Appeal of `Ohi`a Forest Subidivision Invokes Kona CDP, Public Trust Obligations

posted in: March 2013 | 0

What force and effect should be given to the community development plans that the Hawai`i County Council has adopted in recent years?

That question is at the heart of a lawsuit being heard in 3rd Circuit Court, which challenges a county Board of Appeals decision that upheld the planning director’s approval of a subdivision in a near-pristine `ohi`a forest. At a hearing before Judge Ronald Ibarra in January, county attorneys stated their position clearly: the plans are only advisory and the planning director has broad discretion to disregard them.

Michael Matsukawa is representing landowners Patricia and Richard Missler, who are challenging the planning director’s decision to approve the residential subdivision on land in the South Kona ahupua`a of Waikaku`u. In his argument to the court, he staked out a position diametrically opposed to the county’s. It was his contention that the planning director and the Board of Appeals, which upheld the director’s decision last year, were bound to make sure the results of their actions were consistent with the Kona CDP, approved by the County Council in 2008.

“This case is about legislative power,” Matsukawa stated in the January 17 court hearing. “Executive officials from the county are trying to limit or modify these expressions of legislative power… The question to the court is, can they do so?”

In her argument to the court, however, deputy corporation counsel Amy Self, representing planning director Bobby Jean Leithead-Todd, maintained that the Kona Community Development Plan was hortatory only and did not require the planning director to ensure that the permits she issued furthered the goals set forth in the CDP.

In passing four CDPs in quick succession, Self suggested, “this got out of control,” with the County Council caught up in the euphoria of adopting plans with incentives it could not possibly afford. “We had money back then,” she said. “Unfortunately that’s not the case now. Today, all four [CDPs] have to share the same pot of money, and a lot of these incentives involve money.”

In any event, she continued, “the Kona CDP doesn’t state that applications for Planned Unit Developments are prohibited.” The subdivision at issue in this case would be done under color of a PUD: this allows lots smaller than what is called for under county zoning to be clustered in one area of a large parcel, while keeping the bulk of the parcel undeveloped.

In the case at issue, the landowners – Malama Investments, LLC, and Loren and Mary Saxton – are wanting to develop 13 lots, each about two acres, on the mauka portion of the 72 acres they own while leaving a 40-acre bulk lot undeveloped. The land, which is within the state Agricultural District, is zoned by the county for minimum five-acre ag lots. Any house that is built must be a “farm dwelling” and, in keeping with Ibarra’s decision in the Hokuli`a case, there should be an agricultural plan for the subdivision as well.

But, Matsukawa noted, in the decisions of the planning director and the Board of Appeals, “there’s silence as to the agricultural plan. This is styled as an agricultural PUD. Well, where’s the agricultural plan? It’s like Hokuli`a revisited.” (In the Hokuli`a case, Ibarra ruled that the gated, golf-course-centered residential subdivision was not a farm enterprise. In the wake of that decision, development of primarily residential large-lot subdivisions on land in the state Agricultural District has been made much more difficult, although it has not ceased entirely.)

“Let’s call it what it is – a residential subdivision,” Matsukawa said. “And they want to cut it out of the heart of the forest, since that’s where the 60-inch rainfall exists. They want that, because they don’t have county water.” Since any houses built on the lots to be developed under the permit would not be served by the county water system, and the developer is not planning to drill a well to provide water, the houses need to be placed in that part of the larger lot where average annual rainfall is at least 60 inches; below that amount, the county may not approve residential developments relying on water catchment systems.

In a brief filed with the court, Self pushed the argument against the Kona CDP’s enforceability even further. The ordinance that the County Council approved in adopting the plan was defective since, she wrote, it “failed to even mention the Zoning or Subdivision Codes” and thus “could not legally amend” them. “Because the KCDP was adopted as a plan without proper notice of its regulatory nature in its title, its body, or by providing the public with actual notice, the Appellants’ KCDP-related claims must fail,” she continued.

Matsukawa disputed the view that the ordinance itself was defective. The court, he argued, “should note that the planning director did not present this argument to the Board of Appeals,” and so the county should not be allowed to raise the issue now. Further, he wrote in a reply brief, Self’s own department, the county Office of Corporation Counsel, approved the Kona CDP bill “as to form and legality” at the time it came before the County Council. “[T]his court should estop all county officials from ‘blowing hot and cold’ on this point,” he wrote.

Natural Resources Trusts

Matsukawa raised numerous other points on appeal, including the claim that the approval of the subdivision violates the “Public Natural Resources Trust.”

“Planning officials must enforce this constitutional trust when they process a development-related permit,” Matsukawa argued in a brief, citing the Supreme Court decision that upheld a ruling of Ibarra’s in a case brought over pollution of Kealakekua Bay by the Hokuli`a. (In that case, the county had argued that it had no such public trust obligation. The Supreme Court disagreed, finding that the state Constitution “mandates that the county does have an obligation to conserve and protect the state’s natural resources.)

Were that not enough, Matsukawa noted, “Hawai`i County voters also adopted a charter-based ‘natural and cultural resources’ trust.”

Public trust resources that have been jeopardized by the county’s actions, Matsukawa wrote, include the native forest, historic sites, and the watershed values on the Saxtons’ land.

Ibarra asked Self about the public trust issues involved. “You’ve argued that it doesn’t apply here because it’s private land,” Ibarra noted, going on to ask her specifically about the designation of the area as a Priority 1 watershed by the state.

“As far as we know, there’s no source of water” on the land, Self replied. “Also, the [state] Water Commission… they are charged with protecting watersheds.”

Ibarra: “So to apply the public trust doctrine, there would need to be a finding that the watershed is a public resource, and you argue that it does not fall under the public trust doctrine because a watershed on private property is not a public trust.”

Self hedged a bit. “Watersheds can be a public trust,” she said. “Even the Misslers’ property is on the same watershed. And they have a lot more houses in that subdivision.”

The state Water Code, she went on to say, “set up this commission and even a fund, so that if there’s … a sensitive area, and they think there’s going to be problems with any activity that is proposed, they can condemn that property and purchase it in order to protect the watershed.” (At no time since its establishment more than two decades ago has the state Commission on Water Resource Management condemned property for any reason. Nor, contrary to Self’s claim, does it have any fund that would allow it to do so.)

In any event, Self claimed, because plans are not final, any claim of damage to the public trust resources would be premature. “So the problem is, how do we know that anything they do is going to destroy the watershed or hurt” public trust resources, she asked.

Ibarra had not issued a ruling in the case by press time.

For Further Reading

Our June 2012 cover story deals extensively with the PUD permit and the Board of Appeals deliberations, “A Subdivision in an `Ohi`a Forest Gets OK From Hawai`i Planning Director.”

Patricia Tummons

Volume 23, Number 9 — March 2013