The state Land Use Commission has reaffirmed its vote in January to revert to the Agricultural District more than 1,000 acres of land near Waikoloa. For more than two decades, the land was in the Urban District, while a series of companies made efforts, with varying degrees of seriousness and purpose, to develop it in line with the plans first approved in 1989.
On March 11, the LUC voted 6 to 2, with one member excused, to approve a proposed Findings of Fact, Conclusions of Law, and Decision and Order that reflects the decision taken in January. The two commissioners in opposition – Duane Kanuha and Charles Jencks – also opposed the January vote to revert. Lisa Judge, who voted against the reversion in January, voted with the majority to approve the proposed findings last month.
The parties to the LUC petition – Bridge `Aina Le`a, LLC, DW `Aina Le`a Development, LLC, the state Office of Planning, and Hawai`i County – were given until March 24 to file objections to the statements in the document, which the LUC will consider at a meeting tentatively set for April 7-8.
On the March 11 agenda was also the motion by DWAL to have the commission amend three of the conditions included in the LUC’s approval in 2005 of changes to the project, now known as the Villages of `Aina Le`a. Those changes relate to the requirements that 385 units of affordable housing be completed by November 17, 2010; that the sewage treatment plant serving the project be built within the Urban boundaries; and that 16 acres of land within the Urban area be provided to the state for schools.
“Given the prior action by the commission,” LUC chairman Vladimir Devens asked Alan Okamoto, attorney for DWAL, “are you going to be withdrawing this motion? How is it you propose to proceed? The matter appears to be moot at this point.”
Okamoto did not agree with Devens’ assessment. “I’d like to be heard on it,” he said. “We are attempting to have a discussion with the Office of Planning, because of the new administration.” Under the previous OP director, Abbey Seth Mayer, the OP had vigorously supported reversion of the land. With the new governor and a new OP director, Jesse Souki, Okamoto was optimistic that the OP’s objections could be tempered. “Director Souki has been very accommodating, but understandably, he’s just starting his duties,” Okamoto told the commissioners. “We don’t have a resolution of this. I don’t know that this motion is moot…. We really feel that if we can address these conditions to the satisfaction of the Office of Planning, it would be something that would be worth looking at by this commission…. We ask the commission’s indulgence in allowing us to continue this matter.”
Devens appeared puzzled. “The only problem I can foresee with this is that we have taken action on the reversion, so it wouldn’t make any sense to defer the motion, because it is a motion to amend conditions that no longer exist.”
“I understand,” he continued, “the argument you’re presenting, in terms of wanting to try to work it out and so forth… At this point, we face the state of the record, which is the action that has just taken place.”
Okamoto pointed out that what had occurred was the adoption of proposed findings of fact, with the parties still able to put forward their exceptions and objections for the commission’s consideration.
Devens then asked Bruce Voss, attorney for co-petitioner Bridge `Aina Le`a, if he had any comment. As he has done in the past, Voss argued that the commission’s order to show cause, which began the process of reversion, was flawed and then also began to list the ways in which he saw the commission as having violated its statutory obligations – essentially by having redistricted land (the 1,060 acres of the `Aina Le`a project) without having made all the determinations required by law.
“You can’t just say this is moot because you anticipate doing something on April 7,” Voss said. “This is deeply wrong and shows the commission’s predisposition to this motion, when everyone on this commission is supposed to be an impartial arbiter… I would ask the commission to review its rules and statutes, and continue this proceeding in compliance with the applicable rules before we’re in a situation three years from now, where … after litigation, we have to come back and repair the damage.”
Devens took exception to what seemed to be the suggestion by Voss that the commission members were less than impartial. “Every one of the commissioners votes their conscience,” he said, “and has never been predisposed to anything. We hear the evidence, give it the appropriate weight … Let me reassure you this has always been the process so long as I’ve been on this commission.”
At the end of the discussion, Devens summed it up this way: “Mr. Okamoto, based on the prior action we just took, I do believe the motion would be moot, because I don’t know what you’d be trying to amend, if it is already in the process of being reverted. But I do want to give you the chance regarding the continuance of your motion.” Devens then put Okamoto’s request to have the motion to amend three conditions be heard by the commission at a later date.
Once more, the vote was 6 to 2 in favor, with commissioners Kanuha and Normand Lezy voting in opposition.
The proposed Findings of Fact, Conclusions of Law, and Decision and Order that the LUC approved on March 10 provides a recap of the various changes to the project made over the last 22 years, through five different developers.
The findings included a recitation of the various promises made by DWAL principal Robert Wessels and principals of the predecessor developer, Bridge, concerning financing. None of them materialized, except for a scheme to raise capital through small individual investors in Singapore and Malaysia. (According to county records, nearly 800 individuals with addresses in Southeast Asia were listed as owners of the affordable housing site as of March 4.)
