver. George 1798 A Voyage of Discovery to the North Pacific Ocean and Round the World Peiformed in the Years 1790-95. 6 vols., John Stockdale, London. Walker, Alan T., Lehua Knlima. and Susan T. Goodfellow 1991 Archaeological Inventory Survey, Lihu'e/Puhi/Hananuilz1lu Master Plan, Lands of Hanamll 'ulu, Kalapald, Niiwiliwili, Niwnalu, and Wailua, Lihue District, Island of Kaua'l. Paul H. Rosendahl, Ph.D., Inc., Hilo, Hawai'i. Walton, Beth, and Charles Spilker 1974 Archaeological Report on Lydgate State 'Parle Pavilion Project. State of Hawai'i. Department of Land nnd Natural Resources, Division of State Parks. Honolulu, Wilkes, Charles 1846 Narr"cltive of the United States Exploring Expedition, During the Years 1838, 1839, 1840, 1841, 1842. S Vols. Lea and Blanchard, Philadelphia, Pa. 162 References Yent, Martha 1980 Archaeological Evaluation of the Bell Stone, Wailua River State Park, Wailua, Kauai, State of Hawai 1i State of Hawai'i, Depru.tment of Land lllld Natural Resources, Division of State Parks. Honolulu. 1981 Archaeological Investigations: Lydgate Area, Wcillua River State Park, Wailua, Kaua'i, TMK 3-9-06:4. State of Hawai'i, Department of Land and Natural Resources, Division of State Parks. Honolulu. 1989 A.rchaeological Investigations: Mapping and Testing of Hildnaakala Heiau and Hauola, Lydgate Area, Wailua River State Park, Wallua, Kaua'i. State of Hawai•i, Department of Land and Natural Resources, Division of State Parks. Honolulu. 1991a Ar<Jhaeological Testing for Kuhio Highway Contrciflow Project: Lydgate Area, Wailua River State Pa.rk Wailua, Lihu'e District, Kauai (TMK: 3-9-06: por. 1). State of Hawai 'i, Department of Land and Natural Resources, Division of State Parks. Honolulu. 1991b Environmental Assessment: Inclusion of Malae Heiau into Wailua River State Park, Wallua, Kawaihau, Kaua'i (TMK: 3-9-02: 12 and 13). State of Hawai•i, Department ·of Land and Natural Resources, Division of State Parks. Honolulu.1991c Preliminary Report: Petroglyph Site 50-30-08-JOSA, Lydgate Area, Wailua River State Parle, Wailua, Lihu 'e District Kaua 'l State of Hawai 'i, Department of Land and Natural Resources, Division of State Parks. Honolulu.1992 Assessment of Hurricane lniki Damage to Historic Sites within Sta.te Parks onKauai: Wailua River State Park, Lihu'e-Kawaihau District Hii'ena State Park, Hanalei District, Russian Fort Elizabeth State Historical Park, Waimea Polihale State Park, Waimea District. State of Hawai'i, Department of Land and Natural Resources, Division of State Parks. Honolulu. 1997a Burial Treatment Plan and Archaeological Monitoring Plan, Wailua Automobile Recycling Facility, WailuaAhupua'a, Lihu'e District, Kaua'i ('IMK: 3-9-05: portion 1). Draft, State of 1-:Iawai'i, Department of Land and Natutal Resources, Division of State Parks. Honolulu. 1997b Vegetation Removal and Landscaping Plan, Malae Heiau, (Site No. 50-30-08-104), Wailua Rlver State Parle, Wailua, Lihu'e District, Kaua'i, State of Hawai'i. State of Hawai'i, Departltlent of Land and Natutal ResoUl'ces, Division of State Parks. Honolulu. 1997c Progress Report# 1 Vegetation .Removal -Removal of Chinese Banyan Tree -Malae Heiau, Wailua River State Park, Wallua, Lihu'e District, Ka.ua'i, State of Hawai'i. State of Hawai'i, Department of Land and Natural Resources, Division of State Parks. Honolulu. 2000 Complmion Report: Restoratfon of Pohaku Ho 'ohiinau (Birthstones) Site atHoloholokf1 and Vegetation Removal and Installation. of Interpretive Signs at Hiklnaakala Heiau, Wailua River State Park. State of Hawai'i, Department of Land and Natural Resources, Division of State Parle$. Honolulu. 163 Appendix A-Rndiocnrbon Analysis Results APPENDIXA-RADIOCARBON ANALYSIS RESULTS Samples sent for analysis--Sample Calibrated Location of Depth of Number Ar,,eA.D. Sample Sample Stratum Type of Analysis WAIL7-0l 1430-1500 BHT54 92-98 cmbs st.ill AMS WAIL7-02 modem BHT54 50-65 cmbs st. II Extended count WAIL7-03 1440-1640 BHT 40 100-110 cmbs Glevl AMS between 1490 and WAIL7-04 modern BHT45 69-85 cmbs st. IV Extended count WAJL7-05 1400-1490 BI-IT45 95-103 cmbs st. II1 Extended count WAIL7-06 1400-1440 BHT50 32-44cmbs st IV, Feat 1 AMS WAJL7-07 1290-1410 Core2 92-95 cmbs AMS WAIL7-08 530-650 Core2 153-156 cmbs AMS 164 Appendix A-Radiocarbon Analysis Re.sults APPENDIXA-RADIOCARBON ANALYSIS RESULTS Samples sent for analysis--Sample Calibrated Location of Depth of Number AgeA.D. Sample Sample Stratum Type of Analvsis WAIL7-0l 1430-1500 BHT54 92-98 cmbs st. III AMS WAIL7-02 modem BHTS4 50-65 cmbs st. Il Extended count WAIL7-03 1440-1640 BHT40 100-110 cmbs GlevI AMS between 1490 and WAIL7-04 modem BHT45 69-85 cmbs st. IV Extended count WAJL7-05 1400-1490 BHT45 95-103 cmbs st.ID Extended count WAJL7-06 1400-1440 BHTS0 32-44 cmbs st IV, Feat 1 AMS WAIL7-07 1290-1410 Core2 92-95 crnbs AMS WAIL7-08 530-650 Core2 153-156 cmbs AMS 165 Archaeological Inventory Survey Addendum for the Coco Palms Resort Wailna Ahupua'a, Puna District, Island of Kaua'i TMK [4] 4-01-003: 004, 005, 007, 011, 017; 4-01-005: 014, 017 O'alm Office P.O. Box 11l4 Kailua, Hawai'i 96734 Ph.: (808) 262-9972 Fax: (808) 262-4950 Prepared for Wilson Okamoto Corporation Prepared by Owen L. O'Leary, M.A. and Hallett H. Hammatt, Ph.D. Cultural Surveys Hawai'i, Inc. KaHua, Hnwni'i (Job Code: WAILU3) July2006 www.culturalsurveys.com EXHIBIT "DD-2" Maui Office 16 S. Market Street, Suite 2N ,vailnku, Hawai'i 96793 Ph: (808) 242-9882 Fax: (808) 244-1994 Cultural Surveys Hawai'i Joli.Code: W AILU 3 Introduction Section 1 Introduction 1.1 Addendum Backg1·ound At the request of Wilson Okamoto Corporation, Cultural Surveys Hawai'l has completed this archaeological inventory survey addendum for the Coco Palms Resort, Wailua Ahupua'a, Puna District, Island ofKaua'i (TMK [4] 4-01-003: 004, 005, 007, 011, 017; 4�01�005: 014, 017). This nrchueological inventory smvey addendum complements the previously approved (LOG NO: 2005.0903; DOC NO: 0504NM41) Archaeological Inventory Survey with Subsurface Testing at the Coco Palms Resort, Wailua Ahupua'a, Puna District, Island of Kaua 'i TMK [4] 4-01-003: 004, 005, 007, 011, 017; 4-01-005: 014, 017 (Hoffman et al. 2005). Thirteen backhoe trenches (Figi1re 1) were excavated within the old tennis court complex (Figure 2 and Figure 3) for of this addendum. The trenches excavated in 2006 are shown in orange. State Inventory of Historic Properties nutnber (SU-IP#): 50-30-08-1711 was identified in Trenches 87 and 88. No additional historic properties beyond those described in the original archaeological inventory survey were identified during exc avation for this addendum. 1.2Metbods The field methods utilized in this inventory survey addendum are the same as those undertaken during the archaeological inventory survey. No laboratory methods were necessary for this archaeological inventory survey addendum. Inventory Survey Addendum fur Coco Palms TMK [4)4-01-003: 004,005, 007,011, 017; 4-01-005: 014,017 I ' : Cultural SlllVeyslJawai'.i!ob Code: WJ\JLU 3 l.egencl \xx Locaifon ofNumbered· \ '/lftha.eolog!caiTestTrenclie1 \;c)( Number & Loi:lition orcsH March 2005 \ Archaeological Te$fTre�clid ·,xx Number t. l.oatlon of CSH June 2006. A11;haeologf�al Test Trenches o•-==::iso--===:1joo•c=i's0m 0 100 2QO 300 . 400 SOOft Introduction Marker Figure 1. Dlagram of Coco Palms project area showing locations of backhoe trenches and pollen . . cores Inventory Sui:vey Addendum for Coco Palms 1 'TMK C4l4--0t-oo3: 004. pos, om, (nt, oi1; 4-ot.oos: 014,011 Invc;ntory Survey Addendum for �ocoPelms 1MK [4]4-01-003: 004, 005, 007, O.t I, 017; 4-01-00S: 014, 017 in in 0 50 100cm . 79°TN WAILU 3: Trench 87 Tennis Court Ill TMK L4)4-0l-003: 004,005,007, 011,017;4-01-005: 014,017 -147 TMK [4]4-0f-003: 004, 005, 007, 011, 017; 4-01-005: oi4, 017 Cultural Surveys Hnwai'i Job Code: W AILU 3 Results ofFieidworl( Stratum IV: 147 -185 cmbs 2.2.2 Trench 88 B Horizon; 10 YR 6/2 / 10 YR 4/1, light brownish grey/dark grey; loamy sand (80% sand); structureless, loose moist consistency; non-plastic; no cementation; abrupt irregular lower boundary; marine sand layer sit on top of coral shelf. Trench 88 was 6.0 M long, 0.8 m wide, and 2.0 m deep. It was oriented 75 ° TN. Trench 88 was located just west of Trench 87 and between trenches 52 and 54, which bad both previously revealed the presence of SIHP # 50-30-08-1711, a pre-contact cultural layer. This cuU-ural layer was identified in Trench 88 and comptises Stratum III (Figure 6). 0 50 100cm ll!RWZl.'lliii&9'11:N =::::i ...., • • • • Iron Staining WAILU 3: Trench aa Figure 6. Stratigrophic profile of the north wall of Trench 88 Tennis Court: 0 -20 crabs Stratum I: 20 - 70 cmbs Inventory Smvey Addendum for Coco Palms Fill Horizon; clay tennis court is 3 layers: the clay sm'face, a pea-sized gravel base course and a thin crushed col'alline sand layer. FillHol'izon; 5 YR 3/2, dark reddish brown; clay loam; structureless, very sticky wet consistency; plastic; no cementation; very abrupt smooth lower boundary. TMK [4}1-01.003: 004, 005, 007,011, 017; 4-01-005: 014,017 4 Results ofFieldwork Stratum 100cm 350° TN Tennis. Court Cultural Surveys H11wai'i Job Code: W All..U 3 Results ofFleldwork Figure 8. Photograph showing the profile of the west wall pf 'l'r�nch 89; view to the northwest Tennis Court: 0 -20 cmbs Stratum Ia:. 20 -:50 cmbs Stratuih lb: 50 -70 cmbs Stratum llfl: 70 -85/100 crilbs Inventory Survey Addendum fur Coco Palms Fill Horizon; clay tennis court is 3 layers:. -the clay surface, a. pea�sized gravel base course and n thin crushed c01mline sand layer. Fill Horizon; 7 .5 YR 4/6� .strong browri; clay; moderate� coarse or thick, bfocky structure; very hard dry consistency; slightly plastic; no cementation; abrupt smo.oth lower boundary; roots and rootlets from surrounding vegetation. Fill Horizon; 10 YR 4/4, dadc yellowish brown; loam; structureless; loose dry consistency; non-plastic; no pementatioh; very abrupt smooth lower boundary; roots and :rootlets. Fill Horizon; 7.5 YR 3/2, dark bi'own; sandy loam; structureless, very hard dry consistency; non-plastic; no cementatl01i; cle�· smooth lower boundary. Nocharcoal was found in this layer. 'fMK [4]4-01-003: 004,00S, 001;011, 017;4-0I-OOS: 014, 017 6 TMK [4]4,-01·003: 004, 005. 007,011, 017;4-01-005; 014, 017 Cultural Surveys Hawoi'iJob Code: W AILU 3 Results ofFieldwo1k O 50 100cm 35a• TN Inventory Survey Addendum for Coco Palms Cultural Surveys Hawai'iJob Code: W AILU 3 Results of Fieldwork 2.2.5 Trencl1 91 Trench 91 was 6.0 M long, 0.8 m wide, and 1,6 m deep. It was oriented 352 ° TN (Figure 10). o 60 100cm 14ffi!@ I WAILU 3: Trench 91 o-r.:,,.-------------=1i,...en-n-:-ls -c=--ou- rt-:--------------, 100 II Fi gure 10. Stratigraphic profile of the west wall of Trench 91 Tennis Comt: 0 -20 cmbs Stratum I: 20 -80 cmbs Stratum II: 80 - 110 cmbs Stratum III: 110 -160 cmbs Inventory Survey Addendum for Coco Palms Fill Horizon; clay tennis cou1t is 3 layers: the clay smface, a pea-sized gravel base course and a thin crushed coralline sand layer. Fill Horizon; 10 YR 3/2, very dark grayish brown; loamy clay; structureless, extremely hard dry consistency; plastic; no cementation; abrupt wavy lower boundary. A Horizon; 10 YR 3/2, very dark grayish brown; loamy sand (50% sand); structureless, loose dry consistency; slightly plastic; no cementation; clear wavy lower boundary. B Horizon; 2.5 Y 4/2, dark grayish brown; loamy sand (80% sand); structureless, loose moist consistency; non-sticky wet consistency; non-plastic; no cementn.tion; abrupt irregular lower boundary; sand perc entage increases with depth; layer sits on coral shelf. TMK [4)4-01-003: 004, 005, 007, Oll, 017; 4-01-005: 014, 017 9 348°TN TMK [4]4-01·003; 004, 005, 0D7, 011, 017; 4-01-005: 014, 017 355°TN WAILU 3: Trench 93 100 Inventory Survey Addendum for Coco Palms top TMK [4}1-01-003: 004, 005, 007, 011, 017; 4-01-005; 014, 017 Cultural Surveys Hawai'i Job Code: W AlLU 3 Resul1s of Fieldwork Stratum IV: 100 -153 cmbs Clay lens: 109 -132 cmbs 2.2.8 Trench 94 B Horizon; 25 Y 4/2, dark grayish brown; loamy sand (80% sand); structureless, loose moist consistenc y; non-sticky wet consistency; non-plastic; no cementation; abrupt irregular lower boundary; sand percentage increases with depth; layer sits on coral shelf. Gley l 3/1; very dark greenish gray; clay; moderate blocky structure; moist firm consistency; plastic, no cementation, abrupt, wavy boundary. Trench 94 was 6.0 M long, 0,8 m wide, and 1.55 m deep. It was oriented 356 ° TN (Figure 13), o 50 100 cm !ltii@%1@!E!mc=::i 200- 356° TN WAJLU 3: Trench 94 Tennls Court FIii II Figure 13. Stratigraphic profile of the west wall ofTnmch 94 Temtls Court: 0 -15 cmbs Stratum I: 15 -70 cmbs Inventory Survey Addendum for Coco Palms Fill Horizon; tennis comt is a layer of asphalt with paint on top of it. Fill Horizon; 10 YR 4/3, brown; clay loam; structureless, firm moist consistency; plastic; no ccmcntation; very abrupt smooth lower boundary; landscape top soil fill. TMK [4]4-01-003; 004, 005, 007, 01 I, 017; 