After all was said and done, the would-be developers of a thousand acres in Waikoloa simply had no more credibility with the Land Use Commission. On January 20, members of the commission voted, 5-3, to return the land to the state Agricultural District classification, closing a 22-year-long chapter of unfulfilled and ever changing promises.<\/p>\n
If the reversion has a precedent, it would be in April 2009, when the LUC voted to do exactly the same thing with the same piece of land, then under a nominally different developer. Months later, a new developer appeared, committing to fulfill the promise of nearly 400 units of affordable housing by November 2010, and commission members relented, allowing Robert Wessels and DW `Aina Le`a Development, LLC, the chance to jump-start the moribund project.<\/p>\n
The Land Use Commission\u2019s vote is by no means the end of the story. Attorneys for DWAL and for co-petitioner Bridge `Aina Le`a, the previous developer and still owner of nearly all 3,000 acres included in the original golf-course village project proposed in the late 1980s, as much as promised to take the LUC to court if it voted for reversion. Also, the LUC will still take up a motion by DWAL to amend the conditions imposed on the development \u2013 a motion that would seem to be moot now, but which DWAL\u2019s attorney, Alan Okamoto, refused to withdraw.<\/p>\n
In addition, should the project be allowed eventually to move forward, it will have to deal with yet another speed bump thrown in its path. On January 5, the Mauna Lani Resort Association sued the County of Hawai`i and its planning director, Bobby Jean Leithead-Todd, over her acceptance of what the association claims is a flawed environmental impact statement. Other named defendants in the case are DW `Aina Le`a and Relco Corp., the sole member of DWAL. (A copy of the complaint may be found in the EH-Xtra column of our home page, www.environment-hawaii.org.)<\/b><\/a><\/p>\n Heated Exchanges<\/i><\/b><\/p>\n Attorney Bruce Voss, representing Bridge, argued that there had been \u201csubstantial commencement in the use of the land, substantial site work.\u201d Forty-eight units had been \u201cbuilt to roof,\u201d he said, and an environmental impact statement prepared. \u201cBy any definition,\u201d he said, that was substantial, and \u201cthis commission has never, I emphasize never, reverted the classification of land when there\u2019s been substantial work.\u201d<\/p>\n Commissioner Thomas Contrades disputed Voss\u2019s claim during the commission\u2019s deliberations. \u201cI like it when people say there\u2019s been substantial work done,\u201d he said. \u201cYou consider that substantial? I consider it insulting,\u201d noting that work had been done on just 61 of the more than 1,000 acres in the petition area. \u201cThis project has been going on for more than 20 years, and nothing has ever happened.\u201d<\/p>\n Voss also tried to carry the day by telling the commission that at least six votes would be needed to revert the land to Agricultural, arguing that this was tantamount to a reclassification decision and that, by statute, all such reclassifications required six affirmative votes. Furthermore, he said, the land was simply not appropriate for agriculture, so reversion would not be something sanctioned by statute.<\/p>\n Again, Contrades took him on: \u201cTo sit there and say it doesn\u2019t make sense to revert it back to Ag \u2013 that\u2019s what it was. It\u2019s common sense.\u201d The only alternative, he said, was to put it into the Conservation District \u2013 something no one was arguing for.<\/p>\n Bryan Yee, the deputy attorney general representing the Office of Planning, also disputed Voss, saying that what was before the commission was not a reclassification, but an order to show cause, and therefore no six-vote majority was required.<\/p>\n A Divided Commission<\/i><\/b><\/p>\n The questions posed by members of the commission reveal deep rifts. Those who spoke in favor of the reversion \u2013 Contrades, Normand Lezy, and Ronald Heller \u2013 stressed the need for the commission to stand by its conditions. Heller may have expressed the view best: \u201cIt\u2019s unfortunate that the only tool we have in our toolbox is a sledgehammer. But if we don\u2019t do anything, what\u2019s the point of including conditions if there\u2019s no enforcement?