A Subdivision in an `Ohi`a Forest Gets OK From Hawai`i Planning Director

posted in: June 2012 | 0

A challenge to a proposed 14-lot subdivision in an old growth `ohi`a forest on the western slopes of Mauna Loa has resulted in the Hawai`i County planning director admitting that her department made mistakes in the process of approving the so-called planned unit development (PUD).

Whether those mistakes are sufficient to cause the county Board of Appeals to overturn the approval won’t be decided until its July meeting, at the earliest. But on May 11, the Board of Appeals concluded the evidentiary portion of the contested case hearing on the matter. Richard and Patricia Missler, who own adjoining land, requested the contested case last fall, soon after planning director B.J. Leithead-Todd approved the application.

The land that is the subject of the application is owned by Malama Investments, LLC, and the Saxton Trust. It consists of three lots totaling 72 acres in the South Kona ahupua`a of Waikaku`u, about 13 miles south of the town of Captain Cook. The property runs from the Mamalahoa Highway mauka, gaining about 800 feet in elevation. The proposed subdivision would see development of 13 two-acre lots clustered in the steeply sloped, forested mauka portion of the land, with a 41-acre remainder lot occupying the makai area. Access would be by means of a private road through the existing Ka`ohe Ranch subdivision, immediately to the north.

Although heavily forested and bordered on the east by state forest reserve land, the Malama Investments/Saxton Trust property lies in the state Agricultural District; county zoning allows for five-acre agricultural lots. With a planned unit development, the total density would remain at 14 lots, but the size of 13 of them could be smaller than the minimum set in county zoning.

In addition to the acknowledged error, the Misslers and their attorney, Michael Matsukawa, argue that the approval was flawed in other respects as well: that the project does not comply with mandatory provisions of the Kona Community Development Plan; that the applicants do not have a legal right to use the proposed access road; and that the county’s rule for timely processing of applications was violated, among other things.

Changing Players

The first application for the PUD was filed on October 2, 2010, on behalf of two prospective purchasers, Richard Lewis and James Petty. The forms filed with the County of Hawai`i indicated the applicant was Riehm Owensby Planners Architects, whose principal, Michael Riehm, had been hired to develop a subdivision plan by Lewis and Petty.

The purchase did not go through, but the application did, with the Saxton Trust and Malama Investments running with the plan that Riehm had developed. On November 24, 2010, attorney Steve Lim, who had represented Lewis and Petty, asked that the Planning Department ignore his request to withdraw the application, made twelve days earlier, and that it substitute the landowners as the new applicants. (In one of the several unexplained aspects of this contested case, the letter of approval for the application, sent by Leithead-Todd on September 14, 2011, still identified Riehm as the applicant; in the contested case, the applicant is identified as the Saxton Trust and Malama Investments.)

As required for planned unit developments, the applicants notified surrounding property owners of the application in November 2010, informing them as well that a decision on the application would have to be made within 60 days of the application – by January 3, 2011 – or the application would be automatically denied. On December 29, Lim requested a 30-day extension, to February 3, followed by three more extension requests – to March 1, April 3, and then May 3. The PUD file does not show that the applicant requested additional extensions, nor does it contain written communications from the Planning Department acknowledging the time extension requests.

The Planning Department’s rules state that “Within sixty days after the filing of a proper [PUD] application or within a longer period as may be agreed to by the petitioner, the director shall deny the application or approve it subject to conditions.” Should the director fail to act “within the prescribed period, the application shall be considered as having been denied.”

In testimony to the Board of Appeals, Garrett Smith, the program manager for administrative permits within the Planning Department, stated that, “generally speaking, we try to process all applications in a timely manner… The staff’s view of the situation is that, with various inquiries and concerns expressed, the extensions were done as a courtesy to the landowners, to provide ample opportunity for all parties to be heard.”

Matsukawa pressed Smith on this point. “The last entry I see that comes from the applicant is dated May 3, 2011,” he noted, referring to the fourth request for a time extension from the landowners. “After May 2011, to your recollection, what happened in May, June, July, August, September – five months. What was going on?”

Smith replied that, “in all truth, there were some internal issues going on with Planning Department staffing that contributed to the delay. It had to do in part with not having sufficient staff… It was nothing that the applicant had done, or the public had done. The applicant was accommodating ongoing discussions between the parties, but some of that time lapse was due to county processes.”