The proposed findings also cite violations of a number of conditions of development. Among other things, there is the failure to have completed 385 affordable units by November 17, with the LUC noting, “as of January 20, 2011, over 22 years since the reclassification was first granted, petitioners had failed to obtain a certificate of occupancy for even one affordable dwelling unit.” At the request of commissioner Ronald Heller, the proposed findings also noted that Bridge had represented that the affordable units would be “spread throughout the project,” instead of being concentrated in one 60-acre parcel at a far corner of the project.
Misrepresentations concerning the extent to which development had received permits are recounted as well: “On December 16, 2009,” the proposed findings state, DWAL had submitted an annual report representing “that all necessary permits … had been prepared and recently submitted.” But, it goes on to say, “On November 18, in response to questioning by the Commission, co-petitioner DW `Aina Le`a represented that condominium documents had not been submitted, the package wastewater treatment plant had not been delivered and plans not submitted to the state Department of Health for review and approval, no application had been made to the Public Utilities Commission for approval of wastewater or water utilities, no plans for landscaping had been submitted for review and approval by the county, and co-petitioner DW `Aina Le`a had not authorized anything to facilitate the construction of the intersection to provide access to the property.”
As to Voss’ claim that the reversion constitutes a reclassification, the commission’s proposed findings state that the commission “has the authority to revert a petition area to its original land use classification for failure to comply with the conditions imposed by the commission,” citing the Supreme Court deci
sion in Lana`i Co., Inc. v. Land Use Commission as well as Hawai`i Revised Statutes, Section 205-4(g). (That paragraph says, in part: “The commission may provide by condition that absent substantial commencement of use of the land in accordance with such representations, the commission shall issue and serve upon the party bound by the condition an order to show cause why the property should not revert to its former land use classification or be changed to a more appropriate classification.”)
One of the questions that will arise if the LUC adopts its proposed findings of fact is what happens to the 40 or so affordable units that have already been built or are in various stages of construction.
Bobby Jean Leithead-Todd, Hawai`i County’s planning director, told Environment Hawai`i that they would all be treated as non-conforming structures. “If we have 400 units, which they had legitimately got building permits from us based on the zoning at the time they applied, we’d have to pretty much honor it, like grandfathered or non-conforming,” Leithead-Todd said. She also noted that under state law, “you can have a farm dwelling on ag land, even though at the time of the application, it was urban and they had county zoning.”
Another issue, she said, was whether there would still be a requirement to have 385 of the units meet the requirement of affordable. The original condition set by the LUC was to have 20 percent of the total units built be affordable. If only some 400 units total are able to be built, then probably only 80 – 20 percent – would need to be affordable, she said.
If the land does revert to Agricultural, Leithead-Todd said, “you could still subdivide, in theory, and then build homes – farm dwellings – with some kind of agriculture.”
“There are all kinds of questions that haven’t been answered because this hasn’t happened before. We’ll have to address them as these issues are raised,” she said, adding that almost certainly, the courts will have the final say in this case.
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Tropic Land Withdraws
Time Extension Request
The request of Tropic Land, LLC, to be given more time by the Land Use Commission to work out an access agreement with the U.S. Navy was withdrawn. Notice of the withdrawal was made at the commission’s meeting of March 11, where the commission was to have taken a vote on whether to grant the request.
As of mid-March, the LUC was tentatively set to hear oral arguments by the Tropic Land parties at its meeting of April 7-8, with adoption of a decision and order at a subsequent meeting.
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Governor Neil Abercrombie has nominated Ernest Matsumura to replace Duane Kanuha as LUC member representing the Big Island. Kanuha’s term expired on June 30, 2009, and the Senate in 2010 voted to reject Governor Linda Lingle’s effort to have him reappointed. Kanuha’s vote last fall in favor of a controversial proposal to develop land in Central O`ahu (Koa Ridge) led to a challenge of the LUC vote in 1st Circuit Court. (The appeal is set for a hearing in June.)
Abercrombie has also named Chad McDonald, vice president of the contracting firm Mitsunaga & Associates, Inc., to the O`ahu at-large seat now held by Vladimir Devens, serving as commission chairman. Devens will complete his first (and apparently only) term on June 30.
As of mid-March, Abercrombie had not yet nominated anyone to take the Maui seat. That is still occupied, for the time being, by Charles Jencks, who was given an interim appointment to the LUC last June by Lingle when then-LUC member Ransom Piltz resigned to run for Maui mayor.
— Patricia Tummons
Volume 21, Number 9 April 2011