Since 2005, state law has banned the development of new golf courses on land in the state Agriculture District. Yet last year, when Hokukano Ranch, Inc., submitted its plans for its “Hokukano Preserves” subdivision of 2,895 acres into a hundred separate 20- to 30-acre parcels, and one 400-plus-acre parcel, smack dab in the middle of the map was a golf course. And not just any golf course, but a “Hale Irwin signature 18-hole golf course,” according to Clark Stevens, an architect hired to develop the land use plan for the area.
You had to look hard to see it on the subdivision plans. Unlike other golf courses, where the grounds and amenities sit on discrete parcels of land, this one is diffuse: the greens, fairways, roughs, clubhouse, maintenance sheds, and the like occupy varying portions of 19 of the 47 proposed lots that make up phase 1 of the planned subdivision. Future lot owners will have to accept their property encumbered with easements that give these amenities permanent occupancy rights. In the case of several lots, the easements cover 80 percent or more of the lots, leaving lot owners only an acre or two on which to build a house and carry out agricultural activities.
According to Greg Hendrickson, real property administrator for the Pace family, owners of the land, said the principal function of the golf course was “as a stormwater control area for the lower portion of the ranch. It’s been designed, and is being additionally designed right now, with catchment basins and inundation areas that will significantly mitigate the water that would flow naturally through the ranch. So, it has essentially the function of a flood plain park…. We could have called it out as a separate TMK [tax-map key] parcel. That would have us move more parcels up the mountain. What we looked at was doing the least amount of development as possible on the ranch, but we need those parcels in order for the development plan to have any basis in economics.”
Chris Yuen, the county’s planning director, has accepted the golf course as a legitimate non-conforming use. In a letter last March to Hendrickson, Yuen said that, based on statements made by Nancy Burns, Hokukano Ranch’s engineer, “it is the Planning Department’s position that the Hokukano Ranch golf course is a ‘nonconforming use’…” (Burns had told Yuen in October 2005 that “the golf course grading has been completed,” but added that Hale Irwin Golf Services, Inc., “is also working on redesigning holes that have been impacted … by flooding and those holes which will change due to the incorporation of additional storm water control basins.”)
Yuen added a “cautionary comment:” for the golf course to be considered nonconforming, its construction “must be actively and diligently pursued.”
Denial Appealed
Certainly the initial approval for a golf course was “actively and diligently pursued.” Until September 1990, under Hawai`i County ordinances, anyone proposing to build a golf course on land zoned for agriculture needed to obtain nothing more than a grading permit before beginning work. In mid-July, Tom Pace submitted a site plan, prepared by the Honolulu engineering firm of Belt Collins, and applied for a grading permit to the county Department of Public Works. According to the application, the volume to be excavated came to 290,000 cubic yards in an area totaling 122 acres. By law, the county’s chief engineer had 30 days to deny the permit. In the absence of a denial, the permit was to be deemed granted by action of law.
A couple of weeks later, the head of the county’s Planning Department informed Tom Pace that action on the application had been deferred for want of a required archaeological survey.
On September 13, 1990, a new county ordinance took effect, requiring anyone wanting to construct a golf course on land in the county’s Agricultural Zone to obtain in advance a use permit from the Planning Commission. When the head of Public Works, Chief Engineer Bruce McClure, sent the resubmitted grading permit application back to the Planning Department for its concurrence, then-Planning Director Duane Kanuha returned it, noting the just-enacted change in county law. In October, Pace was notified that the grading permit was rejected.
The landowner’s attorney, Ben Tsukazaki of Hilo, petitioned the county’s Board of Appeals. The action that caused the permit to be initially denied, he argued, was made by the planning director and not, as the law required, by the chief engineer. “In the absence of the required action by the chief engineer within thirty days of filing the application,” Tsukazaki claimed, that part of the law providing for automatic approval kicked in.
