{"id":14208,"date":"2022-02-05T03:01:39","date_gmt":"2022-02-05T03:01:39","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=14208"},"modified":"2022-02-06T05:48:17","modified_gmt":"2022-02-06T05:48:17","slug":"land-use-commission-denies-permit-for-hilos-connections-charter-school","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=14208","title":{"rendered":"Land Use Commission Denies Permit For Hilo\u2019s Connections Charter School"},"content":{"rendered":"\n

Photo: Ted Hong, attorney for Community Based Education Support Services.<\/sub><\/p>\n\n\n\n

By Patricia Tummons<\/em><\/strong><\/p>\n\n\n\n

In the end, it wasn\u2019t even close. By the time the Land Use Commission was set to vote on a special permit allowing the construction of a charter school on 70 acres of state-owned land in the Kaumana area, just upslope of Hilo town, it was clear that the decade-long push to get the project approved would be turned down.<\/p>\n\n\n\n

Not that the commissioners disagreed with the need for the Connections New Century charter school to develop a new campus, or with the proposed school\u2019s curriculum focusing on developing husbandry skills among its students.<\/p>\n\n\n\n

No, the beef was instead with the way the expansion had been processed at the county level. And as a further sign of the commission\u2019s unhappiness with Hawai\u02bbi County\u2019s handling of the permit application process, the commission did not just remand the matter back to the county, it flat-out rejected it.<\/p>\n\n\n\n

A decade after proposing the permit, and 11 years after the state leased the land to the school, it\u2019s back to the drawing board for Connections.<\/p>\n\n\n\n

A Convoluted History<\/em><\/strong><\/p>\n\n\n\n

By statute, any proposed use of land in the state Agricultural or Rural land use district that is not specified in law requires a special permit. The use requested must be found to be \u201cunusual and reasonable\u201d by the appropriate county agency \u2013 in this case, the county\u2019s Windward Planning Commission (WPC) \u2013 and must also \u201cpromote the effectiveness and objectives\u201d of the state\u2019s land use law (Chapter 205 of Hawai\u02bbi Revised Statutes). If the proposed use is for more than 15 acres, the permit is then forwarded to the state Land Use Commission, which can approve or deny.<\/p>\n\n\n\n

Soon after obtaining the lease, Connections filed an environmental assessment and applied for a special permit covering the entire area. The draft EA anticipated using all 70 acres for buildings and other improvements. When concerns were raised about the presence of Kaumana Cave under the mauka portion, plans were revised so that the buildings and parking areas would be restricted to land makai of Edita Street, with the upper portion of the land being used for agri-forestry projects.<\/p>\n\n\n\n

In 2013, the WPC authorized a contested case on the permit application, and in April 2014, the hearing officer recommended denial. A month later, the WPC endorsed the recommendation. Connections and its non-profit support organization, Community Based Education Support Services (CBESS) then appealed the decision to 3rd<\/sup> Circuit Court.<\/p>\n\n\n\n

The circuit court upheld the WPC\u2019s decision with a final judgment issued January 13, 2017. Connections and CBESS then took the case to the Intermediate Court of Appeals.<\/p>\n\n\n\n

On January 31, 2020, the ICA remanded the permit on appeal back to the Windward Planning Commission, vacating some of the findings of fact as \u201cclearly erroneous\u201d and others as lacking foundation.  Yet many of the findings that were adverse to Connections either went unchallenged or were upheld on appeal.<\/p>\n\n\n\n

On remand, the WPC decided to limit the evidence in the record only to what had been presented in the earlier case. At its October 2021 meeting, it approved the permit, and in November, it formally adopted the findings of fact, conclusions of law, and decision and order setting the terms and conditions of approval.<\/p>\n\n\n\n

Before the LUC<\/em><\/strong><\/p>\n\n\n\n

By law, the Land Use Commission must make a decision on a special permit within 45 days of the date the county has forwarded to it the compete record \u2013 voluminous, in this case, involving as it does litigation before two courts as well as an environmental assessment, transcripts of hearings, written testimonies, and countless other documents. <\/p>\n\n\n\n

For two days last month, the LUC considered arguments for the school \u2013 represented by deputy attorney general Kevin Richardson, on behalf of Connections, and by Hilo attorney Ted Hong, on behalf of CBESS. While attorneys for the county Planning Department and the Windward Planning Commission were also participating, it was mainly left to Hong to press the school\u2019s case. Arguing against the permit was attorney Michael Matsukawa, representing Jeffrey Gomes, the sole intervenor in the county\u2019s proceedings.<\/p>\n\n\n\n

Much of the commission\u2019s questioning dealt with the adequacy of the WPC\u2019s decision. Commissioner Dawn Chang expressed skepticism about the efforts made by the school to reach out to Native Hawaiians to determine if the area might be used for cultural and traditional purposes. She was not satisfied the efforts were sufficient to comply with Article 12 of the state constitution or laws protecting such practices.<\/p>\n\n\n\n

LUC chair Jonathan Scheuer pointed to an apparent deficiency in the record. LUC rules require that the landowner \u2013 in this case, the state \u2013 consent to the filing of the permit application and agree to accept conditions or restrictions on the land that a permit might impose. Neither Hong nor any of the other attorneys could point to a specific sign-off from the state.<\/p>\n\n\n\n

