{"id":974,"date":"2014-08-29T00:29:07","date_gmt":"2014-08-29T00:29:07","guid":{"rendered":"http:\/\/localhost:8888\/EH\/?p=974"},"modified":"2014-08-29T00:29:07","modified_gmt":"2014-08-29T00:29:07","slug":"more-promises-from-developer-as-aina-lea-fails-to-meet-deadline","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=974","title":{"rendered":"More Promises from Developer as `Aina Le`a Fails to Meet Deadline"},"content":{"rendered":"<div class=\"text12\" style=\"color: #000000;\">\n<p>Here\u2019s what\u2019s happening \u2013 or not \u2013 with the Villages of `Aina Le`a, a development on a thousand-acre tract of land put into the Urban district more than 20 years ago:<\/p>\n<\/div>\n<div class=\"text11\" style=\"color: #000000;\">\n<ul>\n<ul>\n<li>Construction of affordable townhouses has stalled out after completion of 16 units last spring; the primary contractor is owed more than $4 million for work already done;<\/li>\n<\/ul>\n<\/ul>\n<ul>\n<ul>\n<li>Finding a source of construction funds is, by the developer\u2019s own admission, an uphill climb;<\/li>\n<\/ul>\n<\/ul>\n<ul>\n<ul>\n<li>The November 17 deadline for completion of 385 units intended for sale to low- to middle-income families passed, with the developer acknowledging that they probably won\u2019t be ready for occupancy until late next year;<\/li>\n<\/ul>\n<\/ul>\n<ul>\n<li>The Land Use Commission is continuing to hear arguments on whether the land should revert to its prior Agriculture classification.<\/li>\n<\/ul>\n<p>On November 18, the day after the deadline for completion of the affordable units passed, the LUC held a hearing on the status of its order to show cause why the land should not be reverted. That order, issued more than two years ago, was rescinded when the current developer, DW `Aina Le`a Development, LLC, took over the project from Bridge Capital and committed to moving heaven and earth to get the affordable housing done by the 2010 deadline. That deadline was set in 2005, at the request of Bridge, in return for reducing the affordable portion of the project from 60 percent of all units built to 20 percent.<\/p>\n<p>As the meeting began, the King Kamehameha Hotel ballroom in Kona was packed with partisans of the developer: real estate agents, lumber purveyors (including one who recently withdrew a petition for a mechanic\u2019s lien against the project), a mortgage banker, a consultant, an electrical contractor, a civil engineer, an architect. All gave the project their hearty endorsement in testimony to the commission.<\/p>\n<p>Only two discouraging voices were heard: That of George Robertson, of the Puako Community Association, and Randy Vitousek, representing the Mauna Lani Resort Association. Robertson said his constituents were \u201cvery upset about the design and construction of the affordable homes that were once promised to be interspersed throughout the development. Right now, they\u2019re clustered\u2026 [into] an affordable ghetto\u2026.<\/p>\n<p>\u201cIt seems to me like we, including the folks in this audience, have been enabling a drug addict that constantly comes back for more, and we keep giving him more and more extensions. It\u2019s concerning for us that the Land Use Commission, its integrity and credibility is at stake when you keep doing this.\u201d<\/p>\n<p>Vitousek noted that while his client had no position on the specific matter before the commission, it was concerned that if the LUC did approve any time extension, it include a condition that intersection improvements on Queen Ka`ahumanu Highway be completed before any occupancy is allowed.<\/p>\n<p>He went on to note that the developer\u2019s final environmental impact statement, released earlier in the month, had given inadequate attention to the likely impact that future residents of the project will have on the resort. \u201cTheir promotional material,\u201d he said, \u201ccontains photographs of the beach at Mauna Lani, the pool, and the golf course. We ask the commissioners to consider requiring further offsite mitigation with respect to the recreational and cultural resources in the area.