To hear the owners and their agents describe it, a proposed upscale, gated golf-course subdivision on agricultural land in the lee of Mauna Loa, in the ahupua`a of Hokukano, will do nothing less than heal the damaged relationship between humans and nature.
“There is a spiritual element to what we do that is an important part of the balance,” Hokukano Ranch administrator Greg Hendrickson was quoted as saying in the March 2007 “Leaflet” published by The Kohala Center. “When we promote health and harmony in the landscape, the result has ecological, social, and economic benefits.”
Clark Stevens, an architect who has been retained to design “Hokukano Preserves,” spoke effusively of the need to be sensitive to the land in determining “inhabitation” zones (otherwise known as house sites). The golf course, he told The Kohala Center, was designed “so that golfers will have an experience that will teach them about the landscape of this place and encourage them to engage with the land.”
Many residents of Kona have a different take on the subdivision. More than 700 have signed a petition objecting to the subdivision. Their concerns, as stated in the petition, revolve around the prospect of the subdivision increasing flooding in downstream areas and increased traffic congestion on the already congested Mamalahoa Highway. “If the county approves this application,” the petition states, “we hold the county liable for possible loss of life and property damage as a result of the flooding that will occur.”
More than a dozen residents wrote longer letters, spelling out their concerns in greater detail. The proposed subdivision, with 100 lots of at least 20 acres each, has abundant common areas, but they are handled as easements across the subdivided lots instead of occupying their own separate legal parcels. The 200-plus-acre golf course, for example, cuts across at least 19 of the 47 lots in Phase I of the subdivision. A 10-acre equestrian center bisects a 37-acre lot. Prospective owners must agree to restrict activities on their lots to “private areas,” which, under the restrictive covenants filed with the Bureau of Conveyances, are to be used exclusively for the owners’ “residential, recreational and agricultural purposes.” This restriction, wrote Steve Stetler of Captain Cook, “does not seem to conform to 20-acre parcels for agriculture use and appears to violate the Right to Farm act by restricting use of parcels to one acre.” Stetler and others also objected to the absorption of the golf course by the residential parcels. “A golf course should be its own lot instead of being a part of a farm lot, especially since new rules have stated – golf courses are not proper use of agricultural zoning,” he wrote.
Shawn Suzuki, the principal of Konawaena High School, immediately makai of the area to be subdivided, weighed in, voicing questions about “how the clearing of such a large area will affect water runoff as we’ve experienced major flood damage twice over the past three years – the first damaging our cafeteria, library, main building and 12 classrooms, the second completely filling our football field and damaging our all-weather track.”
But Is It Agriculture?
The Hokukano Preserves subdivision lies just directly mauka of Hokuli`a, the upscale subdivision on agricultural land that was found to have been permitted by the county in violation of the state restrictions on what can be done within the state Agriculture District. Hokuli`a lots range are much smaller than those at Hokukano, but the long litigation over Hokuli`a has caused some people to ask whether restrictions on agriculture at Hokukano might also run afoul of the state land use law.
“There’s a question on this subdivision,” county Planning Director Chris Yuen told Environment Hawai`i. The golf course, which has been under construction since 1991 and is planned for completion sometime next year, has been deemed by the county a non-conforming use, he noted, but “the further question is whether they can restrict the lot owners.”
Yuen referred to Section 205-4.6, Hawai`i Revised Statutes. Under this section, it is illegal to have any “private agreement contained in any deed, agreement of sale, or other conveyance of land” restrict agricultural uses. The law allows such restrictions when made to protect “environmental or cultural resources, … utility easements, and access easements.” Whether a golf course, clubhouse, or equestrian area can be defined to meet one of these exceptional uses is a matter that may need to be argued later.
The state Land Use Law and rules of the Land Use Commission limit houses on agricultural lands to single-family farm dwellings, which are to be used in connection with a farm or where agricultural activity provides income to an occupant, Yuen said. However, he added, “there’s no definition of what constitutes a farm.”
“Right now, there are roughly 4,000 lots on this island in agricultural subdivisions created after June 4, 1976,” when the farm dwelling restriction took effect, Yuen said. They include not only Hokuli`a, but also Kohala Ranch and Sunrise Estates, in the town of Hilo. “The county gives people a farm-dwelling notice when they get a building permit, which informs them of this requirement, but I don’t think it’s an enforceable standard,” Yuen said, adding, “You have to have a bright line” to enforce.
Whatever the agricultural nexus may be, said Yuen, the subdivision is premised on “the idea of rich guys having houses and retaining natural surroundings at low density.” And that, he added, “may be a decent outcome.”
–Patricia Tummons
Volume 18, Number 4 October 2007
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