DO NOT CIRCULATECONFIDENTIAL PRE-DECISIONAL DOCUMENT

DOCKET NO. DR08-36KO.OLINA

DEVELOPMENT, LLC

CONTINUED STATUS REPORT(HISTORICAL BACKGROUND)

Staff Report

Meeting

DdnTel E. Oroÿker, Executive Officer

Submitted: February 5, 2016

TABLE OF CONTENTS

Tab No. Page No.

lo BACKGROUND SUMMARY OF THE STATUS REPORTPROCEEDING BEFORE THE LAND USE COMMISSION

2. HISTORICAL CHRONOLOGY OF SIGNIFICANT EVENTS

3. MOTION FOR RECONSIDERATION 19

4. ATTACHMENTS (COMMENT LETTERS) 22

2

lo BACKGROUND SUMMARY OF THE STATUS REPORT PROCEEDINGBEFORE THE LAND USE COMMISSION

On October 16, 2015, the State Land Use Commission ("Commission") heard astatus report from Ko Olina Development, LLC ("Ko Olina'), on its boatlaunching ramp at the Ko Olina Marina} The Commission received oral and/orwritten public testimony on the matter from several individuals, includingfishermen and recreational boaters as well as a representative from Ko Olina. At

the meeting, Ko Olina reported that the boat ramp had been completed and was

opened for public use.

At the meeting, Ko Olina responded to questions and concerns raised by thepublic testifiers and the Commission on matters relating to, among other things,

liability insurance, vehicle and trailer length, and daily launch and parking fees.

Following discussion, a motion was made and seconded to defer action on Ko

Olina's status report for three months and to further request (1) that theCommission's Executive Officer receive questions from the Commissioners that

could be addressed in writing by Ko Olina and other relevant parties, includingthe City and County of Honolulu Department of Planning and Permitting("DPP"), prior to the next scheduled meeting on the matter;2 (2) that the

1 By Findings of Fact, Conclusions of Law, and Decision and Order filed on November 7, 2008, theCommission found that Ko Olina was not in substantial compliance with the representations in theoriginal Findings of Fact, Conclusions of Law, and Decision and Order ("Decision and Order") and theAmended Decision and Order issued in Docket No. A83-562/West Beach Estates ("WBE" or "Petitioner")

(WBE was the predecessor-in-interest to Ko Olina) because there was no boat launch ramp in the Ko

Olina Resort Marina. During the hearings, WBE had represented, among other things, that there wouldbe a boat launch ramp in the Ko Olina Marina that is open to the public.

2 The Commissioners raised the following questions:

1) Is the Ko Olina boat ramp operational 24/7?2) What have the boaters and Ko Olina done in discussion to seek greater understanding?

3) What has the DPP done, if anything, to enforce the conditions of the LUC order?

Staff provided these questions to the appropriate parties for their written responses, if any. Staff receivedresponses from two fishermen/boaters, Creighton S.Q. Chang and Warren Von Arnswaldt, dated January

27, 2016, and January 28, 2016, respectively. They reported that while they met with Ko Olina' onNovember 24, 2015, no progress has been made to resolve their differences. Copies of their

correspondences are attached for your information.

On February 5, 2016, staff received Ko Olina's responses to the above questions (correspondenceattached). With respect to the operational hours of the Ko Olina boat ramp, Ko Olina pointed out that the

Commission's staff and the Commission's deputy attorney general provide a

summary on the historical background on this matter to this Commission;3 and

(3) that Ko Olina and the fishermen and public boaters in the community engagein further discussion to determine what greater understanding could be reached

among the parties in regard to the use of the Ko Olina Boat Ramp.

On November 5, 2015, the Commission issued its Order Granting Motion toDefer Action on Petitioner's Status Report ("Order Granting Motion to DeferAction").

On November 12, 2015, Ko Olina filed a Motion for Reconsideration of OrderGranting Motion to Defer Action of [sic] Petitioner's Status Report ("Motion forReconsideration").

Staff has prepared a historical chronology of the significant events leading up to

this continued status report, beginning from the initial filing of the Petition for

District Boundary Amendment by WBE.

boat ramp is operational from sunrise to sunset. However, registered vehicles and trailers in the boatramp parking lot after sunset will be allowed to remain for one night only at no additional cost. Withrespect to Ko Olina's efforts to seek greater understanding, Ko Olina noted that in addition to meeting

with Messrs. Chang and Von Arnswaldt on November 24, 2015, they met on February 2, 2016 (after thesubmittal of Chang's and Von Arnswaldt's respective correspondences). The discussions focused on

three issues: the 40-foot truck and trailer length limit, launch and parking fees, and marine liabilityinsurance requirements. Based on the discussions, Ko Olina will provide ten 50-foot parking stalls (nine

regular and one handicap) that will be in addition to 19 40-foot parking stalls and one 40-foot handicapparking stall. It is anticipated that these stalls will take approximately two months to complete. Despitethe addition of these 50-foot parking stalls, Ko Olina noted that the fishermen/boaters wanted parkingstalls longer than 50 feet. With respect to the $15.00 launch fee and $10.00 parking fee, Ko Olina noted

that the operating expenses of the boat ramp are currently exceeding these fees. Ko Olina believes thatthe fees are reasonable given the operating expenses involved. Nevertheless, Ko Olina pointed out that itwill periodically evaluate the fee structure. With respect to the insurance requirements, Ko Olinaexplained that the additional insureds are owners of the marina and the Ko Olina common areas, whomust be covered by the policies as the insurance is intended to protect the marina owners as well as all ofthe users of the marina, including the users of the boat ramp. According to Ko Olina, thefishermen/boaters wanted more done to eliminate or decrease the fees and insurance requirements.

