Ka Wai Ola - Office of Hawaiian Affairs, Volume 20, Number 10, 1 October 2003 — Court blocks Hōkūliʻa construction [ARTICLE+ILLUSTRATION]

Court blocks Hōkūliʻa construction

By Naomi Sodetani In a ruling widely seen as having "far-reaching implications," Hawai'i island Circuit Judge Ronald Ibarra has ordered a halt to almost all construction at the luxury Hōkūli'a golf subdivision in Kealakekua, and directed the developer to obtain land reclassification from the state Land Use Commission (LUC) in order to proceed. Ibarra ordered developer 1250 Oceanside Partners "to cease and desist from pursuing any further construction activities of the Hōkūli'a project in its present proposal, excluding its Shoreline Park and golf course." His ruling also directed Oceanside to obtain LUC approval to redesignate the land from agricultural to urban use before it ean resume construction on its residential lots and members' lodge. The Sept. 9 ruling, whieh eame after three years of litigation, challenges developers' longstanding practice of using agricultural lands to build "gentleman-farmer" estates that in reality involve little or no farming. Determining that the County of Hawai'i and Oceanside 1250 Partners "deliberately eollahorated" to circumvent state land-use laws, Ibarra observed that "the County appeared to be aeeommodating Oceanside's desire to avoid LUC involvement by privately

assuring Oceanside that LUC involvement was not needed, in dereliction of the County's explicit duty to enforce" state land use laws. The decision poses a major setback for Oceanside, whose l,550-acre project is Kona's largest development, with 730 planned residential lots averaging $1 million in price. Around 190 of the lots have already been sold. Hōkūli'a Chief Executive Officer John De Fries insisted that Hōkūli'a diligently followed state and county regulations. De Fries said the ruling carries "tremendous implieation" for potential investors and could dampen "perceptions offshore people have about Hawai'i as a plaee to do business. This isn't doing the state and county any good." Oceanside has petitioned Ibarra

to reconsider its decision, saying the ruling will cause "substantial and irreparable harm" to the developer and the Kona community. If that fails, De Fries said, the company would appeal. While being denounced by representatives of development interests as "anti-business," the ruling was praised by environmentalists. "It's a monumental decision," said Robert D.S. Kim, a Kona attorney who sued Oceanside on behalf of environmentalists, community members and business people. "It tells all developers no man is above the law." Native Hawaiian Legal Corp. Litigation Director Alan Murakami, who represents Protect Keōpuka 'Ohana, a group of Hawaiian cultural practitioners and descendants of Hawaiians buried on the project

site, agreed: "It's the first time the courts ruled on whether these kinds of 'fake farm' projects ean ignore laws meant to protect ag land and burials by literally bypassing LUC action," a potentially long and controversial process developers often try to avoid. Gov. Linda Lingle and Hawai'i Mayor Harry Kim said the ruling will have "far-reaching implieations." Both said that they believed that the land-use process, including the role of the LUC, should be overhauled. Lingle said she believes too mueh land is inappropriately classified as agricultural, and this may prompt developers to "dress up" resort or residential projects as agricultural subdivisions. "This ruling is not just about Hōkūli'a," Kim said. "It's a wake - up eall for us in government to review the whole big issue of land classification and authority, the use and abuse of ag lands. Maybe we should get rid of the Land Use Commission, or at least take a look at its authority to see how it should be revised, because our present process has failed." Disclosure note: OHA Publications Editor Naomi Sodetani is married to NHLC Litigation Director Alan Mumkami, counsel for Protect Keōpuka 'Ohana, a plaintiff in this case. ■

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The view from the Hōkūli'a clubhouse overlooks Pu'u Ohau, resting plaee of Hawaiian royalty. The recent court ruling halted construction of million-dollar estates, including five planned for the slope of the pu'u. Photo: Naomi sodetani