The state Land Use Commission does not seem to be in any rush to force Kuilima Resort Company to show why 236 acres of Urban land on the North Shore of O`ahu should not revert to the Agricultural District. Last month, the LUC deferred for the second time action on an April 2008 request by Defend O`ahu Coalition, Keep the North Shore Country, and the Sierra Club, Hawai`i Chapter for an order that the company be required to show cause why the land, redistricted in 1986, should remain in the Urban District when most of the conditions placed on that redistricting have not been fully met.<\/p>\n
More than 20 years ago, the City and County of Honolulu and the LUC entered into agreements with KRC predecessor Kuilima Development Company that would allow it to expand its modest Turtle Bay resort to a 3,500-unit master-planned resort community, complete with employee housing, a shopping village, five new hotels, and nearly 100 acres of resort condominiums. None of these have been built and the plan seemed to have been all but forgotten by the general public until KRC sought city approval for a massive subdivision in 2005.<\/p>\n
Since then, KRC\u2019s efforts to expand the resort have been fought in court and before various government agencies by the coalition of community groups whose aim is to \u201cKeep the Country Country,\u201d as their now ubiquitous bumper sticker says. At the same time, many resort employees who live nearby and want to see more jobs in the community have countered: What\u2019s so great about keeping the North Shore undeveloped if your family and friends have to move away to find jobs?<\/p>\n
\tShould the LUC choose to put the 236 acres back into the Agricultural District, KRC manager Stanford Carr says the future of the entire 860-acre project, which would stretch from Kuilima to Kawela Bay, would be jeopardized. \u201cMore importantly, what message would that send to the world on vested rights?\u201d he asked the commission at its meeting last month.<\/p>\n
During the LUC\u2019s February meeting in Honolulu, attorneys for the coalition, the developer and the state Office of Planning (OP) reiterated many of the arguments made last year about the case, as did more than two dozen members of the public \u2013 opponents identifiable by their green shirts, with supporters, mostly resort employees, outfitted in white. While the LUC took no action on the matter, it became clear during discussion that a few of the commissioners are considering following the OP\u2019s recommendation to add performance deadlines to the 1986 LUC Decision and Order.<\/p>\n
A Progress Report<\/i><\/b><\/p>\n
The first deferral on the coalition\u2019s motion came last July and was made, commissioners said, so that they could discuss legal issues with the deputy attorney general assigned to the commission. At the same time, though, it ordered KRC to provide a status report on the project. KRC submitted reports in August, November and February on efforts over the years to comply with the nine conditions in the D&O. Those conditions are: 1) build hotels on adjacent property already in the Urban District; 2) construct employee housing; 3) improve Kamehameha Highway; 4) develop water sources and infrastructure; 5) help improve the adjacent Punaho`olapa Marsh wildlife preserve; 6) protect archeological sites; 7) provide public access and parking and a city park; 8) build a sewage treatment plant; and 9) implement a monitoring program for coastal resources.<\/p>\n
\tThe reports revealed the obvious \u2013 that no hotels or employee housing have been built \u2013 but included a long list of other improvements and efforts that KRC says has cost many millions of dollars: a wastewater treatment plant, a well facility, a sewer force main, a water line, the 18-hole Palmer Golf Course and associated maintenance facility, consolidation and resubdivision approvals, employee training efforts, expansion of the Fazio Golf Course, $100 million in improvements to the existing Turtle Bay Hotel and Ocean Villas, acceptance by the city Department of Planning and Permitting of a landscape master plan, and marsh improvements, among other things.<\/p>\n
\tA summary attached to the November report notes that the 113-acre Palmer golf course and the 2.7-acre portion of Punaho`olapa Marsh that lies within the reclassified area make up about 49 percent of the 236-acre property.<\/p>\n
\tThe most recent report, which Carr submitted February 5, details KRC\u2019s ongoing efforts. Although KRC received tentative subdivision approval from the Department of Planning and Permitting in September 2006, the company has not yet been able to obtain final approval from the state Department of Transportation of its Traffic Impact Analysis Report (TIAR), needed for final subdivision approval.<\/p>\n
\t\u201cThis is the only remaining outstanding item for final subdivision approval as far as Petitioner is aware,\u201d Carr wrote. He added that he planned to send a revised TIAR to the DOT before February 13 and expected it would be approved in three months.<\/p>\n
\tOnce the subdivision goes through, development of the hotel and condominium sites will become feasible \u201cas they can be considered individually for purposes of financing and development investment. Individual parcel development will be by way of direct development, joint development with development partners, or for-sale development parcels,\u201d Carr wrote.<\/p>\n
