For years, both the Department of Hawaiian Home Lands and the Department of Land and Natural Resources have wanted to develop their lands at Kealakehe and Honokohau. Except for uses surrounding the Honokohau Small Boat Harbor, the area — a vast, black expanse of rough lava – generates no income for the state.
Then in the mid-2000s, in response to requests for proposals from both departments, Atlanta-based developer Jacoby Development Inc. proposed Kona Kai Ola, a mixed-use project straddling 530 acres of DHHL and DLNR land stretching mauka from the coast to Queen Ka`ahumanu Highway. From the start, the marina/resort project has been criticized for being too large, poorly planned, and a misuse of public land.
Perhaps the most vocal critic of the project has been Hawai`i County Planning Director Chris Yuen, who last month submitted a scathing criticism of the project’s draft environmental impact statement. According to Yuen, a DEIS on the project’s marina component should have been done first and done long ago. The state seems to disagree.
No Choice
“The EIS is supposed to give information to the decision-maker to evaluate whether to go ahead with the project. It is not supposed to merely ratify or justify decisions already made,” Yuen states in his comments on the draft EIS. In its two-page alternatives analysis, the DEIS states that no alternatives, other than the alternative of taking no action at all, were considered for Kona Kai Ola.
The reason for such an unusual, and some say illegal, stance? According to the DEIS, JDI’s lease with the DHHL and development agreement with the Board of Land and Natural Resources require it to develop an 800-slip marina and various infrastructure improvements at its own expense, and therefore it must build 2,503 hotel and timeshare units, have 51 acres of commercial space, a marine science center and park and other income-generating features to provide “an acceptable level of economic return.”
But according to Yuen, who was an attorney in private practice before joining the county Planning Department, a 2006 decision in the 9th U.S. Circuit Court of Appeals, ‘Ilio‘ulaokalani Coalition v. Rumsfeld (filed over the environmental impact statement prepared for the Stryker brigade proposed for Hawai`i) states that an EIS is inadequate “if it tries to limit the scope of alternatives by claiming that earlier decisions have foreclosed those options, unless those earlier decisions themselves were made after an adequate EIS.”
“If it is true that the State has already made a final decision to have an expanded marina with a minimum of 800 new slips, that decision itself should have been made after an EIS that reviewed and considered other alternatives. When an agency proposes an action that will have a significant environmental effect—as would the construction of an 800 slip marina expansion at Honokohau—it must prepare an EIS ‘at the earliest possible time,’” Yuen wrote, quoting Sierra Club v. Office of Planning.
An August 2003 report to the Land Board by the DLNR’s Land Division indicates that the marina’s size and number of slips were first proposed by JDI, not the state. The report reads, “The size and extent of any such marina development and number of boat slips to be constructed would be determined by the developer, since the developer would be responsible for designing, permitting, constructing, and financing the marina and complying with all environmental requirements, all at its own cost. Except for the marina component, however, staff does not believe it would be appropriate at this early stage of the project to require or prohibit any specific land use in the RFP (request for proposals).”
In response to the DLNR’s RFP, JDI submitted the Kona Kai Ola proposal, which “in addition to commercial, resort, golf course and cultural components…included a new 45-acre marina component with approximately 800 new boat slips,” a September 2005 Land Division report states.
That month, the Land Board approved a development agreement with JDI that made the 45-acre, 800-slip marina a required component of the project. Because the approval of a development agreement, in and of itself, did not constitute a use of state lands or funds, it was exempt from the state environmental review process, the Land Division’s report states.
Yuen argues that a smaller marina, which might not need such a large income-generating component, is one reasonable alternative that could have been considered.
“Another alternative is a marina partially funded by a state subsidy through an appropriation, rather than by the subsidy of state land for a developer. There may be problems with these alternatives, but the EIS laws require that they be considered and discussed,” he states, adding that the DEIS doesn’t even analyze whether or not marina users alone will spend enough to cover construction and maintenance costs.
Not only is the lack of alternatives not helpful to decision makers, Yuen argues, it is a violation of state rules, which require a DEIS to describe a range of alternatives, regardless of cost, and explain their environmental impacts and why they were rejected.
“This is not a technical issue. It goes to the very heart of this project and the process by which the decisions have been made with respect to marina development at Honokohau Harbor,” Yuen states. “One cannot evaluate the impacts of a project, and whether adverse impacts can be mitigated, without considering the full range of alternatives. The DLNR and DHHL must make a final decision about the scale and type of development to occur around the harbor after considering all the impacts and alternatives in an EIS, not before the EIS is done.”