A Forest Ignored

One of the most controversial aspects of the approval concerns the characterization of the property’s vegetation in the letter of approval: “Vegetation within the Property area consists of a combination of kiawe, koa haole, and a variety of grass, shrubs, and weeds. The plants found on the Property are generally alien and introduced species, none being considered rare or endangered. No endemic species of animals were located nor were their habitats.”

The description is at odds with many of the comment letters from adjoining or nearby property owners that the county received. Most of them noted that the development would carve up the existing forest. Several pointed out that the property was almost certainly habitat for the endangered Hawaiian hawk and hoary bat as well as numerous species of native birds.

Larry Nakayama, the planner (since resigned) who handled the PUD application, was questioned by Matsukawa about that description and the numerous comments that contradicted it.

“We routed the application to the different agencies and we were waiting for their comments, and we received no comments regarding that [the vegetation], so we proceeded with the application,” Nakayama said.

As to the Misslers’ letters commenting on the old-growth `ohi`a forest on the property, Nakayama said he had no memory of it and asserted again his confidence that, if an old-growth `ohi`a forest did exist on the property, one or another of the agencies consulted would have noted it.

“And if the different agencies didn’t make a comment, does that mean that the statement of the neighboring person who offered a letter is not true?” Matsukawa asked.

“I’m not saying they’re liars,” Nakayama replied, “but I’m going to depend on what other agencies submit to me, and if they didn’t submit any comments at that time, I’m going to assume or I’m going to realize that they have no objections.”

(Although the Hilo office of the state Department of Land and Natural Resources’ Division of Forestry and Wildlife was notified, as an adjoining landowner, of the PUD application, it made no comment. Not until February 2012, well into the contested case, did DOFAW administrator Paul Conry respond to a request – from Hawai`i County Councilmember Brittany Smart – to review the PUD application and investigate the natural resources found on the property. “[W]e note that the subject parcel is private land, is not within the Conservation District subzone, and therefore not under the direct management jurisdiction of the department and our watershed management program,” Conry wrote. “We defer to the county on zoning issues related to development on the property.”

(Conry concluded with a recommendation that biological surveys be conducted, “or that the applicant schedule a meeting with our staff to consult on any potential impacts of this project on protected resources.”)

Cut and Paste

Leithead-Todd, who ultimately approved inclusion of the incorrect vegetation description, was asked about it when she testified to the Board of Appeals last month. Deputy corporation counsel Amy Self inquired of Leithead-Todd how the language came to be inserted into the approval document.

“Mr. Nakayama used a prior approval,” Leithead-Todd replied. “You bring up a Word document, you go in and change things in it to be relevant to the current one. This is one he forgot to delete.”

Self then suggested, “It was not done intentionally? Just something he failed to delete from a previous document?”

“Yes,” Leithead-Todd answered. “It really was not relevant to the PUD application.”

So, Self asked, “Even without that language… would you still have approved it?”

“Yes,” Leithead-Todd said, “because it’s consistent with provisions in the County Code on PUDs as well as consistent with the General Plan, and the overall density was consistent with the zoning of five acres.”

Self then added, “Even employees in the Planning Department are human beings and they make mistakes.”

“I make mistakes,” Leithead-Todd said.

Matsukawa questioned Leithead-Todd further on this point. “You testified in response to Ms. Self’s question as to the statement of vegetation, … that was a clerical error. Do you know what information [Nakayama] was supposed to put in there?”

Leithead-Todd answered that he would have simply included the information contained in the application itself.

“Would he have had to consider comments from neighbors that characterize Waikaku`u as old `ohi`a forest?” Matsukawa asked.

“He could have considered it,” Leithead-Todd replied, “but he’s not required to put it in.”

If the draft approval letter were coming through now, Leithead-Todd went on to say, “I’d tell him to submit a new one with that language taken out. I’m just saying it’s an error, but it’s there, and it’s part of the record, and the board can determine what they want to do with that language or not.”

Force and Effect of Kona CDP

Much of the focus in the contested case hearing has been on the force and effect of the Kona Community Development Plan. The plan, adopted by the County Council in September 2008 after a lengthy series of community meetings, is one of several such CDPs which, according to the Planning Department’s website, are intended to “translate broad General Plan goals, policies, and standards into implementation actions as they apply to specific geographical regions around the island.”

