“The boundary line is made regardless of land ownership; hence both government and privately owned lands are included within the reserve.” – William Crosby, territorial forester, 1946
Last month, the state Board of Land and Natural Resources removed 2,470 acres from Kaua’i’s Kealia Forest Reserve. The four board members present at the July meeting – chair Peter Young, the Big Island’s Gerald DeMello, Maui’s Ted Yamamura, and Kaua’i’s Ron Agor, attending his first meeting as a board member – had been told the action was needed to correct an error made nearly a century ago, when the land was first placed into the territorial forest reserve system.
The Department of Land and Natural Resources’ Division of Forestry and Wildlife told the Land Board that the private land, owned by Cornerstone Hawai’i Holdings LLC, had been “erroneously included in Forest Reserve status and has never been legally part of the Kealia Forest Reserve.”
Based on DOFAW’s recommendation, the board unanimously agreed to modify a Governor’s Proclamation by withdrawing those acres from the Kealia Forest Reserve, thereby complying with a request from Cornerstone to remove an “encumbrance” on the property. By doing so, the board opened the door for Cornerstone to seek to withdraw its land from the Conservation District without going through the lengthy and expensive boundary amendment process, which requires extensive environmental review and approval by the state Land Use Commission.
Instead, Cornerstone indicated to Environment Hawai’i that it planned to seek a boundary interpretation from the LUC. Unlike a boundary amendment, a boundary interpretation can be done by the commission’s executive director.
In the past, such boundary interpretations have involved tweaking the line dividing the Conservation District from land in the adjoining district in a way that involves at most a few dozen acres. But LUC director Anthony Ching says that there’s no limit on the acreage that could be affected by a boundary interpretation, if sufficient justification is provided. He is free to “interpret the boundary other than it is now,” he told Environment Hawai’i, which means that some, or all, of the privately held Conservation District land that was once in the Kealia Forest Reserve could suddenly be placed within the adjoining Agriculture District, with only a cursory assessment of the property’s natural resources.
But the owners’ plans may be thrown a loop: after Environment Hawai’i began questioning the rationale behind the Land Board action, the administrator of the Division of Forestry and Wildlife indicated that this month, the board would be asked to revisit its July 9 decision.
“We’ve talked to the chairman’s office,” said Paul Conry, DOFAW chief. “We’ll go back to the Board August 13 to provide them with corrected information. We do not want to have them making a decision based on information that wasn’t correct.”
When asked how the staff could have overlooked documents in developing the July 9 submittal to the Land Board, Conry replied: “We just missed the file. Our guys just didn’t get all the right files to check.”
Private Forests
In 1903, the Territory of Hawai’i enacted Act 44, titled Reservation of Government Land for Forestry Purposes. The act established Hawai’i’s forest reserve system by allowing the governor to set apart “any government land or lands not then under lease, or on which there is a lease of two years or less, as forest reservations.”
Act 44 also allowed the governor to designate forest reserves on private lands. It stated that any private landowner could “surrender to the Government the care, custody, and control of any lands, whether held under lease or in fee, as a forestry reservation, either for one or more years, or forever.” Those who surrendered their lands to the territory would be exempt from taxes on those lands as long as they remained under government control.
According to a 1919 report by territorial forester C.S. Judd, a forest reserve system encompassing 818,739 acres across all the main Hawaiian islands had been established. Of that acreage, 32 percent, or 260,084 acres, was on private land.
“In describing such reserves, it has been the policy from the start not to include, if possible, lands which are more valuable for agricultural purposes and to strike an even balance with the stockman by not including in the reserves any more land that was necessary when viewed in the light of the absolute needs of water conservation and the proper use of adjacent lands,” Judd wrote. “Where the reserve boundaries cross privately owned lands, the proclamation does not affect the status of the land but is merely a recommendation that such land be treated and cared for as a forest reserve.”
Kealia
On March 9, 1906, acting governor A.L.C. Atkinson signed a proclamation establishing as the territory’s sixth reserve the 9,935-acre Kealia Forest Reserve in the north end of the Puna District of Kaua’i, “above a line drawn at approximately the lower edge of the existing forest across the lands of Anahola, Kamalomalo’o, Kealia, and Kapa’a.”
As with all proclamations involving public and private land, this one accomplished two things: First, it proclaimed as a forest reserve both public and private lands included in a metes-and-bounds description. According to a 1906 Board of Forestry report, land within these boundaries “should be permanently maintained under forest cover” and “constitutes the area of a forest reserve.”
