Case for Hokuli'a: Let the public judge

By David Callies

A circuit court in Hawai'i stopped construction on a 6-year-old agricultural subdivision project this month. Amid growing public discussion over 1250 Oceanside Partnership's 1,500-acre Hokuli'a project on the Big Island, several key points are being lost in the shuffle.

• The project is not "on the coast";
• The project is on "agricultural land" only by stretching the definition of agriculture nearly to the breaking point;
• The project complies with the letter of our land-use law, and the spirit as interpreted by three out of four of counties; and
• Most important, the partnership has every right to rely on existing standards in Hawai'i's development community in developing Hokuli'a under strict county supervision. Let's begin with this last point.

State assurances

Here's Hawai'i's standard for landowner reliance in proceeding with a development in the state: "In considering whether a developer's expenditures were made in good faith, we employ an objective standard that reflects reasonableness according to the practices of the development industry" (Nukolii case).

Here's what the partnership relied on: clear and specific Hawai'i County official assurances that after more than 30 public hearings and county planning, zoning, permitting and subdivision approvals between 1993 and 1997, the project was good to go.

This is the same process and practice followed previously by our counties and landowners, not only on the Big Island but on O'ahu and Maui, to approve many rural-residential projects on state-classified agricultural land in the past 20 years. Just to be sure, the county and partnership signed a development agreement in 1998, reciting and vesting these approvals for a period of years.

The state Legislature specifically provided for such government-landowner development agreements by state statute in 1985, to "strengthen the public planning process" and "reduce the economic cost of development." Here's what the partnership then spent in reliance on these assurances: nearly $300 million.

Were they good faith expenditures following the reasonable practices of the development industry? You be the judge.

Beach, farm or neither?

Hokuli'a is not a beachfront development. It spills down one side of Mauna Loa from the busy Mamalahoa Highway to between 100 and 300 yards (one to three football fields) from the coast. Along that coast, the partnership has dedicated a 140-acre coastline park whose use is guaranteed to the public by the aforementioned development agreement. Ruining our coastal environment or preserving it? Again, you be the judge.

The Hokuli'a project land is "agricultural" only in the most liberal sense of the word. It is mostly scrub kiawe on the thinnest layers of "soil" over lava. That soil is classified by the state as D and E, among the lowest rankings. It cannot sustain virtually any meaningful agricultural use except for grazing a few head of cattle, and then only during Kona's wet season. The previous owners abandoned even this limited use as impractical.

Is the project therefore displacing farmers and using up valuable agricultural land, or replacing economically useless activity with economically viable ones? You be the judge.

State law

Our state land-use law specifically permits Hawai'i's four counties to approve so-called "agricultural subdivisions" such as Hokuli'a, particularly where 200 acres is set aside for agricultural use in addition to a golf course, a permitted agricultural activity. The only legal requirement for dwellings on lots in such subdivisions is that families derive "income" from agricultural activities.

The law is silent on how much income or how large the dwelling can be. The law is silent on who may purchase and reside in such dwellings. The state Legislature has entertained many formal proposals to amend the law and close what some construe as a loophole permitting agricultural subdivision projects on state-classified agricultural land, but it has declined to do so. The state Land Use Commission recently heard a similar proposal to limit the kinds of dwellings and maximize the income that an agricultural lot must have and generate. It also declined to amend its rules. Once again, three of four counties have been approving such subdivisions on state agricultural land for nearly two decades.

Does this sound like Hokuli'a tried to circumvent the land-use law? You be the judge.

Who benefits?

In sum, we have a landowner who has carefully, conscientiously and reasonably followed the practices of Hawai'i's development industry in developing an agricultural subdivision on otherwise useless state "agricultural" land, to the tune of $300 million.

How much sense does it make to bring such a project to an indefinite screeching halt? What message does that send to Hawai'i's business community? What agricultural and coastal protection values does halting the project preserve and protect, at this time, at this place?

One last time: You be the judge.

David Callies is Kudo Professor of Law at the William S. Richardson School of Law, and a Fellow of the American Institute of Certified Planners. For several months he has served as counsel to Carlsmith Ball, which represents 1250 Oceanside Partners.