A compromise by the developer of the luxury Kohala Kai subdivision was enough to get a thumbs-up Tuesday from the County Council Finance Committee.
Resolution 140, which the committee has been struggling with since July, accepts a public easement as a condition of development. The easement would allow for a public trail from Akoni Pule Highway to the shoreline and a lateral trail along the ocean, but does not take into account the Ala Loa trail, believed to follow a jeep road that runs through the property.
The committee voted 8-1, with South Kona/Ka‘u Councilwoman Brenda Ford the lone dissenter, to recommend the matter go to the council level with a positive recommendation.
The latest proposal, during the committee’s fifth stab at finding agreement on the issue, means the county will accept a 20-foot public trail along the shoreline, twice as wide as the original plan. The developers will also leave open the question of who has rights of ownership of the Ala Loa trail that crosses the property.
“It’s very clear that anything the county does (Tuesday) doesn’t affect anybody else’s rights concerning the Ala Loa,” said developer’s attorney Steven Lim.
The resolution got stymied when council members learned that developers are providing only three parking spaces, that a trail along the shoreline has been moved closer to the ocean than the original trail and that parts of the historical trail have been paved over.
The development will include a private beach clubhouse and golf course as part of its amenities.
The original agreement was struck between a prior planning director and the developer, with little public notice or input. The current action by the committee merely recommends acceptance of the public easement, as the development has already been approved.
Opponents reiterated their concerns that Kohala Kai developers have paved part of the historic Ala Loa trail with red cinders and created a golf-cart road for the gated community, while creating a substandard trail for the public. That trail, they say, is rocky, steep and too close to a cliff edge to be safe.
Toni Withington pointed out that two recent court cases have emphasized the importance of the county and developers working with cultural experts and the Community Development Plan committees before undertaking major planning actions.
“There are two major cases where the courts have been critical of the county’s actions and the Planning Department’s actions,” said Withington. “These are exactly the cases that the courts have scolded the county on.”
The project, by Kohala Kai LLC, contains seven oceanfront lots ranging in size from 5 to 28 acres on a 63-acre tract north of Kawaihae Harbor and just south of Keawewai Gulch. The lots are expected to be sold for $4 million and up.
Former Planning Director Bobby Jean Leithead Todd in 2012 approved the location of the trail as a condition of the special management area permit needed for development. The appeal deadline of 30 days has long since run out.
Shane Nelson, community outreach coordinator for the state Office of Hawaiian Affairs, at a meeting last year cited several court cases showing how the state constitution and state laws require developers to honor Native Hawaiian historical trails.
“The Office of Hawaiian Affairs wishes to avoid further litigation to force government to full its constitutional and statutory responsibilities, as set forth, time and again, by admonishing judicial decisions, many occurring right here in Hawaii County,” OHA said in a letter Nelson gave the council.
“It is our sincere hope that this honorable Hawaii County Council will ensure that the county of Hawaii and its departments uphold the law,” the eight-page letter concludes.
The subdivision was a two-part process, and the first portion of seven lots has already been approved, without regard to the Ala Loa trail. County planners are concerned the county would lose more access if the council rejects the easements for the second portion, composed of five lots.
“We either accept an unsafe easement or we get no easement at all along the trail,” said an obviously frustrated Ford.
Developer Charles Anderson said he’s walked the trail with a 3-year-old, who had no problem walking it.
“It’s a good trail and we’re willing to work with the community on these issues in the future,” Anderson said.
Puna Councilman Zendo Kern said the council should be “stoked” the county is getting a 20-foot trail. He accused council members of becoming “obstructionist” on recent development issues.