New Directors of Housing, Planning In Hawai‘i County Tied to Developers

posted in: January 2021 | 0
Mayor Mitch Roth.

Mitch Roth, the newly elected mayor of Hawai‘i County, made supporting business one of his key promises to voters.

Roth was regarded by many as a steady hand, having held the elected post of county prosecuting attorney for the previous eight years. His opponent in the general election, Ikaika Marzo, had never held public office, appointed or elected.

But when Roth announced his cabinet picks in early December, his choices for several positions alarmed and puzzled many in the public.

Planning: Zendo Kern

Zendo Kern, who donated $2,700 to Roth’s campaign, has been involved in county government in several capacities over the last decade. He sat on the County Council for two years and has served on the Board of Water Supply and the Windward Planning Commission. He has never held a managerial position, however, and has had no formal training as a planner.

Tiffany Edwards Hunt, who was chairperson of Kern’s campaign when he ran for County Council, told Nancy Cook Lauer of West Hawai‘i Today that she had “’grave concerns’ about his lack of engagement with the community and his insufficient management experience. She also worried that he’d be beholden to the former clients he helped shepherd through the planning and permitting processes.”

Kern’s lack of training and his inexperience did not stop him from hanging out his shingle and taking on clients – numbering in the hundreds – who wanted him to plead their case for variances, zone changes, or other approvals from the county’s Planning Department and two Planning Commissions, or to bring challenges to those decisions before the county’s Board of Appeals.

Many of those applications have generated controversy. Dozens have been made on behalf of homeowners wanting to challenge the planning director’s denial of short-term vacation rental permits, following the county’s efforts to tighten restrictions on transient vacation rentals, or TVRs. (In this connection, it’s noteworthy that the AirBNB pac, Committee to Expand the Middle Class, donated $1,000 to Roth’s campaign.)

Several of Kern’s applications have involved projects that were withdrawn before they could be heard by the Planning Commission or acted upon by the Planning Department.

Take the case of a “Christian camp” that was planned for a 10-acre portion of two lots totaling 60 acres in the Volcano Farm Lots subdivision, in the state’s Agricultural District in Volcano. On behalf of Christian Liberty Ministries of Hawai‘i, Inc., Kern submitted an application for a Special Permit that would allow the use of the land for a camp.

Apparently unbeknownst to Kern, the property was subject to restrictions on its use, imposed by the state Board of Land and Natural Resources when the subdivision was established in 1962. Those restrictions limit use of the land to cultivation of crops and the personal residences of the landowners.

In addition, “a large reservoir (approximately 1 million gallons) will be used to teach kayaking and paddleboarding,” the permit application states, showing the reservoir as a large, rectangular water feature straddling both lots of record. However, most of the area depicted is dry most of the year and is instead a lined catchment area for a pond that is only about a quarter the size depicted in the application.

The application was to have come before the Windward Planning Commission on September 3, but, given vocal and strong opposition from neighbors, Kern asked that it be deferred. On September 14, the Planning Department received Kern’s notice that he was withdrawing the application.

Or take the case of the Fairview Avenue “glamping” proposal that was cooked up by another Kern client. The 294-acre Agricultural parcel, in the Hokukano area of Kona, was former ranch land that had been subdivided in 2009. Last April, Kern submitted an application to use 14.9 acres – just shy of the 15-acre threshold that would trigger involvement of the state Land Use Commission – for a 40-unit lodge and related facilities. The units would consist of individual tents or domes, several of which had already been built (without permits) and were being advertised on AirBnB and other websites.

Once again, neighboring landowners were unanimously opposed. In addition, in early August, the Land Use Commission had agreed with the county that agricultural tourism was not allowed in Hawai‘i County under state law.

The planning director recommended against approval, noting in his recommendation to the commission that the county was in fact considering bringing an enforcement action against the landowner.

The matter was scheduled for consideration by the Leeward Planning Commission on August 20. That day, Planning Director Michael Yee notified the commission that the applicant had withdrawn the application. (For details, see the article in the September edition of Environment Hawai‘i.)

As a third example, there is the matter of Kern’s involvement in an application to redistrict and rezone about 11 acres near the village of Waikoloa. The landowner, Danny Julkowski, had purchased the land where the county had at one point intended affordable housing to be built, in satisfaction of the affordable housing requirement imposed on the former owner of the land, Waikoloa Mauka, as part of the LUC conditions for redistricting the land from Agricultural to Rural.