Second, it set aside the government-owned portion (lands at Anahola, Kamalomalo’o, and Kapa’a), turning management of the land over to the Bureau of Agriculture and Forestry (predecessor agency to the Department of Land and Natural Resources’ DOFAW), rather than leaving it in the custody of the Commission of Public Lands (predecessor to the BLNR’s Land Division). The remaining forest land at Kealia, being privately owned by Lihu’e Plantation, could not be set aside in this fashion.
Years before the 1906 proclamation, Lihu’e Plantation was already working to protect its forested areas. At the time, the plantation, as well as the Make’e Sugar Company, controlled “the greater part of the better land” in Puna, Kaua’i, according to a 1904 report by territorial forester Ralph S. Hosmer.
Hosmer goes on to say that Make’e Sugar was cooperating with the government to establish a forest reserve that would include both public and private land. And Lihu’e Plantation had already erected a fence around a large amount of forest behind its plantation by 1894.
“Stock have been excluded and as a result a dense stand of ‘Ohi’a lehua (Metrosideros polymorpha) has sprung up,” Hosmer wrote. “Beside the reservation of the native forest, the Lihu’e Plantation Company has also done much in the way of planting forest trees.” Since 1882, the plantation had reportedly planted about 1,000 acres of ironwood, eucalyptus, and native and Australian koa trees.
“An annual supply of some 250 cords of fire-wood has been obtained, while from the planted area a stream of almost a million gallons of water a day has been developed,” Hosmer wrote. In 1908, Lihu’e Plantation reportedly planted 20,000 trees over 50 acres, and indicated it would plant even more in 1909.
While Lihu’e Plantation carried out its own forest management activities, the government sought to evaluate the suitability of some of its own land within the Kealia reserve. A 1919 report by Judd states that an examination of forest land at Kamalomalo’o and Anahola identified 760 acres of open, treeless grassland, which he suggested be removed from the reserve.
A year later, Governor C.J. McCarthy signed a proclamation in July 1920 modifying the reserve boundary by removing about 900 acres from the reserve, leaving it with 9,050 acres. A survey of the new reserve area showed it included 2,290 acres at Kapa’a, 2,470 acres at Kealia, 630 acres at Kamalomalo’o, and 3,660 acres in Anahola.
A 1925 Board of Agriculture and Forestry report indicated that 62.22 acres of government land in Anahola were to be removed from the Kealia Reserve. Agricultural interests felt the land was suitable for pineapple production, and Judd found the gently sloping area to by dry, “without forest, and covered with a dense growth of lantana … far more valuable for agricultural purposes than for any other.”
Surrender
Under the original forest reserve law, private landowners with lands within the reserves could have surrendered those lands to the government via a surrender agreement for as little as a year or as long as forever, in exchange for a tax exemption lasting as long as the agreement.
“For those owners who did not choose to surrender their forest lands to the government to administer, the Legislature provided that by meeting certain conditions and making no use of the land, they, too, would be exempt from taxes if it was clear that the public would benefit,” according to a March 20, 1941 discussion by the territorial Board of Commissioners of Agriculture and Forestry on the legislative intent behind the surrender agreements and tax exemptions.
By 1935, ten landowners had executed surrender agreements with the territory, accounting for 25,108 acres of the total 356,772 acres of privately owned forest reserve land. A 1939 inventory of the territory’s resources by the territorial planning board found that private landowners had “complied in most cases with the suggestion that they protect the forest on such areas for water conservation purposes.”
Of those lands not covered under a surrender agreement, the report continued, protection “has been fostered by and encouraged by the allowance of tax exemption on such lands by a law established during the reign of Queen Lili’uokalani.” Under this method, a landowner had to apply each year for a tax exemption and state that the land was being protected from cattle trespass and was not being used in any other way without the express permission of the Board of Agriculture and Forestry.
“These two methods have been of material assistance in furthering the cause of forestry in the Territory. The ideal, however, would be for the Territory to own all lands within the forest reserves but this apparently has been asking too much of the Territorial Treasury. It is hoped, however, that a beginning may be made in a small way each year to obtain this desideratum by the appropriation of sufficient funds to buy up such private lands in small quantities so that eventually the Territory will have entire and absolute control of all necessary forests on watershed areas,” the 1939 inventory report stated.
