Judge Invalidates Permit for Subdivision Planned for `Ohi`a Forest in South Kona

posted in: Development, Forests, June 2013 | 0

An old-growth `ohi`a forest in South Kona has been spared the developer’s ax – for now, at least. Judge Ronald Ibarra of the 3rd Circuit Court has determined that the County of Hawai`i planning director, Bobby Jean Leithead-Todd, and the county’s Board of Appeals erred when they approved a planned unit development calling for 14 house lots on just over 72 acres in the ahupua`a of Waikaku`u. The PUD called for 13 of the lots, each about two acres, were to be built on the heavily forested upper slopes of the property, adjacent to a state forest reserve.

In his April 23 order invalidating the PUD permit, Ibarra found that Leithead-Todd and the appeals board violated the county general plan and the Kona Community Development Plan (CDP), that they “did not review the PUD application pursuant to their constitutional duties and responsibilities with regard to the public natural resources trust,” and that the permit itself is not valid “because it does not contain specific measures that require project lots to be used for bona fide agricultural uses.”

Ibarra remanded the issue “for further proceedings consistent with” his order. That means the Board of Appeals is to hear the case again and make a decision in line with Ibarra’s findings.

Richard and Patricia Missler, who own land adjacent to the site of the proposed PUD, appealed Leithead-Todd’s original approval to the BOA and, when the BOA affirmed the permit, they appealed to Circuit Court. They were represented by Mike Matsukawa. (Environment Hawai`i reported extensively on this case in our June 2012 edition.)

A ‘Duty to Conserve and Protect’
Ibarra did not agree with Matsukawa that Leithead-Todd had improperly granted time extensions in her department’s consideration of the PUD application. Nor did he accept the argument that the BOA decision should be voided because some members were absent during part of the administrative appeal hearing.

The judge did, however, strongly agree with Matsukawa on two points: that the county agencies had failed to carry out their duty to conserve and protect natural resources, and that both Leithead-Todd and the Board of Appeals had erred in their determination that the Kona CDP did not have the force of law.

Ibarra devoted nearly a quarter of his 36-page ruling to the county’s evasion of its responsibilities under the public natural resources trust. The area to be developed, he noted, is designated by the state as a “Priority I” watershed and has been included for nearly two decades on county watershed maps.

Invoking a series of rulings by the Hawai`i Supreme Court, Ibarra wrote that governmental agencies, “[a]s guardian of the water quality in this state, … ‘must not relegate [themselves] to the rule of a mere umpire … but instead must take the initiative in considering, protecting, and advancing public rights in the resource at every stage of the planning and decision-making process.’”

The attorneys for the Board of Appeals and Leithead-Todd argued that this responsibility does not fall to the Planning Department, but rather to the county Department of Public Works, whose comments were incorporated in the one of the conditions – Condition 10 – attached to the PUD permit.

Ibarra rejected that claim. “Appellees [the county] miss the mark with this argument in two crucial ways,” he wrote. “First, … [the planning director] may not avoid [the] obligation to uphold the public natural resources trust doctrine and its ‘affirmative duty to preserve and protect the state’s water resources,’ by arguing that another agency carries the responsibility. Second, Condition 10 of the PUD fails to meet the duty by deferring decision-making to a future time.”

The “[a]ffirmative obligation to preserve the public natural resources trust according to law is among the responsibilities of the director as an officer of the county,” Ibarra wrote. “… The county’s duty to conserve and protect is clear. The director may not defer decision-making action with regard to the public natural resources trust to another agency nor to a future date. The director, as an officer of the county, has a constitutional duty to ‘conserve and protect Hawai`i’s natural beauty and all natural resources, including … water,’ in her official decision-making. In deferring this responsibility, the director’s decision violated constitutional provisions.”

Ibarra also noted that Leithead-Todd’s decision to approve the PUD permit “improperly describes the land in question. The director described the vegetation on the property as ‘a combination of kiawe, koa haole, and a variety of grass, shrubs and weeds…’ When questioned about this portion of the decision letter during the May 11, 2012 appeals hearing, the director admitted that the language had been included in the decision letter in error, that it was taken from an unrelated decision letter that was being used as a sample, and that even without that language included, the director would have approved the PUD application.” Leithead-Todd acknowledged that her staff “could have considered comments made by neighbors that characterized the property as including an old `ohi`a forest, but that these would not be required to be included,” Ibarra noted, but, he continued: “the geographical makeup of the property is relevant. … Accurate findings of fact are essential to protecting the rights of the parties and the public and to creating a record that may be effectively reviewed on appeal.”

Residential vs. Ag
In its findings in favor of the planning director’s decision, the Board of Appeals claimed that the Kona CDP was not an “ordinance” and was unenforceable if not outright illegal.

Matsukawa argued that the Board of Appeals had no basis for such a claim and Ibarra agreed. “The KCDP was adopted as an ordinance by the Hawai`i County Council on September 28, 2008,” Ibarra noted, and the Board of Appeals “may not nullify an ordinance that it is charged to administer.”

The BOA went on to determine that the Community Development Plan did not apply to PUDs and, in any event, the Waikaku`u PUD was “grandfathered” – that is, it had been entitled before the CDP was enacted. Ibarra rejected both claims.

Ibarra also noted that while the PUD application stated that the lots to be created would support a “farm dwelling” whose design would be governed by CC&Rs (covenants, conditions and restrictions) attached to the subdivision, such CC&Rs were missing from the application, contrary to county zoning code requirements. Neither did the application contain the required “agricultural plan.” What’s more, “the director’s own September 14, 2011 decision letter described the project as a ‘housing’ project to be built as a ‘residential community,’” Ibarra wrote.

Next Steps
The Board of Appeals must once more take up the matter of the Waikaku`u development and reconsider it in light of Ibarra’s findings. According to Matsukawa, the BOA has little choice but to conclude that the PUD application should be sent back to the planning director, who, in turn, should conclude that her prior decision is void and that the application should be rejected.

“A prudent planning official should tell the applicant, ‘I am denying your application for non-compliance with the law; you may resubmit if you wish, but you must meet the guidelines set forth in the law, backed up by the judge’s decision as the law of the case,” Matsukawa stated in an email to Environment Hawai`i.

Late last month, Matsukawa filed a motion seeking $141,000 in attorney fees and costs to be levied on the planning director, the landowners, and the Board of Appeals. He acknowledged that it was unusual to seek costs against a tribunal such as the appeals board. However, he told Environment Hawai`i, “we argue that the board’s conduct is so egregious that an award of fees and costs against the board is proper.”


Volume 23, Number 12 — June 2013

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