\u201d<\/p>\n<p><b><i>Land Tenure<\/i><\/b><i><\/i><\/p>\n<p>The first witness called by DWAL after the public testimony had concluded was James Leonard, the consultant who prepared the EIS. At several points, the EIS mentions that the developer owns the land that it will be developing. Comments received on the draft EIS note, however, that the only discrete parcel that DWAL has a registered interest in is the 61-acre lot where the affordable units are proposed.<\/p>\n<p>Deputy attorney general Bryan Yee, representing the state Office of Planning, questioned Leonard about DWAL\u2019s interest in the property. \u201cIs it your understanding that Bridge owns the majority of the petition area?\u201d he asked. Despite the assertions in the EIS, Leonard demurred. He wasn\u2019t \u201cthat versed in terms of ownership,\u201d he said. Appended to the EIS, however, was the sale agreement between Bridge and DWAL; while Bridge gives DWAL development rights to the Urban land, the agreement calls for phased-in purchase. To date, title to only the 61-plus acres for the affordable units has been transferred from Bridge to DWAL.<\/p>\n<p>Robert Wessels was the second (and last) witness called by the developer\u2019s attorney Alan Okamoto. Although Wessels was not asked directly about ownership of the land outside of the affordable housing parcel, he did acknowledge that under an unusual financing scheme DWAL had entered into with a Southeast Asia company called Capital Asia, title to the affordable housing parcel is now held by more than 600 tenants in common, with more being added each week.<\/p>\n<p>As Wessels explained, each investor purchases an undivided interest in the land. Once the condominium property regime is approved, the individual investor\u2019s interest becomes attached to a specific unit (or units, in the case of investors who have bought multiple shares). When that unit is sold, or 30 months after the investor purchased a stake (whichever occurs first), the investor receives his or her final payout. According to Wessels, an initial payout is made as soon as the investor buys a share: $5,000 \u201clease rent\u201d for each $96,000 investment. When the investor cashes out, he or she will receive interest amounting to 12 percent a year, less the $5,000 payment. In other words, for every townhouse purchased, $120,000 off the bat goes to pay off the investor.<\/p>\n<p>Under questioning from LUC member Normand Lezy, Wessels said that the revenue flow from Southeast Asia was a pretty steady stream of between $200,000 and $300,000 a week. More than half of that, Wessels said, was going to pay off the $4 million in outstanding billings from Goodfellow Bros., the primary construction contractor.<\/p>\n<p><b><i>Timelines<\/i><\/b><i><\/i><\/p>\n<p>Another focus of the hearing was on the prospect for completion of the affordable units. In his testimony, Wessels said he was hopeful the units could be put up for sale, with certificates of occupancy in hand, by March 31, 2011. The package sewage treatment plant, Wessels said, \u201cwas supposed to have been shipped from Austin, Texas, two to four days ago. It\u2019s somewhere en route\u2026 It was supposed to arrive by the 20th, but I don\u2019t believe it\u2019ll be here by then. But it\u2019ll be here in the next couple of weeks.\u201d Given that it\u2019s a turnkey operation, he suggested, attaching it to sewer lines and getting it operational would take little additional time. \u201cAccording to the manufacturer,\u201d he said, \u201cinstallation and phase-in of operations, other than permitting, takes 30 days or less\u2026. We have planned on phasing it in so we can actually turn it on in the first part of the year.\u201d<\/p>\n<p>Water tanks for potable water are likewise en route, \u201cshipped on the 7th of November from a port in Australia,\u201d Wessels said. The 250,000-gallon tanks \u201cwill be available by the end of December,\u201d although some trenching would still need to be done for the water pipes.