As of the date of this staff report, the DPP has not filed a written response to question 3.

3 This staff report is intended to provide the requested summary.

4

2. HISTORICAL CHRONOLOGY OF SIGNIFICANT EVENTS

Date Event

December 21, 1983 WBE filed the Petition for District BoundaryAmendment under Docket No. A83-562 to

reclassify approximately 642 acres of landlocated at Honouliuli, "Ewa, O'ahu, Hawai'i,

from the State Land Use Agricultural District("Property") to the State Land Use UrbanDistrict to develop a resort, commercial area,

and a planned residential community.

WBE proposed to develop a resort,

commercial, and residential community on the

Property that would include 4,000 hotel roomsand/or resort condominium units; 5,200

residential units; a championship golf course,

four new lagoons with swimming beaches; a

marina, commercial areas, including one

shopping center, four new parks, two transit

stations, a Hawaiian Cultural Center, beach

and yacht clubs, and tennis facilities(collectively "Project" or "Ko Olina Resort").

September 12, 1985 The Commission filed the Decision And Orderin Docket No. A83-562 reclassifying theProperty from the State Land Use AgriculturalDistrict to the State Land Use Urban District.

November 7, 1986 The State of Hawai'i Board of Land andNatural Resources ("BLNR') approved aConstruction Right-of-Entry and Grant of

Easement for WBE to access Kalaeloa Harbor.

The submittal among other things, containedthe representation that WBE would "construct

a public boat launching ramp within the WBEmarina which shall be opened to the tenants ofthe marina and the boating public."

5

Date Event

Among the conditions in the Construction

Right-of-Entry and Grant of Easement for WBE

was a requirement to provide instructions to

users of the public boat ramp regarding thesmall boat restrictions for use of the entrance

channel.

Circa 1988 WBE constructed a public boat launch ramp inthe marina area, which was not then opened to

the public. At that time, the other areas of thefuture marina were not yet developed.

May3,1994 The Commission filedits Amended Decisionand Order.

June 5, 1995 WBE entered into Amended Lease No. H-89-1

with the State of Hawai'i Department ofTransportation ("DOT"). The Lease allowedfor, among other things, marina access and

joint use of the Kalaeloa Harbor entrance

channel. Paragraph 9 of the Lease required,

among other things; that Petitioner provide"instructions to users of the public boat ramp

regarding the small boat restrictions for use

of the entrance channel."

August 20, 1998 Ko Olina and affiliated entities succeeded to

the interest of WBE in the Property.

April1999 Ko Olina began maintenance dredging of themarina, and construction of the marina

commenced in July 1999.

May2Z 1999 Ko Olina, pursuant to its obligations to followthe Commission's FOF Nos. 52 and 87 and

Condition No. 4, submitted its request with

6

Date Event

the City and County to revise the approvedsite plan for the Ko Olina Marina Dock MasterFacility.

August 26, 1999 Ko Olina provided the City and County withthe Preliminary Access Plan, Hours of

Operation, and Rules for the Ko Olina Boat

Ramp.

Petitioner's proposed preliminary plan

provided, inter alia, that "[t]he boat launch

ramp and boat trailer parking lot will be open

from sunrise to sunset to allow boaters to

launch and retrieve their boats."

September 20, 1999 The City and County approved Ko Olina'sMay 27, 1999, request to revise the approved

site plan for the Ko Olina Marina Dock MasterFacility as a Minor Modification to thepreviously approved Conditional Use Permit("CUP"), Type 1, File Number 95/CUP1-82, asmodified subject to conditions.

Condition I of the CUP provides that "[p]riorto the submittal of applications for building orgrading permits for the Ko Olina Ocean Clubfacility, [Ko Olina] shall submit a PublicAccess Master Plan ("PAMP') for the review

and approval of the [DPP]."

DPP's explanation for Condition i of the CUPstated as follows:

"Explanation: Public access to the Ko

Olina community's coastal recreation

resources should be facilitated, as well

Date Event

as ensured. Although Ko Olina

community encompasses a wider land

area than covered by this permit, it is

appropriate to address and resolve

issues related to community-wide

public access at this time, since public

use of the Ko Olina marina is an integral

element of the public access plan."

One of the elements of the required PAMP was"[a]n operations plan for the boat launch rampthat includes appropriate measures to ensure

access to the ramp for the general public,

including recreational deep sea fishing users."

September 23, 1999 Ko Olina requested to amend the conditions ofthe Minor Modification to CUP, and thatrequest was approved on November 5, 1999,

by DPP.

October 22, 1999 Ko Olina provided to Harbors Division, DOT,("Harbors Division"), a draft of Ko OlinaMarina's Boat Launch Ramp and Parking

Policies.

Ko Olina's draft policy stated, inter alia, that"It]he boat ramp and trailer parking will beopen from sunrise to sundown."

November 10, 1999 Harbors Division provided its response to thedraft of Ko Olina Marina's Boat Launch Rampand Parking Policies.

March 2000 Construction of Phase I of the marina was

completed and opened for public use.

Date Event

April 12, 2000 Ko Olina transmitted its final PAMP for theProject to DPP pursuant to Condition i of theCUP. As the PAMP was required by DPP, itspurpose was "to implement the conditions of

the Unilateral Agreement attached by reference

to the zoned change ordinance (Ordinance No.