4-01-005; 014, 017 12 Results of Fieldwork 95 100 200 O 50 100cm RMMI I 166°TN Tennis Court it. top TMK [4]4-01-003: 004,00S, 007,011, 017;4-01-005: 014, 017 matter, moist gleying 014, 14 . Cultural Surveys H11wai'i Job Code: W AILU 3 Resul1s ofFreldwork 0 60 100cm 351• TN WAILU 3:Trench 96 Inventory Survey Addendum for Coco Pnlms Cultural Surveys Hawni' 1 Job Code: W AILU 3 Results ofFieldwoik 2.2.11 Trench 97 Trench 97 was 5.0 M long, 0.8 m wide, and 1.7 m deep. It was oriented 148 ° TN (Figure 17). o 50 100cm iMll=lii=lili!l•C=::J 148° TN WAILU 3: Trench 97 o'"""T""---------------------------. Tennis Court Fill Figure 17. Stratigraphic profile of the northeast wall of Trench 97 Tennis Court: 0 -15 cmbs Stratum I: 15 -110 cmbs Stratum II: 90 � 110 cmbs Stratum III: 110 -140 cmbs Invento1y Sul'vey Addendum fur Coco Palms Fill Horizon; tennis court is a layer of asphalt with paint on top of it. Fill Horizon; 10 YR 3/1, very dark gray; clay loam; moderate, medium, crumb structure; hard dry consistency; plastic; strong cementation; abrupt smooth lower boundary; Natural B Horizon under fill. Fill Horizon; 2.5 YR 5/3, light olive brown; sandy loam; weak, medium, crumb structure; loose dry consistency; non-plastic; weak cementation; abrupt irregular lower boundary; construction fill layer associated with filling of marsh and tennis court construction. B Horizon; 10 YR 4/2, dark grayish brown; clay loam; moderate, fine, blocky structme; firm moist consistency; plastic; 110 cementation; diffuse . wavy lower boundary; Natural B Horizon llllder fill. "I.MK [4]4-01-003: 004, 005, OW, 011, 017; 4-01-005: 014,017 16 Cultural Srn:veys Hawai'i Joh Code: W AfLU 3 Results ofFfoldwork 171 ° TN WAILU 3: Trench 98 Tennls Court Fill 0 60 100cm Tiv1K [4]4-01-003: 004, 005, 007, 011,017; 4--01-005: 014, 017 Results ofFJcldwork (bll.ried) abrupt lower of legend bx Location ofNun'lbered \ Arch!1eologic�I Test Trenches (xx Number & lo�tlon or CSU Mnrch 2005 \ · kchaeologkelTestTrenches \x:� Number & LO�ilt!On of CSl:f J1111e lOOS Archaeolog!c1l Test Trenches trenches where Stratum lli,a cuhur.il layar, w�stound Trencheswnh cultu"ral remains 0 100 200 3QO ◄00 500ft SUllllJJlllY end Interpl'Ctation Figure 20. Diagram of Coco Palms project'm·ea showing the backhoe trenches that contained the cti1tural layet (SIHP cultural remains lnventox}'Survey Addendum for Coco Palms TMK[4J4-0l-003: 001,on,011; 014,011 Cultural Surveys Hnwni'i Job Code: WAtLU 3 .. • o I DO 200 )QO 400 5«l<1 • ' .. Summaiy andlntetpretation ·•· Slt<1.S0-30-0H81 Figure 21. Diagram of Coco Palms _project area showing the locations of the histotic properties Ieyentory SU1VCY Adden� for Coco Palms 22 ThtK [4]4-01-003: 004, ()05, 007, 011, 017;4-01-005: 014, 017 Cul!Ul111 Surveys Hawai'1 Job Code: W AILU 3 Legend \xx locationorNumbered \ Archaeologlc1ITestTren�hes \ XX Number &.Location ofCSH March 2�S \ Ard1aeologlcal .Tes1 Trenches ·,,.;x Number'& location ofCSH June 2005l\rchaeologlcal Test Trenches Trenche� with clays/gleyed sediments or till 0 so 0 100 200 300 �00 S00� Summruy and Interpretation Figtrrc·22; Dfogra111 .of Coco Palms projectaren s4owingthe backhoe p:etJ.ches .that ccmtaineq clnys/gleyed sediments and/ot fill Inventory Survey Aqdendum for Coco Palms 23 TMK [4]4-01-003: 004, 00S,007, 011, 017;4-01-005: 014, 017 Cultural Surveyslfawal'l lob Code: WAILU3 Li:getld bx location of Numbered \ ArchaeologkalTestTrenches \l()( Nurnbier & loc;11!lon of CSH March 2005 Archaf!ologlcal Test Trench,s \xx Number & Locatlonof CSH June :zoosArchato!ogkol Test lr•nches · · ·. Trend1eswlthdlsiurb.incedue1omodern" construction acltvltles • 0 $0. O 100 :ZOO 300 :400 .sOOft Surmmny and Interpretation Figure 23, Diagram of Coco Palms project area showing the backhoe trenches that showed signs of disturbance due to moderrt construction activities JnvcntOJY Survey AB<lendtrill for Coco Palms 24 'lMK [4]4-01-003: 004, ODS, O(!J, 01 J, 017; 4-01-00S: 014, (H7 Hawai'i. ··�·-. N"Ef�_;j,lil!Jipt.Ql'rl'.nlf;. "<;O'l!iRNQROfll,\\Vi'll -,,,!.&net -���:€��-"STATE ORB'AW'AII .DEt'.AATl\1ENT·oF. LAND AW "Ni\.TtJMi, ru:s6Q,IicE� lfal .aammatt: cµ;ft�ttif SlltVeyiII�wai}� fric;. ·p:o.Box:1114'·t.<ai.1Aa-, ro :!?67-34 flJSrnllJC �R"!oERVATION DIVISIO""'..... MKU/Iffii!WA Bt)fi.oJNr:i" -�•�OU<M-!6KIU.BLVO STE.'.i55 ·M.P0Le·1 HJ ti61-pj r:QG'\'l'Q; i.Ol3·A606-POC NOi· 1310.KHM ��a-�vl!r4.n� ))i,�c�ery-ofn'.juaau .lt;�Jl1.!!llls io.�qf�d-nt �oto. l'\l,ftns:ll�s.ort; W11.Uu11 AbitjJlta�2i; l?fma-Pisti:ict,,.JsJiuid ofKaufii TMK: (4) 4:.1.003:0!3� • • • • • • • • J • Dlsl!()yery. O.n.August 14-i' 201�1·h\ll!l3-ll sR�letat:r.em:a}ns \Y�r.e iua,dv._e��!].y-disi;:ov�by:Cqltµj:a1 S:ctrv.{!)%f.Iawaii (G.SB.) �iµm_g-�f�p.aeo·1ogical·monitomif oM :£:'eno.eJrista11a.ti64.at thc·coco Fidms Resort. The· State· Bisto_tl9 Pres�rntionDivision (SHPDhyas subs��erit!J. notified_; resultmg-m. a sue V1$it P.Y;$HPD''$).li��! �P.��<1lisp�:'a\"!anq� aoomana_wa�'Ui l\.ti_cf A.;rc)yae"9logisfrv.ti_s�yJ<�ai·of-C/3i:'(. lqii,mi {}nd N'.iih@.B,µrial OoJmcil R,epres-i::!$,lves N:�than.Knlam;i;ifn�·.aarbara Say :w,er.e also notified .. Tho rertJa-ins .are-curr��ly. pi:eserved',[n j>Iace with an, fut�r.im :Pr(?'f,e�tUl;ll �!)!lSisH#.g· ofa buffer· ;mn� an,d :ot,iw_ge:-fen,qi�g. Jurfsdkti�n. s:ire.:o.· ��S�ei) Jwi$ai�ffo� 9ver Jq1f<l�p:ci�"1tioli. Qff:[i�_bu.ri.�·hs tli:e. �i:id is-human. arid hiis been in existence for-more than 50 years, D'el:ei'.tilina tion.. T� pr,�v¢itt.�tzy:po,ssib1e ha1'm:t'J:> the huniifo, �eforai reroi.fus, SHPD niakes th'l'l deterriliriation. to relocate the hufuan. skeid:al rtlmains. fo-.arr ,exi:)ting teini:enn:�pt·si-te: Oh.,the "(Yqgo· f i!\lpis ·Resort· prove.dy,. W�.Jook.f6rwatd,to:reviewi�g--ynur.Bufial Site Component of�n.Arc1¥i�Q�gi��l Di)ta 'Rec9v.ery _pJ.tt1. .. . SJ1ot\ld.r,�1.d:ia"Ve a�y.qU:e_�liarts-.ci:r,tioi:1cen.l�! _iilease,d?it�f h:esita:te: to confocfBurial S�tes SpecT�ist, K��aijO� B'oo�qnaw�nut·:it-$0879.,jJ-7ti.�d :o.n:m<!U M:Kaua;noeJn;hootnana.wa1rni@hawail:gciv: Sfucereiy, -M-��t:, .(R�,4,���JMr, Wn'{l.}l9 R.oc:41�� . . . Actibg}t1�loty.&. Culture Br'a"nch Chief EXHIBIT "DD-3" �i'ijj . =i lig ti:;; rlllj r1f r[! If WI ri nn 1 1� Pi .. 1� i�U ui p! ! he� �! a �,, �u !rj e�;; ;i;. if 5£ !; • Jl !\ i :: !\ 1r1:r1J "' �¥£ 7U li!J!t:t f ii r ,J fr J 1 " 6) , ,�1 .. 1 I (I) a 0!h I 111 , rt' ' f I EXHIBIT "EE-1" [APPROVED l CADES SCHUTTE LLP ROY A. VITOUSEK III MAUNA KEA TRASK 3135 Akahi Street, Suite A Lihu'e, Hawai'i 96766 Telephone: (808) 521-9297 Attorneys for Appellants 1862 8418 WEST SUNSET 32 PHASE 1, LLC; CHARLES SOMERS, as Trustee of the Charles Somers Living Trust; and CHARLES SOMERS, Individually Electronically Filed FIFTH CIRCUIT 5CC191000105 09-JUN-2020 03:02 PM IN THE CIRCUIT COURT OF THE FIFTH CIRCUIT STATE OF HAWAI'I WEST SUNSET 32 PHASE 1, LLC; CHARLES SOMERS, as Trustee of the Charles Somers Living Trust; and CHARLES SOMERS,· Individually, Appellants, V. COUNTY OF KAUA'! PLANNING COMMISSION; COUNTY OF KAUA'! PLANNING DEPARTMENT, by its Director, Ka'aina Hull; MICHAEL KAPLAN, Trustee of the Michael A. Kaplan Revocable Trust, dated August 12, 1992 as amended and restated by instrument dated July 16, 2017, Appellees. CIVIL NO. 5CC191000105 (Administrative Appeal) APPELLANTS WEST SUNSET 32 PHASE 1, LLC, CHARLES SOMERS, AS TRUSTEE OF THE CHARLES SOMERS LIVING TRUST, AND CHARLES SOMERS, INDIVIDUALLY'S FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION AND ORDER HEARING DA TE: Date: May 19, 2020 Time: 1:30 p.m. Judge: Hon. Kathleen N. A. Watanabe EXHIBIT 7 FINDINGS OF FACT THE PARTIES 1.This is an appeal filed by Appellants WEST SUNSET 32 PHASE 1, LLC, CHARLES SOMERS, as Trustee of the Charles Somers Living Trust, and CHARLES SOMERS Individually, ("Somers") from the decision of Appellee COUNTY OF KAUA'! PLANNING COMMISSION ("KCPC") filed June 27, 2019, denying Somers' Petition for Revocation of Special Management Area Use Permit SMA (U) 2011-1; Class IV Zoning Permit Z-IV-2011-1; and Use Permit U-2011-1. 2.Somers is the owner of that certain parcel located at 1957 Kahili Quarry Road, Kilauea, HI 96754 and identified as TMK No. ( 4) 5-2-012:035 (the "Somers Property").1 See County of Kaua'i Certified Record on Appeal ("COK") 000413-000414. 3.Somers' Property is approximately 162 acres and is directly adjacent to and abuts those certain properties that are the subject of this appeal, identified as TMK Nos. (4) 5-2- 012:019 (the "Kuleana") and (4) 5-2-021:041-0001 (por.) ("Parcel 41") (together the "Subject Properties"). (COK 000413-000418.) 4.Somers' Property is encumbered by two conservation easements, identified herein as "C-1" and "C-2." (COK 000419-000473.) Somers is the "Owner" of these conservation easements and the Hawaiian Islands Land Trust ("HILT") is the "Holder" of the conservation easements. (COK 000419-000473; 000630-000631.) Somers was obligated to transfer C-1 to HILT by the KCPC as a condition of the development of the Somers Property (COK000441.) To the extent that any finding of fact stated herein may include or more properly be designated as a conclusion of law, it shall be deemed to be a conclusion of law as well. Similarly, to the extent that any conclusion of law stated herein may include or more properly be designated as a finding of fact, it shall be deemed to be a finding of fact as well. The findings of fact include findings only on those issues necessary for and relevant to this ruling. 3 Somers faces injury in the form of penalties and sanctions imposed via injunctive and equitable relief ifhe fails to maintain the Conservation Values within C-1. (COK000422 -000423.) I I 5.Appellee COUNTY OF KAUA'! PLANNING COMMISSION ("KCPC") is an administrative agency of the County of Kaua'i, a municipal corporation that is organized under the laws of the State of Hawai'i. The KCPC administers the Special Management Area ("SMA") Use Permit process as well as other development permit processes. 6.Appellee COUNTY OF KAUA'I PLANNING DEPARTMENT ("Planning Department"), by its Director, Ka'aina Hull ("Planning Director"), is a County executive agency which administers the County zoning and subdivision codes. The Planning Director is the administrative head of the Planning Department and has responsibility for executing powers granted to the Planning Department by statute, ordinance, and/or rule. 7.The KCPC is the SMA "authority" for the County of Kaua'i, under HRS§ 205A- 22 (1993). See Sandy Beach Defense Fund v. City and County of Honolulu, 70 Haw. 361,365, 773 P.2d 250, 254 (1989). 8.The County has its principal place of business in Lihu'e, Kauai, Hawai'i and does business throughout the County. 9.Appellee MICHAEL KAPLAN, Trustee of the Michael A. Kaplan Revocable Trust, dated August 12, 1992 as amended and restated by instrument dated July 16, 2017 ("Kaplan"), is the owner of the Subject Properties which he purchased from the Hendrikus Group, LLC ("Hendrikus") in October of 2018. (COK 000599-000614.) THE SUBJECT PROPERTIES AND PROJECT AREA 10.The Subject Properties are adjacent to and abut each other and comprise a total of 12.3 acres. (COK 000415-000418.) 4 11.The area of development within the Subject Properties is identified as the "Project Area." The Project Area includes all of the Kuleana, a portion of Parcel 41, and incorporates acreage on Somers Property and neighboring Lot 4. (COK 000006 & COK 000045.) 12.The Project Area comprises a total of 9.848-acres, and is described as "a historic agricultural and archaeological complex of terraced pond fields and associated rock walls." (COK 000006.) The Project Area is significant for its archaeological, agricultural, historic, and natural features. (COK 000011.) 13.The Project Area is situated approximately 1 mile inland of the coastline. (COK 000006.) The Project Area is also approximately 1 mile inland from the U.S. Fish & Wildlife, Kilauea Point National Wildlife Refuge. (COK 000027.) 14.The Project Area is within the State land use Agricultural district, the County Open (0) zoning district and the Special Treatment District Resource Sub-zone (ST-R), is designated as Open under the General Plan, is within the North Shore Development Plan area, and is within the SMA. (COK 000386 -000387.) 15.The Special Treatment District-Resource (ST-R) designation is for land and water areas which have unique natural forms, biologic systems or aesthetic characteristics which are of particular significance and value to the general public. (COK 000275.) 16.The Kauai County General Plan speaks specifically to Historical and Archaeological Resources found on the Subject Properties. (COK 000275.) 17.The "Soil Survey for the Islands of Kauai, Oahu, Maui, Molokai, and Lanai, State of Hawaii" prepared by the U.S. Department of Agriculture, Soil Conservation Service, identifies the soils on the Subject Properties as rough broken land (Rrr) and Puhi silty clay loam 25 to 40% 5 slope (PnE). (COK 000274.) Due to topographical slopes, the erosion hazard is described as severe, and the runoff is rapid on this type of soil. (COK 000274.) 