The larger development proposed by Waikoloa Mauka (later known as Waikoloa Highlands) never got off the ground, resulting in the LUC reverting the land that was subject of the original redistricting petition – including what Julkowski now owned – back to the Agricultural District.

There is a long history to the project, much of it detailed in past issues of Environment Hawai‘i. In his report to the Windward Planning Commission, Yee recommended denial.

When the application came before the Planning Commission on August 20, Kern said he had been approached by a county employee about a year and a half earlier who had a “client” with an application for 201H housing (affordable housing) who needed Kern’s help.

Kern provided few details of how his client came to own the parcel or the shadowy history – detailed in past issues of Environment Hawai‘i – behind the creation of Julkowski’s parcel and the several transactions that led up to his purchase of it. “I actually did speak to the original consultant,” Kern told the commissioners. “He didn’t even know what happened. Something really funky happened in that transfer.”

The commissioners disapproved the request. Meanwhile, the FBI is reported to be investigating the matter. (For details, see the September edition of Environment Hawai‘i.)

Housing: Susan Akiyama-Kunz

Unlike Kern, Susan Akiyama-Kunz, Roth’s appointee to the head the county’s Office of Housing and Community Development, has years of experience in her field.

In fact, Akiyama-Kunz was at the helm of that office in the waning months of the mayoral term of Billy Kenoi, when the “funky” deals – to quote Kern – involving Waikoloa Highlands’ satisfaction of its affordable housing requirement occurred.

County ordinances provide several means for developers to satisfy affordable housing requirements. They can build it themselves, donate land to a non-profit to develop the affordable units (for example, Habitat for Humanity), or they can donate the undeveloped land to the county.

In 2016, Susan Akiyama declined the offer of land from Waikoloa Highlands. As Environment Hawai‘i reported in September 2018, an undated memo to the files in the Housing Office stated, “According to Susan, county is not interested in accepting the land because we would be competing with our own Kamakoa Nui project,” referring to a large project the county was developing on the opposite side of Waikoloa Village. That same memo noted that none of the non-profits qualified to undertake affordable housing developments was interested, either.

Instead, Alan Rudo, then a staffer in the Housing Office, came to an agreement with Sidney Fuke, the planner then representing the developer (and who has close ties with Kern), whereby Waikoloa Highlands would donate land the land to a nonprofit. (Rudo left Housing in the fall of 2018, soon after questions began to arise about the deal; coincidentally, he donated $1,050 to Roth’s campaign. Fuke’s son, Jeffrey, and his wife, Aileen, each donated $1,000.)

Akiyama signed off on the proposal, as did county corporation counsel Amy Self and, eventually, Mayor Kenoi.

In the months that followed, discrepancies emerged. Plumeria at Waikoloa, the company that took title to the 11.7-acre affordable housing parcel, was variously identified as a non-profit or a limited liability company. Somewhere along the line, conveyance documents appear to have been tampered with, whether at the county level or elsewhere remains uncertain.

What is known is that the land was not donated to Plumeria at Waikoloa, but was instead sold to the company for $50,000. Plumeria at Waikoloa turned around and sold the parcel to Julkowski for $1.5 million. (The only name associated with Plumeria at Waikoloa was that of Paul Sulla, Jr., its manager. The company changed its name to Peaceful Ventures, LLC, in 2018. It filed a notice of termination with the state, effective April 30, 2020.)

Akiyama-Kunz was asked about her involvement with the affordable housing agreement last month. She said she had no specific memory of the deal. “I know that there was a federal investigation involving this project after I left,” she said. “I’m not familiar with where they’re at. I’m not involved in that.”

Corporation Counsel Strance

Roth has appointed Elizabeth Strance, a former 3rd Circuit judge, to be corporation counsel. Strance also has played a key role in one of the most controversial developments on the Big Island. It was Strance who decided in 2012 that the state Land Use Commission erred in its reversion of the land slated for the stalled-out ‘Aina Le‘a development. (Robert Wessels, the principal of ‘Aina Le‘a, Inc., donated $3,000 to Roth’s campaign. ‘Aina Le‘a donated $1,000.)

— Patricia Tummons

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