86-09) and the Special Management Area UsePermit and Shoreline Setback Variance(Resolution No. 86-61, adopted March 12,

1986)."

The proposed final PAMP included thefollowing concerning the marina ramp

operating hours:

Marina boat launch ramp and parking:These areas will be open to the publicfrom sunrise to sunset. Vehicles with

boat trailers and decals remaining in the

marina parking lot after sunset will beallowed to remain overnight. However,

vehicles with trailers remaining in thelot for a second night will be subject to

towing.

Ko Olina and certain members of the publicdisagreed about the terms of access to the

public boat launching ramp within theMarina, including the hours of operation.

Pursuant to the Special Management Area

Permit process and acceptances of the final

PAMP for the Ko Olina Resort, the City andCounty encouraged Ko Olina to resolve the

terms of access.

May 5, 2000 DPP partially approved Ko Olina's finalPAMP submitted on April 12, 2000.

9

Date Event

DPP's partial approval stated thefollowing in pertinent part:

The Plan proposes to allow public accessto the boat launch ramp and trailer

parking from sunrise to sunset, in

addition to other special requirements.

However, we understand that the

applicant is negotiating with the StateDepartment of Land and NaturalResources and other interested parties

to revise the boat launch access plan.

Accordingly, our review excludes that

portion of the Plan referring to the boatlaunch ramp and trailer parking access

plan.

The Plan, with the exception of thesection described above, is accepted as

the Public Access Master Plan for the KoOlina Resort. Please note that until the

access plan for the boat launch ramp and

trailer parking is finalized, buildingpermits will not be issued for the KoOlina Clubhouse.

June 1, 2000 Ko Olina responded to DPP's May 5,2000, letter agreeing to modify the boatramp access plan as follows:

1) For a period of one year ("interim

period") Ko Olina Companieswill work diligently with theState Department of Land andNatural Resources and Marisco

Shipyard to construct a publicboat launch ramp in Kalaeloa

t0

Date Event

Harbor. Ko Olina Companies

will contribute to the cost of said

boat ramp;

2) Within 6 months of the approvalof this boat ramp access plan, Ko

Olina Companies will provide astatus report to DPP regardingthe Kalaeloa Harbor boat ramp;

3) For the interim period, the KoOlina boat ramp will be open tothe public from sunrise tosunset;

4) For the interim period, boaters

without insurance will be

required to execute an indemnity

and waiver of liability;

5) For the interim period, there willbe no $25 annual fee forlicensing;

June 15, 2000

6) At such time that the substituteboat launch ramp is constructed

and opened to the public, KoOlina Companies shall have theright to permanently close itsboat ramp or limit its use to

resort guests.

DPP responded to Ko Olina's June 1, 2000,letter and accepted the six modificationsstated in Ko Olina's June 1, 2000, letter as theremaining portion of the Ko Olina PAMP, andindicated that Ko Olina may submit buildingpermit plans for the Ko Olina Clubhouse.

11

Date Event

Having received approval from the DPP forthe Ko Olina PAMP, Ko Olina began formaldiscussions with The Phoenician, LLC("Phoenician"), in constructing a public boat

launch ramp at Kalaeloa Harbor. Kalaeloa

Harbor is not part of Ko Olina.

September 18, 2002 The DOT stated that it had no objections toallow the general public to use the boat ramp,

subject to conditions that would beincorporated into Phoenician's lease for the

area designated for the proposed boat rampand haul-out slip and to the DOT's review and

approval of the proposed construction plans ofthe boat ramp and haul-out slip.

September 30, 2004 Phoenician and Ko Olina and West HonoluluAttractions, LLC (collectively "KOD'), enteredinto that certain Agreement for Use of Facilitywhereby Phoenician granted to KOD the non-

exclusive privilege of using the parking (notless than 12 stalls) and boat launch rampfacilities of Phoenician located withinPhoenician's small boat repair yard at the

Kalaeloa Deep Draft Harbor ("Facility" or"Kalaeloa Boat Launch Ramp").

The non-exclusive privilege granted by

Phoenician to KOD extended to the Ko OlinaResort & Marina association members,

residents, and to those members of the public

granted the right and/or privilege of access anduse of Ko Olina's small boat marina, parking,

and boat launch ramp facility located at theresort, which was operated in accordance with

the PAMP for Ko Olina, dated April 12, 2000,which was attached to the Agreement for Useof Facility.

12

Date Event

Phoenician acknowledged in the Agreementfor Use of Facility that the Facility shall be apublic boat ramp, open 24 hours a day, seven

days a week, and agreed to operate the Facilityin such a manner.

KOD agreed to pay to Phoenician the sum of$455,150 in exchange for the installation of theboat ramp at Phoenician's site and the

privilege granted to KOD and the public byPhoenician to use the ramp.

September 30, 2004 KOD's affiliate paid to Phoenician the sum of

$227,575.

February 2005 Construction of the Kalaeloa Boat Launch

Ramp was completed and opened to thepublic.4

March 2005 The Ko Olina Marina Ramp and boat parkingfacility were closed to the general public. TheKo Olina Marina Ramp was rendered

inoperable through the partial demolition ofthe boat ramp approach. At this time, the KoOlina Marina did not have a boat launch rampthat was open to the public.