\tCarr added that he expects that $5 million in improvements to Kuilima Drive, the resort\u2019s main access road, will be completed in September and that groundbreaking on a park at Kawela Bay will begin by the end of the year.<\/p>\n
Legal Arguments<\/i><\/b><\/p>\n
When Kuilima Development Company was making its case for redistricting before the LUC in the mid-1980s, it made several statements regarding projected construction deadlines. According to the LUC\u2019s Findings of Fact, KRC stated that 1,000 condominiums were going to be completed by 1991, 315 of which were going to be substantially complete within five years of the redistricting, and the entire project would be completed by the end of 1996.<\/p>\n
Last year, the coalition pointed out in its filings that the LUC\u2019s administrative rules in effect when the Decision and Order was issued required substantial progress to be made on the expansion within \u201ca period specified by the Commission not to exceed five years.\u201d At the LUC\u2019s February meeting, the coalition\u2019s attorney, Gregory Kugle, added that the LUC\u2019s current rules state that whenever the commission has a reason to believe there has been a failure to perform according to conditions or in conformance with \u201cthe representations or commitments made by the petitioner,\u201d the LUC must issue an order to show cause why the land should not revert to its original classification.<\/p>\n
\tKugle said that KRC can still only estimate when its project will be completed. \u201cWhat are we talking about \u2013 ten or twenty years?\u201d he asked, adding that the resort and its attorneys \u201cgloss over\u201d nearly 15 years (from about 1991 to about 2005) where nothing was done to advance the project.<\/p>\n
\tIn response, KRC attorney Sharon Lovejoy restated previous arguments that the Decision and Order contains no clear conditions regarding when the expansion or its components were to be completed and that all of the representations made by the developer were couched in terms like \u201cwe anticipate\u201d or \u201cwe intend\u201d or \u201cwe propose.\u201d<\/p>\n
\t\u201cThe only way you can go forward with an order to show cause is if you find there was a violation,\u201d she said.<\/p>\n
\tShe also argued that very important parts of the project have advanced, although they may not be visible, and that of the entire project area, only one third of it, 286 acres, is to be developed with buildings. Because the last discretionary permit for the expansion has already been issued, \u201cour position is that the rights are vested,\u201d Lovejoy said.<\/p>\n
\tAs he stated in briefs filed last year, deputy Attorney General Bryan Yee, representing the Office of Planning, said the D&O lacked binding timeframes. The OP, he said, takes the position that the order was flawed in that it failed to establish a deadline and give fair warning to the developer.<\/p>\n
\t\u201cThe Office of Planning believes the LUC cannot revert the property, so an order to show cause hearing is not required,\u201d he said.<\/p>\n
\tTo this, Kugle, the coalition attorney, responded: \u201cSince when is it not fair warning to hold someone to their word? The commission made a decision based on representations\u2026.Everybody seems to be ignoring the rule that applies today\u2026. They\u2019ve [KRC and the OP] both lost sight of that. You can hold them to their representations.\u201d<\/p>\n
\tYee answered that despite current standards for an order to show cause, provisions regarding representations did not exist at the time the Decision and Order was issued.<\/p>\n
\u201cWe have to acknowledge that the decision back then should have had a deadline and that\u2019s the flaw. We could correct the flaw, but we have to acknowledge the flaw,\u201d Yee said.<\/p>\n
Moving Forward<\/i><\/b><\/p>\n
Given KRC\u2019s current efforts to comply with the D&O, LUC vice-chair Ransom Piltz said, \u201cto revert this back to zero doesn\u2019t make much sense.\u201d However, he asked Carr, if the commission decided to go along with the Office of Planning\u2019s suggestion and correct the order, what kind of time period for affordable housing would be reasonable.<\/p>\n
\tLUC chair Duane Kanuha and commissioner Normand Lezy also pressed Carr about timelines for the expansion.<\/p>\n
\t\u201cWe do need to have concrete timelines. Not date-specific, but an amount of time to comply with the Decision and Order,\u201d Lezy said.<\/p>\n
\tAt first, Carr said only that he was working diligently on a \u201cdaily and weekly basis\u201d to meet the conditions of the decision and order. He also said that when there is pending litigation, as there is in this case, it casts a cloud over his ability to move forward.<\/p>\n
\tCarr then referred to a timeline included in a July 24, 2008 Turtle Bay Resort Master Plan Revised Traffic Impact Analysis Report Update for the state Department of Transportation. At the earliest, the first hotel, the one to be located east of the existing Ocean Villas along Kuilima Bay, would open in 2011, and the last one, one of two along Kawela Bay, would open in 2015. Construction on the first resort condominium parcel would be completed in 2013 and the last would be done in 2018, the report states. (All of the condominium parcels are located on the 236 acres that are the subject of the coalition\u2019s request.)<\/p>\n
