Ka Wai Ola - Office of Hawaiian Affairs, Volume 20, Number 10, 1 ʻOkakopa 2003 — Hōkūliʻa ruling sends warning to developers [ARTICLE+ILLUSTRATION]

Hōkūliʻa ruling sends warning to developers

By Alan Murakami and Moses Haia Editor's note: This month's community viewpoint article is offered by Native Hawaiian Legal Corporation attorneys Alan Murakami and Moses Haia, who represent plaintiff Protect Keōpuka 'Ohana in the lawsuit against the developer ofthe Hōkūli'a golf and luxury-home subdivision in Kealakekua. In a landmark ruling issued Sept. 9 ( Kelly v. 1250 Oceanside Partners), the Third Circuit Court has ordered 1250 Oceanside Partners to cease work on its massive Hōkūli'a luxury residential project because it failed to obtain a state district boundary amendment reclassifying the land from "agriculture" to "urban." Oceanside complains that it acted in good faith, complying with the "letter and spirit" of the law, and warns that the decision "will have a chilling effect on future investment in Hawai'i." However, court evidence contradicts these assertions. The reality is that a court has ruled for the first time that those reckless developers, like Oceanside, who choose to take the path of least resistance by merely pretending to comply with the land use law, will be stopped, not rewarded. In the past, county governments too often cozied up with developers seeking to use agricultural land for wealthy investors seeking luxury housing without going through the proper land use process required under state law. This practice has undermined the law's intent, driving

up land prices in agricultural areas and permanently depriving active farmers from lands they could farm. In this instance, well aware of applieahle law, Oceanside bypassed the LUC and the implementation of the state burial and historic sites protection laws until after starting construction. Had the LUC reviewed the project beforehand, Oceanside would not have been able to desecrate

burials, avoid a commitment to preserve Pu'u Ohau, the resting plaee of royalty, and destroy sections of a centuries-old alaloa (stone-lined trail). Under the land use law applieahle to all landowners, Hawai'i's very limited lands are restricted to the uses for whieh they are best suited. It is not designed to allow profit for the few who would knowingly seek to avoid it. Oceanside's explicit profile of its targeted buyers describes not farmers, but established Fortune 500 executives who earn $300,000 or

more, with a net worth of $5 million plus; are avid golfers; and own several homes around the world, including a primary residence in the West Coast or Japan. Oceanside offered one- to thee-acre lots for $600,000 to $2.5 million eaeh, proposing to comply with land use laws by subsidizing the land and infrastructure costs of farming "timber" and coffee planted as landscaping. State agencies, including the Department of Agriculture and Office of Planning didn't buy the plan, noting that the proposed project would not support the required agricultural use of the land, nor meet the requirement for building only "farm dwellings" on agricultural land. The LUC also believed that the county was not properly analyzing the project as a whole to determine the nature of the proposed land use. Finally, the developer's own land use experts also advised Oceanside that the various requirements of the land use law might require the LUC approve a boundary amendment to "urban." Despite all this advice, Oceanside sought only county permits, and the county cooperated without question. Now, like the kid caught with its hands in the eookie jar, its publicists eomplain that Oceanside was a victim who attempted to comply with the law at all times. It made the same argument to the judge, who, based on abundant evidence, soundly rejected that elaim. The views expressed above are those of the authors and do not necessarily reflect the views ofthe Office of Hawaiian Affairs. ■

KŪKĀKŪKĀ

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An excavator sits idle at the Hokuli'a site.

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