April 7, 2005 Ko Olina transmitted the installment paymentof $115,000 to Phoenician with the

4 The Kalaeloa Boat Launch Ramp is not part of the Ko Olina Resort. The Agreement for Use of Facility

between Ko Olina and Phoenician, which lasts for 25 years, allowed Phoenician to charge and collect feesfrom the public for the use of the Kalaeloa Boat Launch Ramp. There was no limit on the amount that

may be charged. The public was charged $125 per year to use the Kalaeloa Boat Launch Ramp. TheAgreement for Use of Facility placed no limitation on Phoenician's ability to preempt the use of theKalaeloa Boat Launch Ramp for haul-out activities.

13

Date Event

understanding that final payment would bemade upon the satisfaction of three conditions:

1) the ramp shall remain open in accordance

with the Agreement for Use of Facility; 2)Phoenician will complete construction of the

boat ramp; and 3) Phoenician shall provide KoOlina with an executed lease with the State thatallows use of the ramp bÿi the public asoutlined in the Agreement for Use of Facility.

June 7, 2005 Harbors Division confirmed witlÿ DPP that dueto mitigating circumstances there was a delay

of the completion of the lease for easement to

permit Phoenician to operate a boat ramp from

private lands adjoining the Kalaeloa Harbor.

Harbors Division further confirmed thatPhoenician had since undertaken and

completed construction of the facility andestablished operational procedures for the use

of the ramp that were acceptable to the DOT,and that in recognition of these circumstances

and knowing that the delay in completion ofthe lease was not solely due to the applicant,

the DOT granted their use of the easement.

Among the problems faced by boaters in using

the Kalaeloa Boat Launch Ramp were water

surges of approximately eight inches; high

walls unlike most ramps; unprotected concrete

walls without adequate bumpers; lack of

proper railing; a ramp that was not properly

sloped; signage that indicated "private boat

launch ramp"; excessive limu (algae) growth

on the ramp; and poor construction and/or

14

Date Event

design with holes, depressions, and broken

and patched concrete.

Ko Olina proposed a number of improvements

to the Kalaeloa Boat Launch Ramp to addresssafety and access concerns, including a)

adjusting the boat ramp slope to 15 percent; b)meeting ADA requirements relative to theboarding dock and the path to the dock; c)angling the seaward end of the boarding dockto 45 degrees; d) raising the boarding dock; e)installing "bull rails" on the boarding dock; f)including a "rough broom" or non-skid

walking surface on the boarding dock; and g)including sharp herring-bone grooves on the

ramp.

March 24, 2008 Ko Olina filed its Petition for DeclaratoryOrder. Ko Olina had requested a declaratory

order from the Commission to determine

"whether [Ko Olina's] location of the publicboat launch ramp at Kalaeloa with theinstallation of the proposed improvements

constituted substantial compliance withrepresentations made to the Commission" with

respect to the Decision and Order filed inDocket No. A83-562.

April 17, 2008 The State of Hawai'i Office of Planning ("OP")filed its Motion to Intervene and Memorandum

in Support of Motion.

May20,2008 Ko Olina filed a Supplement to the Petition forDeclaratory Order.

June 10, 2008 The Commission filed its Order Setting Petitionfor Declaratory Order for Contested Case

Hearing and Granting Motion of State Office of

15

Date Event

Planning to Intervene.

July 10, 2008 The Commission conducted the hearing on the

Petition for Declaratory Order.

August 7 and 8, 2008 The Commission continued the matter and

then closed the evidentiary portion of thehearing.

October 2, 2008 The Commission found that Ko Olina was notin substantial compliance with therepresentations in the Decision and Order and

the Amended Decision and Order issued inDocket No. A83-562/West Beach Estatesbecause there was no boat launch ramp in the

Ko Olina Resort Marina. In addition, the

Commission determined that the installation ofthe proposed improvements to the existing

Kalaeloa Boat Launch Ramp did not constitutesubstantial compliance with therepresentations made to the Commission

because the ramp was not in the marina.

The Commission ordered Ko Olina to construct

a boat launch ramp inside the Ko Olina Marinathat is open to the public to be in substantialcompliance with the representations in the

Decision and Order and Amended Decision

and Order.

The Commission furthered ordered Ko Olinato appear before the Commission within sixmonths from the date of the Findings of Fact,Conclusions of Law, and Decision and Order

providing (i) a schedule and timelinedescribing any public outreach efforts it hasmade or will make in regard to the boat launchramp in the marina; (ii) the proposed location

16

Date Event

of the ramp inside the marina; (iii) theregulatory permitting and construction

requirements for the ramp; and (iv) a scheduleand timeline for the opening of the ramp to thepublic.

Ko Olina was also required to file a writtenreport describing the items listed in paragraph3 above not less than 30 days before theCommission hearing.

August 28, 2009

June 26, 2015

December 4, 2009 through

April 23, 20155

April 14, 2009

November 7, 2008 The Commission issued its Findings of Fact,Conclusions of Law, and Decision and Order.

Ko Olina filed a status report in accordance

with the Findings of Fact, Conclusions of Law,

and Decision and Order.

The Commission held a status report on the Ko

Olina boat ramp. At the meeting, the

Commission requested that Ko Olina

commence filing quarterly status reports on its

efforts to relocate the boat ramp in the marina.

Ko Olina filed the required quarterly status

reports with the Commission.

