What force and effect should be given to the community development plans that the Hawai`i County Council has adopted in recent years?<\/p>\n
That question is at the heart of a lawsuit being heard in 3rd Circuit Court, which challenges a county Board of Appeals decision that upheld the planning director\u2019s approval of a subdivision in a near-pristine `ohi`a forest. At a hearing before Judge Ronald Ibarra in January, county attorneys stated their position clearly: the plans are only advisory and the planning director has broad discretion to disregard them.<\/p>\n
Michael Matsukawa is representing landowners Patricia and Richard Missler, who are challenging the planning director\u2019s decision to approve the residential subdivision on land in the South Kona ahupua`a of Waikaku`u. In his argument to the court, he staked out a position diametrically opposed to the county\u2019s. It was his contention that the planning director and the Board of Appeals, which upheld the director\u2019s decision last year, were bound to make sure the results of their actions were consistent with the Kona CDP, approved by the County Council in 2008.<\/p>\n
\u201cThis case is about legislative power,\u201d Matsukawa stated in the January 17 court hearing. \u201cExecutive officials from the county are trying to limit or modify these expressions of legislative power\u2026 The question to the court is, can they do so?\u201d<\/p>\n
In her argument to the court, however, deputy corporation counsel Amy Self, representing planning director Bobby Jean Leithead-Todd, maintained that the Kona Community Development Plan was hortatory only and did not require the planning director to ensure that the permits she issued furthered the goals set forth in the CDP.<\/p>\n
In passing four CDPs in quick succession, Self suggested, \u201cthis got out of control,\u201d with the County Council caught up in the euphoria of adopting plans with incentives it could not possibly afford. \u201cWe had money back then,\u201d she said. \u201cUnfortunately that\u2019s not the case now. Today, all four [CDPs] have to share the same pot of money, and a lot of these incentives involve money.\u201d<\/p>\n
In any event, she continued, \u201cthe Kona CDP doesn\u2019t state that applications for Planned Unit Developments are prohibited.\u201d The subdivision at issue in this case would be done under color of a PUD: this allows lots smaller than what is called for under county zoning to be clustered in one area of a large parcel, while keeping the bulk of the parcel undeveloped.<\/p>\n
In the case at issue, the landowners \u2013 Malama Investments, LLC, and Loren and Mary Saxton \u2013 are wanting to develop 13 lots, each about two acres, on the mauka portion of the 72 acres they own while leaving a 40-acre bulk lot undeveloped. The land, which is within the state Agricultural District, is zoned by the county for minimum five-acre ag lots. Any house that is built must be a \u201cfarm dwelling\u201d and, in keeping with Ibarra\u2019s decision in the Hokuli`a case, there should be an agricultural plan for the subdivision as well.<\/p>\n
But, Matsukawa noted, in the decisions of the planning director and the Board of Appeals, \u201cthere\u2019s silence as to the agricultural plan. This is styled as an agricultural PUD. Well, where\u2019s the agricultural plan? It\u2019s like Hokuli`a revisited.\u201d (In the Hokuli`a case, Ibarra ruled that the gated, golf-course-centered residential subdivision was not a farm enterprise. In the wake of that decision, development of primarily residential large-lot subdivisions on land in the state Agricultural District has been made much more difficult, although it has not ceased entirely.)<\/p>\n
\u201cLet\u2019s call it what it is \u2013 a residential subdivision,\u201d Matsukawa said. \u201cAnd they want to cut it out of the heart of the forest, since that\u2019s where the 60-inch rainfall exists. They want that, because they don\u2019t have county water.\u201d Since any houses built on the lots to be developed under the permit would not be served by the county water system, and the developer is not planning to drill a well to provide water, the houses need to be placed in that part of the larger lot where average annual rainfall is at least 60 inches; below that amount, the county may not approve residential developments relying on water catchment systems.<\/p>\n
