`Aina Le`a Project Has Not Met, Cannot Meet LUC Deadlines
March 31 was the deadline for developers of the Villages of `Aina Le`a project to complete 16 units of affordable housing on their 1000-acre site near Puako, Hawai`i. The deadline was imposed last summer when the Land Use Commission, weary of unfulfilled promises by past developers to move forward with work on the land, decided to give a new team a short rope to prove itself, rescinding its earlier vote to have the land revert to the Agriculture District. The team, DW `Aina Le`a, LLC (DWAL), was taking over from Bridge `Aina Le`a, which itself was successor to three other companies that had taken a stab at developing the land since it was first placed in the Urban land use district, back in 1989.
So did they make the deadline?
Well, that depends on how you define “complete.” At a site visit last month, three commissioners, several employees of the LUC and Office of Planning, and a handful of members of the public toured the area where DWAL was building its “affordable” units in the southeastern corner of the parcel (the corner nearest to the village of Waikoloa). Under terms of the redistricting decision, 385 units priced to be affordable in the County of Hawai`i have ready for occupancy by November 10, 2010. DWAL has indicated the affordable units will be included in the 432 apartments (in 54 separate buildings) that are to be erected in the southeastern portion of the project.
As of May 5, the date of the site visit, one building had been mostly completed with a furnished model unit being used to market “reservations” to potential buyers. (A poster indicated that a three-bedroom, two-bath unit would cost $319,600.) Four additional buildings were in various stages of work and several more pads had been prepared for future buildings. In other words, less than 10 percent of the buildings that must be completed by the November deadline were vertical as of early May.
What of the two buildings that were nominally complete as of early May?
The water supply was trucked in. The wastewater went into a temporary septic system. The access road was gravel and the intersection with Queen Ka`ahumanu Highway was still lacking the improvements that were a condition of the redistricting.
Even before the site visit, Office of Planning director Abbey Seth Mayer detailed a long list of reasons the LUC should revisit its decision not to have the land revert to Agriculture. On May 4, in a memo to LUC administrator Dan Davidson, Mayer listed his concerns, summarized below:
No EIS: While the Hawai`i County planning director stated in a March 31 status report on the project that she had received a draft Environmental Impact Statement from DWAL, Mayer noted, “the document is not officially filed or … submitted to the Office of Environmental Quality Control.” In any case, he wrote, `Aina Le`a’s consultant Sidney Fuke “testified that the draft EIS would be completed in mid-November 2009” and Robert Wessels, one of the principals of DW `Aina Le`a, had testified it would be completed in December 2009 or January 2010. “Accordingly, regardless of which date is used,” Mayer wrote, “the petitioner is already behind schedule on this aspect of the development.” (Notice of availability of a draft EIS was published in the Office of Environmental Quality Control’s “Environmental Notice” on May 23.)
No Intersection Improvements: Delays in processing the EIS would make it nearly impossible to meet the November deadline, Mayer continued. Required improvements to the Queen Ka`ahumanu intersection are contingent on a completed EIS, he wrote. Contrary to the county’s assurances to Fuke that no EIS would be required for work at the intersection, Brennan Morioka, director of the state Department of Transportation, informed Mayer in March of this year that DWAL “has not met the environmental review requirements for connection to Queen Ka`ahumanu Highway.”
“With all due respect to the County of Hawai`i Department of Planning,” Morioka continued, “the exemption from Chapter 343 in Act 87, 2009, Session Laws of Hawai`i, applies to cases in which no discretionary decision is required for the primary action… [A] discretionary decision [in this case] was required to be made by the Land Use Commission.” Although DWAL had submitted plans for the improvements, Morioka said, because of the lack of an EIS, “the plans and designs are not approvable at this time.”
No Sewage Treatment Plant: Construction of a treatment plant to handle wastewater from the affordable units also is contingent on preparation of an EIS, according to Larry Lau, deputy director of the Department of Health. Lau, responding to an inquiry from Mayer, stated in a memo of April 12 that DWAL “has not met the environmental review requirements for an approval to construct a wastewater facility,” although preliminary plans had been submitted. At minimum, he wrote, an environmental assessment is required “for the proposal of any wastewater treatment unit, except an individual wastewater system or wastewater treatment unit serving fewer than fifty single-family dwellings.”
Fuke himself had informed the LUC that processing an EIS, from initial draft to acceptance of a final document, took anywhere from three to 12 months, with an average of six. Even supposing that a draft EIS could be made public by the first of June, Mayer wrote, and approved in Fuke’s best-case estimate of three months, “the petitioner will have only two and a half months” to get permits and construct the sewage treatment plant, to improve the intersection, and to finish all other infrastructure and vertical construction not yet completed.
What’s more, there seems to be a problem with the existing temporary wastewater system as well. According to one DWAL employee, the county approved installation of the system, which serves or is intended to serve 16 units (two buildings). Yet the county does not have authority to issue such approvals. The DOH’s Lau said his staff had been investigating this. “The Department of Health did not authorize this,” he told Environment Hawai`i. “Typically, our rules, [Hawai`i Administrative Rules] 11-62 Wastewater Systems, require people get a departmental permit” for everything from septic systems for single-family homes all the way up to multi-million dollar plants, he noted. At the conclusion of his investigation, “we will take appropriate action,” he said.