To improve forestry management, the territory sought to gain control of the private lands for more than a year at a time. Ideally, the territory wanted commitments on the order of 10 to 30 years. The territorial forester at the time, William Crosby, was concerned that a one-year surrender of private land failed to allow for long-term management and planning for the forest reserve. Based on Crosby’s recommendations, the Board of Commissioners of Agriculture and Forestry, at its March 20, 1941 meeting, recommended changing the minimum term for surrender agreements from one year to 20 years.
The change, apparently, was agreeable to several of the large landowners. In 1942, Moloka’i Ranch Co., East Maui Irrigation Co., West Maui’s Baldwin Packers, Ltd., Kaua’i’s McBryde Sugar Co. and Lihu’e Plantation, and six O’ahu landowners entered into 20-year surrender agreements with the government.
On September 5, 1944, Lihu’e Plantation officers and the president of the Board of Commissioners of Agriculture and Forestry signed a surrender agreement for the 2,470 of plantation land lying within the Kealia Forest Reserve. The agreement gave the territory “exclusive care, custody and control” of the land.
(Also on September 5, Lihu’e Plantation entered into surrender agreements for 193 acres in the Kalepa reserve and 9,525 acres in the Lihu’e-Koloa reserve. All agreements expired on September 5, 1964.)
By 1946, 86,905 acres of private lands had been placed under a long-term surrender agreement. Still, it seemed most landowners preferred to keep control of their lands by applying for annual tax exemptions. Crosby wrote in a 1946 report that 207,857 acres of private land not under surrender agreement received tax exemptions. Of all of the privately held forest reserve land (368,830 acres), 23 percent had been surrendered, and an additional 56 percent received annually applied-for tax exemptions.
“From these figures, it may be seen that … owners of 294,792 acres or 79 percent are maintaining them in a full forest reserve status, while owners of 21 percent of such lands do not protect their forest reserve lands as forests and permit practices detrimental to forest and watershed cover,” Crosby wrote.
(In 1957, the Legislature revised the law governing surrender agreements that would seem to make long-term surrender wholly unattractive. Under the new law, surrender agreements had to include a proviso giving the government title to any government improvements left on the lands, and if the landowner wanted to retain those improvements, it had to buy them from the government. Furthermore, the landowner would also be required to pay the government the “reasonable value for any timber or other crops planted during the term of the surrender.”)
Withdrawal
In the 1950s, the Board of Agriculture and Forestry redrew boundaries of several forest reserves as it ceded land to the control of the U.S. Army, the counties, or the Commission of Public Lands, in the case of acreage that was deemed better suited for agriculture.
The last was the case in withdrawals at Kealia in the mid-1950s. On December 17, 1954, at Lihu’e Plantation’s request, the board removed 220 acres of government lands at Kamalomalo’o from the Kealia Reserve. Then on March 22, 1955, 253 acres of land at Kamalomalo’o and Anahola, being deemed no longer essential for forest use, were withdrawn from the Kealia Forest Reserve by Executive Order No. 1678.
Some time between 1944 and 1959, records indicate that some of Lihu’e Plantation’s Kealia land was removed from government control, as well. A December 1959 list of surrender agreements drawn up by district forester Max F. Landgraf includes an agreement for 2,391.19 acres at Kealia, roughly 79 acres less than Lihu’e’s original agreement for 2,470 acres. This suggests that notwithstanding the surrender agreement, the plantation had converted some of the designated forest reserve land to agricultural purposes as early as the mid-1950s, although no record of a permit or application can be found. (Such a permit would have been required after 1957.)
In March 1959, Hawai’i became a state and a major reorganization of the islands’ system of government was undertaken. In the next few years, the duties of the Board of Agriculture and Forestry were divided between the new Department of Land and Natural Resources, governed by the Land Board, and the new Department of Agriculture. In 1961, the Legislature passed the Land Use Law, which gave control over the Conservation District (including the unsurrendered private lands that had been designated as Forest Reserves) to the Land Board. The DLNR’s Division of Forestry and Wildlife was given charge over the publicly owned Forest Reserve lands as well as those few thousand acres of private Forest Reserve land remaining under surrender agreements. A separate office within the DLNR was established to regulate all other land in the Conservation District.
A Watershed Development
So long as the large plantations retained ownership of the mauka forest lands, a certain enlightened self-interest worked to ensure that the forests were reasonably protected. They were, after all, the source of the water that was essential to a profitable plantation.
But as the 1990s began, the number of plantations had dropped dramatically and still more were going under. In the process, they sold off a significant portion of their fallow lands to developers. In 1998, Lihu’e Plantation’s parent company, Amfac Land Co., sold its 6,700 acres at Kealia (which included the land within the Kealia Forest Reserve) to Kealia Plantation Company, LLC, for $16.5 million.
