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The Honolulu Advertiser
Posted on: Monday, April 16, 2007

Will Kona bypass ever open?

By Kevin Dayton
Advertiser Big Island Bureau

Kona resident Aaron Stene sits on the Hokuli'a Bypass Road, which is half finished. Lawsuits have held up the project for nearly four years.

KEVIN DAYTON | The Honolulu Advertiser

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KEAUHOU, Hawai'i Most roads in bustling central Kona are jammed with traffic at rush hour, but a dispute between a landowner and the county is keeping a new $28 million two-lane highway closed and almost completely empty. And that is driving some West Hawai'i residents wild.

Known as the Hokuli'a Bypass Road, the road was supposed to provide a new link between Keauhou and Napo'opo'o to ease the flow of traffic between the business and hotel districts to the north, and rural areas in South Kona and Ka'u, where many workers live.

Nearly three miles of that road is graded, paved and striped, but it sits empty except for emergency and other selected traffic, with the Kona heat shimmering off the blank pavement.

The project has been bogged down for almost four years in two complex lawsuits, the latest involving a kama'aina family that challenged county and developer efforts to take control of three acres of family-owned land needed to complete the road.

Trial on the lawsuit is set for July 2 in a Kona courtroom, but lawyers familiar with the case believe it may be subject to years of appeals no matter what happens at trial, possibly even progressing as far as the U.S. Supreme Court to decide issues of condemnation law.

The finer legal points of the case are irrelevant to furious residents such as Kona blogger Aaron Stene, who went so far as to argue in online postings that "the needs of the overall community outweigh the rule of law and the landowner's rights in this situation."

"Why should the community suffer through bumper-to-bumper traffic just because of one selfish landowner and the ineptitude of Hawai'i County?" Stene wondered. "Overall, I'm not very optimistic that this much-needed roadway will ever be completed."

For its part, the county is determined the half-built road will eventually be finished, and has financial and political incentives to make sure that happens.

Developers pledged to build the road at no cost to the state or county as a condition of approvals for the 665-lot Hokuli'a luxury home development. The developer paid the $28 million to build the first half of the road, and is waiting for resolution of the lawsuit so it can finish the highway for an estimated $25 million more, said John De Fries, chief executive officer of Hokuli'a.

A primary road has been planned for the area since 1971, and even critics of the project assume the bypass highway will someday be completed.

Charles Coupe, a member of the Coupe family that has resisted turning over the family land needed to complete the road, told members of the Big Island County Council in 2003 that "we recognize that the roadway has to go through at some point."


That has Kona residents wondering what is motivating members of the Coupe and Richards families to drag out the court fight that began in 2000.

"You've got me that's the $64 million question right there," De Fries said when asked about the ultimate aim of the court case. "To what end does this accomplish anything?"

Coupe and Richards family members involved in the suit did not respond to requests for an interview made through their lawyer, Kenneth Kupchak. Kupchak also declined to publicly discuss the case, saying the families' objections to the taking of their land for the road are reflected in court filings in the case.

The dispute centers on a development agreement approved by the county for the Hokuli'a project in 1998 that requires the developer to build the highway, paying the cost of construction up front. The agreement allows the developer to be reimbursed with money the county plans to collect from other landowners as they seek rezonings along the road and in areas as far away as Miloli'i.

In the end, Hokuli'a will have to pay 38 percent of the overall cost of the road, with the rest paid by other landowners.


Charles Coupe, a longtime executive with the Kaiser Development Co. that developed much of Hawai'i Kai, told the council in 2003 that he believes the development agreement is unconstitutional.

Coupe said the road would split the family property and devalue the mauka portion, and also argued it was unfair that property owners along the road be required to pay a share of the cost of the roadway if the landowners ever decide to develop their properties.

The road should have been paid for by all county taxpayers, and the requirement that the Coupe family must pay a share of the cost of the road if the family ever develops the land put a "cloud on our title," he told the council.

Coupe argued that if the county wanted to create an improvement district to get local landowners to kick in to pay for the road, the county should have followed state law and put the matter to a vote by the property owners. That was never done.

Hubert Richards unsuccessfully sought state approval in 1981 to urbanize and develop property in the area, but Charles Coupe said in 2003 the family had no immediate plans for the 300-acre parcel that would be bisected by the new road.

The court filings contend the development agreement between the county and Hokuli'a is illegal because it exceeds what such agreements can do, and in effect illegally delegated the county's condemnation powers to the developer.

The development agreement gave Hokuli'a the task of acquiring the land for the road, and the developer was backed by the county's power to condemn the lands of anyone who resisted. Coupe told the council in 2003 the developer "threatened us with condemnation action" when the landowner disagreed with the developer.

When a council member asked about the potential for a settlement, Coupe replied: "I think at this point we just want to see this thing through to the trial and see just exactly what the courts will determine."

The Hokuli'a subdivision project itself was held up for years by a separate lawsuit that halted all construction on the road and the subdivision in 2003. That suit was settled in 2006, allowing construction on the subdivision and sale of lots there to proceed, but the road work remains stalled because of the Coupe lawsuit.


Michael Matsukawa, a lawyer active with a group called Kona Coalition of Concerned Citizens, said the seemingly endless litigation is giving West Hawai'i residents the sense that the system is broken.

"I think there's a general feeling that we have all these rules and laws, but they don't seem to work, they don't seem to hold up. I think that's the sense of frustration," Matsukawa said.

Public agencies go through long land-use proceedings to issue permits that are then unended by court challenges that stop the projects. "The Hokuli'a, same thing, the permits are issued, but after the fact it gets drowned in the litigation," Matsukawa said.

Opponents of the road include Janice Palma-Glennie, Keauhou resident and land-use planning advocate who has long been critical of Hokuli'a.

Palma-Glennie contends the road will do little to ease traffic congestion because cars that use it will encounter gridlock at both ends of the bypass highway. The connecting roads can't handle the existing traffic volume, she said.

Worse, she said, the bypass road will throw the lands along its route open for new development, which means there will be still more cars.

"I think a lot of people just think any road will be better than no road. I've tried so hard to get through to people that roadways aren't always the answer, because usually a roadway means more development," she said. "That's just the perpetuation of what we've got."

Stene, who tracks the details of the bypass road litigation on his blog, finds that logic frustrating.

"It seems like people just don't care, they're willing to be stuck in traffic," Stene said. "The community is between a rock and a hard place, having to be stuck in the traffic because this road can't get built."

De Fries said he hopes the case can be settled before trial begins this summer, but said it would still take the developer two years to finish the road if work is allowed to resume.

Meanwhile, the cost of a road once expected at $25 million has ballooned to more than $53 million, and counting, De Fries said. Who pays the extra cost and the legal fees for Hokuli'a will be an issue in court, he said.

"These costs are obviously a concern to us," he said. "The longer the delays, the more costly it becomes."

De Fries also wondered if the fact that the Coupes live on O'ahu means the urgency in completing the road "hasn't fully registered with them."

"Whether the Coupes know it or not, this lawsuit is really emerging as Coupe versus the residents of Kona," De Fries said. "Hokuli'a happens to be a party to the lawsuit, but they really now are challenging the residents of Kona, who increasingly are feeling the need for this road ... to be completed."

Billy Paris, an 84-year-old rancher who sold some of his own land for the road right-of-way, said the latest quarrel is in one sense part of a Kona tradition. Paris is a member of the Kona Coalition of Concerned Citizens, which filed legal briefs supporting completion of the road.

"Kona has a history of independent people, and no matter what, we've always had mauka fighting makai, and north fighting south," Paris said.

Reach Kevin Dayton at kdayton@honoluluadvertiser.com.