\u201d<\/p>\n Lezy elaborated on the point: \u201cIn large part, the reason I made this motion has to do with the integrity of the commission\u2026. If we\u2019re not willing to make difficult decisions on the decisions-and-orders we\u2019ve made in the past, and enforce the conditions, then really, what purpose is there for the commission? When we acted on the reconsideration [of the earlier reversion, in April 2009], I voted against that. At the time, I said something to the effect that I very much hoped that DW `Aina Le`a was going to prove me wrong \u2026 about the fact that I assumed that we were going to be in the exact position that we\u2019re in today at some point. Unfortunately, I wasn\u2019t proven wrong. So I see no other course here except for the motion that I made.\u201d<\/p>\n But Commissioner Duane Kanuha, a former planning director for Hawai`i County, took the position that the LUC should have little further role once a redistricting decision was taken. \u201cBasically, I\u2019m a county guy,\u201d he said, speaking against reversion. \u201cFrom my standpoint, if this petition area had never been rezoned, with no entitlements by the county, it would be an easy decision for me to go with this. But \u2026 the county has entitled this property and they have continued to entitle it, which indicates to me they\u2019re really supporting this. And I think the statements today that \u2013 whether it\u2019s DW or Bridge `Aina Le`a or Larry, Moe or Curly, whoever it is \u2013 the opportunity to do this project, which is actually consistent with everything that, all the planning documents of the county, makes it very difficult for me to support its reversion.\u201d<\/p>\n Charles Jencks was the only other commissioner speaking in favor of keeping the land in the Agricultural District. In a long ramble on the nation\u2019s recent economic troubles in general and Hawai`i\u2019s in particular, Jencks voiced sympathy with the developer. \u201cMy background is in land development,\u201d he said at the outset. In terms of its size and complexity, he went on to say, the `Aina Le`a project \u201cis not that much different than other projects in the state of Hawai`i. I personally am working on a number of projects now that have had district boundary amendments going back 20 years, and it\u2019s extremely difficult to finance and \u2026 create value in projects like this\u2026 The key event was the failure of Lehman Brothers in June of 2007 [actually, it was September 2008 \u2013 editor\u2019s note]. I personally had a lot of projects financed by Lehman. After that occurred, chaos prevailed. Many in the islands suffered \u2026 [and it\u2019s] still affecting us to this day.\u201d<\/p>\n Jencks went on to suggest that the developer\u2019s commitment to have the affordable housing completed by last November was perhaps foolish, but forgivable. \u201cMany of us in the development business that sit here know it\u2019s impossible to live up to those commitments\u2026 People make them because they want to please.\u201d<\/p>\n It fell to Heller to point out that long after the Lehman Brothers\u2019 collapse, Wessels was insistent on his ability to follow through on the affordable housing promise. \u201cWith respect to Jencks and his experience, I do appreciate having somebody with that experience sharing his viewpoint. But I think in terms of the financial environment, it\u2019s also important to remember that after the Lehman collapse and after everyone knew where we stood in terms of the shape of the economy, specifically in early 2009, additional representations were made to this commission about meeting the goal of 385 units by November, both from the petitioner and from the county.\u201d<\/p>\n What\u2019s Next?<\/i><\/b>\u00a0<\/p>\n So what will happen now to the construction that has already occurred on 61 acres of land in the far mauka portion of the site? There, according to Yee suggested that the LUC might consider reverting all the land except the 61 acres where the affordable housing was to have been built (and which is all the land that DWAL owns). \u201cThe Office of Planning thinks reversion of everything except 61 acres may be viable, although we still support reversion of the entire area,\u201d Yee said. \u201cAs a side benefit, it still gives DW `Aina Le`a some potential return on investment and allows current construction to move forward.