To confuse matters, the DEIS and the proposed Master Development Plan for the project suggest that the 800-slip number is not set in stone, even though the DEIS considers only the 800-slip marina. On the page facing the alternatives analysis, the DEIS notes that steps are being taken to address community concerns. These include the evaluation of safety issues with the marina entrance channel (the new marina will share the entrance channel to the existing Honokohau harbor) and a review of the market for boat slips, both of which could lead to “changes to the number of slips in the new harbor basin.”
Also, a boat traffic study in the MDP notes that “adding 800 recreational slips to the marina may cause entrance channel severe congestion during varying combinations of existing and new marina peak traffic flow. Worst case conditions of active sportfishing weekend and summery holiday recreational traffic results in traffic volumes exceeding capacity over a short afternoon period…. Reducing the added recreational slip count to 600 results in an average traffic flow reduction of 6 to 11 percent, and avoids the capacity exceedance during peak usage conditions.” The study, however, does not consider reducing the number of slips in its proposed mitigation measures to lessen boat traffic congestion.
When asked to clarify whether the 800 slips were a fixed number or could be amended, JDI representative David Tarnas responded only that the development agreement with DLNR stipulates that the size of the marina is to be 45 acres and is to accommodate 800 slips.
“Any change in this designated marina size would require specific revisions to the terms of the State agreement,” he stated in an email to Environment Hawai`i.
Land Board chair and DLNR director Peter Young says he thinks the 800-slip requirement could be amended. As to whether the DLNR should have done an EIS for the marina before making it a requirement of the development agreement, Young says he needed to check with his department’s attorneys.
“I know we’ve had attorney general involvement since the beginning. They gave the go ahead,” he says.
Growing Pains
As it is, resorts and other businesses along the west coast of Hawai`i are struggling to find workers. With no residential use allowed on the project site, where workers for Kona Kai Ola will live and how they will impact the area have been major concerns among Kona residents.
JDI briefly addresses these issues in its proposed Master Development Plan, which states that a shuttle system will carry employees to surrounding areas such as the DHHL’s Villages of La`i`opua, the town of Kailua-Kona, and the airport, suggesting that JDI expects some of its workers to commute from these places. The DEIS also states that JDI is “pursuing housing opportunities for workforce housing in the lands mauka of the project site in the same or adjacent ahupua`a.”
In an email to Environment Hawai`i, Tarnas states that the project is designed to be a place for the Kona community to “work, play and learn close to the areas planned for major growth in residential development at the Villages of La`i`opua in mauka Kealakehe as well as on the adjacent state land in Keahuolu that is already designated for affordable housing. The project’s required workforce housing will be built on land in these areas and will connect with these new growing neighborhoods through better roads and a regional shuttle service.”
Whether these areas and shuttles can provide for the estimated 3,841 on-site workers the project will need or can alleviate the traffic stress of an additional 1,267 off-site jobs to be generated was not analyzed in the DEIS.
Yuen notes that workers will also need schools for their children, parks, doctors and hospitals, and the DEIS fails to consider or quantify these effects.
An October 2006 market study by The Hallstrom Group, Inc., appended to the DEIS states, “Given the vast number of housing units, resorts, businesses, and agricultural lands on the island, it is difficult to assert that of themselves the subject development and users will create the need for meaningful expansion of existing public services.”
The study calculates the state and county government costs resulting from the project on a per capita basis rather than using actual cost estimates, “which are often disparate as they inherently cannot provide for unexpected and/or atypical items.”
Over the 18 years it will take to complete Kona Kai Ola, the report states, the county will incur costs of $68,865,804 and the state, $327,434,707. Subtracted from the $950 million in real property, income, excise, and transient accommodation tax revenue estimated to be generated by the project, the state and county stand to make about $333 million and $187 million respectively, the report states.
Yuen questions those numbers, stating in his comment letter, “[I]t is not clear whether the costs include housing, schools, parks, and other services for the induced employment….it seems likely that these costs were not counted.”
Also not included are costs associated with the extension of Kuakini Highway through adjacent Queen Lili`uokalani Trust lands, which is also part of the project and is intended to alleviate traffic in the region. The report does not discuss how much money the state will spend on the new road, only half of which will be constructed by JDI.
A social impact statement by John M. Knox and Associates, Inc., which is also appended to the DEIS, indicates that Yuen is not alone in his concerns.
“People appeared so traumatized by the existing area-wide traffic situation that they often did not seem to register either (1) current government efforts to build new road capacity, or (2) the developer’s commitment to extend Kealakehe Parkway to Kuakini Highway and Kailua-Kona through its own property and the adjacent parcel owned by the Queen Lili`uokalani Trust….
