Interim plan for Hokulia
is too late, attorney saysHe claims the developers
should have consulted the
Land Use Commission
before the court trial
The attorney representing the plaintiffs who sued the developers of Hokulia, the luxury residential complex south of Kona, said yesterday that the developers waited too long to ask the court to reconsider letting them continue work on the project.
"The judge declared their project illegal so any subsequent plan is based upon ignoring what has already been declared. The developer waited too long and their actions are too little, too late," said Robert D.S. Kim, the attorney who sued Hokulia developer 1250 Oceanside Partners.
On Sept. 12, Circuit Court Judge Ronald Ibarra barred the company from any further construction or development of its project.
At the heart of the case is whether the developer has been in compliance with state land use law. In his ruling, Judge Ibarra found that Hokulia is not an agricultural development, but rather a luxury development.
The developer asked the court to give it until Nov. 1 to work with all involved parties to come up with an interim plan to address the ruling and find some solutions it can then present to the court.
But attorney Kim said the time for working out some kind of settlement was before, not after the trial.
"They should have hedged their bets before going to trial. What they should have done early on is go to the state Land Use Commission for a declaratory judgment on the project," he said.
The company is now considering that as one of its options, said Dick Frye, vice president of 1250 Oceanside's parent company, The Lyle Anderson Co. Inc.
But it is also concerned how long such a process could take, Frye said yesterday.
Although the LUC has up to one year to make a decision, obtaining a declaratory ruling or asking for a district boundary amendment to change the area from agricultural to rural or urban zoning would likely take about eight to 10 months, said Tony Ching, executive officer for the nine-member LUC.
"The initiative is entirely the developer's," he said.
The case is also being watched closely by other developers, said Mark Richards, president of the Maryl Group Inc. The company has completed a number of commercial and luxury residential developments around the state, a number of them on the Big Island in agriculture zoned areas.
"It seems a lot of developments would fall under the same flag," he said.
Richards believes obtaining a rural designation may be one answer for Hokulia.
"It would allow them to do what they are doing without falling up against the judge's stringent analysis of ag-zoning requirements," he said.
But Richards is also concerned about the message the ruling sends, especially for the number of similar-type developments that already have been completed over the years on ag-zoned land.
"It effects everyone from the individual lot owner who is going to build a family home all the way through major developers in zoned and designated areas," Richards said. "There are profound implications on what county permits are worth. You may have signed agreements, permits from the county, you've done everything that the law says you need to do, then a judge can say 'no.' "
Attorney Kim concedes the judge's ruling could have an impact on other projects.
"There are developments that claim to be ag and they are not," Kim said. "Now they may lose that. But there are also single homes on ag land where a portion of the land is actually engaged in agriculture."
Kim points to previous Big Island County administrations as being a big part of the problem.
"It's previous county administrations," he said. "There has been a culture over 10 years of a wink and a nod. That doesn't breed confidence in our government."
