{"id":8833,"date":"2016-04-01T19:28:56","date_gmt":"2016-04-01T19:28:56","guid":{"rendered":"http:\/\/www.environment-hawaii.org\/?p=8833"},"modified":"2019-02-12T23:59:37","modified_gmt":"2019-02-12T23:59:37","slug":"hawaii-planning-director-questions-whether-aina-lea-complied-with-zoning-conditions","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=8833","title":{"rendered":"Hawai`i Planning Director Questions Whether\u00a0`Aina Le`a Complied with Zoning Conditions"},"content":{"rendered":"<figure id=\"attachment_8842\" class=\"thumbnail wp-caption aligncenter\" style=\"width: 487px\"><a href=\"https:\/\/environment-hawaii.org\/wp-content\/uploads\/2016\/03\/Aina-Lea-whales-point.jpg\"><img loading=\"lazy\" decoding=\"async\" class=\"wp-image-8842\" src=\"https:\/\/environment-hawaii.org\/wp-content\/uploads\/2016\/03\/Aina-Lea-whales-point.jpg\" alt=\"Aina Lea whale's point\" width=\"487\" height=\"428\" srcset=\"https:\/\/environment-hawaii.org\/wp-content\/uploads\/2016\/03\/Aina-Lea-whales-point.jpg 627w, https:\/\/environment-hawaii.org\/wp-content\/uploads\/2016\/03\/Aina-Lea-whales-point-300x264.jpg 300w\" sizes=\"auto, (max-width: 487px) 100vw, 487px\" \/><\/a><figcaption class=\"caption wp-caption-text\">A depiction of the luxury townhouses planned for the Whale\u2019s Point development part of the Villages of \u2018Aina Le\u2018a.<\/figcaption><\/figure>\n<p>Is the `Aina Le`a project about to start up again?<\/p>\n<p>That development, on about 3,000 acres of land mauka of the Mauna Lani resort in the Kohala district of the Big Island, has been on the books for nearly three decades. However, work to build the infrastructure, highway improvements, and homes (including 385 units of \u201caffordable housing\u201d) has stalled out. A long-simmering dispute over compliance with terms established by the state Land Use Commission when it approved a petition to shift about a third of the land into the Urban land use district in 1989, a court challenge to an environmental impact statement, changes in property ownership \u2013 all have contributed to the delays.<\/p>\n<p>Now, though, `Aina Le`a is showing new signs of life.<\/p>\n<ul>\n<li>Last December, the company submitted an annual report to the Hawai`i County Planning Department, the first such report since 2005. Prompting the submission was a letter last October from the planning director, Duane Kanuha, who reminded the company that filing the annual reports was a condition of the rezoning ordinance.<\/li>\n<li>The planning consultant retained by `Aina Le`a, Inc., has drafted a preparation notice to be published in the state\u2019s <i>Environmental Notice,<\/i> in advance of publishing a supplemental environmental impact statement for the project.<\/li>\n<li>Last month, the company filed with the Securities and Exchange Commission a so-called \u201cfree writing prospectus\u201d \u2013 essentially, a colorful, 31-page booklet distributed to potential investors that lacks much of the detailed information that the SEC requires to be submitted in a formal prospectus. (The latter was filed last November.)<\/li>\n<\/ul>\n<p>Still, it may be a while before `Aina Le`a gets the all-clear to resume work on the project.<\/p>\n<p><b>Compliance with Zoning Conditions:<\/b> A dispute has arisen between `Aina Le`a and the Planning Department over fulfillment of conditions attached to the county rezoning ordinance, originally passed in 1993 and amended in 1996.<\/p>\n<p>In the annual report filed by `Aina Le`a attorney Alan Okamoto last December, Okamoto claimed that the company had complied with Condition C, which required subdivision plans \u201cfor any portion of the property\u201d to be submitted, and approval secured, within five years of zoning approval. With several time extensions having been granted for compliance with this provision, the new deadline for this was September 21, 2009.<\/p>\n<p>Okamoto pointed to one subdivision approval as satisfying this condition. That was a \u201cbulk lot subdivision,\u201d approved in June 2009, that reshaped the five discrete tax-unit parcels in the Urban area into five new parcels of different shapes and size, with one of the emerging parcels being that on which `Aina Le`a intends to build 482 town-house units (including the 385 units of required affordable housing) and another, adjacent to the town-house development, where \u2018Aina Le\u2018a has said it plans to develop 70 single-family lots.<\/p>\n<p>Yet when the application was made, `Aina Le`a\u2019s planner at the time, Sidney Fuke, told the Planning Department that it was not at all a residential subdivision. At the time, Fuke was seeking the department\u2019s permission to subdivide before traffic improvements with Queen Ka`ahumanu Highway had been completed. Another condition (Condition O) of the rezoning ordinance is that intersection improvements needed to be made, including a channelized intersection, to the satisfaction of the state Department of Transportation, before any residential subdivision could be given final approval.