<\/p>\n<p>Materials needed to finish the interior of buildings that are now up (three eight-unit buildings, in addition to the two nominally completed in March) are \u201cprimarily there\u2026. Of the 40 units, all materials are effectively on site\u2026 almost all rough-in plumbing is on site,\u201d although, he added, \u201cI don\u2019t believe there\u2019s electrical for those.\u201d<\/p>\n<p>Foundation slabs for three more of the affordable townhouse buildings were nearly ready, he said: \u201cWire just has to be rolled and concrete poured.\u201d<\/p>\n<p>Landscaping? It \u201cis designed\u2026 Some of the plants for models [model units] are on order.\u201d<\/p>\n<p>Getting HELCO to bring electric service to the site was a bit stickier, Wessels said. In the meantime, he had ordered solar panels to be installed on the carport roofs of 16 units, along with battery packs. \u201cBecause of tax credits, they\u2019ll be in our facility by the end of December\u2026 We anticipate having the power from the solar functioning in January or by the first week of February\u2026 Our intent is to be able to roll through all 432 units with solar carports,\u201d he added. The photovoltaic systems won\u2019t eliminate utility bills for the homeowners, however. Although Wessels claims that each carport roof system will generate about 25 percent more energy than the household consumes, it will be his company, and not the homeowners, who enter into a power purchase agreement with HELCO. Eventually, he said, \u201cwe want to do it like a co-op, where the homeowners will get the proceeds,\u201d but the details still have to be worked out with the Public Utilities Commission.<\/p>\n<p>As to the intersection improvements that should be completed before occupancy, Wessels noted that designs had been submitted to the state Department of Transportation, but no approval had been given yet.<\/p>\n<p>Questioned by Yee, Wessels backed off. \u201cIf I said [the infrastructure] was almost done, the engineering is done, some of the trenching, some of the blasting for trenching, sewer piping, and manholes are on site,\u201d he said. \u201cEasements and surveying for easements \u2026 are there. The legal descriptions for the roadways are done. A lot of work has been done, but I don\u2019t want to misrepresent it\u2019s been completed.\u201d<\/p>\n<p>Still, Wessels estimated that Phase I of the project would be done by the end of March 2011, if one of the construction loans he had applied for came through. But under further questioning, Wessels clarified that he didn\u2019t mean the entire Phase I (all the townhouses), but merely the first increment \u2013 five eight-unit buildings \u2013 of the work. As to a date for completion of the entire first phase, that, Wessels said, \u201cwill take us through probably June.\u201d June of 2011? Yee asked. \u201c2011,\u201d Wessels answered. If the financing doesn\u2019t come through, then it would probably \u201ctake us until October 2011,\u201d he said.<\/p>\n<p>Commissioner Charles Jencks, a developer himself, was obviously skeptical of Wessels\u2019 optimistic time frames. He went through the outstanding items needed to be done before occupancy, each time eliciting agreement from Wessels that the time required might be three or four times as long as he had originally thought. \u201cGiven all the questions I just asked you,\u201d Jencks said to Wessels, \u201cand, truthfully, what is the lack of submittals [for permits] and the time that takes \u2013 they\u2019re all unknowns. They\u2019re all discretionary\u2026 We\u2019re talking about a significantly longer period of time than the end of the first quarter, wouldn\u2019t you agree?\u201d<\/p>\n<p>\u201cWhen you put it that way, yes,\u201d Wessels responded.<\/p>\n<p>\u201cSounds to me you\u2019re looking at a year,\u201d Jencks said.<\/p>\n<p>\u201cYou may be correct,\u201d Wessels finally acknowledged.<\/p>\n<p><b><i>Reversion<\/i><\/b><i><\/i><\/p>\n<p>In his closing argument, Yee raised the argument that in light of the failure of DWAL to meet the November 17 deadline, and given its earlier failure (in the eyes of the LUC) to meet the March 31 deadline for completion of 16 affordable units, by rights, the 1,062 acres urbanized in 1989 had already been reverted to the Agriculture district.