Such plans, the Planning Department goes on to say, “shall be adopted by the County Council as an ‘ordinance,’ giving the CDP the force of law.”

In 2008, then planning director Chris Yuen addressed the question of the legal effect of the several CDPs being developed at that time, including that for Kona. In a letter to the steering committees for CDPs for Kona, Puna, North Kohala, and South Kohala, Yuen wrote: “The answer is not simple, and it depends upon the specific wording or the provisions of the CDP and upon the type of follow-up action. … A plan exists to create a long-range framework and direction for specific decisions. It is not self-implementing, and it is not the action itself. A CDP, for example, may direct that rezoning in the CDP area follow certain criteria, but it does not in itself rezone land.”

The Misslers argue that the proposed PUD violated the Kona CDP in many respects, including the plan’s guidelines for clustered rural subdivisions. In a January meeting with Planning Department staffer Deanne Bugado, however, Lim argued that the “legally binding policies of the Kona CDP are only applicable to new Change of Zone applications, time extensions on existing zoning requiring County Council action, State Land Use Boundary amendments, and SMA permits,” quoting from an email memorializing the meeting. The CDP did not apply “directly to a PUD nor to a water variance with existing entitlements,” Lim argued. “Regardless of the above, our clients have volunteered to incorporate elements of the Kona CDP, in order to create a responsible development that respects the intent of the Kona CDP.” Specifically, the PUD “complies with the intent” of the clustered rural subdivision guidelines, Lim said, which is “to minimize grading, preserve the natural appearance of the land to the extent possible, ensure agricultural use in the state Land Use Agricultural District, and create a rural setting for residences.”

Matsukawa raised the point that both the county General Plan and the Kona CDP set forth standards to protect ecosystems, watersheds, and native wildlife. He questioned Bugado, whose job deals, in part, with ensuring compliance with the Kona CDP, as to whether she reviewed the PUD application in that light.

Referring to the January meeting, Bugado stated that she “confirmed that the project was outside the Kona urban area, in a rural area – that this was a planned unit development application. We went over … what the CDP calls for regarding rural areas … but it was pointed out that this was not a clustered rural PUD application, which is what the CDP specifically calls out” for review by the Kona design center, which Bugado oversees. The application “was to follow what a clustered rural planned unit development would [be] layout-wise, but [would] not be a clustered rural planned unit development application.”

So, Matsukawa asked, are there two types of cluster subdivisions?

Bugado explained that there were – a standard PUD development and then the specific type of PUD, called a “cluster rule PUD.”

“Someone told you this application was not going to be following the specific provisions of the Kona CDP regarding planned unit developments in rural Kona?” Matsukawa then asked.

“Correct,” Bugado replied.

Matsukawa: “Did you have any reason to question that?”

Bugado: “Not that I recall.”

When asked what elements of the CDP the applicants were volunteering to incorporate, Bugado replied: “They were clustering the development of the homes, they were preserving as much agricultural area as possible, they were trying to create interconnectivity between roadways….”

After the January 2011 meeting, Bugado testified, she heard no more about the project. “When did you become aware that the application had been approved?” Matsukawa asked.

“When I got the subpoena” to testify, she said.

Under questioning from county attorney Self, Bugado testified that the Kona CDP did not override or invalidate existing zoning, and that the PUD application was not a rezoning request.

“So is it your understanding that, since this property already had its zoning, it wasn’t required to come in to the … get an official decision by the Kona design center?” Self asked.

“Correct,” Bugado said.


One of the points raised by the Misslers and several of their neighbors who testified in the course of the hearings deals with legal access to the property. As proposed by the applicant, access would be over a private road running mauka-makai through the adjoining Ka`ohe Ranch subdivision, then cutting through a lot at the upper end of the subdivision to reach the Saxton Trust/Malama Investments property.

In the same letter commenting on the water variance, Van Pernis also objected to the proposed access. “Note that the property has its own access to and from Mamalahoa Highway,” Van Pernis wrote. (The property has frontage along the highway at the makai end.) “The applicant’s property has no recognized ownership interest in nor right to use the corporation’s roads,” he wrote. “Nor has the property …obtained the corporation’s or homeowner’s permission to use its roads nor join the corporation.”