\u201d<\/p>\n But Yee\u2019s compromise won no support either from the commissioners or the attorneys for the developers.\u00a0<\/p>\n Voss was scornful: \u201cWith all due respect, that proposal both defines common sense and the law. There\u2019s no provision anywhere in Chapter 205 [the state law governing the LUC] or your rules for partial reversion\u2026 If the commission wants to entertain this, it would have to be an entirely new Order to Show Cause.\u201d<\/p>\n Okamoto noted that if the developer were limited to just the 61 acres where the affordable housing is to be built, \u201cit\u2019s going to be a disaster for the project,\u201d effectively turning it into a project where 80 percent of the units would be affordable by definition. \u201cI would urge you not to go down that path,\u201d he said. Among other things, the developer \u201cwon\u2019t be able to provide the other benefits we\u2019ve talked to neighbors about,\u201d including parks, school campuses, and the like.<\/p>\n Leithead-Todd, the county planning director, could not say what would happen if the land were reverted. \u201cGenerally, when we look at properties, once we\u2019ve issued what we consider the last discretionary permit \u2013 which would have been the subdivision to create the lot, and after that, we do ministerial permits, like building permits. I don\u2019t know if we could undo the zoning \u2026 Let me just say it\u2019s a position we\u2019d have to confer with the county on regarding the county\u2019s liabilities and obligations.\u201d<\/p>\n As far as Wessels is concerned, the LUC vote would seem to matter litt.e According to a report in the Honolulu Star-Advertiser,<\/i>, Wessels said he is going to continue work on the project. \u201cWe haven\u2019t stopped construction,\u201d he was reported to have said. \u201cWe\u2019re moving forward.\u201d Calls to Wessels\u2019 attorney, to confirm his position, were not returned by press time.<\/p>\n * * *<\/b><\/p>\n O`oma Appeal<\/b><\/p>\n On January 3, attorneys for O`oma Beachside Villages, LLC, filed a complaint in 3rd Circuit Court, asking it to overturn the decision of the Land Use Commission to deny its petition for redistricting of 181 acres of land near the Keahole airport in North Kona.<\/p>\n The petition was denied by the LUC at a meeting in November. The redistricting had been opposed by many in the Kona community who feared that a shoreline area popular with campers and surfers might be restricted, despite assurances from the developer that public access would continue. The commissioners, on the other hand, seemed most concerned about the impact on future residents of increased noise from the expanded airport.<\/p>\n Named as defendants are the Land Use Commission, the Office of Planning, the Hawai`i County Planning Department, and the National Park Service. All the defendants except for the LUC were parties to the redistricting docket. (A copy of the statement of the case filed with the court may be found in the EH-Xtra column of our home page, www.environment-hawaii.org.)<\/b><\/a><\/p>\n –Patricia Tummons<\/i><\/b><\/p>\n * * *<\/b><\/p>\n Kamakana Challenge Denied<\/b><\/p>\n At its January 6 meeting, the Land Use Commission denied a petition by the Queen Lili`uokalani Trust for a declaratory order regarding the commission\u2019s recent decision to redistrict some 272 acres in Kona to accommodate the proposed housing development known as Kamakana Villages.<\/p>\n QLT argued during petition hearings that the project\u2019s developers — the Hawai`i Finance and Development Corporation and Forest City Hawai`i Kona, LLC — failed to properly advertise its petition in the state\u2019s newspapers.<\/p>\n Despite the trust\u2019s arguments, the LUC approved the redistricting petition last November. The trust, concerned about the project\u2019s impacts on the trust\u2019s lands surrounding the project site, appealed the LUC\u2019s decision in 3rd Circuit Court in December.