<\/p>\n<p>\u201cLet\u2019s be clear what we mean by the order to show cause.\u201d He said. \u201cThe Land Use Commission issued the order to show cause, and we had a hearing, and the commission reverted the property. It then went back and decided to say, \u2018if you complete these 16 units, then we\u2019ll lift the reversion.\u2019 And then it decided, no, those 16 units were not completed.<\/p>\n<p>\u201cBecause those units weren\u2019t completed, there\u2019s an order that has reverted the petition area. So there\u2019s no further decision to make per se\u2026 The land has been reverted.\u201d<\/p>\n<p>Complaints made by Bruce Voss, the attorney for Bridge Capital, about procedural irregularities \u201care made too late,\u201d Yee said.<\/p>\n<p>Notwithstanding Yee\u2019s remarks, the LUC did not make any decision on the order to show cause. A hearing on DWAL\u2019s motion to amend three conditions (relating to deadlines for construction, a school site, and a sewage treatment plant site) has yet to be scheduled; if the commission should decide that the land is properly reverted to the Ag district, then there will be no need to hear the motion to amend.<br \/>\nFinally, on November 12, six days before the November meeting, Voss, attorney for Bridge, filed a lengthy motion on the order to show cause, arguing that the LUC has no legal right to take any further action on this matter as a result of numerous procedural irregularities and due process violations. DW `Aina Le`a attorney Okamoto joined in Voss\u2019s motion three days later. The LUC will schedule a briefing on that motion in weeks to come, followed by oral arguments.<\/p>\n<div align=\"center\"><b>For Further Reading<\/b><\/div>\n<p><i>Environment Hawai`i<\/i>\u00a0has published the following articles on the Villages of `Aina Le`a. All are available in the Archives section of our website,\u00a0<a style=\"font-weight: bold; color: #0000b0;\" href=\"https:\/\/environment-hawaii.org\/\" target=\"_blank\">www.environment-hawaii.org<\/a><\/p>\n<ul>\n<ul>\n<li>\u201c2 Decades and Counting: Golf \u2018Villages\u2019 at Puako are Still a Work in Progress,\u201d March 2008;<\/li>\n<\/ul>\n<\/ul>\n<ul>\n<ul>\n<li>\u201cHawai`i County Board Deals Setback to Stalled Bridge `Aina Le`a Project,\u201d December 2008;<\/li>\n<\/ul>\n<\/ul>\n<ul>\n<ul>\n<li>\u201cBridge `Aina Le`a Gets Drubbing from the Land Use Commission,\u201d March 2009;<\/li>\n<\/ul>\n<\/ul>\n<ul>\n<ul>\n<li>\u201cAfter Years of Delay, LUC Revokes Entitlements for Bridge `Aina Le`a,\u201d June 2009;<\/li>\n<\/ul>\n<\/ul>\n<ul>\n<ul>\n<li>\u201cCommission Stays Decisions to Revert Puako Land,\u201d July 2009;<\/li>\n<\/ul>\n<\/ul>\n<ul>\n<ul>\n<li>\u201cUnder New Management, `Aina Le`a is Given Yet Another Chance by LUC,\u201d October 2009;<\/li>\n<\/ul>\n<\/ul>\n<ul>\n<ul>\n<li>\u201cSome Progress Reported at Kohala Site that Won Reprieve from LUC,\u201d March 2010;<\/li>\n<\/ul>\n<\/ul>\n<ul>\n<ul>\n<li>\u201cOffice of Planning: `Aina Le`a Has Not Met, Cannot Meet LUC Deadlines,\u201d June 2010<\/li>\n<\/ul>\n<\/ul>\n<ul>\n<ul>\n<li>\u201c`Aina Le`a Faces Compliance Hearing,\u201d August 2010<\/li>\n<\/ul>\n<\/ul>\n<ul>\n<ul>\n<li>\u201c`Aina Le`a Seeks Two-Year Extension of Deadline for Affordable Housing,\u201d October 2010.<\/li>\n<\/ul>\n<\/ul>\n<div align=\"center\"><b>* * *<br \/>\nLUC Gives Thumbs-Up To \u2018Affordable\u2019 Kona Project<\/b><\/div>\n<p>&nbsp;<\/p>\n<p>\u201cTwo weeks ago,\u201d said Bryan Yee, the attorney representing the state Office of Planning, \u201cthe Queen Lili`uokalani Trust said in its opening argument that it felt as if they were standing in front of a steaming locomotive,\u201d referring to the expedited, 45-day time frame within which the state Land Use Commission had to weigh the issues and come to a decision on Kamakana Villages, a 272-acre project near Kailua-Kona. The expedited hearing was required under state law giving favorable treatment to residential developments where \u201caffordable\u201d units account for more than 50 percent of the total.