Despite hefty community opposition, a developer is moving forward with a plan to build homes on a steep hillside above Nu'uanu and started clearing land for the proposed subdivision last month.

But residents aren't giving up without a fight. The Nu'uanu Valley Association is pursuing a lawsuit against the developer and city in state Supreme Court, arguing the city failed to follow open-records laws in the permitting process and that the project should have undergone an environmental assessment before being approved.

Oral arguments before the Supreme Court are set for Aug. 21.

Residents contend the project poses serious safety risks to the community known for rockfalls, mudslides and poor drainage. In 2002, a boulder rolled down a mountainside and crashed into a home in the neighborhood, killing 26-year-old Dara Rei Onishi as she slept. Two years later, another boulder tumbled down and narrowly missed a woman standing in her backyard.

"We're not averse to additional development," said John Harrison, vice president of the association. "But it (construction on the hillside) is dangerous and all these people and houses are in the line of fire."

Residents also say how they fare in the battle could have implications for other hillside communities, with the dearth of available land spurring developers to look to parcels that are more difficult to clear for homes.

Patrick Shin, the developer of the proposed Dowsett Highlands subdivision, said a host of experts have studied the project and determined it safe.

For those who oppose him, he said, it's a case of "not in my backyard."

"When they bought the land, they built their homes," Shin said.

"It's not fair for the neighbors to complain about some other neighbor trying to put in homes. We have a right to build."

The proposed subdivision consists of nine lots, which under city rules could accommodate two homes each at most, city officials said. Shin, who bought the 45-acre Nu'uanu parcel in 2005 for $6.2 million, declined to say how many homes he plans to build and he has not yet filed building permits with the city.

The lots vary in size from 1.5 to 13 acres.

CLEARED TO PROCEED

The idea to build on the hillside was first proposed in 2004, by the property's previous owner.

Shin received tentative approval for his subdivision application in May 2006, and last month the city approved his construction plan and issued him a grading permit, giving him clearance to move forward with clearing the land and putting in infrastructure improvements, such as roads, drainage systems and sewer, water and other utility lines.

At the site last week, crews were cutting back tall trees and thick brush.

City Planning and Permitting Department Deputy Director David Tanoue said Shin will get final approval for his subdivision once infrastructure improvements are completed or bonded to make sure they get done. Shin also needs to submit building permits before putting in homes on the half-mile parcel stretching from Ragsdale to Kamuela places.

Shin pointed out the hillside land has long been zoned residential, just like the properties under it.

According to city court filings, the property has been zoned for residential use since at least 1943.

Engineer Masanobu Fujioka, of Masa Fujioka and Associates, concluded in a 2006 study for Shin that the proposed subdivision posed no significant boulder or rockfall hazards. Fujioka's report was disputed by a subsequent University of Hawai'i Environmental Center study, which questioned his methodology and reasoning.

Fujioka countered with a scathing rebuke of the criticism, saying in a May 2006 letter to city Permitting and Planning Department Director Henry Eng that "as a licensed professional engineer, it is my duty to keep public health and safety paramount. I would not be making a statement about the boulder hazard to the proposed residences without adequate knowledge and study."

PREPARING ARGUMENTS

In Nu'uanu, residents are watching the progress of the work above their homes, while the association prepares for upcoming oral arguments before the state Supreme Court. The community below the subdivision is affluent and close-knit, with a slew of historic homes and many longtime residents. Jim Bickerton, a Nu'uanu resident and an attorney for the Nu'uanu Valley Association, said the suit aims to start the permitting process over for the subdivision.

The Nu'uanu Valley Association argues in the suit that the city broke state open-records laws when it initially denied residents access to supporting documents and studies filed with the city for Shin's subdivision permit application. The city says those documents are only public until a department has formally accepted them. The suit also contends the project should have required an environmental review since it will use city systems and crosses a state-owned easement.

The suit was filed in state Circuit Court in 2006, and the residents lost.

Bickerton said by not providing residents with all the supporting documents filed on the project, the city put the community at a disadvantage so residents couldn't provide counter-arguments on the development until it was too late.

"They have to start over and do it the right way," he said.

In an answering brief filed in state Supreme Court, the city said that open-records laws do not apply to the documents residents requested because they were not yet classified "government records" at the time. The city also said the subdivision project did not trigger the environmental assessment requirement because sewer and other utility hook-ups are exempted.