Affordable Housing Cluster: Mayer questioned the relocation of affordable housing into one small corner of the overall development site. In 2005, he wrote, the petitioner – then Bridge `Aina Le`a – represented “that the required affordable units would be spread out and integrated within the greater `Aina Le`a community, with all rights and privileges of the other owners. It now appears the affordable units are being constructed in a solid cluster, which in the future can easily be divided off and segregated… The Office of Planning questions the appropriateness of this decision.”
Financing: “The Office of Planning,” Mayer wrote, “was alerted to a troubling advertisement to investors in the DW `Aina Le`a project.” In the ad, posted on a Singapore website, Capital Asia solicits investors to pay $96,000 to purchase a 4,000 square foot lot (although, Mayer notes, the land being purchased is not subdivided), and the developer agrees to repurchase the land in 30 months for $125,000, for an annual return of 12 percent. (In September, Wessels told Environment Hawai`i that investors would receive “undivided shares” of the land.) In the ad, Mayer notes, “DW `Aina Le`a Development LLC is the owner, not the developer. The developer is an entity called Hill Redwood Development LLC… So based on the ad, neither DW `Aina Le`a nor Capital Asia promise to buy the land back, Hill Redwood Development does.”
If the ad is correct, and investors are actually buying a fraction of land ownership, Mayer writes, “there is also a question as to whether petitioner has violated Condition 14 [of the LUC redistricting order], requiring notice to the LUC of any intent to change the ownership interest.”
The ad is also troubling, Mayer continued, “because it indicates that financing is likely not secure. Loans through conventional financing would be much cheaper. So if conventional financing is not available, the project may be too risky.”
As of mid-May, more than 300 individual owners were listed by the County of Hawai`i Real Property Tax Office for the 60-acre parcel where the affordable housing is under construction (TMK 3-6-001:036). And although the land has changed hands twice since DWAL took over (first purchase was the affordable housing parcel from Bridge; second was transfer of that parcel to `Aina Le`a, LLC, and its several hundred investors), the LUC has not received any notice, according to its director, Dan Davidson.
Procedural Integrity: “The Office of Planning is unalterably opposed to any further extensions,” Mayer wrote, noting that when the LUC set the November 2010 deadline in 2005, the developer had actually promised to complete the affordable units in three years, but the commission had added an extra two years to account for possible delays. “Any request for a further extension is unacceptable,” he said.
If, Mayer continued, developers “can make statements and never be called to account for them, and if conditions are never enforced, rather only amended and extended at petitioners’ convenience, then this land use process loses all meaning. Why do we bother with conditions in the first place?”
Mayer concluded by urging that the LUC, “following the certain unsuccessful passing of the November deadline for certificates of occupancy for all 384 affordable units, act immediately to revert the district boundary of the entire 1,060 acre petition area to Agriculture.”
Another Packed Hearing on O`oma Petition
Proposals to develop land at O`oma, south of the Kona airport, have generated controversy for years, and the latest plan is no exception. Even after the community was given the opportunity to weigh in on the first day of formal hearings by the Land Use Commission on the petition to reclassify the area last March, opponents of the project once again packed the room when the LUC hearing resumed in May.
They had been summoned by email alerts, phone trees, postings on utility poles, and even banners hung from overpasses on highways leading into the village of Kailua-Kona. Long before LUC Chairman Ransom Piltz brought down his gavel to open the hearing on May 5, the ballroom of the King Kamehameha hotel was packed and soon hotel staff were having to push back the room dividers, effectively doubling the meeting space to accommodate a boisterous crowd.
Most of the day was given over to public testimony. Of the 70-plus witnesses who spoke, a handful supported the project, their comments usually greeted by loud hisses and boos. Many of the opponents simply urged the commission to keep the land open. A few, however, submitted remarks that were thoughtful and insightful.
George Wilkins, a retired professor of ocean science, explained that certain aspects of the West Hawai`i shorelines, which he had studied extensively, made them especially vulnerable to the dangers of development. Infrared surveys of the coast he had done in the 1990s clearly indicated cold streams of fresh water that flow into the sea from underground rivers, often extending for more than a mile offshore. The drainage surface of West Hawai`i, therefore, has two components, he said: “The first is the surface of land, and almost all attention paid by local governments and coastal developers is to this interface between the earth and the atmosphere. When no runoff occurs, we all relax and do little more than call for dry wells to more effectively duct stormwaters into the ground.”
But, he continued, “no matter how hard we try to ignore it, there’s a second surface, formed by sea water” that underlies the islands. “All waters, freshwater, sewage, all move downward until they meet the seawater. There they float on the sea surface…. The danger is that while floating along the surface, the water will carry all the additives and contaminants it picks up along the way – pesticides, solvents, pharmaceuticals, etcetera. They will follow the same path as the freshwater flows.” Wilkins called for more research to gain a better understanding of the ways in which fresh water can enter the ocean and to devise better ways of addressing this issue.