<\/p>\n<p>\u201cI know how that feels,\u201d Yee continued. \u201cWe\u2019ve stood in front of steaming locomotives a couple of times.\u201d<\/p>\n<p>But this was no steaming locomotive, he continued. When the OP determined the original archeaeological inventory was insufficient, it put a stop to the project while a more thorough inventory was completed.<\/p>\n<p>Then the OP director, Abbey Seth Mayer, took the position that the project was going to have to mitigate its impacts and comply with all requirements. \u201cWe told the petitioners they had to stop, and they did,\u201d Yee said.<\/p>\n<p>On top of everything else, the developer, a subsidiary of the large national development company Forest City Enterprises, had to go through a lengthy negotiation process with the Hawai`i Housing Finance and Development Corporation \u2013 and \u201csteaming locomotive is never a term one uses with respect to dealing with state agencies.\u201d<\/p>\n<p>If this project were to make it through to approval, Yee continued, \u201cit\u2019s not because it\u2019s a steaming locomotive, but the little engine that could.\u201d<\/p>\n<p>Ben Kudo, on the other hand, the attorney for Queen Lili`uokalani Trust, told the commission in his closing argument that, \u201chaving lived these last three or four weeks, I feel like I\u2019ve been dragged under a train.\u201d Kudo, who usually represents developers before the LUC, said it was an \u201cinteresting experience\u201d to represent an intervenor.<\/p>\n<p>\u201cUltimately,\u201d he said, \u201cthis commission will approve this petition. I know that. The [Hawai`i] County Council may approve it as well. We realize that\u2019s a reality.\u201d<\/p>\n<p>Still, he said, he believed some good had come out of the involvement of the trust in the process. \u201cWhen we appeared before this commission four weeks ago, there were 91 exemptions being sought at the county level. It\u2019s now been reduced to 54.\u201d Also, he added, \u201cI think we\u2019ve sensitized this commission to some of our concerns.\u201d The Queen Lili`uokalani Trust had sold the land in question to the state in 1992 and still owns land surrounding the parcel.<\/p>\n<p>The decision facing the commission \u201cpresents an interesting decision,\u201d he said. \u201cIt pits two types of good uses against each other. It pits affordable housing, which we support, and which is a legitimate state interest, against what we represent, which is social welfare services. If social welfare services have to give way because of affordable housing, the choice is homes over children. I have a problem with that.\u201d The mission of the trust is to serve orphans and indigent children; lease rents from the trust\u2019s developed lands make up the bulk of its operating revenues.<\/p>\n<p>There was, in the end, little dissent among the commission, which voted seven to two to approve the project at its meeting on November 4, just one day before the 45-day window for LUC action was to close. Had the commission not reached a decision by that time, the project would have been allowed to proceed as anticipated in the petition to redistrict the land, shifting it from Agriculture to Urban.<\/p>\n<p><b><i>A Moving Target<\/i><\/b><i><\/i><\/p>\n<p>Despite the approval, it was clear that the commissioners had misgivings about some aspects of the project.<\/p>\n<p>First of all, there were discrepancies between the project as described in the development agreement signed in 2009 by Forest City and HHFDC and the project as described in the LUC petition. The number of dwellings and the breakdown of the type of units to be allocated to each category of affordability (up to 80 percent of Hawai`i County\u2019s adjusted median income, 100, 120, and 140 percent) were anything but clear.