New & Noteworthy: `Aina Le`a, ATST, Ka`anapali Boating

posted in: December 2012 | 0

`Aina Le`a Update: The slow pace of development at the Big Island project known as the Villages of `Aina Le`a seems to be matched these days only by the slow progress of challenges to it in court.

The state has been stalled in its efforts to reverse the decision of a 3rd Circuit Court judge, Elizabeth Strance, overturning a Land Use Commission vote to revert the land back to the Agricultural District and thereby void approvals for development. The state had appealed Strance’s decision, but the Intermediate Court of Appeals determined in October that her decision did not count as a final one. She is being asked now to amend it – for the second time since she issued her first ruling last February.

Another lawsuit, this one filed in 2011 by the Mauna Lani Resort Association, challenges the Hawai`i County Planning Department’s acceptance of an environmental impact statement for the project. Judge Strance has scheduled oral argument on that for December 3.

The resort association has also appealed the county Planning Department’s approval of a planned unit development, or PUD, proposed by `Aina Le`a LLC, for 70 single-family house lots on 23 acres next to the 432 town houses being built to satisfy the affordable housing requirement imposed by the LUC. A hearing on that is scheduled before the county Board of Appeals on December 14, by which time Judge Strance may have issued her opinion in the EIS case. The main basis for the challenge to the 70-unit PUD is the unsettled matter of the sufficiency of the EIS.

Parallel Universe: The contested case hearing over the decision by the state Board of Land and Natural Resources to issue a Conservation District Use Permit for the Advanced Technology Solar Telescope dragged on for two years. Last month, in its final decision and order on the case, the Land Board reaffirmed its December 2010 decision.

But the fight isn’t over. Before the formal contested case had begun, Kilakila O Haleakala (the petitioner) appealed the board’s decision in circuit court and, later, to the Intermediate Court of Appeals. Both courts found that they lacked jurisdiction because a contested case hearing had not yet been held.

That, Kilakila’s attorneys argue, does not matter. The fact that the University of Hawai`i had attempted to start construction in the midst of the contested case hearing — and the Land Board was going to allow it — proves that the Land Board’s 2010 decision to grant the CDUP was a final, appealable, decision, the Native Hawaiian Legal Corporation argues in court filings.

“As discussed at length in its opening and reply briefs filed with the Intermediate Court of Appeals, it is irrelevant that after the filing of this appeal the BLNR conducted a contested case hearing because (a) the permit that was issued authorized construction activities to begin and (b) the BLNR cannot legitimately grant a conservation district use permit before conducting a formal contested case hearing that has been properly requested,” they wrote in their appeal to the Hawai`i Supreme Court.

On November 13, the Hawai`i Supreme Court accepted Kilakila O Haleakala’s request for a review of the ICA’s decision. Oral arguments are scheduled for December 20.

Ka`anapali Tours Update: On December 10, the U.S. District Court is expected to hear arguments on the state’s motions for summary judgments in a lawsuit filed last year by Ka`anapali Tours, LLC, against the state Board of Land and Natural Resources, the Department of Land and Natural Resources, and some of its staff.

After receiving complaints, the DLNR last year blocked the company from using its permit to operate either a monohull or multihull vessel at Ka`anapali, claiming the one-of-kind permit is not valid. Under DLNR rules, the issuance of Ka`anapali catamaran permits is strictly regulated and is supposed to be subject to a waiting list.

The company, however, had designed and custom-built a 65-foot catamaran, Queen’s Treasure, because its permit appeared to allow it to swap out a monohull vessel for a catamaran, effectively, bypassing the waiting list.

The company’s estimated total losses as of mid-November came to $2.7 million, according to the company’s pre-trial statement.

A jury trial has been scheduled for January 8. (For more on this complicated case, read our February cover story, “Permitting Missteps Threaten to Unravel Commercial Boating Regime at Ka`anapali,” and our March New & Noteworthy column. Both are available at

Volume 23, Number 6 — December 2012

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