“A number of interviewees expressed dismay that DLNR has prohibited any owner-occupied housing uses on the property. They felt that such uses would be ‘growth-absorbing’ rather than ‘growth generating,’ and they urged reconsideration of this policy.”
The DEIS states the up-front construction of the Kealakehe Parkway – Kuakini Highway connector road, “as well as fulfilling all affordable housing requirements and developing provisional plans for housing construction workers if they need to be imported,” may mitigate some of the project’s growth effects.
“Further, JDI will establish the Kona Kai Ola Community Foundation to support community efforts such as community development, community heath care, job training, educational and cultural programs and projects and will contribute $100,000 as initial funding,” the DEIS states.
Tarnas adds that JDI has been recognized by the Sierra Club as one of the best “environmentally sustainable” developers in the U.S. and that Kona Kai Ola is being designed to minimize environmental impacts by reducing water consumption, waste disposal, energy use and carbon dioxide emissions.
“And we propose to remediate existing problems. The site’s groundwater, for example, is already being affected by the effluent from the local sewage treatment plant, the leachate from the local unlined landfill, and other sources. We intend to clean this up and improve water quality in this area,” he states.
The General Plan
Despite numerous newspaper articles, vigorous debate at County Council meetings, and long letters from Yuen describing how Kona Kai Ola, as proposed, conflicts with the Hawai`i County General Plan, the DEIS assumes no General Plan amendments are necessary and does not include a plan amendment in its list of necessary entitlements.
With respect to the DLNR lands, however, Yuen argues, “The project, as proposed, cannot validly obtain the County zoning and SMA [special management area] major permit it will need to proceed.” Because it proposes 2,500 visitor units, Yuen states, the project will need a General Plan amendment to designate the DLNR property as Resort or Resort Node on the plan’s Land Use Pattern Allocation Guide (LUPAG) map, as well as an amendment to the plan’s list of resort areas. (Except for small-scale retreat resorts, which can have up to 50 units, all resorts must be specifically mapped in the LUPAG map.)
Although the County Council amended the LUPAG map late last year, expanding the Urban Expansion designation to include the entire DLNR property at Honokohau, the council did not authorize a resort, Yuen writes.
Resort Node and Resort Area land use designations specifically mention hotels as a use, Yuen continues, “and it is very clear that a major proposal such as the JDI development fits within one of those LUPAG resort categories. The General Plan, by contrast, describes an ‘Urban expansion area’ as allowing ‘for a mix of high density, medium density, low density, industrial, industrial-commercial and/or open designations in areas where new settlements may be desirable, but where the specific settlement pattern and mix of uses have not been determined.’ The description in the 1989 General Plan was similar, but also had this sentence, which has been removed: ‘Within areas designated for development as resorts, portions of the resort area may be included in the urban expansion area.’ The removal of this sentence in the 2005 General Plan makes it clearer that a ‘resort’ and an ‘urban expansion area’ are different, but even under the 1989 text, the urban expansion area would have to be within an area designated in the text of the General Plan as a resort to allow resort development.”
In Hawaii County during the 1980s and 1990s, when the developers of Kuki`o, Kohanaiki, Awake`e, O`oma, and the Hawaiian Riviera resorts wanted to built in areas not designated as resort on the LUPAG map, Yuen says they sought a map amendment to Resort and each was listed as either an intermediate or major resort.
“On the other hand, the Manini`owali project, which was prohibited from having a hotel by the conditions of a land exchange, applied for and received an ‘Urban Expansion’ designation,” he states.
Last August, Tarnas stated that hotels and timeshares would be allowed within an Urban Expansion area under certain circumstances.
Yuen notes that environmental review rules state, “Where a conflict or inconsistency exists, the statement shall describe the extent to which the agency or applicant has reconciled its proposed action with the plan, policy, or control, and the reasons why the agency or applicant has decided to proceed, notwithstanding the absence of full reconciliation.”
The DEIS does contain a long section that discusses how the project conforms to the goals and policies of the General Plan. However, the discussion regarding resort development notes only that the proposed 700 hotel and 1,803 timeshare units will help strengthen the region’s visitor industry and implement other county visitor industry policies, and that the project’s marine center and park will provide educational opportunities, its 400-foot shoreline setback will enhance pubic shoreline access, and that proposed roadway improvements will meet infrastructure requirements.
“The DEIS must at least refer to and discuss the issues with respect to non-conformance with the County General Plan,” Yuen says.
— Teresa Dawson
Volume 17, Number 8 February 2007
Leave a Reply