Maui commissioner Lee Ohigashi suggested that the school should seek a boundary amendment for the property instead of a special permit. The special permit process, he noted, was mainly for uses that were intended to be temporary. Scheuer agreed, but Hong said that in early discussions with the county, the school and county determined a special permit was the appropriate \u201cvehicle.\u201d Deputy planning director Jeff Darrow confirmed Hong\u2019s statement.<\/p>\n\n\n\n

(Hong later seemed to accuse the LUC of racial and class bias, alleging that the commission only accepted his account of talks with the county after Darrow confirmed it. \u201cI have continually represented that we worked with the county planning director,\u201d Hong stated in his closing comments. \u201cYou have questioned my integrity at every point\u2026 I give credit to Jeff Darrow for telling the truth. He remembered precisely what I had told you about how this happened.\u201d<\/p>\n\n\n\n

(Hong continued to fulminate: \u201cI know my license to practice law is not based on the shape of my eyes, ethnicity, bank account, political party. That\u2019s why when I say something, I know it has to be the truth in the record.\u201d<\/p>\n\n\n\n

(\u201cI would bet good money that lawyers from big downtown Honolulu firms would not have their integrity questioned in front of their clients and the general public by the commission \u2013 you know, the Tesla-driving, Lexus-driving, Infiniti-driving, Waialae Kahala Outrigger club types. I\u2019m sure the LUC lays down the red carpet for them.\u201d The outburst prompted Ohigashi to note that he drives a 2006 Honda Civic; Scheuer added that he drives a used Prius.)<\/p>\n\n\n\n

Frustration<\/em><\/strong><\/p>\n\n\n\n

When it came time to deliberate, the six members of the commission participating in the discussion were clearly frustrated by what was before them. (The LUC is authorized to have nine members, but one seat is currently unfilled. Two members \u2013 Big Island commissioner Nancy Cabral and O\u02bbahu\u2019s Gary Okuda \u2013 recused themselves from the matter owing to conflicts of interest.)<\/p>\n\n\n\n

It fell to Chang to make a motion to deny the special permit. \u201cI applaud this project,\u201d she said. \u201cI think it is innovative. I like the concept of integrating forest management, working with our young people. \u2026 But then I have to weigh that against what is before us.<\/p>\n\n\n\n

\u201cThe quandary I have is that the Planning Commission in 2014, based on the evidence \u2013 the same evidence on the record now \u2013 chose to deny. It goes to the Intermediate Court of Appeals, which upholds certain findings but remands for other findings.<\/p>\n\n\n\n

\u201cThe Planning Commission chooses not to reopen the record, so it makes a decision in 2021 based on that same record. No additional information. Nothing new in the record \u2013 but they make a totally different finding and conclusion. \u2026<\/p>\n\n\n\n

\u201cWhat I\u2019m faced with is looking at the rules, looking at the record before us, but also looking at the ICA opinion \u2026 [which] found no error specifically with respect to the adverse impacts of traffic\u2026<\/p>\n\n\n\n

\u201cI also look at what is in our constitutional obligation. We have the obligation under Article 12, Section 7, to preserve and protect cultural practices. I find the record sent up by the Planning Commission to be totally inadequate\u2026.<\/p>\n\n\n\n

\u201cIt is with a very heavy heart, again, because I think this is a very, very worthy project.\u201d<\/p>\n\n\n\n

Commissioner Edmund Aczon seconded the motion to deny: \u201cWe are bound to make our decision based on the records forwarded to us by the Planning Commission. \u2026 A lot of our questions would have been answered if the Planning Commission had done its due diligence in trying to answer some of those questions\u2026.<\/p>\n\n\n\n

\u201cThe county sent a clear message that they\u2019re done with this case. They even ignored the intervenor\u2019s proposed decision and order.\u201d<\/p>\n\n\n\n

Ohigashi echoed Chang\u2019s concern over constitutional compliance, but also on \u201cthe findings untouched by the ICA. \u201cIt\u2019s important for us to preserve what the special permit is for. \u2026 The balance of interests is properly done through a District Boundary Amendment. And that is what I believe should be done.\u201d<\/p>\n\n\n\n

Scheuer said his opposition was not based on the merits but on the lack of compliance with the requirement of landowner consent and failure to obtain clearance from the State Historic Preservation Division. \u201cIt\u2019s very clear that my vote is based on those things and not whether the school is a good thing. I personally feel that, despite being attacked by certain counsel, this is a worthwhile project which I would like to succeed.\u201d<\/p>\n\n\n\n

The motion passed unanimously.<\/p>\n\n\n\n

Following the decision, Hong told Environment Hawai\u02bbi <\/em>that his client would be appealing the decision. \u201cWe will appeal because this decision is the height of arbitrariness and capriciousness by a governmental agency,\u201d he said in an email.<\/p>\n\n\n\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

Photo: Ted Hong, attorney for Community Based Education Support Services. By Patricia Tummons In the end, it wasn’t even close. By the time the Land Use Commission was set to vote on a special permit allowing the construction of a … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":14229,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[493,338],"tags":[7],"class_list":["post-14208","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-february-2022","category-land-use","tag-patricia-tummons"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/14208","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=14208"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/14208\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/14229"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=14208"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=14208"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=14208"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}