\tIn a February 5 letter to the LUC, Carr notes that this development schedule includes \u201canticipated earliest possible completion dates, but those dates are merely estimates based on guesses as to time frames and assumptions regarding governmental approvals, economic conditions, demand of the project, and impacts of challenges to the project.\u201d<\/p>\n
\tWhen Lezy asked how long it would take to complete the affordable housing component of the project, Carr said it would take at least ten years \u201cif it was my property,\u201d adding that he did not want to commit to a time frame on behalf of the owners of the property. Carr agreed with Lezy that it would take more than ten years to fully comply with the Decision and Order and said the rate of completion would depend on several things, including \u201cwhere the world is.\u201d<\/p>\n
When it came time to vote, chair Kanuha said, \u201cI think there are several issues of concern. One, whether modification through the order to show cause is an option, and two, we are also inclined to consult with counsel a little more on issues of standing,\u201d referring to an argument Lovejoy made that the community groups do not have standing to be a party to the case.<\/p>\n
\tKanuha suggested that the commission defer action \u201cpending consultation on legal issues,\u201d and the commission unanimously agreed.<\/p>\n
Meanwhile, at the Capitol<\/i><\/b><\/p>\n
After nearly all members of the public had left the room, OP director Abbey Mayer asked the commission for permission to testify before the state Legislature in favor House Bill 1055.<\/p>\n
\tThe bill, introduced at the request of the Lingle administration, seeks to put an end to cases, like Kuilima, where lands reclassified by the LUC sit undeveloped for many years.<\/p>\n
\u201cIn some cases,\u201d the bill states, \u201cconditions have changed so significantly that the development proposal as originally conceived may warrant review and reconsideration. Premature urban or rural reclassification may encourage speculative land banking and creates uncertainty in the build out of planned urban or rural infrastructure.\u201d<\/p>\n
\tThe bill would add a new section to Chapter 205 of Hawai`i Revised Statutes that would require land reclassified to accommodate a proposed development to automatically revert to its original classification \u201cabsent substantial commencement of use of the land within ten years.\u201d The LUC would be tasked with defining what constitutes \u201csubstantial commencement\u201din each case.<\/p>\n
\tThe bill adds that the LUC would be able to grant one extension of up to five years and that the reversion condition would not apply to petitions initiated by the state or a county for a regional boundary amendment based on a regional boundary review or petitions accepted by the commission before the bill is signed by the governor.<\/p>\n
(For more on the Kuilima development, see the June 2006 and September 2008 issues of Environment Hawai`i<\/i>, which are available on our website, [url=https:\/\/environment-hawaii.org.)]www.environment-hawaii.org.)[\/url]<\/p>\n
<\/p>\n <\/b><\/p>\n At its February meeting, the LUC granted a group of Kane`ohe residents permission to intervene in a petition by Hawaiian Memorial Life Plans Ltd. to reclassify 56.6 acres in the Conservation District to the Urban District. Hawaiian Memorial plans to use the land to expand its cemetery and to develop a 20-lot residential subdivision on the hilltop north of Kapa`a Quarry.<\/p>\n \tThe LUC accepted the company\u2019s final environmental impact statement on January 14 and two weeks later, Grant Yoshimori, Richard and Juliane McCreedy, Lianne Ching, Mavis Suda, Ernest and Bettye Harris, Jessie Reavis, and a group called Hui O Pikoiloa filed a petition to intervene.<\/p>\n \tAt the February meeting, Yoshimori testified on behalf of his fellow petitioners that their concerns involved the project\u2019s potential impacts on native gathering, access, flooding, rock slides, natural resources, traffic, the loss of Conservation District land, viewplanes, microclimates, criminal activity, historic sites and property values.<\/p>\n \tAttorney William Yuen, representing Hawaiian Memorial, opposed the group\u2019s petition, while the city Department of Planning and Permitting and the state Office of Planning did not.<\/p>\n \tBecause the petition to intervene included so many people and because Hui O Pikoiloa is not an incorporated group, the commission decided to allow only the individuals to intervene on the condition that Yoshimori must speak on their behalf on all matters before the LUC. The LUC is expected to hold a hearing on the boundary amendment petition early this month.<\/p>\n — Teresa Dawson<\/p>\n Volume 19, Number 9 March 2009<\/p>\n","protected":false},"excerpt":{"rendered":" The state Land Use Commission does not seem to be in any rush to force Kuilima Resort Company to show why 236 acres of Urban land on the North Shore of O`ahu should not revert to the Agricultural District. Last … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[170],"tags":[],"class_list":["post-1197","post","type-post","status-publish","format-standard","hentry","category-march-2009"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/1197","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=1197"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/1197\/revisions"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1197"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1197"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1197"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
\nHawaiian Memorial Park<\/div>\n