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KNA to intervene in cottage permit request

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Posted: Friday, April 5, 2013 1:00 am

KILAUEA — Plans for a caretaker residence situated on a Kilauea property controlled by an easement are being opposed by the Kilauea Neighborhood Association.

At its meeting Tuesday, KNA agreed to notify the County Planning Commission regarding the filing of two intervenor joinders with others against an additional variance permit application for land that is owned by part-year resident Charles Somers.

KNA reportedly has an attorney to argue the easement does not allow for additional development in that district.

“This is not about demonizing Mr. Somers,” KNA President Yoshito L‘Hote said at the meeting. “He did a good thing with the easement.”

The major issue with the community is that public access is restricted to a Kilauea waterfall, he added. It is considered a historical and cultural resource.

KNA fought the initial permit in 2008, which allowed Somers to build a 12,566-square-foot main house with a garage, exterior pool, walkways, pond area and driveway. The land included 24,012 square feet of overall developing space and an 812-square-foot garage near Kahili Quarry Road.

Now that construction of the main home is nearly complete, KNA is opposing permits for plans to build a caretaker cottage, garage and barn.

“We will not oppose the intervention,” said Max Graham Jr., who updated KNA at the meeting as a representative of Somers, on behalf of Belles Graham Proudfoot Wilson & Chun in Lihu‘e. “It will be up to the Planning Commission.”

The Planing Commission stated in the conditions of permit approval that the owner had discretion regarding public access, Graham said. The owner is against public access to the waterfall for the potential liability of drownings and injuries.

Another reason to control access is to ensure the preservation and conservation of archeological and environmental portions of the property and bird habitat, he said.

The total land owned by Somers is 161.88 acres, Graham said. The permits were approved in 2008 after he dedicated 149.4 acres to be subject to two conservation easements under the authority of the Hawaiian Island Land Trust.

The easement states there can’t be more than 10 percent land coverage to include homes and other development, said Jonathan Chun, who also represents Somers. That adds up to 15.188 acres and current plans remain within the 12.48-acre envelope, he added.

Graham said Somers could have requested the amended application to build the caretaker cottage in 2008. He chose to first complete work on the main residence.

Hawaiian Island Trust enforces the easement, and as the owner, Somers has access rights to the property and must maintain it without further development. He may not rent the homes inside of his 12-acre envelope as vacation rentals, Graham stated.

With 72 percent of the property covered by the easement in the promotion conservation values, the two-bedroom, two-bathroom caretaker house would require 300 feet of land. It would also require 9,000 square feet for the maintenance building and barn.

“This is the final application and Somers is asking permission to construct the caretaker house,” Graham said.

The caretaker is responsible for taking care of the entire property, including the land protected by the conservation land trust agreement.

“The issue is to try and find out why there is this intervention now when no one opposed it before,” Chun said.

The land is adjacent to a bird sanctuary on U.S. government-owned land and is under the jurisdiction of the U.S. Fish and Wildlife Service. That land extends all the way to the historic Kilauea Lighthouse.

There is no formal agreement or restriction in place with the government regarding the easement, Graham said. The easement is in keeping with the stream valley adjacent to the sanctuary and serves to preserve that entire swath of land, he said.

The most there will ever be on that property is two homes, he said, when the original density allowed for a possibility of 32 homes. The easement in perpetuity will run with the land forever and to future owners.

To build another home, the owners would need to demolish a current one and build within the same 12-acre envelope, Chun said.

Residents present at the meeting said they believed the owner agreed to scrap plans for the caretaker’s cottage and barn. In return, KNA promised not to oppose construction of the main house with the easement, and public access to the waterfall.

“Now we have neither,” said a resident.

Graham said the caretaker’s house was not part of the decision involving the initial permits. He said Somers has the right to ask for that permit.

Community members complained of a person near the site that “intimidates” people who attempt to access the Kahili Quarry Road.

Graham said there is a person watching over the construction site but that duties do not include guarding the road, which is a separate property owned by a third party. It is controlled by an easement in favor of the county and the public has access rights.

“That is not going to change, Graham said. “Somers also has an easement over the roadway, but he does not own the road.”

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