Hokulia supporters say
ruling on land use damagingRepresentatives of the Big Island
development claim a judge's decision
is hurting future projects
The Hokulia court decision, in which Big Island Circuit Court Judge Ronald Ibarra halted all construction at the luxury housing development south of Kona, is likely to cast a long shadow over future land-use decisions and development in Hawaii, according to three panelists who discussed its impact yesterday at a Chamber of Commerce event.
Big Island attorney Bud Quitiquit, who was one of the attorneys representing Hokulia in the court case; Randy Vitousek of law firm Cades Schutte LLP; and John Ray, president of Hawaii Leeward Planning Conference, a group which represents large land owners on the Big Island, predicted the decision would have a wide-reaching impact.
They believe Ibarra's decision jeopardizes other land-use decisions, zoning designations, the permitting process and property rights.
Ibarra ruled Sept. 12 that Hokulia's developers, 1250 Oceanside, could not continue construction or development in its current form. He said the developers would either have to seek state Land Use Commission reclassification from the project's current agricultural designation or obtain a declaratory ruling from the LUC regarding any changes to the entire project. The developers' other option is to appeal Ibarra's ruling to the state Supreme Court.
1250 Oceanside Partners was sued by Walter John Kelly and several other individuals. The case also was joined by the Protect Keopuka Ohana. The group includes descendants of Hawaiians buried on the project site.
At the heart of the case is whether the developer was in compliance with state land-use law. Ibarra ruled that Hokulia was not an agricultural development, but rather a luxury development.
Ray said the judge's decision already has caused a number of developers to rethink their future plans.
"A number of projects have been put on hold already and a lot (of developers) will seek reclassification, which is time consuming and expensive," Ray said.
The three believe the judge's decision is unfair because it holds Hokulia's developers to a higher standard than other developers. They also contend that Hokulia's developers obtained all the necessary permits while meeting or exceeding industry standards.
"For Judge Ibarra to represent otherwise is simply not accurate, so Hokulia is being held to higher standards," Ray said.
Quitiquit said there was adequate time for public input over the length of the project.
"On April 1, 1998, the County Council entered in a development agreement," he said. "All the permits were brought together, there was no court challenge, or appeals, it was recorded at the Bureau of Conveyances."
Over the course of time, there were at least 11 Planning Commission hearings and at least 15 County Council meetings, as well as other related meetings, he said.
"So there were at least 30 government meetings about different aspects of the projects," Quitiquit said. "The opportunities for people to speak out about the project have been extensive. Also, those numbers don't include meetings the developer had with the public."
All three believe the benefits Hokulia would ultimately bring to the area in job creation and property taxes outweigh many of the concerns voiced about the development.
"It previously produced $4,000 to $5,000 in property taxes, but eventually this will pay in the millions in property taxes," Ray said.
Hokulia eventually could generate $45 million per year in property taxes and 400 permanent jobs, Quitiquit said.
All concede there was a lot of controversy surrounding the project from the beginning. Much of it related to whether the rural area south of Kona should be developed.
"There was a lot of concern about development proceeding south of Keauhou," Ray said. "Most development had been in the resort areas north of Kona, so it's fair to say there was a lot of anxiety,"
Problems were exacerbated when the judge intervened in the state's already-flawed dual land-use system, Quitiquit said.
The attorney who represented the plaintiffs in the case, Robert Kim, said he has not heard from the developer regarding any possible settlement or further negotiations.
"As far as I can see, they've just been filing motions to either modify or change or clarify the judge's order," Kim said. "They're just litigating the case. I don't think they get it."
Kim said the developers have not filed an appeal to the Supreme Court and have not gone to the Land Use Commission for a ruling.
"I have asked them to talk any place, any time," he said. "But I have not had one call regarding settlement or negotiation. So whatever they are thinking, it doesn't appear to me that they are interested in settlement."
Kim said he has not seen any sign of a development slowdown in the Kona area despite fears expressed about the decision's impact on future development.
"There is no slowdown that I can see," Kim said. "Business is booming. There is so much development and investment here. People keep coming to Kona. It hasn't slowed down at all."
All three panelists said the entire land-use process needs to be re-examined. They also pointed to a number of land-use bills that will come before the state Legislature this year.
