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Hokuli`a: The Development

HOKULI`A : The Costs and Consequences of Fake Farms Kelly, et al. v. 1250 Oceanside Partners, et al. Hokuli`a: The Development. 1550 acres spanning 9 ahupua`a in North and South Kona 18 Hole Jack Nicklaus designed golf course 730 one to three acre agricultural lots

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Hokuli`a: The Development

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  1. HOKULI`A: The Costs and Consequences of Fake FarmsKelly, et al. v. 1250 Oceanside Partners, et al.

  2. Hokuli`a: The Development • 1550 acres spanning 9 ahupua`a in North and South Kona • 18 Hole Jack Nicklaus designed golf course • 730 one to three acre agricultural lots • Price range: $650,000 - $8 million per lot • 80 unit members’ guest lodge • Neither its website nor its marketing plan mention agriculture • Projected value at full build out - $1 billion

  3. Hokuli`a: The Controversy • Construction related pollution of Class AA coastal waters fronting the project • Desecration of Native Hawaiian Burials • Destruction of the historic trail known as the alaloa (long trail) • Violation of state land use law protecting agricultural lands

  4. I. Hokuli`a: The Pollution of Class AA Coastal Waters • Class AA waters are the most protected class of marine waters. • Class AA waters are considered pristine, or in “wilderness” condition. • The County of Hawaii Department of Public Works issued mass grubbing and grading permits that provided the developer with the unlimited ability to grub and grade. • The State Department of Health issued a Notice of General Permit Coverage which prohibited the discharge of substances into Class AA waters. • The developer assured the State and County that it would use best management practices and erect sufficient erosion control measures to prevent run-off and pollution. • Both measures incomplete and inadequate and two storm events in Sept and Nov 2000 trigger massive soil run-off into the Class AA waters fronting the project.

  5. Class AA Waters Fronting Hokuli`a

  6. The Same Area On 11/02/00

  7. County of Hawaii • Third Circuit Court ruled the County of Hawai`i violated its public trust duty to protect these coastal waters. • On appeal, the County argued that it did not have any such public trust duties. • Hawai`i Supreme Court recently ruled otherwise: the County’s argument that it has no “attendant obligations” under the public trust doctrine and that public trust responsibilities arise out of state ownership is not correct.” THE COUNTY HAS AN AFFIRMATIVE DUTY TO ENSURE CONDITIONS DESIGNED FOR EFFECTIVE SOIL EROSION CONTROL ARE, IN FACT, MET.

  8. State of HawaiiDepartment of Health • The Third Circuit Court ruled that DOH violated its public trust duties. • On appeal, the DOH claimed that its public trust duties are undertaken in its “absolute discretion.” • In this case, the DOH argued that it need only place conditions on developer and then enforce if and when violated. No need to take any affirmative steps to prevent pollution • Supreme Court disagreed: DOH’s “duty requires DOH to not only issue permits after prescribed measures appear to be in compliance with state regulation, but also ensure that the prescribed measures are actually being implemented after a thorough assessment of the possible adverse impacts the development would have on the State’s natural resources.”

  9. II. Hokuli`a: The Desecration of Human Remains Archaeological inventory survey of 1550 acres in 1997 inadequate. Original survey identified 408 historic sites, including 31 burial sites. SHPD relied on archaeologists paid by developer to sign off on grading permits. Grubbing and grading disturb a number of unidenitified burials prompting Developer to initiate archaeological “sweeps”. Result: Sweeps identify an additional 200 historic sites , including an additional 40 burial sites containing the remains of at least 73 individuals

  10. A Mass Burial Disturbed By Grading

  11. Pu`u Ohau The Burial Site of Kamaeokalani The grandmother of Kalakaua and Lili`u In 1999, the HIBC designates all of Pu`u Ohau a burial site and requires the developer to build a six-foot wall along its base (at about 30-40 foot elevation)

  12. Pu`u Ohau vs. Oceanview Lots • 2001 DLNR commitment: enforce the HIBC determination to protect entire Pu`u • In 2003, Peter Young decides to locate the wall along the conservation district boundary at the 110-120 foot elevation.