Ko Olina informed the Commission that

construction of the boat ramp at the Ko Olina

Marina was set to be completed by July 4, 2015,

5 On January 24, 2013, Ko Olina appeared before the Commission to provide an oral status reportregarding its efforts to construct and complete the boat launch ramp in the Ko Olina Marina. TheCommission ordered Ko Olina to appear before the Commission on or about April 18-19, 2013, to providea follow-up oral status report and further to file a supplementary written status report on the matter thatwould be in addition to the required quarterly written status report. The Commission's Order on thematter was subsequently filed on January 29, 2013. The Commission heard Ko Olina's follow-up oral

status report on April 19, 2013.

17

Date Event

with an anticipated opening for public use on

July 20, 2015.

July 23, 2015 Ko Olina informed the Commission that as of

July 20, 2015, the boat ramp was open for

public boat launching use at the Ko Olina

Marina.

November 5, 2015

October 16, 2015 The Commission heard a status report from Ko

Olina on its boat launching ramp at the Ko

Olina Marina.

The Commission issued its Order GrantingMotion to Defer Action.

November 12, 2015

November 19, 2015

February 10, 2016

Ko Olina filed its Motion for Reconsideration.

OP filed a response to Ko Olina's Motion for

Reconsideration.

Continued Status Report and action on Motion

for Reconsideration scheduled.

18

3. MOTION FOR RECONSIDERATION

In its Motion for Reconsideration, Ko Olina argues that the Commission's Order

Granting Motion to Defer Action fell outside of the 120-day period in which theCommission is required to render its findings and decision after the close of thehearing. As noted in the chronology, the Commission closed the evidentiary

hearing on Ko Olina's Petition for Declaratory Order on August 8, 2008. Ko

Olina contends that with the issuance of its Findings of Fact, Conclusions of Law,and Decision and Order on November 7, 2008, the Commission fulfilled itsobligations and thus concluded its duties under the declaratory order provisionsin Hawai'i Administrative Rules ("HAR') subchapter 14. It is the position of KoOlina that the Commission's rules do not authorize the Commission to engage in

any further action on the Ko Olina's Petition for Declaratory Order outside of the120-day timeframe, and therefore the Commission lacks jurisdiction and theOrder Granting Motion to Defer Action should be vacated.

Moreover, Ko Olina believes that the Order Granting Motion to Defer Actionconstitutes an enforcement action to the November 7, 2008, Findings of Fact,

Conclusions of Law, and Decision and Order that is inconsistent with Hawai'i

Revised Statutes ("HRS'), applicable case law, and the enforcement role of theDPP.

On November 19, 2015, OP filed a response to Ko Olina's Motion forReconsideration, recommending that the Commission deny it based on the lack

of prejudice incurred by Ko Olina from the Commission's deferral of its statusreport. OP argues that the Commission is well within its jurisdiction to ask theparties to respond to questions and to receive background information from staff

and to further request that Ko Olina meet with the fishermen and boaters toengage in further discussion on the matter. OP believes that these actions are

consistent with the Commission's practice of requesting status reports on

dockets, including the subject docket, to ensure compliance with its Orders.

Similarly, OP points out that simply asking for additional information does notconstitute a new declaratory order nor does it represent an enforcement action as

the Commission has not sought to enforce any part of the conditions at this time.

19

If the Commission is inclined to deny Ko Olina's Motion for Reconsideration,staff recommends the following language for such a motion to deny:

I move to deny the Motion forReconsideration because the

Commission's deferral of the status

report by Ko Olina to obtainadditional information is consistentwith the Commission's practice of

requesting status reports on dockets

to ensure compliance with the

Commission's Orders. It is neither

an extension of the action the

Commission took on the original

declaratory order proceeding nor an

enforcement action, and therefore it

is well within the jurisdiction of theCommission.

20

If the Commission is inclined to grant Ko Olina's Motion for Reconsideration,staff recommends the following language for such a motion to grant:

I move to grant the Motion for

Reconsideration based on the

completion and opening of the KoOlina boat launch ramp inside the Ko

Olina Marina that is open to the

public and further on the

representations by Ko Olina in its

letter dated February 5, 2016.

21

4. ATTACHMENTS (COMMENT LETTERS)

22

January 27, 2016STATE OF HAWAIILAND USE COMMISSIONDept of Business Economic Development & Tourism

P O Box 2359Honolulu, Hawaii 96804Attention: Mr. Daniel Orodenker-Executive Officer

FATE OF tt,ÿ\WAII

ZOIbFEB-! A q:l-tl

Subject: DR08-36 Ko'Olina Development, LLC

Dear Mr. Orodenker,

I received your letter dated 1-22-16 regarding "What have the fishermen/boatersand Ko'Olina done in discussion since the meeting to seek the greaterunderstanding".

In response to your question, after the hearing on 11-5-15 I went up to Curtis and

Ken to make sure we schedule a meeting to discuss our concerns to bring this

issue to a closure. They said they would email me a time a place for the meetingwhich we did hold on 11-24-15. I wrote minutes to this meeting which Idistributed to core group of our committee (See Attached). At this meeting Iasked Mr. Ben Matsubara if we would have a follow up meeting to continue thediscussion and what the next step would be. As of the date of this letter, nocontact or follow up was ever scheduled.

I look forward to our next meeting with the LUC committee to continue to voiceour concerns.

