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The Honolulu Advertiser
Posted on: Saturday, October 4, 2003

Big Island judge stops subdivision project in Kona

By Kevin Dayton
Advertiser Big Island Bureau

HILO, Hawai'i — Big Island Circuit Judge Ronald Ibarra has halted plans for a new subdivision about 22 miles south of Kailua, Kona, ordering county planning officials to gather more information about the project before allowing it to advance.

Ibarra also ruled that developer Ki'ilae Estates LLC must obtain a special management area use permit before the county can approve the developer's plans for the new subdivision.

"The court's decision helps to ensure that the county upholds its fiduciary obligations to Native Hawaiians and the environment," said Wayne Leslie, who went to court to challenge the project.

"As a cultural practitioner who depends on the natural resources of the ahupua'a of South Kona, it is my inherent obligation to protect these resources for present and future generations," Leslie said in a written statement released yesterday.

Ki'ilae Estates LLC wants to subdivide a 457-acre parcel south of Pu'uhonua o Honaunau National Historic Park. The project would create 40 lots of five acres each, and nine larger parcels ranging in size from eight acres to 74 acres.

A portion of the Ki'ilae Estates property is in the shoreline special management area, but county Planning Director Chris Yuen said he is unsure why Ibarra is requiring a special management permit.

The shoreline lands won't be carved up into smaller parcels because the smaller five-acre parcels are planned for areas set back from the coast, Yuen said.

"I don't understand how the judge could say an SMA permit is needed when there is no development occurring in the SMA (special management area) and there's no subdivision in the SMA," he said.

Yuen granted tentative subdivision approval for the project on Jan. 9, 2002, but critics challenged that decision before the county Board of Appeals.

After a contested case hearing last year, the Board of Appeals last March upheld Yuen's approval of the project. Critics of the project filed an appeal with Ibarra.

Ibarra found that Yuen should have considered whether the impact of the project might be so substantial that the developer should be required to apply for a special management area permit, and ordered Yuen to require that Ki'ilae Estates seek such a permit.

It is unclear how long it might take the developer to do that, but some disputes over contested SMA applications have dragged on for years.

Ibarra also said Yuen did not gather specific information about issues such as drainage and water and sewer systems. County ordinances require that those plans be spelled out before tentative subdivision approval is granted, Ibarra said in the ruling.

Yuen said that for 20 years or more the county has not required developers to include such information in their subdivision applications. The information is available to county planners, but isn't formally included in filings with the county until later in the process, he said.

Ibarra has a history of reversing county planning decisions he considers to be flawed.

In 1998, Ibarra invalidated the Big Island county zoning code, ruling the County Council did not adhere to the state open-government law when it adopted the code in 1996.

More recently, Ibarra ordered almost all work halted at the 1,550-acre Hokuli'a project last month because he said the land under the project should have been reclassified for urban uses by the state Land Use Commission.

In that case, Ibarra found the county and the developer "deliberately collaborated" to allow the project to proceed without the required state LUC approvals.