18.As a result of an archaeological inventory survey ("AIS") prepared in 2010, two historical fieldwork sites were recorded and associated with the Project Area. (COK 000125.) SIHP Site 50-30-04-2011 ("Site 2011") consists of a series of nine terraced fields that are part of a larger irrigated field system that covers the entire Project Area and continues beyond the boundaries of the Subject Properties to the south and east. (COK 000124 -000125.) SIHP Site 50-30-04-2012 ("Site 2012") consists of a cobble-lined concrete slab located along the southeastern boundary of the Kuleana on the surface of Site 2011 Field 9. (COK 000124, 000136.) Sites 2011 and 2012 are considered significant under Criterion "D" of Hawaii Administrative Rules ("HAR") § 13-284-6 for information they have yielded, relative to the Pre contact and Historic use of the general project area. (COK 000140.) 19.Portions of the Project Area are adjacent to and inclusive of the Kilauea Stream and an "Unnamed Stream." (COK 000014). It is probable that portions of the Project Area directly adjacent to the Kilauea Stream and the Unnamed Stream include wetland habitat. (COK 000026.) THE HISTORY OF AND DEVELOPMENT PLANS FOR THE SUBJECT PROPERTIES The Physical and Historical Context of the Subject Properties. 20.The Subject Properties are within the Ahupua'a of Kahili, 'ili of Kupa. (COK 000114 -115.) In the Great Mahele ("Mahele") the entirety of the Ahupua'a of Kahili, with the exception of eight kuleana parcels, was awarded to William Lunalilo (LCAw. 8559B), who later became the Hawaiian Monarch reigning between 1873 -1874. (COK000 l 14.) 6 21.The Kuleana is one of the eight kuleana lots within the Ahupua'a of Kahili thatwere awarded during the Mahele. (COK 000114.) The Kuleana was awarded in 1848 to Naiamaneo as LCAw. 10333. (COK 000114.) Naiamaneo's kuleana claim was not for a house lot, which was located elsewhere, but consisted of several small irrigated lo'i (taro fields) and adjacent kula (flat land). (COK 000114.) 22.Mahele records indicate that the area within the Kilauea stream valley supportedmore than twenty-five lo'i, house sites, and kula land where noni (Marinda citrifolis), wauke (Broussonetia papyrifera) and oranges were cultivated. (COK000 l 14.) 23.Parcel 41 is approximately 17.879 acres and constitutes Unit A of Lot 3, aLimited Common Element of the Kimolana Estates Condominium Property Regime. (COK000007.) The Taylor Development. 24.County building permit records indicate that the Kuleana was developed byformer owner Gregory A. Taylor ("Taylor") who applied for and received building permit# 85-1470 to construct a single family residence. (COK000007.) 25.Taylor constructed the single family residence which was subsequently destroyedby Hurricane Iniki in September 1992. (COK000007.) Remnants of the residence were removed after the hurricane and traces of Taylor's single family residence no longer exist. (COK000007.) The Saunders Development. 26.Prior to Hendrikus' tenure, the Subject Properties were owned by Arthur M.Saunders ("Saunders"). (COK000009.) During his tenure, Saunders constructed four (4) separate, eight-sided, single-room structures within the Subject Properties (the "Saunders Development"). (COK000009.) 7 27.Structure 1 straddled the northern kuleana parcel boundary and extended into exclusive use easement GU-4A; Structure 2 was located within Parcel 41; and Structures 3 and 4 were located within the Kuleana. (COK000009 & 000045.) 28.Saunders also installed an array of solar panels on the Subject Properties as part of his development. (COK000273.) 29.The entirety of the Saunders Development was constructed without any of the required Special Management Area permits, land use permits, zoning permits, or building permits. (COK000273.) The Hendrikus Development. 30.Hendrikus purchased the Subject Properties from Saunders with knowledge of the zoning violations. (COK 000273.) 31.On July 15, 2010, Hendrikus submitted a Special Management Area Permit Assessment and Application & Class IV Zoning Permit Application for a development containing three (3) parts: (1) proposed structures for the Kuleana, (2) proposed structures for Parcel 41, and (3) an Archaeological & Agricultural restoration project. (COK000009 -000011.) 32.Through his permit application, Hendrikus desired to rectify the known zoning violations on the Subject Properties. (COK000273.) 33.As to that portion of the development involving proposed structures for the Kuleana and Parcel 41, Hendrikus specifically applied for the following: [Kuleana] a)Construction of a new 2 bedroom, 2.5 bath Single Family Residence (SFR) with a living area of ap proximately 2,098 square feet plus lanais and covered walkways of an additional 596 square feet. b)Obtain "After the Fact" (A TF) zoning & building permits for the existing, unpermitted "Structure 3" - - a free standing, single-room structure that will be utilized as an agricultural storage building by the Applicant. 8 c)Demolition and/or complete removal of "Structure 4[.]" d)Relocation of unpermitted "Structure 1" which straddles the kuleana parcel boundary and extends into easement GU-4A. "Structure l" will be relocated to [Parcel 41] and will become part of the proposed Home Office Building [.] e)Removal of existing concrete slab (former house foundation) which straddles the eastern parcel boundary. f)Development of a permitted, non-public, potable drinking water well & associated pump facilities to service the Project Area (well location and water facilities to be designed after preliminary County zoning permit approval is granted). g)Development of photovoltaic solar facilities to serve as a power supply. Most likely to be located on the roofs of proposed structures. LOT COVERAGE -Total proposed Lot Coverage for the kuleana parcel is 3,177 square feet which is less than 10% of the 32,016.60 sqft parcel. (COK 000009 -000010, bold in original.) [Parcel 41] a)New Construction -32' x 36' accessory agricultural building [("the barn')] for dry storage of farm equipment, supplies, and machinery[.] The exact barn location will be determined after clearing of the terraces occurred. b)New Home Office Building -Relocation and reconfiguration of existing, unpermitted "Structures 1 & 2" to become parts of the proposed Home Office Building. [ ... ] The proposed Home Office will tie these two structures together with a covered walkway, and add a third new 12'x l2' Office bathroom. The structure will be accessory to the agricultural activities on TMK (4) 5-2-021:041-0001 and will support the Landscaping Services business of the Hendrikus Group, Inc. [.] c)Development of a permitted, non-public, potable drinking water well & associated pump facilities to service the Project Area (well location and water facilities to be designed after preliminary County zoning permit approval is granted). d)Development of photovoltaic solar facilities to serve as a power supply. Most likely to be located on the roofs of proposed structures. TOTAL LOT COVERAGE= 2,502 sq. ft. (COK 000010, bold in original.) 9 34.As to the portion of the development involving Archaeological & Agricultural restoration, Hendrikus proposed to clear the terraces and associated pond fields located within the Subject Properties of undesirable non-native vegetation, restore rock wall features, and reestablish agricultural practices, maintained lawns, and ornamental landscaping within the portion of the Project Area located on Parcel 41. (COK 000011.) 35.Hendrikus' application did not state how long the developments associated with the Kuleana and Parcel 41 would take, but he did specifically state that the Archaeological & Agricultural restoration project was anticipated to take 5-10 years. (COK0000l 1.) 36.Public Hearing on Hendriln1s' application was set for August 24, 2010. (COK000272.) 37.On September 28, 2010, the KCPC held a continued hearing on Hendrikus' permit application. (COK000641-000649.) The September 28, 2010 agenda item described the Hendrikus application as follows: Use Permit U-2011-1, Class IV Zoning Permit Z-IV-2011-1, and SMA (U) 2011- 1 to permit the construction of a new single family residence, accessory agricultural storage and office structures, development of irrigation well, accessory photovoltaic installation, demolition of structure and archaeological restoration of historical auwai, rock walls, and terraces in Open-Space Treatment District (O/ST-R) in Kahili Ahupua'a located in Kilauea, approx .. 1,700 ft. from Kahili Makai Road and 2,700 ft. from the intersection of Kahili Makai Road and Kuhio Highway, further identified as Tax Map Key 5-2-012:019 & 5-2- 021 :041:001 (por) and containing approx .. 18-164 acres = Hendrikus Group, Inc. [Director's Report received 8/10/10, hearing closed 8/24/10.] (COK000642.) 38.At the September 28, 2010 hearing, Kilauea resident Ms. Maka'ala Ka'aumoana ("Ka'aumoana") testified on the Hendrikus application. (COK000642.) 10 39.Ka'aumoana reviewed the Hendrikus application thoroughly and advocated for the inclusion of a permit condition requiring water quality testing before, during, and after the development. (COK000642 -000647.) 40.Ka'aumoana testified that the Hendrikus development was in an active area for traditional activities and gatherings, and that the quality of the in-stream resources of Kilauea Stream is important for people's rights. (COK000642.) 41.Ka'aumoana indicated that including a water quality testing condition in the Hendrikus permits was important so that the impact to the Kilauea stream as a public trust resource was known. (COK000643.) 42.While deciding whether or not to include Ka'aumoana's request for the inclusion of water quality testing as a permit condition, KCPC Commissioner Morikami asked Hendrikus what his timeframe was for the completion of the project from beginning to end. (COK000645.) Mr. Hendrikus responded that he hoped to complete the project within the next year and a half. (COK000645.) 43.After discussion on Hendrikus' application the KCPC moved to approve Hendrikus' permit application with the inclusion of Ms. Ka'aumoana's request for water quality testing as condition number 10, which states: Applicant shall provide for three water quality samplings and analysis, pre construction, during construction, and post construction at two locations. a.Along the Kilauea Stream at the northern most boundary of the property. b.Along the unnamed stream at the most northern boundary of the property. (COK 000648 -000649.) 44.On September 29, 2010, the Planning Director issued Special Management Area Use Permit SMA (U) 2011-1, Class IV Zoning Permit Z-IV-2011-1, and Use Permit U-2011-1 (the "Subject Permits") to Hendrikus for construction of new single family residence, accessory agricultural storage and office structure, development of irrigation well, accessory photovoltaic installation, demolition of structure and archaeological restoration of historical auwai, rock walls, and terraces, subject to ten (10) conditions. (COK000335-000336.) The Subject Permits do not provide a timeframe within which Hendrikus must make substantial progress of the development. (CO K0003 3 5-0003 3 6.) Kaplan's Permit Application. 45.Kaplan purchased the Subject Properties from Hendrikus in October 2018. (COK000594.) 46.On or about March 29, 2019 Kaplan submitted a letter application (the "Kaplan Application") to the KCPC asking for 1) a two year continuance to complete the work approved in the Subject Permits and 2) KCPC approval to modify the design of the previously approved single-family residence. (COK 000594 -000595.) Kapan's Application was not accompanied by an affidavit or legal memorandum, nor was it served upon any individual or entity other than the KCPC. 47.The alterations proposed by Kaplan included, inter alia, increasing the interior living area of the single-family residence from 2,098 sq. ft. to 2,353 sq. ft., adding a 400+ sq. ft. porte cochere to the single-family residence, and adding 22 sq. ft. of stone walls. (COK 000595, 000617, 000619.) At the same time, Kaplan proposed to remove 415 sq. ft. of screened in lanai area, remove 181 sq. ft. of walkways, and remove a 483 sq. ft. storage shed that was located away from the single-family residence on the same property. Id. 48.The Kaplan Application indicated that by the time he purchased the Subject Properties, Hendrikus had completed a substantial amount of work, particularly clearing the 12 heavily wooded Property, and that Hendrikus stopped short of building his single-family residence. (COK000594.) 49.In a letter attached to Kaplan's Application as Exhibit "D", Hendrikus stated that after he was granted the Subject Permits he immediately got started on the many projects involved in the development. (COK000615). 50.Hendrikus stated that it was and is an incredible amount of work to clear and maintain the heavily wooded Subject Properties. (COK000615.) According to his letter, Hendrikus demolished an existing structure on the Kuleana, constructed a home office building and storage barn on Parcel 41, and spent an incredible amount of time restoring the archaeological resources and activities on the Subject Properties. (COK000615.) 