In a brief filed with the court, Self pushed the argument against the Kona CDP\u2019s enforceability even further. The ordinance that the County Council approved in adopting the plan was defective since, she wrote, it \u201cfailed to even mention the Zoning or Subdivision Codes\u201d and thus \u201ccould not legally amend\u201d them. \u201cBecause the KCDP was adopted as a plan without proper notice of its regulatory nature in its title, its body, or by providing the public with actual notice, the Appellants\u2019 KCDP-related claims must fail,\u201d she continued.<\/p>\n
Matsukawa disputed the view that the ordinance itself was defective. The court, he argued, \u201cshould note that the planning director did not present this argument to the Board of Appeals,\u201d and so the county should not be allowed to raise the issue now. Further, he wrote in a reply brief, Self\u2019s own department, the county Office of Corporation Counsel, approved the Kona CDP bill \u201cas to form and legality\u201d at the time it came before the County Council. \u201c[T]his court should estop all county officials from \u2018blowing hot and cold\u2019 on this point,\u201d he wrote.<\/p>\n
Natural Resources Trusts<\/i><\/b><\/p>\n
Matsukawa raised numerous other points on appeal, including the claim that the approval of the subdivision violates the \u201cPublic Natural Resources Trust.\u201d<\/p>\n
\u201cPlanning officials must enforce this constitutional trust when they process a development-related permit,\u201d Matsukawa argued in a brief, citing the Supreme Court decision that upheld a ruling of Ibarra\u2019s in a case brought over pollution of Kealakekua Bay by the Hokuli`a. (In that case, the county had argued that it had no such public trust obligation. The Supreme Court disagreed, finding that the state Constitution \u201cmandates that the county does have an obligation to conserve and protect the state\u2019s natural resources.)<\/p>\n
Were that not enough, Matsukawa noted, \u201cHawai`i County voters also adopted a charter-based \u2018natural and cultural resources\u2019 trust.\u201d<\/p>\n
Public trust resources that have been jeopardized by the county\u2019s actions, Matsukawa wrote, include the native forest, historic sites, and the watershed values on the Saxtons\u2019 land.<\/p>\n
Ibarra asked Self about the public trust issues involved. \u201cYou\u2019ve argued that it doesn\u2019t apply here because it\u2019s private land,\u201d Ibarra noted, going on to ask her specifically about the designation of the area as a Priority 1 watershed by the state.<\/p>\n
\u201cAs far as we know, there\u2019s no source of water\u201d on the land, Self replied. \u201cAlso, the [state] Water Commission\u2026 they are charged with protecting watersheds.\u201d<\/p>\n
Ibarra: \u201cSo to apply the public trust doctrine, there would need to be a finding that the watershed is a public resource, and you argue that it does not fall under the public trust doctrine because a watershed on private property is not a public trust.\u201d<\/p>\n
Self hedged a bit. \u201cWatersheds can be a public trust,\u201d she said. \u201cEven the Misslers\u2019 property is on the same watershed. And they have a lot more houses in that subdivision.\u201d<\/p>\n
The state Water Code, she went on to say, \u201cset up this commission and even a fund, so that if there\u2019s \u2026 a sensitive area, and they think there\u2019s going to be problems with any activity that is proposed, they can condemn that property and purchase it in order to protect the watershed.\u201d (At no time since its establishment more than two decades ago has the state Commission on Water Resource Management condemned property for any reason. Nor, contrary to Self\u2019s claim, does it have any fund that would allow it to do so.)<\/p>\n
In any event, Self claimed, because plans are not final, any claim of damage to the public trust resources would be premature. \u201cSo the problem is, how do we know that anything they do is going to destroy the watershed or hurt\u201d public trust resources, she asked.<\/p>\n
Ibarra had not issued a ruling in the case by press time.<\/p>\n
For Further Reading<\/i><\/b><\/p>\n
Our June 2012 cover story deals extensively with the PUD permit and the Board of Appeals deliberations, \u201cA Subdivision in an `Ohi`a Forest Gets OK From Hawai`i Planning Director.\u201d<\/p>\n
Patricia Tummons<\/b><\/p>\n
Volume 23, Number 9 — March 2013<\/p>\n","protected":false},"excerpt":{"rendered":"
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