EDITORIAL
Growing fig leaves: That's not agriculture

Everything else being equal, we're sure the luxury Hokuli'a development on the south Kona coast would prove a success in almost every respect.

But everything else isn't equal. The developers decided to build this 1,540-acre resort residential subdivision on agricultural land without seeking redesignation from the state Land Use Commission.

The results of that perhaps well-meant but obviously disastrous business decision are nothing short of tragic. In a ruling that shocked and angered the developers, Circuit Judge Ronald Ibarra recently ordered the development halted until it succeeds in receiving reclassification of the entire subdivision from the LUC.

That's devastating. It means the employment of scores of workers is thrown into doubt, 190 home-lot buyers can't build, and the developers can't realize any return from what they say is upward of $300 million they've invested. It may throw the legitimacy of other, similar properties, mainly on the Big Island, into doubt.

But to those inclined to the mantra of an "anti-business" Hawai'i, we'd suggest they find a different horse to ride. The developers, Lyle Anderson Co. doing business here as 1250 Oceanside Partners, have a fine reputation on the Mainland. But a massive storm runoff into some of the world's most pristine waters caused by overgrading in 2000, followed by difficulties with native burials and landmarks, drew opposition and repeated visits to Judge Ibarra's courtroom.

Where's the agriculture?

This project, in the words of the developers, "offers a lifestyle like no other. ... Planned amenities will include a private championship Jack Nicklaus designed golf course, clubhouse, beach club & spa, two private boats, and a 140-acre shoreline park for quiet strolling and exercising. Private luxury estate homesites are now available for you to enjoy this exemplary lifestyle."

Nowhere do you see the word "agriculture," yet because the development is on agricultural land, buyers are required by state law to build "farm dwellings" that are "tied to agricultural activity."

So common (some would say brazen) have such pseudo-farmlot projects become on the Big Island that one such gentleman farmer, we're told, has filed a nuisance suit against his neighbor for engaging in animal husbandry, which is a smelly and noisy, but decidedly agricultural, pursuit.

Indeed, the position of the Hokuli'a developer is not unlike the last driver in a line of traffic going 30 mph over the speed limit who, when arrested and brought to court for speeding, failed utterly to impress the judge with his argument that "everyone was doing it."

Hokuli'a does not expect its farmers to have dirt under their nails. Its target market buyer is 46 to 60 years old, is an established Fortune 500 executive, possesses a household income of $300,000 or more, has a net worth of $5 million plus, is an avid golfer, is "residential equity rich" (owns homes in several destinations around the world), and owns a current primary home on the West Coast or in Japan.

And Hokuli'a's lots, averaging $1 million each, are not your everyday beanfields. The developers sought to meet the agriculture obligation by planting coffee and other trees in common areas and roadways. In reality, Ibarra found, the developer was growing fig leaves, hoping to wink at state law — "an absurd result that the Legislature could not have intended."

Preserve agricultural lands

What the Legislature intended was preservation of agricultural lands. They required a deliberately daunting process for reclassification of ag lands because once they're gone, they're gone. As the million-dollar ag lots at Hokuli'a drive up the value of surrounding farmlands, the real farmers won't even be able to afford their higher property taxes.

It's perplexing that prudent developers of a megamillion-dollar project wouldn't have allowed for every contingency. "Given the advice and comments from attorneys and state agencies with expertise in land uses and agriculture," wrote Ibarra, "at the very minimum, any reasonable developer reading these letters would have consulted with the LUC between 1989-95."

The developers say they relied entirely on Hawai'i County permits and procedures. But, said a 1975 attorney general's opinion: "the counties must take before-the-fact measures to insure preservation of prime agricultural land, and when investigation shows that a proposed subdivision in an agricultural district will in all likelihood not be used for agricultural purposes and may be an attempted circumvention of the land use district amendment procedure and controls provided in [HRS Chapter 205], the county should disapprove the subdivision application."

Thus Ibarra faults Hawai'i County as harshly as the developer. Barring procedural error, it seems likely that the three Hokuli'a cases on appeal will give the state Supreme Court an opportunity to further flesh out the uniquely Hawaiian body of law it has developed over the years.