51.In his letter Hendrikus did not state that any of the work he performed occurred within two (2) years of the issuance of the Subject Permits, nor did he state that the Planning Director made a determination that substantial progress had been made on the development within two (2) years of the issuance of the Subject Permits. (COK000615.) Instead, Hendrikus stated that after almost nine years of continuous work, he realized that it was not financially feasible for him to construct the single family residence, so he sold the Subject Properties to Kaplan. (COK000615.) 52.On April 18, 2019 Kaplan's architect Santo Giorgio ("Giorgio") sent an email to Planning Department staff providing information on the status of the Hendrikus building permits for all the huts on the Subject Properties. (COK000382.) Giorgio attained the permit status information off of the County of Kaua'i's Public Works Building Department website and believed that the following information was accurate: . 13 •10-2250 -relocate hut from parcel 19 easement "HUT l" WORK PERFORMED -NEVER FINALLED •10 -2251 -relocate hut from parcel 41, moved approximately 15' "HUT 2" FINALLED 2/22/13 BY MERVIN RAPOZO •10-2252 -renovate huts 1&2, add breezeways, build new "HUT 5" SOME WORK PERFORMED HUT 5 NEVER BUILT -NEVER FINALLED •10-2253 -to permit existing structure "HUT 3" STATUS-IN PLAN CHECK FYI WE WILL SUBMIT PLANS TO REMOVE "HUT 3" AS SOON AS WE GET EXTENSION APPROVAL, AGAIN THIS LIMITS OVERALL SCOPE ON KULEANA •10-2254 -to demolish structure "HUT 4" STATUS -IN PLAN CHECK •11-264 2 story barn FINALLED 7/13/15 BY MERVIN RAPOZO •13-518 add loft to barn FINALLED 7/13/15 BY MERVIN RAPOZO •13-2282 solar system FINALLED 7/13/15 BY MERVIN RAPOZO •11-102 single family residence STATUS -IN PLAN CHECK, FYI PERMIT WAS REACTIVATED ON 2/13/19 AND PLAN REVIEW FEES WERE ACCEPTED BY BUILDING DEPARTMENT (COK 000382). 53.Kaplan did not file a SMA Assessment with the Planning Department pursuant to SMA Rule 7 .1 in relation to his application. 54.Kaplan's Application did not provide any information concerning the consistency of his development with the objectives, policies and guidelines contained in HRS ch. 205A the Coastal Zone Management Act ("CZMA"). 55.Upon receipt of Kaplan's application, the KCPC placed the application on its April 23, 2019, meeting agenda as a "General Business Matter." (COK 000702.) The KCPC did not set the matter for "Public Hearing" and the Planning Department did not require Kaplan to comply with the notice requirements contained in HRS § 205A-29 and SMA Rule 9.0. Instead, the Planning Department and KCPC allowed the agenda to be posted in accordance with HRS § 92-7. (COK 000491.) 14 56.Somers was not given notice of the meeting pursuant to SMA Rule 9.0 D.(COK 000409.) 57.Based upon the information contained in the Kaplan Application, the PlanningDepartment prepared a Director's Report dated April 23, 2019. (COK000386 -000389.) 58.The Director's Report described the action required by the KCPC on Kaplan'sApplication as involving, "Consideration of Time Extension for the construction of a farm dwelling unit on a parcel and Amendment to modify the design of the single family residence." (COK000386.) 59.The Director's Report found that, "pursuant to Chapter 8-11.3 of the Kauai CountCode, a Use Permit is required for all uses, structures and development within the Special Treatment District." (COK000386.) 60.The Director's Report found that, "pursuant to Chapter 8-11.3 of the KauaiCounty Code, a Class IV Zoning permit is a procedural requirement when a Use Permit is required for development within the Special Treatment District." (COK000386.) 61.The Director's Report found that, "pursuant to Section 205A of the HawaiiRevised Statutes ("HRS") and the Special Management Area Rules and Regulations of the County of Kauai, the construction of an additional residence on a lot of record constitutes 'Development,' and therefore, a SMA Use Permit is required as defined in Section 7.3 of the SMA Rules." (COK000386.) 62.The Director's Report did not contain any findings that: (1) the development willnot have any substantial, adverse environmental or ecological effect except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, and welfare, or compelling public interest; or (2) the development is consistent with the objectives, 15 policies, and special management area guidelines as enumerated in HRS Chapter 205A and any guidelines enacted by the legislature. (COK000386-000389.) 63.The Director's Report contained a preliminary recommendation to the KCPC that the extension of time and amendment to allow construction of a farm dwelling unit and associated improvements be approved. (COK000389.) However, the Director's Report contained a qualification that its report did not represent the Planning Department's final recommendation in view of the forthcoming public hearing process scheduled for April 23, 2019 whereby the entire record should be considered prior to decision making, including but not limited to: pending government agency comments, testimony from the general public and interested others; and the applicant's response to staffs report and recommendation as provided therein. (COK000389.) April 23, 2019 Hearing on Kaplan's Permit Application. 64.On April 23, 2019 the KCPC held a hearing on Kaplan's Application. April 23, 2019 (COK000702.) The Scptunbt1 28, 28}8 agenda item described the Kaplan Application as follows: Request for Extension of Time and Amendment to Special Management area Use Permit SMA (U)-2011-1, Class IV Zoning Permit Z-IV-2011-1, and Use Permit U-2011-1, for Michael Kaplan Tax Map Keys: 5-2-012:019, 5-2- 021 :041:001 (por.) to allow additional time to construct a single family residence and reduce the size of the previously approved residence. (COK000702.) 65.Despite the Director's Report informing the KCPC to consider the entire record at the upcoming "public hearing" prior to decision making, including but not limited to, testimony from the "general public" and "interested others;" the Planning Department did not provide a public hearing on Kaplan's Application, did not publish public notice of the hearing once within the County of Kaua' i and once in a newspaper of general circulation in the State at least twenty 16 (20)calendar days prior to the date of the hearing, and Kaplan did not serve written notice of the hearing to persons listed on the current Real Property Division of the Department of Finance of the County of Kaua'i or to the addresses shown on such Real Property Assessment Notice List for at least eighty-five percent (85%) of all tax map key parcels within 300 feet from the Subject Properties; 66.At its April 23, 2019, meeting, after a brief presentation by the Planning Department and Kaplan's representatives, the KCPC approved Kaplan's application for an extension of time and modification of the design of the single-family residence. (COK000702 - 000704.) 67.No public testimony was received by the KCPC at its April 23, 2019 hearing on Kaplan's application and there was no discussion regarding whether Kaplan's request constituted "Development" under HRS § 205A-22 and SMA Rule 1.4 F, the lack of public notice, the lapsing of the permits under SMA Rule 10.0, or the development's consistency with the SMA objectives, policies, and guidelines under SMA Rule 4.0 B (1) -(3) or HRS§ 205A-26 (2) (A) - (C). (COK000702 - 000704.) 68.On May 2, 2019, the KCPC issued its written decision approving Kaplan's Application (the "Kaplan Decision"). (COK 000390.) The Kaplan Decision contained no findings of fact or conclusions of law. 69.The Kaplan Decision did not contain any findings that: the development will not have any substantial adverse environmental or ecological effect, except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interests. Such adverse effects shall include, but not be limited to, the potential cumulative impact of individual developments, each one of which taken in itself might not have a substantial adverse effect, and the elimination of planning options; 17 the development is consistent with the objectives, policies, and special management area guidelines of this chapter and any guidelines enacted by the legislature; and the development is consistent with the county general plan and zoning. Such a finding of consistency does not preclude concurrent processing where a general plan or zoning amendment may also be required. Somers' Petition for Revocation of the Subject Permits. 70.On May 21, 2019, Somers filed a Petition for the Revocation of Special Management Area Use Permit SMA (U) 2011-1; Class IV Zoning Permit Z-IV-2011; Use Permit U-2011 (the "Petition") pursuant to the Rules of Practice and Procedure of the Kauai Planning Commission ("RPPPC") Ch. 12. (COK 000402-000478.) 71.In his Petition Somers stated that he is the owner of the Somers Property and that it is directly adjacent to and abuts the Subject Properties. (COK 000403.) 72.Somers also stated that he is the "Owner", and HILT the "Holder", of two (2) conservation easements, identified as C-1 and C-2, the purpose of which is to establish and maintain forever the "Conservation Values" of the Easement Area, which are: a)Water and Wetland Resources -protect the quality of water resources within or in the vicinity of the Easement Area, including protect the quality of wetlands,including the habitat they provide for endangered water birds; b)Archaeological Resources -protect Native Hawaiian archaeological resources, which have been identified in the Baseline Documentation or are identified or discovered subsequently; c)Indigenous Wildlife Resources -protect intact areas of indigenous wildlife habitat, including endangered species; d)To the extent not in conflict with the Water and Wetlands Resources, Archaeological Resources, and Wildlife Resources, Scenic Resources -protect scenic vistas visible from public rights-of-way and other public access points in the vicinity of the Property; and e)To the extent not in conflict with the Water and Wetlands Resources,Archaeological Resources, and Wildlife Resources, Agricultural Resources - 18 protect and preserve land suitable for agricultural uses, including agroforestry uses. (COK000404.) 73.Somers also stated that a portion of Kaplan's Project Area, including easements V-2 and GU-4A, are located within the boundaries of the Somers property encumbered by C-1. (COK000404.) 74.Somers alleged that both he, as Owner, and HILT, as Holder, of C-1 and C-2 are affected by Kaplan's development and must have an opportunity to review any development in the easement area; and that pursuant to RPPPC, Rule 1-12-2, as owner of the neighboring property, Owner of C-1 and C-2, and Grantor of Easement GU-4A, he is both a person and entity who is so directly and immediately affected by the Subject Permits that his interest is clearly distinguishable from that of the general public and may therefore file the Petition with the Planning Director. (COK000405.) 75.In the Petition, Somers argued that: (1) the Subject Permits had lapsed on September 28, 2012; (2) Kaplan's request for modification was made upon improper procedure; (3)the KCPC and Kaplan had failed to follow the notice requirements contained in SMA Rule 9.0, et seq.; and (4) the Director's Report and the KCPC Decision did not contain sufficient findings regarding the development's impact to the SMA as required by HRS§ 205A-26 (2) (a) - (c)or SMA Rule 4.0 B (1) -(3). (COK 000407-000411.) 76.Upon receipt, the Planning Director did not reject Somers' Petition as incomplete, inaccurate, or failing to comply with the Rules of the Commission as provided in RPPPC Rule 1- 12-3 (b). 77.Kaplan filed a memorandum in opposition to Somers' Petition, in which he argued: (1) Somers had no standing to file a petition to revoke; (2) Somers failed to state a 19 claim; (3) the Director and KCPC's process to approve the extension and modification request was proper (i.e., notice under SMA Rule 9.0 was not required); and (4) that Kaplan's request did not constitute a development under the CZMA and SMA. (COK 000578-000621). 78.Somers filed a reply brief to Kaplan's memorandum in opposition arguing: (1)Somers has standing; and (2) that notice is required under State and County law. (COK 000479-000486.) 79.On or about June 25, 2019, the Planning Department prepared a Director's Reportin which it recommended that Somers' Petition be denied. (COK 000487-000592.) June 25. 2019 Hearing on Somers' Petition for Revocation of the Subject Permits. 80.On June 25, 2019, the KCPC held a hearing on Somers' Petition. (COK000789 -000806.) 81.Attorneys for Somers and Kaplan appeared at the hearing and argued for andagainst the merits of the Petition respectively. Id.82. 000800.) 