Developer Hopes to Race Through Environmental, Land Board Reviews

posted in: September 2006 | 0

In planning for the 530-acre marina/resort development at Honokohau known as Kona Kai Ola, the Board of Land and Natural Resources and Jacoby Development, Inc. (JDI), are bound by terms of a development agreement that became effective November 18, 2005. The board approved entering into the agreement at a public meeting two months earlier, but, in response to concerns expressed by members of the public, it asked that the draft agreement it was presented with be changed to respond to the board’s wish to be given more opportunity to review the JDI project as it proceeded through the planning phases.

The agreement’s complicated and confusing review process allows for almost a year of dialogue between the Land Board and JDI about various project plans. But according to recent statements by JDI representatives, it appears the company is hoping for less talk and more action.

Board Review and Revision
Under the agreement, JDI must submit a proposed master development plan to the Land Board within a year of the effective date. In a recent presentation JDI gave to the board to update them on the project, the company plans to submit this and other plans ahead of schedule, in early October. The Land Board or its chairperson then has 90 days to notify JDI of its acceptance of or objections to the plan. No written notice of either acceptance or rejection is tantamount to acceptance under terms of the development agreement.

If the decision is to reject, then JDI has 60 days to revise the plan to address the objections. When JDI submits the revisions to the state, the Land Board or its chair has an additional 60 days to review and indicate its objections or acceptance. Again, no notice is tantamount to acceptance.

If the state rejects the plan a third time, JDI has just 30 days to address the objections. Should it do so in that time frame, the Land Board or its chair has 60 days to accept or reject. At that point, “unless otherwise agreement to by the state in writing, [the] Development Agreement shall terminate.”

Altogether, then, the schedule set forth for review and revision of the development plan could take as long as 10 months before the Land Board gives its final thumbs-up or thumbs-down on the proposed master plan. If approval is finally granted by the chair or the board, then the plan becomes known as the “Preliminary Master Development Plan.”

The EIS Review Process
At the same time JDI first submits its proposed plan, it must also submit its draft Environmental Impact Statement to the Board of Land and Natural Resources, which has been named by JDI as the accepting authority for this project. Once a Preliminary Master Development plan is approved by the Land Board or its chair, and the EIS process is underway, JDI may submit to the Land Board proposed amendments to the plan based on information and comments received during the EIS process. The Land Board has a month to respond, and JDI has a month to either accept or deny any of the board’s conditions or revisions.

After the EIS process has run its course and the challenge period has ended, the final EIS must be presented to the Land Board at a public meeting.

“Within 30 days of that public meeting, the board or its chair has to notify Jacoby if it has approved the [Master Development ] plan without any need for additional changes; approved the plan, subject to Jacoby agreeing to undertake certain changes; or denied the plan,” the development agreement states. It also states, “It is understood and agreed that State’s final review and final approval or disapproval of the Preliminary Master Development Plan, if any, shall not occur until after the Developer has received final non-appealable acceptances of all required final EIS covering the entire project.”

The same review and approval process that applies to the Master Development Plan also applies to a Core Infrastructure Plan, and a Master Covenants, Conditions and Restrictions form.

Master Lease Conditions
Once the Land Board or its chair grants its preliminary approval of the development plan, JDI has 32 months, with a possible extension for six more, to meet five conditions:
• Get the Land Board to approve a final Master Development Plan.
• Obtain any and all necessary entitlements, including county General Plan amendments, zoning changes, etc., and obtain final, non-appealable approvals from the state, county, and federal government for any necessary permits (i.e. Special Management Area, National Pollution Discharge and Elimination System, and water well permits);
• Obtain final approval from the Hawai`i Planning Department of a final subdivision map that creates “bulk subdivision” of the lands;
• By working with the state, have determined the initial base rents under the proposed master lease; and
• Have complied with all terms of its Core Infrastructure Agreement.

Once JDI meets all of these terms, the Land Board must issue a master lease to JDI within 30 days. If JDI fails to do so, the development agreement will expire.

Coming Soon?
Under the development agreement, JDI has until November 17 to submit to the Land Board for preliminary approval a proposed master development plan, a core infrastructure plan, and master CC&Rs. A draft EIS must also be submitted at this time.

At the July 13 briefing before the Land Board, JDI representative Frank Brandt said that the company wants to submit these deliverables on October 11 and have the board give its final approval of them at its January 26, 2007, meeting.

At-large member Timothy Johns asked Brandt whether that was enough time for the board to review and approve all of the plans (given that the development agreement allows the board or its chair at least 90 days for preliminary approval.)

Brandt said he thought it was enough time. Instead of waiting on the schedule set forth in the development agreement, he said, JDI would like to get the deliverables to the state on October 11, and get the state’s feedback on November 10.

“We’re moving ahead fast…It’s been four years. There’s still a long way to go,” Brandt said.

Aside from whether the Land Board can crunch through and approve all of JDI’s plans by late January, the EIS review process is likely to run beyond that. State law allows public comment for 45 days following publication in the state Environmental Notice of the availability of a draft environmental impact statement. According to a June 27, 2006 letter from JDI senior vice president Scott Condra to Land Board chair Peter Young, notice of the draft EIS will be published in the October 23 OEQC bulletin, which means the comment period will end on December 7.

Once the comment period expires, the developer has to revise the EIS to be responsive to the comments received – which can take weeks or months. After the final EIS is prepared and accepted by the “accepting authority” (identified in the EIS preparation notice as the Land Board), then the Office of Environmental Quality Control (OEQC) publishes notice of acceptance, which triggers the start of a 60-day window for the public to challenge its decision in court.

From the initial publication of availability of a draft EIS to the notice of acceptance can take anywhere from a minimum of 75 days to a year or beyond. Beyond that, another two months (for legal challenge) have to be added before the “non-appealable” standard mentioned in the development agreement is attained. Even if JDI can respond to comments received and incorporate them into a final EIS with warp speed, it would be February, at the earliest, before the plan could be given final approval by the Land Board under the development agreement’s own terms.

And the process has already hit a snag. During the comment period on the EIS preparation notice, which was published July 8, another issue arose: the notice indicated that the BLNR would be the sole accepting authority, even though some 220 acres of the land proposed for development by Jacoby are leased from the Department of Hawaiian Home Lands. In its comments on the EIS preparation notice, the DHHL indicated its interest in being listed as an accepting authority. The state EIS rules, however, do not allow more than one accepting authority. Instead, if more than one agency has jurisidiction, one agency needs to be designated as the lead. If the agencies are unable to do this, the decision is to be made by the OEAC.

— Teresa Dawson

Volume 17, Number 3 September 2006

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