<\/p>\n<p>The commissioners also seemed concerned about the density of residential units, picking up on testimony offered by Mark Boud, a marketing consultant for Queen Lili`uokalani Trust. \u201cThe density is too high, the square footage too low,\u201d said Boud. What\u2019s more, the target prices for the affordable units were, in today\u2019s depressed real estate market, no less than those of other houses for sale. \u201cRight now, there is so much selection, at lower prices than contained in the Hallstrom report, that this would be a hard sell,\u201d he said. The Hallstrom Group prepared the market analysis for Forest City, estimating that the sales price for the multifamily units would range between $300,000 and $400,000.<\/p>\n<p>\u201cWho would want to buy an affordable condo at 37 units per acre when you can get a single family home for the same price, or lower, in the same area?\u201d Boud asked.<\/p>\n<p>Thomas Contrades, commissioner from Kauai, explained his objections to the project before the final vote.<\/p>\n<p>\u201cI know I\u2019m going to be all alone on this, but I still have to say it anyway. I\u2019m going to vote no\u2026. I\u2019ve spent most of my adult life representing workers. The average wage of a worker in the state today is $15 an hour. The average worker earns $30,000 a year. If both mom and dad work, that\u2019s $60,000. You\u2019re going to have two cars, education\u2026 Nobody\u2019s going to be able to afford to live in this place\u2026. There\u2019s no such thing as affordable housing if we do it the way it\u2019s being proposed\u2026<\/p>\n<p>\u201cPeople don\u2019t want to live in small little houses, especially if you\u2019re from Hawai`i\u2026 The type of development in this application is so intense, it would not be a good place to live\u2026.<\/p>\n<p>\u201cThis project has just too many questions that need to be answered: How many 80, 100, 120 percent affordable \u2013 how many are going to be produced? What happens if they can\u2019t hook up to the wastewater treatment plant after the first two, three phases are done? We all know [the county] is going to be at capacity very quickly. What happens if the units don\u2019t sell? \u2026 What happens if Forest City exercises its rights to walk away? \u2026 Who will take over? How will HHFDC find anybody else to take over?&#8230;<\/p>\n<p>\u201cI look on this as a terrible deal\u2026 We don\u2019t know how it\u2019s costed out, we don\u2019t know what they\u2019re going to charge, but \u2018trust us.\u2019 I\u2019ve trusted many people over the years\u2026 I can\u2019t do that any longer.\u201d<\/p>\n<p>Nicholas Teves was the only other commissioner joining Contrades in opposing the project.<\/p>\n<p><b><i>Approval by the County<\/i><\/b><i><\/i><\/p>\n<p>On November 17, the Hawai`i County Council approved a resolution granting the Forest City project 54 exemptions from the County Code. The exemptions, the developer said, were needed to make the project financially viable and to make it conform to LEED-ND (neighborhood development) standards (such as narrower than standard roads and streets, tighter turning radii, smaller house lots, and the like). The only council member to object was Brenda Ford.<\/p>\n<div align=\"center\"><b>* * *<br \/>\nO`oma Petition Fails<\/b><\/div>\n<p>In the end, it was all about the noise.<\/p>\n<p>When the state Land Use Commission voted last month on the petition of O`oma Beachside Villages to shift roughly 181 acres of coastal land at O`oma, just south of the Kona airport, into the Urban District, members of the commission were torn.<\/p>\n<p>\u201cI find this a very difficult decision,\u201d said Ronald Heller, commissioner from O`ahu. \u201cThere are a number of things I do like about the project, including the amount of conservation space and open land\u2026 I respect the commitment to preserving beach access and appreciate that [the developer] has gone to great lengths to ensure beach access.\u201d<\/p>\n<p>\u201cHowever,\u201d he continued, \u201cfor me, the factor that tips the balance is airport proximity. It is inevitable that if a number of homes are built that close to the airport, it will lead to problems down the road\u2026as the airport expands and as that many people are living in close proximity.