<\/p>\n<p>With no improvements having been carried out at that time (or since, for that matter), Fuke argued that the subdivision he was applying for was not a residential one. \u201cWhile the aforementioned condition requires the channelized intersection be completed \u2018prior to final subdivision approval,\u2019\u201d Fuke wrote, \u201cthe proposed affordable multiple-family residential project is not a residential subdivision.\u201d<\/p>\n<p>Referring to Fuke\u2019s own statement, Kanuha disputed Okamoto\u2019s claim of compliance with the \u201cfinal residential subdivision\u201d approval. Neither the 2009 subdivision nor another one Okamoto referred to (another bulk lot subdivision carried out in 2012, beyond the compliance deadline) is a \u201cresidential subdivision,\u201d he wrote, \u201csince they did not create individual residential lots.\u201d<\/p>\n<p>Kanuha also pointed out several additional compliance issues, including that for a park plan, historic site protection, public school site, and wastewater treatment.<\/p>\n<p>None of these is as critical to `Aina Le`a\u2019s plans as Condition C, however. Noting that the Planning Department had already given `Aina Le`a an administrative time extension (which expired more than six years ago), Kanuha informed Okamoto that his client \u201cwill need to request a time extension for this condition from the County Council before the Planning Department can issue future approvals based on the zoning ordinance.\u201d<\/p>\n<p>The ordinance also gives Kanuha instructions to rezone the property \u201cshould any of the conditions not be met or substantially complied with in a timely fashion.\u201d In that event, the planning director \u201cshall initiate rezoning of the area to its original or more appropriate designation.\u201d<\/p>\n<p>In early March, Okamoto replied to Kanuha. First, he restated his contention that the 2009 consolidation-and-subdivision fulfilled the condition. Second he argued that there is no definition of \u201cresidential subdivision\u201d in the zoning ordinance.<\/p>\n<p>Okamoto also referred to past correspondence with former planning director Virginia Goldstein, in which, he claimed, \u201cthere is a consistent thread of understanding \u2013 none of which was refuted by your office \u2013 that creation of the affordable multiple-family residential lot would have fulfilled Condition C. \u2026 `Aina Le`a, Inc., relied on that in obtaining more than $20,000,000.00 to start the project. Accordingly, we respectfully request your reconsideration of your preliminary conclusion that Condition C has not been complied with.\u201d<\/p>\n<p>As <i>Environment Hawai`i <\/i>went to press, the Planning Department was preparing a response to Okamoto.<\/p>\n<p><b>A Free Writing Prospectus:<\/b> To read through the latest \u201cfree writing\u201d prospectus published by `Aina Le`a, one would never know that the company was facing challenges to its ability to develop the land it owns.<\/p>\n<p>There are factual errors. Neither the Hilo nor the Kona airport has international flights at the moment, although both have \u201cinternational\u201d in their names. A list of \u201cmajor luxury resorts\u201d within five miles of `Aina Le`a includes the Four Seasons, which is around 30 miles as the crow flies. The company does not own all 1,099 acres in the Urban part of the project; Bridge retains ownership of the 27 acres where the commercial and medical centers are proposed.<\/p>\n<p>Then there are the \u201cforward-looking statements.\u201d In agate type, these are further described as statements that \u201crelate to a variety of matters, including but not limited to: the operations of the business of `Aina Le`a; the Company\u2019s plans, objectives, expectations and intentions; and other statements that are not historical fact. \u2026 It is uncertain whether any of the events anticipated by the forward-looking statements will transpire or occur.\u201d<\/p>\n<p>Among these must be included the statement that \u201c70 luxury view builder\u2019s lots (parcel U) are in construction available by September 2016.\u201d As of mid-March, the county Planning Department had not received any subdivision request for a 70-lot development. Although no \u201cparcel U\u201d is described in the prospectus, there is a 24-acre lot called out as \u201cExisting Residential \u2013 U\u201d in a master plan map included in the draft EIS preparation notice.<\/p>\n<p>The prospectus also describes a 48-unit \u201cluxury townhouse\u201d development called Whale\u2019s Point. \u201cPoised on an elevated plateau that meets with a`a cliffs sweeping towards the Pacific Ocean, the view from the Whales [sic] Point is nothing less than picture perfect,\u201d the prospectus states. \u201cContemporary living design seamlessly integrates with cultural richness and a tradition of a total destination experience that is serene, sensual, and surprisingly different.\u201d<\/p>\n<p>Whale\u2019s Point, it goes on to say, is \u201cpart of an EB5 funded project within the development.\u201d This refers to a federal program intended to reward foreign nationals who invest in depressed areas with an expedited path to permanent residency and citizenship. Typical EB-5 projects require between $500,000 and $1 million to be invested in businesses or commercial ventures that will support at least 10 new jobs in a given area. Luxury housing is not usually an approved investment for prospective EB-5 investors. However, with most EB-5 projects being managed by third parties who operate so-called regional centers, finding out which projects have qualified EB-5 investors in a given area is difficult. Hawai`i has 13 such federally approved regional centers, including the Department of Business, Economic Development, and Tourism.