More on Noise
After public testimony concluded, the petitioner, O`oma Beachside Village, was allowed to resume making its case to the LUC. The first witness called was Yoichi Ebisu, who had prepared new site maps that allowed for comparison between his own noise exposure contour lines and those prepared by the state Department of Transportation and accepted last January by the Federal Aviation Administration. Ebisu had testified in March, but the maps he presented at that time did not show the DOT contour lines.
Ebisu explained that because the airport master plans call for a new runway makai (seaward) of the existing one and relocation of helicopter operations to the north side of the airport (from the south), “the net result … is actually a reduction in forecasted noise levels at properties like O`oma. The reason for that is in constructing the new runway, they will be relocating noise impacts further makai…. So the projections are that noise contours at O`oma will actually go down rather than up, even with increased capacity.”
Jennifer Benck, attorney for O`oma, asked Ebisu how the DOT’s maps differ from the ones Ebisu had drawn up and which were included in the final environmental impact statement for the project.
The DOT’s draft maps, he said, which were the only ones available when he prepared the report for the EIS, “showed higher noise exposure than we were showing… But after the DOT finalized the noise exposure maps, we got better agreement…. Right now, I can say that the noise exposure maps – the official noise exposure maps for Kona – are essentially the same as what we had forecast and used in our analysis.”
The critical contours for the O`oma project are the 60 and 55 DNL lines. (The DNL is a measure of the average noise over a 24-hour period in decibels, with nighttime noise carrying a slightly higher weight than daytime noise.) Superimposing the contour lines over the site plan shows just how finely tuned the O`oma development is, with the noise-sensitive uses (residences and school) aligning inside the 60 DNL line, while non-sensitive uses (the makai commercial area and recreational sites) fall between the 60 and 65 DNL contours, as projected by Ebisu.
Should the DOT contour maps vary from Ebisu’s, it could mean that the developer might be required to reconfigure the plans so as to avoid land uses incompatible with the state-approved land use guidelines.
Benck asked Ebisu his opinion on the recommendation from the state Office of Planning, an intervenor in this and all LUC redistricting petitions, that houses be built so that indoor noise levels will be at 45 DNL or below.
Ebisu disputed that this would be needed – or even possible. “Between 55 and 60 [outdoor DNL], the interior noise levels should be from 45 to 50 – ten points less. So we won’t be able to meet a 45 DNL interior noise requirement for a naturally ventilated house that’s located between the 55 and 60 contour lines.”
Benck: “If we air conditioned?”
Ebisu: “That’s what would be required. You’ll have to close windows and doors, close off natural ventilation, and then you’ll have to air condition.”
When the Land Use Commission reclassified the mauka portion of the O`oma project in 1986, it imposed an avigation (right to fly) and noise easement and prohibited the construction of any residential units in areas that fall on the noisy side of the 60 DNL contour. Under questioning from Benck, Ebisu noted that in the area proposed for reclassification now, no noise-sensitive uses were proposed for areas where the DNL was projected to exceed 60 DNL.
When the Office of Planning was given the chance to cross-examine Ebisu, deputy attorney general Bryan Yee followed up on the avigation easement. “Are you aware that the avigation easement requires indemnification of the DOT?” he asked. The indemnification means that landowners cannot sue the state for damages that may be associated with airport noise.
Ebisu said he was aware of that.
Yee then asked if Ebisu understood why the DOT might want an avigation easement over the entire property, not only under a particular noise contour area.
“No, I can’t understand,” Ebisu replied. “If you’re not going to define the easement area by noise, why not go to the next property? If you’re saying it’s a noise easement, then I should think the easement premises should be defined by noise levels. I have never seen a noise easement that is not, that does not have easement premises defined by noise level.”
Yee noted that the O`oma property is what is before the LUC, “just the one property. Not Kohanaiki, not NELHA. The only property that can be conditioned in this proceeding is O`oma. So if the DOT is looking to impose such a condition, the largest property it can impose on is this property, before this commission. Because noise contours can change, and predictions can be wrong, DOT would want to ensure that whoever moves into O`oma has understood and signed away, waived their rights to contest or object to the operation, the continued operation, and changing operations of Kona airport.”
Ebisu disagreed. “I can’t understand that, it’s never been done as far as I know.”
Commissioner Normand Lezy pressed the point further in his questions to Ebisu. “Have you ever seen an instance where avigation easement was imposed that fell outside 60 DNL contour?”
Ebisu: “It could be anywhere. But in my opinion, it has to be a noise related line, it cannot be a property boundary. If you’re going to call it a noise easement, the premises have to be defined by noise. At Kohanaiki, 55 DNL was used. It could be 50, 45, but you have to have some rational purpose for picking a number. Fifty-five is most rational because that’s where the science, such as the EPA, says outside of that, sure, people may complain, but there is no adverse health and welfare effect. So the line of demarcation of 55 DNL has some scientific basis.”
The LUC will resume its hearing on the O`oma petition later this month.