Very Truly Yours

Creighton S Q ChangBoater

AttachmentCc: Warren Von Arnswaldt

Rodney AjifuBert Sa ruwata ri

STATE OF HAWAII

LAND USE COMMISSION

DEPT OF BUSINESS ECONOMIC DEVELOPMENT & TOURISM

P. O. BOX 2359

HONOLULU, HI. 96804A

January 28, 2016

Attention: Mr. Daniel Orodenker-Executive Officer

Subject: Docket No. DRO8-36/Ko Olina Development, LLC

Since the LUC meeting on October 16, 2015, where our original concerns were voiced, we, Creighton

Chang, Rodney Ajifu, and myself, engaged in a meeting on November 5, 2015, with Ko Olina Community

Association (KOCA) representative Ken Williams and Ko Olina Attorney Ben Matsubara, at the Law Office

of Ben Matsubara in Honolulu.

Nothing new was afforded by Ko Olina, with Ken Williams going over the existing requirements for the

ramp usage, as specified in their Ko Olina Boat Ramp and Parking Agreement and Information And

Rules For The Use Of The Ko Olina Boat Ramp And Parking, which was previously distributed by the

KOCA office.

It was apparent that we would have to again make our concerns noted at this time. First of all, let me

note that when the original boat ramp was in existed, before being closed in MARCH OF 2005, there was

no limitation of boat and trailer size, no insurance requirements (liability waiver only) and no parking

and ramp fees. Now, after nearly 11 years later, what was originally described as a public boat ramp, is

now reclassified as a private boat ramp-open to the public, with additional limitations and costs.

In regards to 40-foot truck & trailer length, I have a 25.5-foot boat, sitting on a trailer that is 31'-5" in

length, and my truck length of 20'-2", which makes my overall truck-trailer length at 51'-7". We

proposed changing this ruling so larger boats can be included. Solutions would be lesser parking stalls,

or extending the length of the stalls on one side of the parking area to accommodate the larger trailers.

Reference was made that Ko Olina had already gone beyond this requirement by allowing a triple axle

trailer and full-size four door truck, which was well over 55-feet, the use of the ramp and parldng area.

Copies of the photographs were given to them as proof of observance.

In the matter of launch and partdng fees, first proposal was to revert back to the original ramp-no launch

and parking fee. Otherwise suggestions were to have yearly ramp fee of about 5125.00 for frequent

users, and $20-ÿ25 daily fee, for less that frequent users, with no parking fees being charged in both

incidents.

The insurance requirements appeared to us as being excessive. Ko Olina wants a ÿ500,000 Bodily Injury-

property damage insurance to match what the boats in the marina have to be covered with. Argument

here is that a trailered boat is only on the Ko Olina property and marina for only a fraction of the time as

that of a moored boat, smaller in size, and of less value. The moored boats have a greater potential of

damage to property and waterways within the marina property. Trailered boats are not allowed to

traverse amongst the mooring slips. We requested that the liability be lowered to ÿ300,000. They also

want additional insurer by every entity of Ko Olina Development, each identified separately, ie, KOCA,

KOM, KO300, and KORE, which most insurance companies don't like. This can be reflected by what

Rodney Ajifu, who was a long-time employee for a large insurance company, has his properties insured

by them, but was told to look elsewhere, for this type of insurance. I, myself, do not want to be

shopping around for insurance of this type, which relieves Ko Olina of any liability which may arise from

any wrong-doing on their behalf.

No decisions, or compromises were afforded by Ko Olina at this meeting, and said they would take these

conditions into consideration. As of this writing, there has been no other correspondence with them,

and no updates as to when another meeting or decision will be held. Now we are Iooldng at the next

LUC meeting on 2-10-2016, with nothing changing (Or maybe now they will wake up-knowing that the

meeting is coming up).

Please note that I represent 55+ members of the Waialua Boat Club-whose membership encompasses

all areas of Oahu, and that I afford information to HFACT(Hawai'i Fishermen's Alliance for Conservation

& Tradition), which corresponds to 2,000+ in the fishing community.

I leave for a trip to the mainland on the evening Of February 10th, and your calendar for the February

meeting is for the 10th and 11th, so if I cannot make it to the meeting, let this be my correspondence and

statement before the LUC Board of Directors.

Sincerely

Warren Yon Arnswaldt

Concerned Fisherman

BENJAMIN M, MATSUBARAMERVYN M. KOTAKECURTIS T. TABATAKOJI IÿTO

MATSUBARA " KOTAKEAttorneys At Law

A Law CorporationCHARLES R. KENDALL BUILDING

888 MILILANI STREET, EIGHTH FLOORHONOLULU, HAWAII 96813

E-MAIL: bmatsubara@m-klawyers.com

TELEPHONE(808) 526-9566

FACSIMILE(808) 538-3840

HAND DELIVERY

February 5, 2016

Mr. Bert K. SaruwatariLand Use Commission, State of Hawai'i235 South Beretania StreetRoom 406, Leiopapa A Kamehameha BuildingHonolulu, Hawai'i 96813

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Re: KO OLINA DEVELOPMENT, LLC; DR08-36

Dear Mr. Saruwatari:

Thank you for sending us the two questions submitted by the Commissioners for ourdocket, DR08-36. The questions are presented below with the answers following each question.

1. Is the Ko Olina Launch Ramp operational 24/7?

Answer: ,

The Ko Olina Boat Launch Ramp ("Boat Ramp") is operational from sunrise to sunset.This requirement is consistent with certain State and City parks and facilities, and Ko Olina'slagoons and beaches where sunrise to sunset operating hours are implemented as a public safetymeasure. Further, there are no lights at the ramp or parking lot to safely conduct night operations.There were no lights at the first two boat ramps. In addition to the Ko Olina Marina, Ko Olina iscomprised of residential and resort communities where safety and security and quiet enjoymentare paramount concerns, therefore, the sunrise to sunset requirement is implemented at all publicfacilities at Ko Olina.

