When the time comes to hold land developers accountable, the state’s Land Use Commission really has just one option, a state deputy attorney general says. When the time comes to hold land developers accountable, the state’s Land Use Commission really
When the time comes to hold land developers accountable, the state’s Land Use Commission really has just one option, a state deputy attorney general says.
That tool, the commission’s “one arrow in its quiver,” is the ability to revert land classifications back to agriculture or conservation classification, Deputy Attorney General William Wynhoff said Monday.
“That’s one of the important things about Judge (Elizabeth) Strance’s decision we think is wrong,” he added.
Wynhoff represented the commission during 3rd Circuit Court proceedings in which he argued for Strance to uphold the LUC’s decision to revert DW Aina Lea’s land classification from urban to agricultural. Strance ruled in favor of Aina Lea, ordering the LUC to rescind the reversion and allow the project to proceed. Wynhoff last month filed a motion asking Strance to reconsider her ruling, and said the state intends to appeal Strance’s original decision. He said the time line for appeal depends on how Strance rules on the motion to reconsider; if she does not rule at all, the state has until July to file its appeal.
The LUC reverted the land classification after roughly two decades of developers seeking approvals for work on the South Kohala property, across Queen Kaahumanu Highway from the Mauna Lani resort. Commissioners, in making the reversion, cited current and former developers’ lack of construction progress and in getting approvals for infrastructure.
DW Aina Lea, the current owner of some of the property, and Bridge Aina Lea, the developer that preceded DW Aina Lea and which still holds a significant portion of the land, took their appeal of the LUC decision to Strance’s court last year. Strance ruled in the developers’ favor in December and filed her final judgement March 6.
Strance’s ruling raises broader questions of what a court can order an individual commissioner to do, Wynhoff wrote in his March 16 motion, as he took issue with the order’s wording.
“Can the court direct an individual commissioner to vote contrary to that individual commissioner’s personal assessment of the right result?” he wrote. “If the requisite number of commissioners decline to vote as directed by the court, what can or should the court do in response?”
The court could sidestep some of those questions, he continued, by changing its order to say the court orders the LUC’s earlier decision “rescinded and voided” without requiring commissioners to vote again.
Bruce Voss, an attorney for Bridge Aina Lea, filed his client’s opposition to the state’s motion to reconsider March 27.
“Apparently the LUC never intended to schedule a hearing to comply with this court’s ruling,” Voss wrote. “This motion to reconsider is really nothing more than an attempt to rationalize why the LUC to date has refused to comply with this court’s order and return the property’s land use classification to urban use.”
Strance’s ruling does not, yet, have a statewide affect on what the commission can do, said University of Hawaii William S. Richardson School of Law Professor David Callies, who submitted a memo to the court on Aina Lea attorneys’ behalf. Until an appellate court rules on the case, Strance’s ruling only applies to Hawaii Island.
If the appellate court were to rule against the commission, then ruling binds the LUC in all four counties, he said.
“It’s a risk I’m honestly surprised the state is willing to take,” Callies said.
Commissioners imposing conditions, such as affordable housing requirements, are stepping into areas really reserved for county planning agencies, he added.
“The commission is supposed to be making broad decisions about whether there’s enough land in ag, enough land in urban, enough land in conservation,” he said.
Why, then, have so few developers challenged the commission on such development conditions? Callies said he sees two reasons. One, Hawaii’s Pacific-Asian culture, which discourages such confrontations. And two, developers were always worried what impact challenging the commission in one case might have the next time the developers faced the commission.
But the boundary amendment reversion left the DW Aina Lea and Bridge Aina Lea with no choice, Callies said.
“What the Land Use Commission did here, out of pique, they just got angry,” he said, adding if Aina Lea is successful at the appellate level, more developers may feel empowered to challenge commission-imposed conditions.
Former Hawaii County Planning Director Chris Yuen said he hadn’t read Strance’s full decision, but he didn’t believe the ruling stripped the LUC of its authority. Yuen was familiar with the Aina Lea project from his tenure as planning director.
“You have power, but you always operate within a legal framework,” Yuen said. “The idea that you have to produce or lose the designation, that’s a reasonable tack for the Land Use Commission to take.”
Planning directors, planning commissioners and land use commissioners should always keep that legal framework in mind as they impose conditions and make planning decisions, he added.