Principal investors in Kealia Plantation were Justin and Michele Hughes. According to a company website, the Michele Hughes Company is “a boutique firm that develops properties in high end resort areas, taking raw land from creative concept to luxury homes complete with all amenities.” Hughes has developed land in Aspen, San Francisco, and Kauai.
(In addition to the Hugheses, Thomas and Bonnie McCloskey of Aspen, Colorado, were, according to the McCloskey and Company website, “silent investors” in the Kealia Plantation development known as Kealia Kai, a 300-acre, 29-lot oceanfront project. Thomas McCloskey is chairman and CEO of Aspen’s Cornerstone Holdings, which works in real estate development, venture capital and portfolio management. In 2001, an agreement between the Hugheses and the McCloskeys led to a division of assets, leaving the McCloskey-owned Kaua’i Ranch as owner of land at Kealia that includes the 2,740 acres designated as forest reserve.)
When a title search for the company done around the time of the sale between Amfac and Kealia Plantation discovered that the land was designated as part of the Kealia Forest Reserve, agents for Kealia Plantation immediately sought to remove the designation.
But why?
Apparently no one in DOFAW ever asked. Alvin Kyono, of DOFAW’s Kaua’i district office, says the company never disclosed the reason why it wanted to remove the designation. Since it was only a forest reserve on paper, perhaps the owner wanted to erase the stigma, Kyono suggested.
In an email to Environment Hawai’i, Jenny Fujita, a spokesperson for the owner, states that the landowner, whom she refers to as Kaua’i Ranch, “asked the state for an explanation as to why the mauka half of the property was designated as forest reserve, even though taxes were being paid on it.”
The company gave to DOFAW copies of the governor’s proclamations of 1906 and 1920. DOFAW personnel apparently reviewed the documents and concluded that the private lands were not part of the reserve.
An April 20, 1999 letter to DOFAW Kaua’i’s Ed Pettys and Tom Telfer from Kealia Plantation’s attorney Lorna Nishimitsu states, “You have indicated that research conducted by your staff has led to a conclusion that the Kaneha [Kealia] parcel was not technically included within the Forest Reserve, notwithstanding that the encumbrance of such Forest Reserve is identified on the title report of the property. You have also indicated that the [DLNR] would be willing to assist out client in obtaining such documentation as is necessary, from the Governor’s office, which could be recorded and the effect of which would be to remove the encumbrance.”
Nishimitsu went on to request DLNR’s assistance in removing “any encumbrance of a forest reserve” from the land.
DOFAW staff then asked the Department of the Attorney General how to remove the land from the forest reserve. Apparently basing her review on nothing more than the two documents provided by the owner – the 1906 and 1920 proclamations – deputy attorney general Linden Joesting concluded that, “the private property was not surrendered to the state but was simply included by the proclamation.”
Joesting’s February 2000 letter to then-Board of Land and Natural Resources chair Tim Johns refers to Section 183-15 of Hawai’i Revised Statutes, which states that surrender is an option for landowners: “Any person may [emphasis added] … surrender to the government the care, custody and control of any lands … as forest or water reserve lands.”
“There is no document reflecting that such a surrender ever occurred in the case of the Kealia Plantation land,” Joesting concludes. Joesting was apparently unaware that forest reserves included, by design, hundreds of thousands of acres of private land, with or without a surrender agreement, and that in the case of the Kealia land, a surrender agreement had in fact been in force for two decades. “The way to return the land would be by a governor’s proclamation removing the property from the forest reserve,” Joesting wrote. “This will require a legal description of the property which should be provided by the landowner.”
With Joesting’s letter in hand, Pettys wrote Nishimitsu in March 2000, “It appears that the next step would be for the landowner to provide a legal description of the property.”
It was four years before the issue resurfaced at the DLNR. In the interim, McCloskey’s companies moved into the driver’s seat.
On February 11, 2004, Lee Sichter of Belt Collins Hawai’i Ltd. wrote Kyono on behalf of Cornerstone Hawai’i Holdings LLC, seeking to pick up where things left off in 2000. Kyono forwarded his file on the subject to Michael Constantinides at DOFAW’s Honolulu headquarters and to deputy attorney general Linda Chow. The proposal also passed through former DOFAW administrator Mike Buck, who signed off on the report to the Land Board recommending modifying the governor’s proclamations.
