<\/b>Saved by the storm!<\/p>\n
Thanks to Hurricane Lane, the state Land Use Commission was spared the need to make a critical decision on the stalled-out plans to develop a 398-lot residential subdivision on land just upslope of Waikoloa Village.<\/p>\n
On August 22, the LUC had been scheduled to meet in Kona. On the agenda: an order for the developer to show cause as to why the subject land, about 730 acres, should not be placed back into the state Agricultural District. Ten year ago, the same body had upzoned the parcel from Ag to the Rural District, subject to the developer, which at the time was Waikoloa Mauka, LLC, complying with a number of conditions inside a ten-year time frame.<\/p>\n
The deadline for compliance expired in June. A couple of weeks prior to that, the LUC had voted in support of the motion to require the successor landowner, Waikoloa Highlands, Inc., to give them good cause as to why the land should not be reverted to Ag.<\/p>\n
The scheduled hearing on the show-cause order coincided, however, with the approach of Hurricane Lane, a Category 5 cyclone forecast to move up the Kona Coast on the same day, forcing the LUC to cancel the meeting.<\/p>\n
Despite the cancellation, it appeared likely that the commissioners would give Waikoloa Highlands more time to prepare its defense. In July, the company requested a continuance. Neither the Hawai`i County Planning Department nor the state Office of Planning \u2013 the two other parties that participated in the LUC\u2019s 2006-2008 deliberations \u2013 objected to the request. Given that litigation over the nearby `Aina Le`a development has made the commission exquisitely sensitive to the need to be scrupulous in respecting due process rights, odds were good that a continuance would have been granted.<\/p>\n
Still, on the outside chance that the show-cause hearing would go forward, Steve Lim, the attorney recently retained to represent Waikoloa Highlands, submitted to the LUC a statement of its position on the show-cause order.<\/p>\n
First, Lim claimed that the previous principal of Waikoloa Mauka, Stepan Martirosian, had defrauded Vitaly Grigoriants, the Armenian banker who had put up the capital for the land\u2019s purchase. Martirosian, who was, Lim wrote, \u201csolely responsible for overseeing all aspects of the project,\u201d had committed \u201cgross mismanagement and fraud.\u201d<\/p>\n
\u201cArmed with new management,\u201d Lim continued, \u201cWHI is competent and committed to developing the project through completion\u201d and has already \u201csubstantially commenced\u201d its development.<\/p>\n
Aside from a few stakes in the ground that carve out the boundary of just under 15 acres from the original 731 acres, there have been no visible on-the-ground changes to the land. The activities that Lim cites as contributing to substantial commencement consist almost entirely of documents drafted more than a decade ago, during the pendency of the LUC deliberations on the original docket, and a frenzy of activity that began in late 2016.<\/p>\n
Exactly what counts as \u201ccompletion\u201d in Lim\u2019s view might also come as a surprise to some members of the commission.<\/p>\n
The LUC approval, Lim notes, was for a development consisting of 398 vacant lots with a minimum one-acre lot size. The commission\u2019s order approving the redistricting defined \u201cfull buildout\u201d as \u201ccompletion of the backbone infrastructure to allow for the sale of individual lots\u201d and required that this milestone be completed by June 2018.<\/p>\n
Lim goes on to argue that despite the mention of \u201cbackbone infrastructure\u201d in the LUC decision, all that is really required, in fact, is that the developer obtain a bond guaranteeing that the improvements will be made.<\/p>\n
\u201cFor developments like the [Waikoloa Highlands] project, once tentative subdivision is obtained, the lots can be registered with the state of Hawai`i Department of Commerce and Consumer Affairs,\u201d Lim writes. The DCCA can then issue a \u201cpreliminary order of registration,\u201d which allows the developer to enter into contracts for sale of the lots (providing, however, for the \u201cright of rescission in the event final subdivision approval is not obtained\u201d) or non-binding reservation agreements.<\/p>\n
Here\u2019s Lim\u2019s description of how this will work after the DCCA\u2019s \u201cpreliminary order of registration: \u201cFrom this point, final subdivision can be obtained in either of two ways: (1) the developer can complete all requirement improvements; or (2) the developer can post a completion bond \u2026. In the latter option, which will be applicable to this project, the developer will first prepare construction drawings and cost estimates for the subdivision and submit those drawings to the respective county agencies for processing. Once the county approves the construction drawings and cost estimates, the developer will then obtain a completion bond\u2026\u201d<\/p>\n
After the developer provides the bond, Lim continues, the county \u201cwill then issue final subdivision approval and the developer can then process its application to the DCCA to obtain a Final Order of Registration,\u201d Lim argues. With that in hand, \u201cthe developer can then proceed to close upon all of the contracts that were entered into under the Preliminary Order of Registration. Therefore, under this process, the sale of project lots can close prior to the actual start or completion of all necessary infrastructure and related improvements.\u201d<\/p>\n
In other words, Lim is arguing, the developer will be able to satisfy the condition that \u201cbackbone infrastructure\u201d be provided merely by posting a bond and without ever turning the first spade of earth. Whether the county or the LUC commissioners agree won\u2019t be known until the show-cause hearing is rescheduled.<\/p>\n
— Patricia Tummons<\/i><\/b><\/p>\n","protected":false},"excerpt":{"rendered":"
Saved by the storm! Thanks to Hurricane Lane, the state Land Use Commission was spared the need to make a critical decision on the stalled-out plans to develop a 398-lot residential subdivision on land just upslope of Waikoloa Village. On … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":10488,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[440],"tags":[7],"class_list":["post-10590","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-september-2018","tag-patricia-tummons"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/10590","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=10590"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/10590\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/10488"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=10590"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=10590"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=10590"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}