In May, Lim responded to Van Pernis’s concerns in a letter to Leithead-Todd. His clients, he wrote, “entered into a letter agreement with Forest View, Inc., and Hawai`i Ranch Properties, LLC, to enter into a purchase contract to secure access rights over the Ka`ohe Ranch subdivision roadway system.” Forest View and Hawai`i Ranch Properties were developers of the Ka`ohe Ranch subdivision and retained the right to grant others the right to use the road, Lim stated.

Shared Goals

Landowner Vince Saxton testified that he shared some of the same views as those who opposed the development.“We’re trying to accomplish really some of the same goals that they have,” he stated. “I love the forest up there as well. The way that the PUD is mapped out, as Michael Riehm showed, it forces the preservation of the forest.”

“When I go through Ka`ohe Ranch,” he continued, “I’m amazed how much of the forest is gone. Each five-acre owner has the right to use it for agriculture, so there’s no control over what they do with it. With our PUD plans, a portion is set aside for housing, and we’ve talked about limiting how much someone can clear.”

During cross-examination, Lim suggested that the Misslers and other owners in the Ka`ohe Ranch subdivision had done much the same clearing that they wanted to now block on the Saxtons’ property.

“How much of the forest was cleared when you did your house pad?” Lim asked Patricia Missler. “The least we could do for a house pad and the water tank,” she replied.

“Is your lot similar to the Saxton’s property?” he asked.

“Waikaku`u is way more pristine,” Missler answered. “Our property had more invasive things growing on it. Directly on the border we have `ohi`a trees that are similar, and kopiko and hau, but it is a very different forest. Theirs is a huge forest. We don’t have trees that size on our property and never did to my knowledge.”

Would Missler object to a five-acre subdivision on the adjoining property? Lim asked. “You’ve done the same thing on your property,” he said.

“No, we haven’t,” Missler said. “We’ve hand cleared.”

* * *

A Water Variance

At Odds with Rules

The planning director’s approval of the proposed planned unit development is being challenged in the Board of Appeals hearing, but the water variance she granted last year was uncontested.

Water variances allow developments to move forward when the county subdivision code would otherwise require them to have common water systems installed. Rule 22 of the Planning Department’s Rules of Practice and Procedure sets forth the conditions under which variances may be granted for subdivisions that will be relying on rain catchment for their water supply.

To qualify for a variance, the development has to be in an area where average rainfall is not less than 60 inches a year and in any case, for subdivisions where the average lot size is less than 20 acres, “no more than six lots shall be allowed in a catchment subdivision.”

The clustering of the proposed lots in the Waikaku`u planned unit development was on the far mauka end of the property in order to meet the minimum rainfall requirements set in the rule.

But a letter commenting on the PUD proposal from Mark Van Pernis, representing the Ka`ohe Ranch Road Maintenance Corporation and the Ka`ohe Ranch Subdivision Homeowners’ Association, noted that the line demarcating the 60-inch rainfall zone “does not conform with the GIS information used by the Hawai`i Planning Department. The submitted application shows the majority of the proposed lots to be within the 60-inch (catchment requirement) zone, when in fact the GIS shows only the three mauka parcels fully within the 60-inch of rain zone. According to longtime residents, this area has not seen 60 inches since 2004.”

In the variance approval letter dated March 8, 2011, however, Leithead-Todd stated that the analysis of the applicant’s submittals and GIS rainfall data maintained by Planning Department indicated the proposed subdivision will receive at least 60+ inches of rainfall annually.”

As for the six-lot limit, Lim argued that this should be disregarded, since the landowners could circumvent it by re-subdividing their property. And Leithead-Todd went along with the argument.

“Although Planning Department Rule 22-5 specifically limits the amount of lots that can be created in a rainwater catchment sub division to six lots, in theory, the Applicant could process a Parcel Consolidation Resubdivision Action to revert the property back to the original configuration … to create the three rectangle lots, submit three separate PUD applications for these lots, along with three separate Water Variance applications, and create identical density as proposed under the applicant’s Master Plan. As such, the proposed project satisfies the intent of Rule 22-5.” (Under that scenario, however, at least one of the three lots, and more likely two, would not qualify for water variances since they would not receive 60 inches or more of rainfall a year.)

The variance approval letter, though written some six months after the Saxton Trust and Malama Investments had been substituted as applications, still identified the applicants as Richard Lewis and James Petty.

— Patricia Tummons

Volume 22, Number 11 June 2012

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