  13. Oceanside/SHPD’s planned wall Five luxury lots HIBC’s intended wall

  14. Major Findings on Burials

  15. III. Hokulia: The Alaloa vs. Golf

  16. Oceanside’s Attempt to Claim the Alaloa The alaloa, a trail that circumnavigated the island, was built in the 14th century and continued to be an important predestrian access route up through at least 1930 when prior owners of property restricted access. The developer tries to claim title to the alaloa to limit/prevent public access.

  17. The Alaloa originally

  18. The Alaloa Removed In the summer of 2000, the developer removes sections of the alaloa where the 16th fairway and 1st tee will be located.

  19. The Third Circuit Court Rules The Alaloa is a Public Highway and Orders Its Restoration • “The right to use the stepping stone trail/alaloa as a right of way is a constitutionally protected right under Article XII, Section 7…

  20. The Attempt to Restore the Alaloa Along the 16th Fairway

  21. IV. Hokuli`a Agriculture The “Fake Farm” Campaign

  22. The Villages of Hokukano • Oceanside’s initial development plan envisioned a residential development consisting of two separately zoned areas: • 1) 684 acres rezoned from Ag-5a to Ag-1a • 2) 756 acres rezoned from Ag-5a to Urban • This plan required that the developer apply to the LUC for a district boundary amendment from ag to urban.

  23. District Boundary Amendments • LUC approval needed for district boundary amendment from ag to urban of land areas greater than 15 acres. • LUC holds contested case hearing wherein it must consider: • 1) Whether the proposed amendment conforms to the Hawaii State plan • 2) Impact on preservation of important natural systems or habitats, valued cultural, historical or natural resources, etc.

  24. Agricultural Subdivisions • Counties generally have the power to rezone within districts with no need for LUC approval. • Counties must, however, enforce the restrictions on use and the HRS 205-4.5 farm dwelling requirement on ag lands. • After a series of private meetings with County representatives, Oceanside changes the concept of the project to consist of one acre ag lots. • The County thereafter enacts a series of zoning changes and a general plan amendment and grants final subdivision approval for both project phases.

  25. HRS sec. 205-4.5(a)(4) (4) Farm dwellings, employee housing, farm buildings, or activity or uses related to farming and animal husbandry; Farm dwelling as used in this paragraph means a single-family dwelling located on and used in connection with a farm, including clusters of single-family farm dwellings permitted within agricultural parks developed by the State, or where agricultural activity provides income to the family occupying the dwelling

  26. Hokuli`a’s Agricultural Subdivision • Golf Course • 80-unit Member’s Lodge • Golf Club House • 730 residential lots (1-3 acres each) • Tennis facilities • Beach Club • Gated community • Dedicated Shoreline Park • Ag (coffee and tree farm) located in common areas and roadways of project • Ag may take place on lots if deemed necessary and appropriate by homeowners association

  27. Hokuli`a’s Marketing Plan

  28. Hokulia’s Target Market

  29. Hokuli`a, aka Green Acres • “As the Court noted, the situation for Hokuli`a lot buyers may be similar to those portrayed in the 1965 television series, Green Acres. In Green Acres, Oliver Wendell Douglas (Eddie Albert), a prosperous, Harvard-trained, New York attorney, buys farmland to fulfill his longtime ambition of living the simple life of a farmer. He and his wife Lisa (Eva Gabor), move to their new home in Hotterville, where most of their neighbors promptly start betting on the number of days it takes the Douglas family to abandon farming and return to their fancy New York penthouse. Surprising them all, the Douglas family struggles through the challenges of life on a farm and succeeds in raising crops of apples.” Defendant Oceanside’s Motion to Dismiss Count IV For Lack of Ripeness, at 4.

  30. Hokuli`a’s Ag Plan Debunked

  31. Judge Ibarra’s Conclusions(September 2003)

  32. Judge Ibarra’s Conclusions(September 2003)

  33. Hokuli`a: The Aftermath Oceanside appeals, engages in publicity blitz and seeks legislative fix. The sum effect of these efforts force settlement.

  34. Mahalo! Any questions? Ask Alan

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