Like Joesting’s 2000 letter, Buck’s report ignores the long, deliberative history of including the Kealia parcel in the forest reserve and repeats as fact the landowner’s claim that it was never under surrender agreement: “Based on the Attorney General’s review of the relevant statutes, rules, and proclamations, TMK 4-7-01:001 was therefore erroneously included in Forest Reserve status and has never been legally part of the Kealia Forest Reserve. Modifying the Proclamation of 1920 to remove this land from the Kealia Forest Reserve will remove the encumbrance on the property as requested by the private landowner.”
It continues, “Private lands may be included in a forest reserve if they are surrendered by the private landowner to the state for use as a forest reserve (HRS 183-15)…. There is no documentation reflecting that this private land was ever surrendered to the state. There is also no evidence to indicate that the state ever managed this area as a forest reserve.”
Without discussion, the board unanimously approved the request.
Rezoning – Without the Fuss
The board’s action, on its own, did not change the Conservation District status of the Kealia land. But if the Land Use Commission’s Anthony Ching is correct, the board’s action gave Cornerstone an opening to try out a novel approach to redistricting.
The traditional approach to redistricting is to file a boundary amendment petition with the LUC. The ensuing process is similar to a court hearing, with the various parties to the hearing offering testimony of witnesses who can then be cross-examined. In addition to the petitioner, parties include the state Office of Planning and a county Planning Department official, and may include representatives of those opposing the boundary amendment as well. An environmental assessment or environmental impact statement almost always has to be prepared. Rarely does the commission act on a petition in less than a year.
But the law also allows the LUC’s executive director to adjust boundary lines, when he deems it warranted, whenever a request is made for a boundary interpretation.
By virtue of its having been included in the forest reserves (and under surrender agreement, to boot) at the time the Kaua’i land use district boundaries were fixed on August 23, 1964, the Lihue Plantation’s forest reserve lands at Kealia were included in the state Conservation District. The Board of Land and Natural Resources then placed those lands in the protective, limited, and resource subzones, the three most restricted of the Conservation District’s four subzones.
Despite the designations, the current landowner argues that at least some of the land should be zoned for agriculture. In late 2003 and early 2004, Sichter, on behalf of Cornerstone, visited the LUC office to discuss how the Conservation District boundary was established, says Fred Talon, an LUC drafting technician. Talon says maps showing that agricultural features (a road to a ditch and a reservoir) were included in the Conservation District suggest that some of the Conservation District lands might have been more properly placed in the Agriculture District at the time the maps were drawn some 40 years ago.
In an interview, Ching said that without a formal boundary interpretation request by Cornerstone, which would initiate a more extensive review, he could not say whether the Land Board action alone would be sufficient to cause him to redraw the Conservation District line. But, he continued, “The effect of the Land Board’s redesignation of the forest reserve is to change the basis of our Conservation District.”
On March 6, 2001, Randall Sakumoto, an attorney with McMorriston Miller Mukai MacKinnon, LLP, requested a boundary interpretation for five parcels at Kealia on behalf of Cornerstone Hawai’i Holdings, including TMK 4-7-1: 01, and an adjacent 1,679.883-acre parcel, TMK 4-7-2:03. (Sakumoto is listed as the agent for a number of McCloskey companies, includin g Cornerstone Hawai’i, Kaua’i Ranch, Moloa’a Bay Ranch, and Kealia Water Company. He also happens to be a current member of the Land Use Commission.)
The LUC office responded on April 18, 2001, stating, “our records indicate that the State Land Use Agriculture/Conservation District boundary relative to the subject parcels follows the ‘Forest Reserve Boundary’ and a portion of the property line of TMK 4-7-01:1.” The LUC included a map showing the forest reserve line and the property line and where the conservation/agriculture boundary followed along a ditch and dividing property line.
“We basically took it from a USGS map, overlaid the zones… identified the TMKs, and we noted the ag/conservation areas and the approximate boundaries,” says Talon.
With confirmation that the conservation boundary and the forest reserve boundary were roughly one and the same, Cornerstone proceeded with its 2004 initiative before the Land Board.
A Coconut Plantation?
As of mid-July, Cornerstone had not yet requested a new boundary interpretation, armed with the Land Board’s July 9 action. But according to Jenny Fujita of Kaua’i’s Fujita & Miura Public Relations, Kaua’i Ranch will, indeed ask to have the boundary redrawn.
