In late 2010, DW \u2018Aina Le\u2018a Development, LLC, published a final environmental impact statement for its planned series of villages on about 1,100 acres of land in the Hawai\u2018i island district of South Kohala, just mauka of the Mauna Lani Resort. <\/p>\n\n\n\n
The Mauna Lani Resort Association\n(MLRA), unhappy with several aspects of\nthe proposed development, timely chal-\nlenged the final EIS with a complaint in\n3rd Circuit Court.\n<\/p>\n\n\n\n
One of the major points in the challenge\nwas the fact that the EIS considered the\nproject\u2019s impacts only on the land within the\nstate Urban land use district, even though\nthe EIS preparation notice had included\nboth DW \u2018Aina Le\u2018a\u2019s land as well as the\nsurrounding 1,900 acres in Agricultural land\nthat Bridge still held title to.\n<\/p>\n\n\n\n
All 3,000 acres had been part of the\noriginal development plan presented to the\nLand Use Commission.\n<\/p>\n\n\n\n
This, the MLRA argued, amounted\nto improper segmentation of the project.\nNamed as defendants were not only DW\n\u2018Aina Le\u2018a Development, LLC, but also\nHawai\u2018i County and its planning director,\nat the time B.J. Leithead-Todd.\n<\/p>\n\n\n\n
Unbeknownst to the county when it signed off on the final EIS, \u2018Aina Le\u2018a and Bridge had entered into a joint development agreement (JDA), which provided for most of the services and infrastructure that \u2018Aina Le\u2018a needed for its development to eventually be used as well by Bridge when it got around to building on the Agricultural land. Yet the EIS made no mention of the JDA. Its content was disclosed to the county only in December 2012, at which time the county ceased to defend its previous acceptance of the EIS and instead asked the judge to remand the matter to the county for further proceedings. <\/p>\n\n\n\n
In February 2013, Judge Elizabeth Strance\nruled that the county Planning Department\nhad erred in accepting the final EIS and\ngranted the county its request that it be\nallowed to require the developer to prepare\na supplemental environmental impact state-\nment (SEIS) dealing with all 3,000 acres.\nUntil that SEIS was final, all development\non the land was tolled, Strance stated in her\norder, which \u2018Aina Le\u2018a did not appeal.\n<\/p>\n\n\n\n
Now, though the committee of unsecured creditors of \u2018Aina Le\u2018a, Inc., are asking that the court reopen the matter. On February 1, Ted N. Pettit of the law firm Case Lombardi & Pettit, representing the committee, filed a motion in 3rd Circuit Court seeking to intervene in the lawsuit and also to substitute the \u2018Aina Le\u2018a, Inc., for the original defendant, DW \u2018Aina Le\u2018a Development. <\/p>\n\n\n\n
Both \u2018Aina Le\u2018a\u2019s reorganization plan, presented to its creditors, as well as court filing by the unsecured creditors\u2019 committee state that \u201cregular meetings\u201d have been held with county representatives, the committee\u2019s land use counsel, and representatives of \u2018Aina Le\u2018a. In an addendum to the mo- tion, Robert Wessels, the chief executive officer of \u2018Aina Le\u2018a, also says he has \u201cbeen working with representatives\u201d of the Planning Department and other agencies on a plan \u201cto resolve the tolling order\u201d of Judge Strance. On February 6, Pettit disclosed to the bankruptcy court that Dennis Lombardi was the attorney involved in negotiations with the county on behalf of the unsecured creditors \u2013 whose interests are so closely aligned with those of \u2018Aina Le\u2018a as to be indistinguishable. (Pettit acknowledges to the bankruptcy court that he is proposing \u201ca unique coordination between the debtor and the [unsecured creditors\u2019 committee],\u201d but to justify this, he refers to \u201ccommentary found in Collier on Bankruptcy,\u201d a sort of bible for bankruptcy law: \u201cThe primary purpose of a [creditors] committee in any case … is to maximize the return to the constituency represented by the committee.\u201d) <\/p>\n\n\n\n
\u201cMr. Lombardi has substantial experience in developments comparable to the debtor\u2019s \u2018Aina Le\u2018a development and in development of affordable housing projects,\u201d Pettit added. \u201cHe has been directly involved in ongoing discussions with county officials concerning implementation of the land use action plan.\u201d (For his services, Lombardi is charging $650 an hour.) <\/p>\n\n\n\n
No County Commitment <\/em><\/strong><\/p>\n\n\n\n In a footnote to the brief supporting inter- vention, Pettit explains that while it is necessary to substitute \u2018Aina Le\u2018a, Inc., for the original party in the case \u2013 DW \u2018Aina Le\u2018a Development, LLC \u2013 it is not necessary to substitute the current director of planning for Leithead-Todd, even though \u201cthat office is currently held by Duane Kanuha.\u201d <\/p>\n\n\n\n Kanuha has not served as planning director since 2016. Although he was recently named deputy director of the department, the current director, who has held the job since December 2016, is Michael Yee. <\/p>\n\n\n\n Kanuha has, however, been involved in talks with \u2018Aina Le\u2018a since his return to the Planning Department. Yee confirmed to Environment Hawai\u2018i <\/em>that Kanuha is in regular discussions, on the order of once a week or so, with attorneys for the company. <\/p>\n\n\n\n At the time of the LUC vote to revert the \u2018Aina Le\u2018a land to the Agricultural district in 2011, Kanuha served as a commissioner. He was one of just two members who did not support the majority decision. Still, Kanuha is named as a defendant in the Bridge \u2018Aina Le\u2018a lawsuit in federal court, which is seeking damages from individual commissioners as well as the state. <\/p>\n\n\n\n Yee said he was not aware of Kanuha\u2019s\nprior involvement in the \u2018Aina Le\u2018a case\nuntil Environment Hawai\u2018i <\/em>brought it to\nhis attention.\n<\/p>\n\n\n\n Whatever Kanuha\u2019s involvement, Yee\nstated that there was no commitment on\nthe part of the county to go along with the\nproposed plan of \u2018Aina Le\u2018a to move forward\non the basis of the 2010 EIS.\n<\/p>\n\n\n\n \u2018No Active Litigation\u2019<\/em><\/strong> <\/p>\n\n\n\n While the county Planning Department\nwas involved in the talks, not so the Mauna\nLani Resort Association.\n<\/p>\n\n\n\n \u201cIt is the MLRA\u2019s position that the … litigation has been completed,\u201d its attorney, Randy Vitousek, wrote in a February 12 reply to the unsecured creditors\u2019 committee request to intervene. \u201cJudgment has been entered and not appealed, and the court\u2019s order tolling development until the applicant complies with [Hawai\u2018i Revised Statutes chapter 343] is final. There is no ongoing proceeding in which to intervene.\u201d <\/p>\n\n\n\n In any event, \u201cthe proposed intervenor is not a proper party, does not meet the requirement for intervention as of right or permissive intervention, and the request to intervene is untimely.\u201d <\/p>\n\n\n\n \u2014 Patricia Tummons <\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" In late 2010, DW ‘Aina Le‘a Development, LLC, published a final environmental impact statement for its planned series of villages on about 1,100 acres of land in the Hawai‘i island district of South Kohala, just mauka of the Mauna Lani … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":11061,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[451],"tags":[7],"class_list":["post-11059","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-march-2019","tag-patricia-tummons"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/11059","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=11059"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/11059\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/11061"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=11059"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=11059"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=11059"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}