\u201d<\/p>\n<p>He stated he liked the project, which proposed about a thousand housing units of various types as well as parks, shops, and a school site. But, he continued, it was \u201cin the wrong place with respect to the airport.\u201d He would therefore be voting a \u201creluctant no,\u201d he said.<\/p>\n<p>At-large member Nicholas Teves Jr. was bothered not only by the airport noise, but also by the outpouring of public testimony against the project, which persisted throughout the many commission hearings over the last several months.<\/p>\n<p>\u201cThe airport noise,\u201d he said, \u201cwould be unbearable and would only cost the state in the future countless time and money.\u201d In addition, though, there was the fact that \u201cthe people of Kona and the island spoke against this project. Most of all, this is conservation land. It was put there for a purpose. The whole petition area should be denied any development.\u201d<\/p>\n<p>Lisa Judge, commissioner from Maui, concurred with Teves and Heller. \u201cIt\u2019s a well-designed development,\u201d she said, but \u201cthe airport issue really bothers me. I recall yesterday we had testimony from some high school students. They made a poignant point that the decisions we make today don\u2019t affect just our generation, but theirs and all generations to come. While [airport noise] may not be an issue in 10 or 20 years, there\u2019s a great potential for it to be an issue in the future. I just can\u2019t get past that. So I\u2019m also going to be voting no on this petition.\u201d<\/p>\n<p>Joining the three in voting against a motion by fellow commissioner Duane Kanuha, of the Big Island, to deny the petition in part and approve it in part were commission chair Vladimir Devens and Thomas Contrades, commissioner from Kaua`i. (Kanuha\u2019s motion would have approved redistricting of all the petition land except whatever lay within 1,100 feet of the shoreline. To many, the motion was confusing, since the petition for redistricting did\u00a0<i>not<\/i>\u00a0include any land within a 1,100-foot-wide shoreline buffer.)<\/p>\n<p>The crowd, consisting of mostly project opponents, broke into loud whoops and cheers \u2013 but when commission executive director Dan Davidson announced that the motion failed, many of the opponents appeared confused. Under LUC regulations, Davidson explained, for a motion to pass, it has to have six affirmative votes from the nine commissioners.<\/p>\n<p>Devens then asked for another motion. Teves responded with a motion to deny.<\/p>\n<p>That also failed to pass, with the commission splitting along the same lines as the previous vote.<\/p>\n<p>After a short executive session, Devens announced that after a review of the law and the commission\u2019s own administrative rules, \u201cIt appears that I was incorrect. The motion to deny did pass, because only a majority of five votes is required as opposed to six votes\u2026. I hope we didn\u2019t make a mistake on our interpretation.\u201d<\/p>\n<p>With so much at stake, and O`oma Beachside Villages having invested heavily in both the land and the effort to entitle it, any ambiguity over the LUC\u2019s vote would have invited litigation.<\/p>\n<p>Bryan Yee, the deputy attorney general representing the state Office of Planning, attempted to bring some clarity to the matter. \u201cI\u2019ve always believed you should decide issues on substance rather than procedures,\u201d he said. \u201cAsk the petitioners whether they accept the decision that a 5-4 vote constitutes denial. And if they don\u2019t, \u2026 allow the commission the opportunity to fix it if they think it\u2019s appropriate.\u201d<\/p>\n<p>Steve Lim, representing the developer, said that because the commission did not have six affirmative votes on any motion, the proper procedure would be to continue the matter until the next regularly scheduled meeting and put it up for another vote then. \u201cIf it fails at that time, the action is denied,\u201d he said.