Here we go again.<\/p>\n\n\n\n
The owner of \u2018Aina Le\u2018a, the 1,060- acre tract of land in the Big Island district of South Kohala slated since 1989 for an enormous housing, commercial, and golf-course development, is now suing Hawai\u2018i County and its planning director, Michael Yee, over the Planning Department\u2019s insistence that a new environmental impact statement (EIS) be prepared before any further work can be done at the site.<\/p>\n\n\n\n
In 2013, a state court determined that the county could reject an earlier EIS done for the project and accepted by the county in 2010. In that case, the Mauna Lani Resort Association had sued the county over its acceptance of an EIS that had been prepared without consideration of a side agreement reached between the developer, DW \u2018Aina Le\u2018a (DWAL), and Bridge \u2018Aina Le\u2018a, LLC. DWAL had signed a development agreement with Bridge that committed DWAL to building infrastructure that would also benefit Bridge, which owns the land on the north, east, and south borders of DWAL\u2019s land. (The Queen Ka\u2018ahumanu Highway makes up the boundary to the west.) But the EIS did not address any of the environmental impacts of that adjoining development.<\/p>\n\n\n\n
Because of that agreement, known to exist but undisclosed to the county until the litigation was brought, 3rd Circuit Judge Elizabeth Strance found that the county was wrong to accept the final EIS.<\/p>\n\n\n\n
The most recent litigation has been brought by Lulana Gardens, LLC, a Delaware-registered business that is wholly owned by \u2018Aina Le\u2018a, Inc. Lulana Gardens is the name of that portion of the development designated for affordable housing (affordable as defined by county standards, anyway).<\/p>\n\n\n\n
According to the lawsuit, filed in 3rd Circuit Court on March 10, Lulana Gardens \u201cowns and has rights in real property,\u201d specifically, the approximately 38 acres where DWAL had begun a decade ago to build 385 townhouses to satisfy state Land Use Commission conditions regarding affordable housing. Yet there is no public evidence, either in state or county records, that Lulana Gardens has any ownership interest in the property.<\/p>\n\n\n\n
County tax records show there has been no change in ownership since 2012. At last count, ownership was held by more than 1,000 individuals, plus \u2018Aina Le\u2018a, LLC (a Hawai\u2018i entity that was involuntarily dissolved by the state last December, for failure to file annual reports three years in a row). Those individuals, all of whom reside in Southeast Asia, purchased Undivided Land Fractions (ULFs) in the 38-acre parcel and an adjoining 24-acre parcel as \u2018Aina Le\u2018a sought to raise capital in an innovative manner. In other legal filings, \u2018Aina Le\u2018a has stated that those individual owners have assigned their rights to develop the properties over to a trust. The most recent lawsuit makes no mention of that.<\/p>\n\n\n\n
The Lawsuit<\/strong><\/p>\n\n\n\n At the heart of the current litigation is the claim that because the matter of the sufficiency of the 2010 EIS was remanded to the county, the court made no determination itself about the EIS.<\/p>\n\n\n\n \u201cRegardless of what the County of Hawai\u2018i planning director, accepting the Final Environmental Impact Statement, did or did not \u2018look at,\u2019 the legal question before the circuit court … was whether, in the circuit court\u2019s <\/em>judgment (and not <\/em>the County of Hawai\u2018i planning director\u2019s judgment), the Final Environmental Impact Statement is legally \u2018adequate,\u2019\u201d Michael Matsukawa, attorney for Lulana Gardens, argues in the complaint.<\/p>\n\n\n\n \u201cA plain reading of the circuit court\u2019s March 28, 2013, order shows that the circuit court did not <\/em>conclude that … [the] final Environmental Impact Statement is legally \u2018inadequate,\u2019 in the absence of such a conclusion, the circuit court\u2019s March 23, 2013, order must be interpreted to mean the final Environmental Impact Statement is legally \u2018adequate.\u2019 <\/em>\u201d<\/p>\n\n\n\n While the judge\u2019s final order in that case does not specifically say whether the EIS was inadequate, here\u2019s what it does say:<\/p>\n\n\n\n The court \u201cGRANTS Plaintiff Mauna Lani Resort Association\u2019s motion for summary judgment against Defendants County of Hawai\u2018i and Bobby Jean Leithead-Todd, director of the County of Hawai\u2018i Planning Department … and Defendants DW \u2018Aina Le\u2018a Development, LLC, and Relco, Corp. (\u2018DW\u2019) on the limited grounds that the County of Hawai\u2018i did not fully evaluate the rela- tionship between DW and Bridge \u2018Aina Le\u2018a, LLC, … and thereby was unable to give a hard look, as required by Hawai\u2018i Revised Statutes (\u2018HRS\u2019) Chapter 343 and Hawai\u2018i Administrative Rules (\u2018HAR\u2019) chapter 11-200, at either (1) whether theproject proposed by DW was a segment of a larger project or (2) whether there were cumulative impacts which were not fully analyzed.\u201d<\/p>\n\n\n\n Starting Over<\/strong><\/p>\n\n\n\n \u201cAll development on the project is tolled,\u201d Judge Strance ordered in 2013, a statement that seems clear enough on its face.<\/p>\n\n\n\n However, over the next couple of years, the county relented somewhat. \u201cAfter the court order was issued in 2013, the department received two inquiries requesting to know whether the county would honor building, plumbing, and electrical permits that had previously been issued to construct the townhouse units,\u201d Planning Director Michael Yee wrote to an attorney for \u2018Aina Le\u2018a and Bridge in 2017, recapping events that had transpired in the four years since Strance\u2019s ruling.