[ OUR OPINION ]
Cases don’t signal
anti-development feelingsDevelopment companies have little to fear despite two recent state court decisions that have checked housing projects, one on Oahu and another on the Big Island. The rulings do not reflect a sweeping anti-development climate in the state, as some have characterized them, but they do point to changing attitudes about the politics of land-use regulation.
THE ISSUE
Two court rulings put a spotlight on the state Land Use Commission.Indeed, the courts have merely applied requirements of land-use laws and responded to citizens' challenges of errant decisions made by government officials. Moreover, the two cases have little in common except that they involve the state Land Use Commission.
For Castle & Cooke Homes Hawaii Inc., a judge's determination on its Koa Ridge project in Central Oahu appears to be a small setback. The court decided that the commission should not have reclassified 762 acres of prime agriculture land for urban use without a formal environmental review. Circuit Judge Eden Elizabeth Hifo cited state law that requires a review "at the earliest practicable time" to aid in the commission's decision-making.
Castle & Cooke appears in a good position to take the reversal in stride. In anticipation of seeking a zoning change from the city for its 3,200-home subdivision, the company has almost completed an environmental impact statement, which it can now use to re-submit its request to the LUC.
The situation on the Big Island, however, is more complicated. While Castle & Cooke has yet to begin construction, 1250 Oceanside Partners already has laid the groundwork for its 1,550-acre Hokulia project in Kealakekua.
Judge Ronald Ibarra earlier this month ordered work halted on the project, which was to include million-dollar-plus homes, a golf course and an 80-unit guest lodge. Ibarra last year had ruled that Hokulia was illegal because the land is classified for agriculture while the project is an urban development with inadequate agricultural elements and that Oceanside must seek reclassification.
Oceanside had received proper permits and redesignations from the county, but the judge said those were invalid because the county had subverted state law, ignored its duties to consider the welfare of the public and attempted "to circumvent" its own general plan and state classifications.
Oceanside complained that other developments on agricultural lands had not met similar challenges. That's true and exposes Hawaii's history of creative interpretation and lax enforcement of land-use laws. Unfortunately from Oceanside's perspective, Hokulia's profile was raised through a convergence of events, including uncovering of Hawaiian burial sites, damage to a historic trail and two incidents when sediment from land grading washed into the ocean. These attracted legal challenges from citizens', environmental and Hawaiian preservation groups.
Ibarra pointed out that Oceanside had been advised by state and some county officials as well as its own attorneys to seek a land-use change. But apparently the developer felt that step wasn't necessary. Plaintiff attorney Robert D.S. Kim shed some light when he told the Star-Bulletin's Lyn Danninger that previous county administrations had created "a wink and a nod" culture that turned a blind eye to urban projects disguised as agricultural enterprises.
While this may no longer be true, Governor Lingle's notion that land-use decisions should be made at the county level remains problematic. During her campaign, Lingle said she favored abolishing the LUC, calling the agency redundant. More recently, she has adjusted that view and is looking to amend certain agricultural classifications instead.
That may be a better approach. Although the commission has had its critics, it does serve a purpose in ensuring that wide public opinion is considered. Hawaii's limited land resources require careful regard.