The ranch, she wrote in an email, “wishes to make productive use of all the property’s agricultural lands.” She added that Lihu’e Plantation cultivated and grazed cattle on some of the Forest Reserve land before the 1960s.
“Kaua’i Ranch will be seeking guidance from the State Land Use Commission on the question of whether the forest reserve land that was previously used for agricultural purposes by Lihu’e Plantation was erroneously placed in the Conservation District due to its designation as forest reserve.”
Fujita noted that Kaua’i Ranch is grazing cattle and growing native and other plants on its agricultural land at Kealia. She adds, “Kaua’i Ranch is in the process of creating one of the largest coconut plantations in Hawai’i. The mauka half of the property is within the state Conservation District and is designated as part of the Kealia Forest Reserve. The makai half is within the state Agriculture District.”
Ching hints that the ranch plans to do more than plant coconuts. “The landowner’s potential plans, which are very preliminary, weren’t looking at any development other than familial use,” he told Environment Hawai’i. “It might be ag. At most they’d be looking for rural.”
In any case, he added, “If it’s a simple boundary interpretation, as the executive director of the LUC, I have the authority.”
Boundary Interpretation
The LUC ‘s boundary interpretation program is the most under-rated aspect of what the LUC does, Ching says. In a year, he can get between 800 and 1,200 boundary interpretation requests; he averages about 1,000 a year. The LUC ‘s Hawai’i Administrative Rules give the executive director the authority to interpret land use district boundaries at the request of the public.
Section 15-15-22 of the rules, which sets up the LUC ‘s boundary interpretation program, requires all requests to be made in writing and to include the TMK and a map of the property. The executive director can request additional information, including topographic maps, aerial photographs, certified shoreline surveys, and subdivision maps, and he can require the requestor to hire a surveyor to prepare a map for interpretation.
The purpose of a boundary interpretation is to resolve any uncertainty regarding district boundaries. While section 15-15-22 doesn’t specifically state what kinds of things are open to interpretation, it does give guidance on interpreting boundaries when they fall near roads or waterways.
Typically, people come to Ching for clarification on where to place their houses or other structures if a property is split-zoned, or want to know whether they can control or clear vegetation without violating Conservation District laws.
Ching was asked if anything on the scale of the Kealia Forest Reserve land had ever been removed from the Conservation District via a boundary interpretation. He replied, “It’s not the typical case that comes in the door, but I have a comfort level regarding boundary interpretations.”
If and when Cornerstone makes its request, Ching says, “I would consider everything, all the relevant history.” However, he adds, he cannot dispute “any proclamation by any other jurisdiction or authority,” i.e., the Land Board’s determination that the Kealia lands were erroneously included and its subsequent modification of the forest reserve.
Ching says he would look at LUC benchmarks, such as when the district boundary lines were first established (in this case, 1964), and information contained in state boundary reviews of 1969, 1974, and 1992.
The fact that the land was under a surrender agreement at the time the boundary line was set is one factor he would take into account, Ching said, as would be recommendations in a 1969 consultant’s report to the LUC . That report, by Eckbo, Dean, Austin & Williams, found that specific areas at Kealia that were in cane production should be removed from the Conservation District and placed in the Agriculture District. The LUC approved the recommendation at its July 8, 1969 meeting, extending the ag line past reservoirs at Kaneha and up to the 1,000-foot elevation.
Ching says that if the land was historically cultivated, and if ag was allowed by a permit, “there’s an understanding that it should have been in the ag district.” Yet the DLNR’s Office of Conservation and Coastal Lands, which would have issued just such a non-conforming use permit, has no record of one ever having been sought.
Sam Lemmo, OCCL administrator, disagrees with Ching. A boundary interpretation should not be sufficient to remove the land from the Conservation District, he says.
In the event the interpretation removes the land from the Conservation District, Lemmo said, “the landowner gets an upzoning of property” on the basis of minimal information. “A request for a boundary interpretation is basically just a letter request.”
Lemmo, whose office administers all of the Conservation lands in the state except for state-owned Forest Reserves, was not consulted by DOFAW as it processed Cornerstone’s request. He notes the Conservation District was altogether removed from DOFAW’s jurisdiction when the Legislature passed Act 270 in 1994.
As to Ching’s assertion that the Conservation District could be affected by the Land Board’s removal of the Kealia lands, Lemmo says, “It doesn’t matter if you take it out of the forest reserve. You still have a zoning issue.”
— Teresa Dawson and Patricia Tummons
Volume 15, Number 2 August 2004