\u00a0<\/p>\n At the commission\u2019s January meeting, QLT attorney Ben Kudo suggested that the commission remand the issue of whether the petition was properly noticed back to the HHFDC. Bryan Yee, the deputy attorney general representing the state Office of Planning, told the commission that it could not remand the issue back to the HHFDC through a declaratory order petition.<\/p>\n After an executive session, commissioner Ronald Heller recommended that it deny the petition because the pending litigation may affect its decision. The motion was unanimously approved.<\/p>\n — T.D.<\/p>\n For Further Reading<\/i><\/b><\/p>\n `Aina Le`a:<\/b> Environment Hawai`i<\/i> has published the following articles on the Villages of `Aina Le`a:<\/p>\n \u2022\u201c2 Decades and Counting: Golf \u2018Villages\u2019 at Puako are Still a Work in Progress,\u201d March 2008;<\/p>\n \u2022\u201cHawai`i County Board Deals Setback to Stalled Bridge `Aina Le`a Project,\u201d December 2008;<\/p>\n \u2022\u201cBridge `Aina Le`a Gets Drubbing from the Land Use Commission,\u201d March 2009;<\/p>\n \u2022\u201cAfter Years of Delay, LUC Revokes Entitlements for Bridge `Aina Le`a,\u201d June 2009;<\/p>\n \u2022\u201cCommission Stays Decision to Revert Puako Land,\u201d July 2009;<\/p>\n \u2022\uf022Under New Management, `Aina Le`a is Given Yet Another Chance by LUC,\u201d October 2009;<\/p>\n \u2022\uf022Some Progress Reported at Kohala Site that Won Reprieve from LUC,\u201d March 2010;<\/p>\n \u2022\u201cOffice of Planning: `Aina Le`a Has Not Met, Cannot Meet LUC Deadlines,\u201d June 2010;<\/p>\n \u2022\u201c`Aina Le`a Faces Compliance Hearing,\u201d August 2010;<\/p>\n \u2022\u201c`Aina Le`a Seeks Two-Year Extension of Deadline for Affordable Housing,\u201d October 2010;<\/p>\n \u2022\u201cMore Promises from Developer as `Aina Le`a Fails to Meet Deadline,\u201d December 2010.<\/p>\n O`oma Villages:<\/b> Here is a list of articles Environment Hawai`i<\/i> has published on the O`oma Beachside Villages project:<\/p>\n \u2022\u201cResidential \u2018Villages\u2019 Are Proposed for Area Near Kona Airport, NELHA,\u201d March 2009;<\/p>\n \u2022\u201cNoise from Kona Airport Casts Pall over Proposed Development at O`oma;\u201d and \u201cWater, County Plan Conformance, Access Also at Issue in O`oma Proposal,\u201d April 2010;<\/p>\n \u2022\u201dAnother Packed Hearing on O\u2019oma Petition,\u201d June 2010;<\/p>\n \u2022\u201cWith Conditions, O\u2019oma Development Wins Support of State Planning Office,\u201d August 2010;<\/p>\n \u2022\u201cClosing Arguments in O\u2019oma Petition,\u201d November 2010;<\/p>\n \u2022\u201cO`oma Petition Fails,\u201d December 2010.<\/p>\n Kamakana Villages:<\/b> The list of articles on Kamakana Villages follows:<\/p>\n \u2022\u201cKona Development on Fast Track Runs into Major Roadblock from Queen\u2019s Trust,\u201d November 2010;<\/p>\n \u2022\u201cLUC Gives Thumbs-Up for \u2018Affordable\u2019 Kona Project,\u201d December 2010;<\/p>\n \u2022\u201cSenators Grill HHFDC on Kona Project,\u201d in the EH-Xtra column on our home page.<\/p>\n All articles are available at https:\/\/environment-hawaii.org<\/b><\/a> Click on the \u201cArchives\u201d link to be taken to the issue in which an article appears. Content in the Archives is restricted to paid subscribers. Content in the EH-Xtra column is available free of charge.<\/p>\n Volume 21, Number 8 — February 2011<\/p>\n","protected":false},"excerpt":{"rendered":" After all was said and done, the would-be developers of a thousand acres in Waikoloa simply had no more credibility with the Land Use Commission. On January 20, members of the commission voted, 5-3, to return the land to the … 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":[65],"tags":[],"class_list":["post-738","post","type-post","status-publish","format-standard","hentry","category-february-2011"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/738","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=738"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/738\/revisions"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=738"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=738"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=738"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
\n the county\u2019s December progress report to the LUC, DWAL has completed most work on 16 condominium units and three more eight-unit buildings have been framed, out of the 52 buildings for which permits have been pulled.\u00a0<\/p>\n