83. Kaplan's architect, Mr. Giorgio, testified on behalf of Kaplan. (COK000797 -After argument and hearing, the KCPC entered into a half-hour "unanticipated" executive session in order to speak with the deputy county attorney "for clarification on what [they] just heard [during the hearing]." (COK000805.) 84.After the executive session, KCPC Chair Mahoney reconvened the hearing andstated the KCPC was to, "decide what to do on revocation of special management area Use Permit SMA(U)-2011-1, Class IV Zoning Permit Z-IV-2001-1, and a Permit U-2011-1 for Michael A. Kaplan, a request for revocation," and asked if there was a motion on the floor. (COK000806.) 20 85.In response, Commissioner Ho made a motion, "to deny Mr. [Somers'] petition for revocation of Permits SMA (U)-2011-1 Class IV, 2011-1 and Use Permit U 2011-1. (COK000806.) 86.The KCPC voted unanimously to deny Somers' Petition. (COK000806.) 87.On June 27, 2019, the KCPC issued its written decision denying Somers' Petition for Revocation (the "Somers Decision"). (COK000593.) The Somers Decision contained no findings of fact or conclusions of law. 88.The Somers Decision memorialized the action taken by the KCPC effective June 25, 2019, to revoke the approval to allow an extension of time and modifications to the design of the farm dwelling unit for Michael Kaplan, and stated that Somers' request was denied. (COK000593.) 89.The KCPC did not find that Somers Petition lacked reasonable cause to believe that there is currently a failure of Kaplan to perform according to the conditions imposed in the Subject Permits pursuant to RPPPC 1-12-5. 90.At no time during hearing on Somers' Petition did either the KCPC or the parties argue that there was no reasonable cause to believe that there is currently a failure of Kaplan to perform according to the conditions imposed in the Subject Permits pursuant to RPPPC 1-12-5. 91.On July 27, 2019, Somers appealed from this decision of the KCPC denying·his Petition to the Circuit Court of the Fifth Circuit (the "Agency Appeal Civil No. 19-1-0105"). 21 CONCLUSIONS OF LAW JURISDICTION AND VENUE Jurisdiction. 1.The court has jurisdiction over this administrative appeal pursuant to HRS §91-14, HRS§ 603-21.8, SMA Rule 15.0, RPPPC Rule 1-6-18 (i), and Rule 72 of the Hawai'iRules of Civil Procedure. Venue. 2.Venue is proper in this Court pursuant to HRS § 603-36.STANDARD OF REVIEW 3.When a circuit court reviews an agency determination, that court acts as anappellate court. Diamond v. Dobbin, 132 Haw. 9,319 P.3d 1017 (2014). 4.An agency's findings of fact are reviewable under the clearly erroneous standardto determine if the agency's decision was clearly erroneous in view of reliable, probative, and substantial evidence on the whole record. Curtis, 90 Haw. at 393,978 P.2d at 831. 5.A finding of fact is clearly erroneous when the Court, after reviewing the entirerecord, is left with a definite and firm conviction that a mistake has been made. See, Aio v. Hamada, 66 Haw. 401,406,664 P.2d 727, 731 (1983). 6.An agency's conclusions of law are[] freely reviewable to determine if theagency's decision was in violation of constitutional or statutory provisions, in excess of statutory authority or jurisdiction of [the] agency, or affected by other error of law. Curtis v. Board of Appeals, County ofHawai'i, 90 Haw. 384,393,978 P.2d 822,831 (S. Ct. 1999); Hardin v. Akiba, 84 Haw. 305,310, 933 P.2d 1339, 1344 (S. Ct. 1997). 7.Conclusions of law that present mixed questions of fact and law are reviewableunder the clearly erroneous standard because the conclusion depends upon the facts and 22 circumstances of the particular case. See Curtis, 90 Haw. at 393, 978 P .2d at 831; Price v. Zoning Board of the Appeals of the City of Honolulu, 77 Haw. 168, 172, 883 P.2d 727, 732 (S. Ct. 1994). 8.Under statute governing judicial review of contested administrative cases, an agency's exercise of discretion is reviewable to determine whether it is arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion. Hawaii Medical Service Ass'n v. Adams, 120 Haw. 446, 209 P.3d 1260 (2009), as amended, certiorari rejected 2009 WL 3402732, certiorari rejected 2009 WL 3451205. 9.Courts reviewing agency determinations for abuse of discretion must engage in a two-step inquiry; the court must first determine whether the agency determination under review was the type of agency action within the boundaries of the agency's delegated authority, and if it was within the agency's realm of discretion, the court must then analyze whether the agency abused its discretion, but if the determination was not within the agency's discretion, then it is not entitled to the deferential abuse of discretion standard of review. Unite Here! Local 5 v. Department of Planning and Permitting, 114 Haw. 453,454 P.3d 394 (2019). 10.Pursuant to HRS §91-14 (g) (3), questions regarding procedural defects are reviewable for unlawful procedure. TJG Ins. Co. v. Kauhan e, 1010 Haw. 311, 67 P.3d 810 (2003). 11.Under Hawai'i law, an agency decision should be reversed if it is in violation of constitutional or statutory provisions, affected by other error of law, clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record, or arbitrary and capricious. See, HRS§ 91-14(g)(l),(2 ),(4),(5),(6) (1996). 23 THE KCPC AND THE PLANNING DEPARTMENT ARE AGENCIES UNDER HRS CH. 205A. 12.As used in HRS ch. 205A, the tenn "Agency" means, among other things, "any agency, board, commission, department, or officer of a county government or the state government[.]" HRS § 205A-l . Under the express terms of HRS§ 205A-1: (i) the KCPC is an "agency board, commission, or department of the County of Kaua'i and, therefore, is an "Agency" as that term is used in HRS ch. 205A, and (ii) the Planning Department is an "agency board, commission, or department of the County of Kaua' i and, therefore, is an "Agency" as that term is used in HRS ch. 205A. 13.The objectives and policies of HRS ch. 205A and any guidelines enacted by the legislature are binding upon the KCPC and the Planning Department when reviewing Kaplan's Application. HRS §205A-4 (b). 14.In reviewing Kaplan's Application, the KCPC and the Planning Department shall implement the objectives of the coastal zone management program, and shall give full consideration to ecological, cultural, historic, esthetic, recreational, scenic, and open space values, and coastal hazards, as well as to needs for economic development. HRS §205A-4 (a). 15.This court determines that both the KCPC and the Planning Department shall ensure that their rules and their interpretation of their rules comply with the objectives and policies of HRS ch. 205A and any guidelines enacted by the legislature when reviewing Kaplan's Application. HRS §205A-5 (a). 16.This court determines that both the KCPC and the Planning Department shall enforce the objectives and policies of HRS ch. 205A and any rules adopted pursuant to the CZMA in reviewing Kaplan's Application. HRS §205A-5 (b). 24 SOMERS' PETITION FOR REVOCATION OF THE SUBJECT PERMITS WAS A CONTESTED CASE. 17.A "Contested case" means a proceeding in which the legal rights, duties, orprivileges of specific parties are required by law to be determined after an opportunity for agency hearing. HRS § 91-1. 18.Pursuant to HRS § 91-14, in order for proceedings before an agency to constitutea contested case from which an appeal can be maintained, the agency must be required by law to hold a hearing before a decision is rendered. Lingle v. HGEA, 107 Haw. 178, 184, 111 P.3d 587, 593 (2005). 19.KCPC action on a Petition for Revocation of Permits pursuant to RPPPC Ch. 12involves a three-step process: (1) filing a Petition for Revocation of Permits pursuant to RPPPC Rule 1-12-3, which the Planning Director may reject pursuant to RPPPC l-12-3(b) if it is incomplete, inaccurate or fails to comply with the Rules of the KCPC; (2) holding a hearing pursuant to RPPPC Rule 1-12-5 to determine whether there is reasonable cause to believe that there is a failure to perform according to the conditions imposed on the Permits and to issue an Order to Show Cause; and (3) holding an Agency Hearing on the Order to Show Cause according to the contested case hearing procedures contained in RPPPC ch. 6, pursuant to RPPPC 1-12-7. 20.According to the record, the Planning Director did not reject Somers' Petitionpursuant to RPPPC Rule 1-12-3(b), the KCPC did not find that there was no reasonable cause to believe that there is a failure to perform according to the conditions imposed on the Permits pursuant to RPPPC 1-12-5, and although the KCPC did not formally issue an Order to Show Cause, Kaplan was served with a copy of Somers' Petition for Revocation and filed a memorandum in opposition to the same, to which Somers filed a reply brief. 25 21.At the June 25, 2019 hearing on Somers' Petition, attorneys for Somers and Kaplan argued the merits of Somers' Petition, Kaplan's architect Mr. Giorgio testified as a witness, and the KCPC voted to deny Somers' Petition based upon the merits of his Petition, not upon the threshold matter involving lack of reasonable cause. 22.Under RPPPC 1-12-7 the KCPC was required to hold an agency hearing prior to denying Somers' Petition for Revocation on its merits. Pursuant to RPPPC Rule 1-1-2, " 'Agency Hearing' refers only to such hearing held by the Commission immediately prior to a judicial review of contested case as provided in Section 91-14 HRS[.]" 23.The Court determines that the June 25, 2019 KCPC hearing on Somers' Petition for Revocation of the Subject Permits was a "Contested case" as defined by HRS § 91-1 and RPPPC 1-1-2 (7)(i), and that Somers may appeal the KCPC's June 27, 2019 Decision to the Circuit Court of the Fifth Circuit pursuant to HRS § 91-14, HRS § 603-21.8, SMA Rule 15.0, RPPPC Rule 1-6-18 (i), and Rule 72 of the Hawai'i Rules of Civil Procedure. THE JUNE 27, 2019 KCPC DECISION DENYING SOMERS' PETITION IS IN VIOLATION OF HRS§ 91-12 24.Every decision and order adverse to a party to the proceeding, rendered by an agency in a contested case, shall be in writing or stated in the record and shall be accompanied by separate findings of fact and conclusions of law. HRS§ 91-12. 25. The Statutory requirement that administrative agencies set forth separately its findings of fact and conclusions of law is intended to assure reasoned decision making by agencies and to enable judicial review of agency decisions. Application of Hawaii Elec. Light Co., Inc., 60 Haw. 625,594 P.2d 612 (1979). 26.Findings of fact, to be sufficient to support an administrative order, must include the basic facts from which the ultimate facts and terms of the statutory criteria may be inferred. 26 Hawaii Public Employment Relations Bd. V. United Public Workers, Local 646, AFSCME, AFL CIO, 66 Haw. 461,667 P.2d 783 (1983). 27.Even though there may be evidence on record to support an agency's conclusions, that does not excuse an agency from its duty to make findings as a result of consideration of the evidence. Application of Kauai Elec. Division of Citizens Utilities Co., 60 Haw. 166,590 P.2d 524 (1978). 28.To be granted deference by a reviewing court, agency's decision must be consistent with legislative purpose. Camara v. Agsalud, 67 Haw. 2121, 6885 P.2d 794 (1984). 29.Agency decisions are afforded deference, which presupposes that the agency has grounded its decision in reasonably clear findings of fact and conclusions of law. In re Water Use Permit Applications, 105 Haw. 1, 93 P.3d 643 (2004). 30.The June 27, 2019 written decision of the KCPC is devoid of any findings of fact and/or conclusions of law and is therefore in violation of the requirements of HRS§ 91-12. 31.The KCPC's failure to comply with HRS§ 91-12 is inconsistent with the legislative purpose of that statute and HRS ch. 91. 32.The KCPC's June 27, 2019 decision is not afforded deference by this court, as deference presupposes that the agency has grounded its decision in reasonably clear findings of fact and conclusions of law. 33.This Court determines that the KCPC's June 27, 2019 Decision violated HRS§ 91-14(g)(l) because the KCPC failed to satisfy HRS§ 91-12. See Rife v. Akiba, 81, Haw. 84, 912 P.2d 581 (1996). 27 SOMERS HAS STANDING TO PETITION TO REVOKE THE SUBJECT PERMITS AND TO APPEAL THE KCPC'S JUNE 27, 2019 DECISION. 34.Pleadings in administrative proceedings are to be construed liberally rather than technically, Waltrip v. TS Enterprises, Inc., 140 Haw. 226,231,398 P.3d 815, 820 (2016)(brackets omitted)(citing Perry, 62 Haw. at 685-86, 619 P.2d at 108); Dupree v. Hiraga, 121 Haw. 297,314,219 P.3d 1084, 1101 (2009). 35.Administrative pleadings need not be drawn with the refinements and subtleties of pleadings before a court. Perry, 62 Haw. at 686, 619 P.2d at 108 (citation, internal quotation marks omitted)." 36.Hawaii courts have adopted very liberal guiding tenets concerning standing in environmental cases and have said that such requirements should not be barriers to justice. Life of the Land v. Land Use Commission, 63 Haw. 166, 171, 623 P .2d 431, 438 (1981 ). 