<\/p>\n<p>Phase I of the project is said to include the \u201clocal workforce\u201d housing, the 70-lot \u201cHo`olei\u201d subdivision, and the Whale\u2019s Point development, totaling 502 units. This phase \u201cis currently and active ongoing construction\u201d \u2013 which comes as news to the Planning Department.<\/p>\n<p>The company, the prospectus states, is seeking \u201cstrategic investors to join us in a joint venture for Phase II \u2026 approved for 1,731 units of luxury villas, single family homes, and golf lodges.\u201d Phase III is development of \u201cbusiness center, including shopping malls and medical centers, etc.\u201d on the 27-acre commercial site, which `Aina Le`a still does not own.<\/p>\n<p><b>The Supplemental EIS: <\/b>A court challenge to the original EIS, brought by the Mauna Lani Resort Association, claimed that by looking only at the development planned for the 1,092 acres of land in the Urban district and not considering development proposed for the 2,000 acres in Ag land surrounding it on three sides, the developer was improperly attempting to segment the project. The judge hearing the case agreed. Now, to move forward with developing the land, a supplemental EIS needs to be prepared. (`Aina Le`a had development rights to the Urban land at the time, and it has acquired almost all of that acreage. Former owner Bridge `Aina Le`a continues to own the surrounding Agricultural land.)<\/p>\n<p>Even assuming that the new EIS is swiftly approved, given the provisions in the environmental review process set forth in Chapter 343, <i>Hawai`i Revised Statutes, <\/i>there is little chance work could resume on the site before the beginning of next year. First, the preparation notice needs to be announced in the <i>Environmental Notice <\/i>published by the state Office of Environmental Quality Control. The public may submit comments on this for 30 days. After a draft EIS is prepared and notice published, the public has 45 days in which to submit comments. When the final document is available, anyone who believes it is inadequate has 60 days in which to challenge it in court. The public comment and challenge periods alone take up nearly half a year. Preparing the draft and final documents, which need to address comments received from agencies and the public, takes at least several additional weeks.<\/p>\n<p>James Leonard, the consultant preparing the environmental documentation for `Aina Le`a, submitted a draft supplemental EIS preparation notice to the county Planning Department last December, which, as of mid-March, was still undergoing internal review at the department.<\/p>\n<p>As described in that draft, the project now consists of 2,412 residential units or house lots in the Urban area (including 385 so-called \u201caffordable housing\u201d units going up in the southeastern corner), an 18-hole golf course, a 40-unit hotel, and a 27-acre commercial area.<\/p>\n<p>Leonard\u2019s description of development proposed for the Agricultural area includes two 18-hole golf courses and 863 residential lots. While that is scaled back somewhat from the total of six golf courses that were part of the development when it was proposed for LUC approval, in March, the Hawai`i County Leeward Planning Commission revoked the use permit it had granted for all six golf courses in the early 1990s. In recommending this action, planning director Kanuha cited the failure of the developer to comply with the permit\u2019s time limits as well as the a state law that has banned new construction of golf courses in the state Agricultural district. Golf courses are still a permitted use within the Urban district, however, so `Aina Le`a is able to apply for the golf course it now wants to include as part of the Urban land development.<\/p>\n<p><b><i>&#8212; Patricia Tummons<\/i><\/b><\/p>\n<p>&nbsp;<\/p>\n<p>Volume 26, Number 10 April 2016<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Is the `Aina Le`a project about to start up again? That development, on about 3,000 acres of land mauka of the Mauna Lani resort in the Kohala district of the Big Island, has been on the books for nearly three &hellip; <a href=\"https:\/\/environment-hawaii.org\/?p=8833\">Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":8842,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[399],"tags":[450,7],"class_list":["post-8833","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-april-2016","tag-aina-lea","tag-patricia-tummons"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/8833","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=8833"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/8833\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/8842"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=8833"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=8833"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=8833"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}