When the Appeals Board heard the case in April 1991, it voted 4-3 to overturn the denial, and thus the golf course grading permit gained life.
Lapses and Renewals
The initial permit, dated May 21, 1991, was valid for a year. It was renewed ten times over the next 13 years. Far from the grading permit being continuous, long gaps appear between the lapse of one permit and the onset of a new one.
There is, for example, the 18-month gap between the expiration of that first permit, in May 1992, and the issuance of the second grading permit, on December 28, 1993. The permit lapsed again for 13 months between December 11, 1999, and January 8, 2001. Not until December of 2005 did the life go out of that original permit and its successive renewals.
Staff at the Public Works Department told Environment Hawai`i that no permit could be reissued if it lapsed before renewal was requested. “If that happens, they have to come in with new plans and a new permit application,” said Lee Loeffler, an engineer in DPW’s Kona office. Yet that policy seems to have been observed in the breach with respect to the grading permits issued to Hokukano Ranch.
According to Ki Emler, also an engineer with the DPW in Kona, the golf course permit expired without the work having been completed. “We considered it to be expired,” he said. “There was never any indication that it was completed. We can put it this way: when they submitted for a renewal of the permit, we notified them that it had expired. So we assumed the work was still not finished because they were asking for it to be renewed. That’s my recollection.”
In May 2001, Hokukano Ranch applied for an additional grading permit for roads and construction of a drainage basin, among other things. This work was anticipated to involve some 123,900 cubic yards of fill over more than 100 acres. Not until March 2002 was the permit issued, by which time work had apparently already begun, as indicated in the “remarks” section of the permit, which specified that the engineer of record would provide as-built plans upon the permit’s expiration, March 29, 2003.
On April 27, 2004, a month after the permit expired, Burns applied for a one-year extension; a note on the permit states that “road grading is nearly complete.” And in May 2006, again one month after the extended permit had expired, Burns again sought a one-year extension, this time to May 23, 2007. The day before that deadline, Burns yet again applied for – and received – a one-year extension.
Yuen told Environment Hawai`i that the present grading permit is not supposed to be related to the golf course at all. “They’re not supposed to be grading out fairways or tees,” he said. “We only allowed them to do work on sedimentation basins. There’s no active grading permit for the golf course.”
After-the-Fact
Accompanying every grading permit application form distributed by the county Department of Public Works is a notice informing applicants intending to grade more than one acre of the need to obtain a permit from the state Department of Health under the federal National Pollutant Discharge Elimination System, ensuring that controls are in place to prevent excess runoff into streams and other bodies of water.
Not until December of 2002, however, did Hokukano Ranch apply for an NPDES permit in connection with the original golf-course grading. The Department of Health responded in January 2003 with questions seeking clarification on several points. Yet Burns did not provide the requested information until December 2003 and August 2004.
In October 2004, the Department of Health asked Burns for details of the runoff control measures, maps of lava tubes that receive runoff, and other features of the storm-water control system. Ten more months elapsed before Burns responded, according to DOH records.
Finally, on September 8, 2005, nearly three years after the original application was made, and more than 13 years after the golf course grading began, the Department of Health issued the NPDES permit to Hokukano Ranch, noting that it “will take effect on the date of this notice” and would expire at midnight, November 6, 2007. The grading permit for which the NPDES permit was sought in the first place expired December 23, 2005, barely three months into the NPDES permit.
According to the Department of Health, no NPDES permit has been sought for the work covered by the grading permit for roads and drainage improvements.
Hendrickson said while he was aware of the first NPDES permit, he was not aware that no NPDES permit had been sought for the second series of grading permits for the infrastructure work.
As for the golf course, Hendrickson said, “Our hope now is that it will be open within the next two years. We were hoping for 2008, but with certain delays that we’ve experienced, mainly in meeting some requests of the Planning Department, that’s pushed us back.”
— Patricia Tummons
Volume 18, Number 4 October 2007
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