3 7. Within the meaning of statute governing judicial review of agency decisions, an "aggrieved person" is one who has suffered an injury in fact. Asato v. Procurement Policy Bd., 132 Hawai'i 333,322 P.3d 228 (2014). 38.A person aggrieved is a person whose interests were injured, but where the interests at stake are in the realm of environmental concerns, courts have not been inclined to foreclose challenges to administrative determinations through restrictive applications of standing requirements. In re Water Use Permit Applications, 105 Hawai'i 1, 93 P.3d 643 (2004). 39.Pursuant to RPPPC Rule 1-12-5, a person with interest in the land, or a person or entity who otherwise can demonstrate that they are so directly and immediately affected by the Permit that their interest is clearly distinguishable from that of the general public may file a petition for revocation of a permit with the Director. 28 40.The standing of adjoining or nearby property owners to ensure environmental protections in land use proceedings is a settled issue under Hawaii law. See, East Diamond Head Association v. Zoning Board of Appeals, 52 Haw. 518,479 P.2d 796 (1971) (holding landowners whose land adjoined land subject to a zoning variance were "persons aggrieved" under HRS § 91-14); Dalton v. City and County of Honolulu, 51 Haw. 400, 462 P.2d 199 (1969) (concluding that "residing in very close proximity" to a proposed high-rise apartment was sufficient to confer standing and thus sufficient to establish a "concrete interest" in a "legal relation" subject to protection); and Waianae Model Neighborhood Assoc., Inc. v. City and County of Honolulu, 55 Haw. 40,514 P.2d 861 (1973) (granting standing to an organization whose members resided "within the area" of a proposed apartment hotel). 41.The purpose of C-1 is to establish and maintain forever[,] and to prevent any use of the Easement Area that will significantly impair or interfere with the "Conservation Values" of the Easement Area, which are: a) Water and Wetland Resources, b) Archaeological Resources, c) Indigenous Wildlife Resources, d) Scenic Resources, and e) Agricultural Resources. (COK000422). 42.Somers is obligated to protect the Conservation Values of C-1 and HILT, as Holder of C-1, may act to prevent Owner or third persons from conducting any activity on or use of the Easement Area that is inconsistent with the protection of the Conservation Values or terms of C-1, and HILT may require Somers to restore such areas or features of the Easement Area that may be damaged by any inconsistent activity or use. (COK000423). 43.HILT may enforce C-1 in the case of breaches by Somers or third persons by appropriate legal proceedings and may obtain injunctive and other equitable relief against any 29 violations, including without limitation relief requiring removal of offending structures and other restoration of the Easement Area. (COK000423.) 44.In his Petition for Revocation of the Subject Permits, Somers' clearly established his "interest in the land" as Kaplan's project area is within a portion of Somers' Property encumbered by conservation easement C-1. 45.In his Petition for Revocation of the Subject Permits, Somers' clearly established his status as a person or entity who otherwise can demonstrate that they are. so directly and immediately affected by the Permit that their interest is clearly distinguishable from that of the general public, due to his standing as a neighboring land owner with the obligation to maintain forever and prevent any use of the Easement Area that will significantly impact or interfere with the "Conservation Values" of C-1. 46.Somers, as a neighboring landowner and Owner of conservation easement C-1 with a duty to protect its Conservation Values, is unquestionably "a person with interest in the land" and a person whose interest "is clearly distinguishable from that of the general public" and therefore has standing to Petition to Revoke Kaplan's Permits pursuant to RPPPC § 1-12-2. 47.This Court determines that the KCPC's denial of Somers' Petition denied him of his right and duty to preserve and maintain the Conservation Values of the Easement Area within C-1 and to prevent any use of the Easement Area that will significantly impair or interfere with the aforementioned resources, which may result in sanctions and adversarial action taken against Somers by HILT, and constitutes an "injury in fact" and establishes Somers as a "person aggrieved" with the right to administratively appeal the KCPC's June 27, 2019 written decision pursuant to HRS§ 91-14. 30 ON SEPTEMBER 28, 2012, THE SUBJECT PERMITS WERE DEEMED TO HAVE LAPSED AND BE NO LONGER IN EFFECT PURSUANT TO SMA RULE 10.0. 48.Under SMA Rule 10.0: Unless otherwise stated in the permit, once a permit is issued, the applicant must make substantial progress, as determined by the Director, regarding the development or activity within two (2) years, or the permit shall be deemed to have lapsed and be no longer in effect. 49.The tenets of SMA Rule 10.0 concerning substantial progress and lapse operate as a condition of all SMA Use Permits issued by the KCPC, unless otherwise stated in the permit, and as such applied to the Subject Permits. 50.This Court determines that on September 28, 2012, by operation of SMA Rule 10.0, the Subject Permits were deemed to have lapsed and be no longer in effect. 51.There is no evidence that Hendrikus made substantial progress on the development, as determined by the Director, within two years of the issuance of the permit. 52.Hendrikus' letter does not state that substantial progress was made on the development within two (2) years of issuance of his permits, but instead says that after almost "nine years of continuous work" it was not financially feasible to construct the single family residence, so he sold the property to Kaplan. (COK000615.) 53.Similarly, the April 18, 2019 email from Kaplan's architect Mr. Giorgio does not establish that substantial progress was made on the development within two (2) years of issuance of the permits. 54.The Giorgio email clearly illustrates that out of the nine (9) building permits that were applied for by Hendrikus over the past nine (9) years, only seven (7) were applied for within two (2) years of issuance of the permits, i.e. 10-2250, 10-2251, 10-2252, 10-2253, 10- 2254, 11-264, and 11-102. (COK000382 .) Out of these seven (7) building permits, none were 31 completed or "finalled" within two (2) years of issuance of the permits. Given these facts the Court determines that substantial progress was not made on the Hendrikus development within two years of September 28, 2010. 55.This Court determines that SMA Rule 10.0 provides for mandatory not discretionary "lapse" of SMA Permits if substantial progress is not made, as determined by the Director, within two (2) years of issuance of the permit. 56."Shall" is defined as "will have to" or "must." Webster's Third New Int'/ Dictionary 2085 (1961). As to the meaning of "shall," it is further stated: As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary signification, the term "shall" is a word of command, and one which has always or which must be given a compulsory meaning; as denoting obligation. The word in ordinary usage means "must" and is inconsistent with a concept of discretion. Leslie v. Board of Appeals of County of Hawaii, 109 Haw. 3 84, 126 P .3d 1071 (2006), citing Black's Law Dictionary 1375 (6th ed. 1990) (emphasis added). 57.In Perry v. Planning Comm'n, 62 Haw. 666,619 P.2d 95 (1980), the court articulated a three-prong test for determining when the word "shall" may be interpreted as directory. First, "shall" can be read in a non-mandatory sense when a statute's purpose "confute[s] the probability of a compulsory statutory design." 62 Haw. at 676,619 P.2d at 102. Second, "shall" will not be read as mandatory when "unjust consequences" result. Id. Finally, "the word 'shall' may be held to be merely directory, when no advantage is lost, when no right is destroyed, when no benefit is sacrificed, either to the public or to the individual, by giving it that construction." Id. at 677, 619 P.2d at 103. 58.In this case, the first prong of the test is not met as the purpose of SMA Rule I 0.0 clearly does not "confute the probability of a compulsory statutory design." SMA Rule 10.0 clearly provides that, unless otherwise stated, the applicant "must" make substantial progress, or 32 the permit "shall" be deemed to have lapsed and be no longer in effect. By using both "must" and "shall" in the same sentence, SMA Rule 10.0 clearly supports and proves the mandatory nature of that provision. 59.As to the third prong, it is inarguable that with regard to the authority granted inan SMA Use Permit, advantages are lost, rights are destroyed, and benefits are sacrificed upon lapsing of the permit and, therefore, "shall" cannot be held merely to be directory. 60.As to the second prong, the court concludes that lapse of the Subject Permitswould not result in "unjust consequences." 61."Special controls on development are necessary to avoid permanent losses ofvaluable resources and the foreclosure of management options[.]" HRS §205A-21 and SMA Rule 1.2. 62.The SMA Rule 10.0 requirement that permits shall lapse if substantial progress isnot made, as determined by the Director, within two (2) years of the issuance of the permits constitutes "special controls on development" within the SMA is consistent with the objectives, policies, and guidelines of the CZMA. 63.A plain reading of SMA Rule 10.0 requiring lapse of the Subject Permits becausesubstantial progress was not made within two (2) years of issuance of the permits, as determined by the Director, does not violate Kalan's Due Process rights to develop his property. 64.A protected property interest under both the federal and state constitution's dueprocess clause, "stems from an independent source such as state law -rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Brescia v. North Shore Ohana, 115 Haw. 477, 168 P.3d 929 (2007); citing Roth, 408 U.S. at 577, 92 S.Ct. 2701. 33 65.A property interest will be seen to exist "if discretion is limited by the procedures in question, that is, whether the procedures, if followed require a particular outcome." Brescia, Id.; citing Crown Point I, LLC v. Intermountain Rural Elec. Ass'n, 319 F.3d 1211, 1217 (10th Cir. 2003) (citing Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000)). See also Jacobs v. City of Lawrence Kansas, 927 F .2d 1111, 1116 (10th Cir. 1991) 66.Only if the governing statute compels a result upon compliance with certain criteria, none of which involve the exercise of discretion by the reviewing body, does it create a constitutionally protected property interest[.] Shanks v. Dressel, 540 F.3d 1082, 1091 (9th Cir. 2008) ( citations and internal quotation marks omitted). 67.The issuance of an SMA Use Permit is a discretionary act by the KCPC and in no _, instance is the KCPC compelled to issue a SMA Use Permit or the amendment or modification of the same. 68.No development shall be allowed in any county within the special management area without obtaining a permit in accordance with HRS ch. 205A, Part II. HRS §205A-28. 69.No development shall be approved unless the authority has first found: (A)That the development will not have any substantial adverse environmental or ecological effect, except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interests. Such adverse effects shall include, but not be limited to, the potential cumulative impact of individual developments, each one of which taken in itself might not have a substantial adverse effect, and the elimination of planning options; (B)That the development is consistent with the objectives, policies, and special management area guidelines of this chapter and any guidelines enacted by the legislature; and (C)That the development is consistent with the county general plan and zoning. Such a finding of consistency does not preclude concurrent processing where a general plan or zoning amendment may also be required. HRS§ 205A-26 (2) (A) -(C), SMA Rule 4.0 B (1) -(3). 34 70.The KCPC is not required to grant a request to modify or delete an SMA permitcondition imposed, but may do so for good cause shown. RPPPC 1-12-9 (b). 71.Because neither state nor county law compels that Kaplan be granted either aSMA Use Permit or modification of a SMA Use Permit upon compliance with certain criteria, and because the KCPC has discretion to grant such a request, a constitutionally protected property interest is not created in a SMA Use Permit if substantial progress is not made, as determined by the Director, regarding the development or activity within two (2) years of the issuance of the permit, and therefore the automatic lapse of a SMA Use Permit under the provisions of SMA Rule 10.0 does not deprive Kaplan of any Due process rights. 