As an accommodation, registered vehicles and trailers in the boat ramp parking lot aftersunset will be allowed to remain for one night only at no additional cost. Transient dockage atKo Olina Marina may be available for late returnees at the posted rate.

Recreational boaters interested in 24-hour boat ramp access may access the PhoenicianLaunch Ramp Facility built by Ko Olina and located at nearby Kalaeloa Harbor which is also opensunrise to sunset and can accommodate overnight vehicle and trailer parking for two or morenights.

Mr. Bert K. SaruwatariLand Use Commission, State of Hawai'iFebruary 5, 2016Page Two (2)

2. What has Ko Olina done in discussion to seek greater understanding in regard tothe Ko Olina Boat Ramp?

Answer:

Ko 01ina has had many discussions with several different groups of people concerning thethree boat launch ramps built by Ko Olina (two at the Ko 01ina Marina and the Phoenician BoatLaunch Ramp at Kalaeloa). These discussions go back approximately ten years and have includedthe Waianae fishermen, Waianae Harbor Master, the City and County of Honolulu, fishermen fromother parts of Oahu, and proceedings before the State Land Use Commission.

Not every group or organization possessed the same interests or concerns and thosediversities often lead to competing solutions, which in turn resulted in the eventual construction ofthree public boat launch ramps.

More recent discussions have taken place as a result of issues raised by certain boaters andthe prompting of the LUC. These discussions have focused on three issues: 1) launch and parkingfees; 2) marine liability insurance requirements; and 3) the 40 foot truck and trailer length limit.

As has been previously communicated to the LUC, Ko Olina opened the Boat Ramp to thepublic as of July 2015. In order to attempt to address operational costs, a $15.00 launch fee and a$10.00 parking fee was implemented, along with a requirement for boaters to carry marine liabilityinsurance with a $500,000.00 policy limit minimum in order to protect not only the owners of themarina but also all other boaters and members of the public. The 40 foot limit was based on the40 foot minimum parking stall requirement provided by City ordinance for boat trailers andvehicles.

On November 24, 2015, Ko Olina met face-to-face with the boaters to discuss the threeissues. The meeting was held at 9:00 a.m. at the law offices of Matsubara - Kotake. Attendingthe meeting were Creighton Chang (boater), Warren Von Arnswaldt (boater), Rodney Ajifu(boater), Ken Williams (KOCA), Ben Matsubara (Matsubara - Kotake) and Curtis Tabata(Matsubara - Kotake).

Mr. Ajifu indicated that his truck and trailer length was 41.5 feet. Mr. Von Arnswaldtindicated that his truck and trailer length was 48.5 feet. Mr. Chang indicated that his truck andtrailer length was just under 40 feet. The boaters explained that the 40 foot length limit wouldexclude some boaters from using the Boat Ramp.

Mr. Bert K. SaruwatariLand Use Commission, State of Hawai'iFebruary 5, 2016Page Three (3)

The boaters also wanted to eliminate the launch and parking fees, or to implement a yearlyfee or a tiered fee to provide the boaters another option.

The insurance issue was discussed primarily by Mr. Ajifu who is retired from IslandInsurance. Mr. Ajifu indicated that the additional insureds was a problem and that Island Insurancewould not be able to issue a policy as a result. The boaters also discussed their general concernabout the need to incur substantially increased insurance premiums as a result of Ko Olina'sinsurance requirement.

Mr. Williams explained the need to offset expenses for maintaining the Boat Ramp and theneed for marine liability insurance and the decision to design the parking lot based on the 40 footminimum provided by City ordinance, but Mr. Williams agreed to consider the boaters' concernsand to attempt to find solutions to the issues and to continue the discussions at a later date.

On February 2, 2016, the same group returned to meet face-to-face at Mr. Chang's homein Waipahu at 10:00 a.m. to continue discussion of the three issues.

The boaters were informed that Ko Olina will provide ten 50 foot parking stalls, in additionto nineteen 40 foot parking stalls and one 40 foot handicap parking stall, in order to accommodatelarger boats, including nine regular 50 foot stalls and one handicap 50 foot stall. These stalls willbe built by Ko Olina and would require approximately two months to complete. The two monthsis a very preliminary estimate but was provided to show that Ko Olina intends to proceed as soon

as possible.

The boaters were also provided information relating to insurance to assist the boaters inobtaining marine liability insurance policies. Boaters currently registered at the Boat Ramp areinsured by Farmers, State Farm, Progressive, Ocean Marine and Liberty Mutual. An example ofa Progressive policy was provided to the boaters, and the Progressive print out showed that the$500,000.00 limit for boat insurance for a 26 foot or less boat, with the five additional insureds,came out to an annual premium of $100.00, or $8.33 per month. The boaters were encouraged bythe low cost to increase their coverage. Mr. Chang requested additional information relating to thenames of the additional insureds for the purpose of adding them to his policy and those nameswere provided later in the day via email.

With respect to the $15.00 launch fee and $10.00 parking fee, Mr. Williams explained thatKo Olina is currently operating the Boat Ramp with operating expenses exceeding launch fees andparking fees by approximately $2,000.00 per month. Furthermore, it's too soon to experimentwith annual fees or to make any kind of fee adjustment. Ko Olina has no intent to be profitable,and is just trying to partially offset operational costs. Ko Olina will periodically evaluate the feestructure.