<\/p>\n\n\n\n In letters to the developer in 2014 and 2015, Yee wrote, \u201cthe department acknowledged the appropriate permits for twelve townhouse buildings known as Lulana Gardens were legally issued and consistent with land use approvals at the time they were issued.\u201d<\/p>\n\n\n\n Yee continued, \u201cThe department indicated the county would continue to honor these permits provided that vesting of those approvals be consistent with prevailing county and state requirements. The department clarified that this determination was conditioned on the facts as the department knew them, and that no commitment or guarantee with regard to additional permitting or approval requirements would be made. … These letters were written with the understanding that an SEIS was being prepared by \u2018Aina Le\u2018a to comply with the court order\u201d <\/strong>(emphasis in original). (An SEIS is a supplemental environmental impact statement \u2013 something that, in this case, would expand the scope of the 2010 EIS while relying on many of the same studies prepared for that document.)<\/p>\n\n\n\n \u201cThere is no indication that \u2018Aina Le\u2018a intends to complete the SEIS before proceeding with construction of the project,\u201d Yee noted.<\/p>\n\n\n\n And yet \u2018Aina Le\u2018a was continuing to conduct work on the subject properties, Yee wrote, \u201cwhich violates the court\u2019s order. The Planning Department requires that the Applicant immediately cease all work, <\/strong>including but not limited to ground disturbance such as trenching and grading; grubbing and stockpiling; and construction on the subject properties. … Work shall be prohibited on the property until a Final Supplemental Environmental Impact Statement has been accepted by the department.\u201d<\/p>\n\n\n\n By February 2018, the Planning Department had determined that an entirely new EIS would be required. On receiving information from Bridge and after consultation with the state Office of Environmental Quality Control and the Land Use Commission, Yee informed Belt Collins, consultant for Bridge, \u201cwe have determined that a new EIS is needed … covering the 3,000-acre project site\u201d (the 1,060 acres held by \u2018Aina Le\u2018a plus the 1,940 held by Bridge). The scope of the action considered in the 2010 EIS \u201chas significantly changed due to modifications in the conceptual master plan [2010] and the new proposal to reclassify 2,000 acres of [Bridge-owned adjacent] land to the state Land Use Rural District.\u201d<\/p>\n\n\n\n Bankruptcy<\/strong><\/p>\n\n\n\n In June 2017, \u2018Aina Le\u2018a, Inc., filed for bankruptcy court protection. The fact that there was no approved EIS for \u2018Aina Le\u2018a\u2019s planned development meant that the company\u2019s main \u2013 and basically, only \u2013 asset, the land, was not nearly so valuable as it might be.<\/p>\n\n\n\n In early 2019, Robert Wessels, CEO of \u2018Aina Le\u2018a, informed the bankruptcy court that he had been in talks with the county Planning Department in an effort to \u201cresolve the tolling order\u201d issued by Judge Strance. With those talks bearing no fruit, the committee filed in 3rd Circuit Court a petition to intervene in the court case settled six years earlier.<\/p>\n\n\n\n That effort went nowhere.<\/p>\n\n\n\n Soon after that, \u2018Aina Le\u2018a was back at the Planning Department, attempting to win approval of a draft environmental impact statement preparation notice (EISPN).<\/p>\n\n\n\n Again, no joy. Beginning in August, Wessels submitted a series of draft EISPNs, in hopes of getting started again on the EIS process. None was deemed satisfactory by the county. On January 21, Yee informed Wessels that the Planning Department was rejecting the fourth such draft, submitted in November, \u201cdue to the deficiencies noted in our letters to you dated August 13, 2019, September 9, 2019, and October 31, 2019, which have not been corrected and addressed.\u201d<\/p>\n\n\n\n \u201cThe tolling\/stop work order effective May 16, 2017, is still in full force and effect per our letter to your previous attorney … dated March 5, 2019,\u201d Yee added.<\/p>\n\n\n\n Wessels apparently gave up on efforts to win county approval of the EISPNs, which had been prepared by a landscaper with no prior experience with environmental planning.<\/p>\n\n\n\n Less than two months later, he turned his efforts back to the 3rd Circuit Court. With that, the dispute over the EIS had now come full circle.<\/p>\n\n\n\n \u2014 Patricia Tummons<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" Here we go again. The owner of ‘Aina Le‘a, the 1,060- acre tract of land in the Big Island district of South Kohala slated since 1989 for an enormous housing, commercial, and golf-course development, is now suing Hawai‘i County and … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":7162,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[467,338],"tags":[],"class_list":["post-12318","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-april-2020","category-land-use"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/12318","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=12318"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/12318\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/7162"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=12318"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=12318"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=12318"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}