72.When construing a statute or administrative rule, courts are "bound to give effectto all parts of a statute, and ... no clause, sentence, or word shall be construed as superfluous, void, or insignificant if a construction can be legitimately found which will give force to and preserve all words of the statute." Keliipuleole v. Wilson, 85 Haw. 217,221,941 P.2d 300,304 (1997) (quotation marks omitted). 73.To interpret SMA Rule 10.0 in a way that would treat the lapsing provision assurplusage is inconsistent with the special development controls applicable within the SMA, and the objectives, policies and guidelines of the CZMA and SMA Rules. KAPLAN'S APPLICATION TO AMEND AND MODIFY THE SUBJECT PERMITS WAS MADE UPON IMPROPER PROCEDURE 74.Under SMA Rule 10.0, permits can be amended through the procedure outlined inRPPPC Ch. 12. 75.Under RPPPC Rule 1-12-9(a), "[i]f a permit holder desires to have a modificationor deletion of a condition that was imposed by the Commission, the permit holder shall file a 35 motion in accordance with Section 1-6-16 of these Rules and serve a copy to all parties to the proceeding in which the condition was imposed." 76.According to the record, Kaplan's Application requesting modification did not comply with the requirements of a motion as provided by RPPPC Rule 1-6-16, was not served on any party, and was not accompanied by an affidavit or legal memorandum setting forth the grounds upon which it was based. 77.However, because the Hendrikus permits lapsed on September 28, 2012, this Court determines that allowing Kaplan to amend or modify a permit that had lapsed approximately seven (7) years prior was in violation of statutory provisions, in excess of the statutory authority and jurisdiction of the KCPC and the Planning Department, affected by other error of law, and arbitrary and capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion in violation of HRS 91-14 (g) (1)(2)(4) and (6). 78.The April 23, 2019 Director's Report correctly found that Kaplan's request constituted "Development" and required a SMA Use Permit. 79.HRS § 205A-28 provides, "[n]o development shall be allowed in any county within the special management area without obtaining a permit in accordance with this part." 80.Any "Development" within the SMA shall be subject to the review of the Director, Planning Department, and Planning Commission, and shall be pursuant to the objectives, policies and guidelines set forth in SMA Rule Sections 1.2, 3.0, and 4.0 and the procedures set forth in SMA Rule Sections 7.0 and 8.0. SMA Rule 5.0. 81.The SMA Rules are special rules applicable to development within the SMA that incorporate by reference the general procedural rules contained in the RPPPC and all provisions 36 of the RPPPC used as part of a SMA proceeding must be interpreted and applied consistent with the objectives, policies, and guidelines of the CZMA and SMA Rules. 82.The objectives and policies of the CZMA are "paramount in any determination involving the use of land in a special management area." Mahuiki, 65 Haw. at 519,654 P.2d at 882-883 (1982). 83.Public participation is a clearly stated objective and policy of the CZMA. HRS § 205A-2 (b) (8), (c) (8). As such, in implementing the CZMA, the SMA Rules, and the RPPPC the KCPC and the Planning Department must stimulate public awareness[,] and participation in coastal management, and promote public involvement in coastal zone management. Id. 84.According to the objectives and policies of the CZMA concerning "managing development," the KCPC and the Planning Department shall: improve the development review process, communication, and public participation in the management of coastal resources and hazards; use, implement, and enforce existing law effectively to the maximum extent possible in managing present and future coastal zone development; and communicate the potential short and long-term impacts of proposed significant coastal developments early in their life cycle and in terms understandable to the public to facilitate public participation in the planning and review process. HRS § 205A-2 (b) (7), (c) (7) (A) & (C). 85.The April 23, 2019 Director's Report clearly provided that Kaplan's application constituted development and that a SMA Use permit was required as defined in Section 7.3 of the SMA Rules. (COK000386). Because the Planning Director made this determination, he was obligated to inform Kaplan of the following: the requirement of an application pursuant to SMA Rule 8.0; the public hearing requirements pursuant to SMA Rule 9.0; the Planning Commission's 37 requirements for action pursuant to SMA Rule 10.0; and the area of critical concern to delineate the scope of the information which the applicant must address. SMA Rule 7.3 C (a) -(d). 86.The general RPPPC rules must be implemented and interpreted consistent with the objectives, policies, and guidelines of the CZMA despite the Directors discretion to require a notice of hearing on the modification or deletion of conditions contained in RPPPC Rue 1-12-9 (a)or the provisions of RPPPC 1-6-16. 87.This Court determines that the KCPC and the Planning Department were obligated to hold a public hearing on Kaplan's application so as to effectuate the objectives, policies, and guidelines of the CZMA regarding Public Participation and Managing Development. 88.This Court determines that the KCPC's approval of the Kaplan Application at its April 23, 2019 hearing was made upon unlawful procedure for failing to follow the SMA Use Permit application and public hearing procedure provided for in the County of Kauai SMA Rules and the CZMA, and is thus in violation of HRS 91-14(g)(3). THE KCPC AND KAPLAN FAILED TO PROVIDE SOMERS AND THE PUBLIC WITH ADEQUATE NOTICE OF THE APRIL 23, 2019 HEARING AS REQUIRED BY HRS § 205A-29 (A) AND SMA RULE 9.0. 89.Public participation is a specific objective and policy under the CZMA and the SMA Rules. See HRS§ 205A-2 (b) (8) and (c) (8) and SMA Rule 3.0. 90.HRS § 205A-29 provides that: The authority shall provide for adequate notice to individuals whose property rights may be adversely affected and to persons who have requested in writing to be notified of special management area use permit hearings or applications. The authority shall also provide public notice statewide at least twenty days in advance of the hearing. 38 91.With regard to the Kaplan Application, the KCPC, the Planning Department, and Kaplan were all required to comply with the notification procedures contained in HRS § 205A- 29 (a) and SMA Rule 9.0. 92.Under SMA Rule 9 A: The Planning Commission shall conduct a public hearing within a period of sixty (60) calendar days from the date of acceptance of a properly filed and completed application as determined by the Planning Department, unless the sixty-days period is waived by the applicant. The Planning Department Commission shall give written notice to the applicant, and notice shall also be published once within the County of Kaua'i and once in a newspaper of general circulation in the State at least twenty (20) calendar days prior to the date of the public hearing in a publication pursuant to HRS Section 1-28.5. 93.Under SMA Rule 9 D: At least twenty (20) calendar days prior to the scheduled date of such hearing, the applicant shall either hand-deliver written notices to persons listed on the current Real Property Assessment Notice List located at the Real Property Division of the Department of Finance of the County of Kaua'i, or send by certified mail written notices to the addresses shown on such Real Property Assessment Notice List for at least eighty-five percent (85%) of all tax map key parcels within 300 feet from the nearest point of the tax map key parcel involved in the petition. 94.Upon receipt of Kaplan's application, the KCPC did not set the matter for "Public Hearing" as required by SMA Rule 9.0 A. Instead, the KCPC placed the application on its April 23, 2019, meeting agenda as a "General Business Matter." 95.The KCPC did not conduct a "Public Hearing" upon Kaplan's application, and the Planning Department did not require Kaplan to comply with the notice requirements contained in HRS § 205A-29 (a) and SMA Rule 9.0 A and D. 96.The KCPC and the Planning Department allowed the agenda merely to be posted in accordance with HRS § 92-7. 39 97.The April 23, 2019 KCPC agenda item language concerning the Kaplan Application was insufficient under HRS § 92-7 to notify the public or Somers that the Hendrikus permits were being amended or modified per Kaplan's Application. The agenda item made no reference to the entire development permitted under the Subject Permits and did not reference that the Subject Permits were originally granted to Hendrikus. 98.Neither Somers, the public, nor other neighboring landowners were given adequate notice of the meeting as required by HRS§ 205A-29 (a) and SMA Rule 9.0. (COK 000793.) 99.Pursuant to HRS§ 205A-29 (b): No agency authorized to issue permits pertaining to any development within the special management area shall authorize any development unless approval is first received in accordance with the procedures adoptedpursuant to this part. 100.There is no lawful authority to support the premise that the mandatory notice requirements in the CZMA and County SMA Rules do not apply to Kaplan's Application for permit extension and modification as provided in the June 25, 2019 Director's Report. (COK 000491.) 101.The CZMA and the SMA Rules require both public notice and specific individualized notice to nearby property owners and other individuals whose property rights may be adversely affected is required, and specifically provides the process and procedure therefor. 102.This Court determines that the KCPC and Planning Director's decision to waive public notification and hearing requirements with regard to Kapan's application was an abuse of discretion and clearly exceeded the bounds of reason and disregarded rules or principles of law or practice to the substantial detriment of Somers, and furthermore that it was in violation of 40 statutory provisions, in excess of the statutory authority or jurisdictions of those agencies, and was affected by other error of law in violation of HRS 91-14(g)(1)(2) & (4). THE DIRECTOR'S APRIL 23, 2019 REPORT AND THE KCPC'S MAY 2, 2019 DECISION DID NOT CONTAIN THE FINDINGS REQUIRED BY HRS § 205A-26 (2)(A)-(C) OR SMA RULE 4.0 B (1) -(3). 103.The legislature has sought to maintain the integrity of its declared policy by providing guidelines in HRS § 205A-26 to be followed by the counties in reviewing applications for special management area use permits. Mahuiki v. Planning Com'n, 65 Haw. 506, 654 P.2d 874 (1982). 104.Both State and County law require that no development shall be approved unless the authority has first found: (A)That the development will not have any substantial adverse environmental or ecological effect, except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interests. Such adverse effects shall include, but not be limited to, the potential cumulative impact of individual developments, each one of which taken in itself might not have a substantial adverse effect, and the elimination of planning options; (B)That the development is consistent with the objectives, policies, and special management area guidelines of this chapter and any guidelines enacted by the legislature; and (C)That the development is consistent with the county general plan and zoning. Such a finding of consistency does not preclude concurrent processing where a general plan or zoning amendment may also be required. HRS§ 205A-26 (2) (A) -(C), SMA Rule 4.0 B (1) -(3). 105.The Hawaii Supreme Court has overturned the granting of SMA permits because the findings required by [HRS § 205A-26] paragraph (2) were not made. See, Mahuiki v. Planning Commission, 65 Haw. 506,654 P.2d 874 (1982), and Hui Alaloa v. Planning Commission et al., 68 Haw. 135, 705 P.2d 1042 (1985). 41 I 06. The Court in PASH found that the Hawai 'i County Planning Commission may not issue special management area use permit unless it found that proposed project will not have any significant adverse effects. Public Access Shoreline Hawaii by Rothstein v. Hawai 'i County Planning Com'n by Fujimoto, 79 Haw. 425,903 P.2d 1246, cert. denied, 116 S.Ct. 1559, 517 U.S. 1163, 134 L.Ed.2d 660 (1995). I 07. The Project Area is acknowledged to be significant for its archaeological, agricultural, historic, and natural features. (COK 000011.) I 08. The inclusion of the Subject Properties within the Open/Special Treatment District-Resource (ST-R) zone establishes that there are unique natural forms, biologic systems, or aesthetic characteristics which are of particular significance and value to the general public existing thereon. (COK 000275.) 109.The U.S. Department of Agriculture, Soil Conservation Service, identifies thesoils on the Subject Properties as rough broken land (Rrr) and Puhi silty clay loam 25 to 40% slope (PnE) and due to topographical slopes, the erosion hazard of the Project Area is described as severe, and the runoff is rapid on this type of soil. (COK 000274.) 