Mr. Bert K. SaruwatariLand Use Commission, State of Hawai'iFebruary 5, 2016Page Four (4)

The boaters wanted parking stalls longer than 50 feet, and they had wanted more done toeliminate or decrease the fees and insurance requirement, but it was explained that there is norequirement that the Boat Ramp be free at no expense. It need only be open to the public, and thefees are reasonable given the operating expenses involved.

With respect to insurance, it was explained that the additional insureds are owners of themarina and Ko Olina common areas. They must be covered by the policies. The insurance isintended to protect not only the marina owners, but also all of the users of the marina, includingthe users of the Boat Ramp. Potential liability resulting from property damage (includingcollisions with marina berthed vessels, and damage to docks), bodily injury, pollution, ship wreckremoval, and other mishaps must be addressed, especially in light of affordable annual premiumsof only $100.00.

Currently, the Boat Ramp is averaging ten launches per month. Ko Olina will proceed withthe ten 50 foot parking stalls.

The group ended the meeting by shaking hands and thanking Mr. Chang for his hospitality.Ko Olina believes that the discussions were helpful in reaching a better understanding ofeveryone's positions and concerns and that the issues were resolved as much as possible at thistime. The future will include additional discussions given the relationships that have been createdthrough this process.

Very truly yours,

MATSUBARA - KOTAKE

Matsubara

CC: Ken WilliamsRodney FunakoshiBryan C. Yee, Esq.

Rodney AjifuCreighton ChangWarren Von Arnswaldt

Meeting Minutes 11/24/15

In attendance at this meeting were the following:

1. Ben Matsubara/Curtis Tabata-Matsubara-Kotake, Attorney's at Law

2. Ken Williams-Ko'Olina Community Association

3. Creighton Chang

4. Warren Yon Arnswaldt

5. Rodney AjifuThe meeting started out with Ken going over the rules regarding the information and

rules and frequently asked questions regarding the use of the new boat ramp facility. All

of the information is shown on their website at www.koolina.com. Once you get to their

website you need to click on the Ko'Olina Marina, then scroll clown to the Ko'Olina Boat

Ramp section.

Once Ken's presentation was over we started with our concerns, the first being the

Insurance requirements. We asked them to lower the requirements to $300,000 BI/PD.

Our justification was the amount of exposure the boaters have vs the moored boats

there. After haggling with Ken Ben spoke up to summarize our request to lower the

insurance requirements to $300,000. He replied they will look into the matter. As part

of the insurance requirement we asked why so many additional insured requirements

are listed and who are they. Ko'Olina wants to push all liability on the boaters. We also

requested they clarify the acronyms listed for additional insured. Rodney gave his

experience as an insurance adjuster and requested from his insurance the additional

insured requirement. He was told look elsewhere for that policy as they would not

provide additional insured as requested. They will also look into this matter

Second on the list is vehicle and boat length. I started off by saying I guess this is a moot

point since they allow large boats launching from their facility. They responded NO. I

then showed them a picture of a boat with a triple-axle trailer and a full size truck

attached to it. We did not measure the truck and trailer however it was well over 55'

long. They kept on saying they built it to the C & C standards. It was explained that the

requirements for the painted stalls had nothing to do with the size of boats using it. The

minimum stall painted length of 40 feet is a requirement however nowhere else in the

state there is a requirement for the size of vehicle +trailer that to fit in that stall. Painted

length does not equal vehicle + trailer length. Warren reiterated the fact that he wrote

and told them the configuration as shown on their plans would not work however was

told by them they had the engineers to do those calculations. Everywhere else in the

state where there are painted stalls the trailer usually stick out which is ok. We asked

them if it was their intent that they not allow boats larger than 18 feet to use their

facility. They answered no. We then told them their engineers screwed up if they did

not allow ample space for the larger boats. We gave them suggestions to extend the

stalls to allow larger boats. They will look into revising this rule.

The third thing discussed was the fees. We proposed the tiered fee schedule were a

boater can choose to pay a onetime fee or a yearly fee. We asked the parking fee be

eliminated since no one else charges a parking fee. We suggested that the daily fee be

revised to S25.00/day and a yearly fee of 5125.00 be charged for boaters who may want

to use the facility more often. A discussion on the parking fees was next and I tried to

correct Curtis that no State facility charges parking fees to boaters as they mentioned at

the LUC meeting. Curtis replies that he got the information on the DLNR website. We

want all parking fees to be waived. After the meeting I did confirm with the Harbor

Master and DLNR Engineer on Maui that there is a parking fee charged for vehicle

parking but no parking fee or launch fee for the boaters as long as you have your ramp

fee up to date. They also mentioned that the stalls for the boats had to be revised from

the 40' length to 70' to accommodate the size of boats being launched there.

One of the things that Ben brought up was regarding who do we represent. We

responded with: Rodney-9 fishermen, Warren-over 50 fishermen and myself- over 200

who signed my petition to represent them. He was very concerned that after all of this is

done and agreed upon another group would come out to challenge them again. We told

him that our group is a very large diverse group covering a substantial area unlike the

previous negotiations with only the Waianae group. He was satisfied with that answer.

Regarding future fees, no guarantees.

Regarding grandfather clause for previous users. NO

Meeting ended around 10:10 am.

We asked Mr. Matsubara if there would be a meeting prior to the one with the LUC and

he responded affirmative. As of 1/27/16 no future meeting is scheduled.

By: Creighton S O. Chang