<\/p>\n<p>Yee then cited the LUC rule that states if a petition fails to receive six votes for approval, then the staff prepares a decision and order to deny it. \u201cIf you appeal,\u201d he suggested to Lim, \u201cappeal on substance. Don\u2019t appeal on procedure.\u201d He then suggested to the commission that someone make a motion to approve the petition, straight-up.<\/p>\n<p>That\u2019s just what the commission did. With none of the commissioners in favor wanting to kill the project with a motion to approve, it fell to an opponent, Heller, to do so.<\/p>\n<p>\u201cWithout necessarily conceding that this is required, for purposes of clarifying the record, I make a motion that the petition \u2026 be approved.\u201d With the motion receiving just four votes, the petition was, finally, denied.<\/p>\n<p><i><b>Three Strikes<\/b><\/i><\/p>\n<p>The vote marked the third time that the commission has rejected a petition to redistrict this particular slice of land. In 1987, the LUC voted down a proposal by Kahala Capital for a resort on the property. In 1991, the company came back with a revised proposal for a hotel, a smaller \u201cinn,\u201d condos, a golf course, residential lots, conference center, water park, and a \u201cMarine Exploratorium.\u201d Again, the LUC rejected the petition, citing (among other things) concerns about the company\u2019s financial ability to undertake what was touted as a $300 million project.<\/p>\n<p>In 2001, another company took ownership through foreclosure. The efforts of Clifto\u2019s Kona Coast, a Nevada partnership headed up by Cliff Morris, to obtain county rezoning for the 83-acre mauka parcel, already in the Urban District, faltered when it was vetoed by then-Mayor Harry Kim in 2004. Morris sold most of his interest to a company headed up by Dennis Moresco, which formed O`oma Beachside Village and developed the most recent proposal.<\/p>\n<div align=\"center\"><b>For Further Reading<\/b><\/div>\n<p><i>Environment Hawai`i<\/i>\u00a0has published the following articles on the O`oma project. All are available in the Archives section of our website,<a style=\"font-weight: bold; color: #0000b0;\" href=\"https:\/\/environment-hawaii.org\/\" target=\"_blank\">www.environment-hawaii.org<\/a><\/p>\n<ul>\n<ul>\n<li>March 2009: \u201cResidential \u2018Villages\u201d Are Proposed for Area Near Kona Airport, NELHA;\u201d<\/li>\n<\/ul>\n<\/ul>\n<ul>\n<ul>\n<li>April 2010: \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<\/li>\n<\/ul>\n<\/ul>\n<ul>\n<ul>\n<li>June 2010: \u201cAnother Packed Hearing on O`oma Petition;\u201d<\/li>\n<\/ul>\n<\/ul>\n<ul>\n<ul>\n<li>August 2010: \u201cWith Conditions, O`oma Development Wins Support of State Planning Office;\u201d<\/li>\n<\/ul>\n<\/ul>\n<ul>\n<li>November 2010: \u201cClosing Arguments in O`oma Petition.\u201d<\/li>\n<\/ul>\n<\/div>\n<p><span class=\"Apple-style-span\" style=\"color: #000000;\">\u00a0<\/span><\/p>\n<div class=\"text11\" style=\"color: #000000;\">Patricia Tummons<\/div>\n<p><span class=\"Apple-style-span\" style=\"color: #000000;\">\u00a0<\/span><\/p>\n<div class=\"text11\" style=\"color: #000000;\">Volume 21, Number 6 &#8212; December 2010<\/div>\n<p>&nbsp;<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Here&rsquo;s what&rsquo;s happening &ndash; or not &ndash; with the Villages of `Aina Le`a, a development on a thousand-acre tract of land put into the Urban district more than 20 years ago: Construction of affordable townhouses has stalled out after completion &hellip; <a href=\"https:\/\/environment-hawaii.org\/?p=974\">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":[73],"tags":[],"class_list":["post-974","post","type-post","status-publish","format-standard","hentry","category-december-2010"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/974","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=974"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/974\/revisions"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=974"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=974"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=974"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}