110.Hawaii law mandates that the KCPC find that proposed developments areconsistent with the CZMA's objectives policies and guidelines prior to approving such development. HRS § 205A-26 (2) (a)-(c) and SMA Rule 4.0 B. (1) -(3). Neither the Director nor the KCPC made any of the requisite findings that the proposed project was consistent with the objectives, policies and guidelines of the CZMA. 111.This Court determines that the failure of the KCPC and Planning Director to makefindings that Kaplan's proposed development was consistent with the CZMA's objectives policies and guidelines prior to approving such development as required by HRS § 205A-26 (2) 42 (a)-(c) and SMA Rule 4.0 B. (1) -(3) was an abuse of discretion and clearly exceeded the bounds of reason and disregarded rules or principles of law or practice to the substantial detriment of Somers, and furthermore that it was in violation of statutory provisions, in excess of the statutory authority or jurisdictions of those agencies, and was affected by other error of law in violation of HRS 91-14(g)(l)(2) & (4). DECISION AND ORDER IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Appellee COUNTY OF KAUAI PLANNING COMMISSION's Decision and Order dated May 2, 2019, Approving an extension of time and modification to the design of the farm dwelling unit; and Appellee COUNTY OF KAUAI PLANNING COMMISSION's Decision and Order dated June 27, 2019, Denying Somers' Petition for the Revocation of the approval to allow an extension of time and modifications to the design of the farm dwelling unit for Michael Kaplan, are hereby VACA TED. Accordingly, the Court grants Appellant Somers' Administrative Appeal and orders that: (A)Special Management Area Use Permit SMA (U) 2011-1; Class IV Zoning Permit Z-IV-2011-1, and Use Permit (U) 2011-1 lapsed on September 28, 2012 and are deemed to be no longer in effect and no further development shall proceed under the authority of the Subject Permits; (B)This matter is remanded to the Planning Department with instructions to find that Kaplan's request for the construction of a farm dwelling unit in addition to the pre-existing development on the Subject Property, and amendment to modify the design of the previously permitted single family residence requires a Use Permit pursuant to Chapter 8-11.3 of the Kauai County Code, a Class IV Zoning Permit pursuant to Chapter 8-11.3 of the Kauai County Code, and constitutes "Development" pursuant to HRS 205A- 22 and SMA Rule 1.4 F, thus requiring a SMA Use Permit as defined in SMA Rule 7 .3 C; (C)The Director shall inform Kaplan of, and the KCPC, the Planning Department, and Kaplan shall comply with the following requirements pursuant to SMA Rule 7.3 C (a) -(d): the requirement of an application pursuant to SMA Rule 8.0, the public hearing requirements pursuant to 43 SMA Rule 9.0, the Planning Commission's requirements for action pursuant to SMA Rule 10.0, and the area of critical concern to delineate the scope of information which the applicant must address; and (D)Kaplan's request for Development shall not be approved unless the Directoror Planning Commission has first made the requisite findings pursuant toHRS § 205A-26 (2) (A) -(C) and SMA Rule 4.0 B (1) -(3) after conducting a public hearing and any other necessary hearings pursuant to HRS Ch. 205A, the SMA Rules of the County of Kauai, and the RPPPC, consistentwith this Court's Findings of Fact, Conclusions of Law, and Decision and Order. IT IS SO ORDERED: DATE: Lihu'e, Kaua'i, June 9, 2020 ----�----- JU OF THE ABOVE-ENTITLED COURT WEST SUNSET 32 PHASE 1, LLC; et al. v. COUNTY OF KAUA 'I PLANNING COMMISSION, et al.; Civil No. 5CC191000105; APPELLANTS WEST SUNSET 32 PHASE 1, LLC, CHARLES SOMERS, AS TRUSTEE OF THE CHARLES SOMERS LIVING TRUST, AND CHARLES SOMERS, INDIVIDUALLY'S FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION AND ORDER 44 EXHIBIT 8 Hull: 14 rd• 24 Ms. Barzilai: Are there any other questions for Ms. Tico? Mr. Ornellas: What do you hope to accomplish during the continuance? What would be ideal? Ms. Tico: We would like to meet with the developers' representatives, and their attorneys very much so, and as I indicated to date, that's been a fruitless undertaking but after today's hearing, I believe sincerely that the attorneys are sincere in their representations if they would like to meet, with us and I believe that after today's hearing they will be motivated to meet with us. I will definitely follow up with them. If this continuance is granted by the Commission. Chair Cox: It might be helpful to hear from either Chad DeCoursey or Rick Crum, I don't know are they both ... are you both out there still? Mr. Crum: Yes, we are. Chair Cox: Okay, and would a continuance until January work for you? Mr. DeCoursey: I can speak to that. We would strongly prefer to meet and resolve this sooner rather than later. We feel it's in everyone's best interest to keep things moving on this project. That's been one of the main complaints to date is, or that I've heard, at least from the public, is the time that it's taken, and we certainly don't want to be contributing to further delays, we would prefer to meet within 30 days, well approximately 30 days, if possible. Chair Cox: Thank you. I think another question would be, are you during that continuance, we've just heard from Terry Tico that one of the desires she would have during that time is to meet with people from the property owner and owners, and the attorneys, is that something that your side also would be agreeable to? Mr. DeCoursey: Yes, I believe we're completely open to discussions to see what could be accomplished. Chair Cox: Thank you. Ms. Tico: Thank you. Mr. Hull: Ms. Tico, sorry. Ms. Tico: Sorry. Mr. Hull: Just like ask you, or both, in looking at the commissions upcoming calendars, the continuance to, I'm not saying we're recommending a continuance (inaudible) because of conversation has gone into, what would happen in a continuance. The Department has strongly recommended not doing a continuance to a date in December, as far as the December, it becomes an issue in making quorum. We have one meeting scheduled in November, on November 15th, for November. We don't have a meeting scheduled for the second or fourth week in December. It's November because, more than likely we'll run into quorum issues as well. So, (inaudible) pushing this to November 15th, the department, if the Commission is looking at entertaining a continuance, we then recommend either the 15 th, or January 24th, or February 14th• Because of the back log and quorum issues that may be generated in December, we anticipate the first week of January having a fairly large and robust agenda and to be fair and be honest, having Coco Palms on a separate agenda maybe appropriate. So, I'm not sure if you folks are able to meet possibly sort out any issues within the next, quite honestly 30 days because the next meeting is November 15th • Ms. Tico: It's really up to them We've been ready, willing, and able to meet with them all along, but they haven't gotten back to us when we've reached out. So, I would put the onus on Mr. DeCoursey. 31 th Chair Cox: Thank you. Mr. Hull: With that. Is there anybody else in person that has not testified on this agenda item and would like to testify on this agenda item? Seeing none. For those participating virtually, is there anybody attending virtually that has not testified on this agenda item, that would like to testify? If so, please indicate by raising your digital hand. Ms. Higuchi Sayegusa: At this point there are no attendees virtually raising their hand. Thank you. Mr. Hull: Thank you. Tum it back over to you, Chair. Chair Cox: Okay, going back to where we were, we were discussing the continuance but before we move forward, I want to make sure that there aren't other questions or concerns that you have about the declaratory order itself. Mr. Ako: Madam Chair, can I just add my last two cents on this issue? Chair Cox: (inaudible). Mr. Ako: You know I just want to say, I'm very appreciative of everybody that has stepped forward on both sides of the issues over here and I really appreciate the (inaudible) that you all come from. And I know we all come here because we all care about Kaua 'i, we all care about our island. We all care about the future generations that come forward over here. I think the one problem I have is that we all come here with so much passion but we come here and we all stay in our own lanes, and we advocate for this position, we advocate for another position and why, I really hope that when we have this continuance over here that we meet back in January, that gives us the time that we come together as one group and see if we can come to some kind of resolution of this, because in the end, come back in January, the Commission here is still going to have to make a decision on this declaratory order. I don't know, which way it's going to go right now I really believe ifwe cannot come together now on this, probably the biggest issue that going on Kaua 'i for who knows how long. And I know those that are up in Utah or whatever, I don't know if you seen all of the testimony but if you have not seen, no but you have seen today is a very small idea in terms of the number of people that have come out and spoken. So, in my mind, that if we can come back in January, we got to come back as a group and come to some kind of resolution, if not, I'm not sure how we can say, that we are in it for the betterment of Kaua 'i. So, I just hope that come January that we come back together and at that point and time, we can just go ahead and move forward. Chair Cox: Thank you. Mr. Ako: Thank you, Madam Chair. Chair Cox: Are there any other questions or comments you want to make about the declaratory order or continuance? Mr. Decoursey: Commissioners, and Mr. Director, If I could I would just like a little bit of clarification. We were open to the continuance but would strongly prefer that it be in an expedited manner, like sooner rather than later. So, are we talking, I mean, I fully intend to be prepared for November 15th • Is that still acceptableto the Commission? Chair Cox: I guess I was wondering, earlier I thought we heard that only the petitioner chose the date since they ... l'mjust a little confused on what our options are. Mr. DeCoursey: Okay. If I. .. 36 40 Hull: Mr. Hull: ... the petitioners ready to come back and we schedule the opposition on an agenda where the petitioners are not ready to come back. Ms. Barzilai: It would be scheduled on the same day that we resolve what we are speaking about today but. .. Mr. Hull: ... correct. Ms. Barzilai: ... when it becomes a public filing, I think it would be fine for the Commissioners to see it, and then we would have a response from Ms. Tico. She would be entitled to a reply. Mr. Hull: You know the Commissioners individually could see it because it's a public document, but I don't think we would ... Ms. Barzilai: It wouldn't be under consideration. Mr. Hull: ... be advising that she put onto an agenda for receipt until the petitioners ready to come back. Ms. Barzilai: That's right, that's right, because in any case they're going to have to rule on the petition. Mr. Hull: Yep. Chair Cox: I hope that all made sense to you. So, yes. Ms. Barzilai: You can file your opposition. Chair Cox: You can file your opposition. Mr. Crum: Okay, and the Commission at this time setting a deadline, which is open to receiving written opposition. Am I understanding correctly? Chair Cox: Well, I guess the deadline would be the same as the deadline for the negotiations, the continuance. Cause it wouldn't be after that right, I mean it wouldn't make any sense to have it after. Ms. Apisa: It should be two weeks before that, so it gets ... Chair Cox: On the agenda yeah. Ms. Apisa: ... on our agenda. Mr. Crum: So, two weeks before January 31st? Mr. Hull: No, sorry. Sorry, Mr. Crum. Ultimately the petitioners essentially consented up to January 31 •t, but once the petitioners ready to come back, should they be ready to come back, say, November 14th, then we would agendize it, so it would be in your party's best interest to honestly, file it before the next scheduled meeting, which is going to be November 14th• We don't anticipate it to be on November 14 th, but it would be in your best interest to file it before November 14th • Ms. Apisa: Two weeks before the next scheduled meeting. Mr. Crum: Okay. Thank you, that's very helpful. 43 th • CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a copy of the foregoing document was duly served upon the following parties on this date, by hand delivery, electronically via email and/or depositing said copy, postage prepaid, first class, in the United States Post Office, at Honolulu, Hawai'i, as indicated and addressed as set forth below: TERESA TICO P.0. Box220Hanalei, HI 96714Attorney for Petitioners COURIER U.S. MAIL DATED: Honolulu, Hawai'i, January 3, 2023. 15811525\000001 \122822653\V-4-12/28/22 WILLIAM W.L. RICHARD M. CR Attorneys for Permittee RP21 COCO PALMS, LLC E-MAILEDX