Ka Wai Ola - Office of Hawaiian Affairs, Volume 22, Number 4, 1 April 2005 — Suit by Hōkūliʻa lot owners likely [ARTICLE+ILLUSTRATION]

Suit by Hōkūliʻa lot owners likely

Threat of legal action follows developer's legislative efforts

By Sterling Kini Wong It now appears likely that nearly 100 lot owners of the Hōkūli'a luxury development, whieh was halted by a state judge over land-use issues more than a year ago, will soon file a $200-million lawsuit against Hawai'i County. Robert Baker, the attorney for the lot owners, said that if a solution can't be found in the state Legislature, he will send the county formal notification on April 10, and 60 days later he will file the lawsuit, whieh he said is already prepared. In 2003, Circuit Judge Ronald Ibarra ruled that the l,550-acre development on the Kona Coast of Hawai'i island was in violation of state law because its lands would not be used for agriculture, the use for whieh they are classified. Ibarra stopped development at Hōkūli'a and ordered the developer, 1250 Oceanside Partners, to seek reclassification of their lands from the state Land Use Commission. Oceanside appealed the decision to the state Supreme Court, where some cases have waited for up to four years before being heard because of its backlog of cases. In December, the court denied Oceanside's request for a faster hearing. Native Hawaiian Legal Corp. (NHLC) Litigation Director Alan Murakami, who argued the case to halt the project, said Ibarra's ruling served as wake-up eall to Hawai'i developers who have long circumvented state land-use laws by using agriculture lands for urban developments. The NHLC filed the action on behalf of loeal residents who fear the project will jeopardize the

archaeological sites found on the property, whieh include an ancient Hawaiian stone trail and burials. In a letter Baker sent to Hawai'i island Mayor Harry Kim in February, he said that the development agreement between the county and Oceanside provided the lot owners assurance that their property rights were secure and the project could be developed as planned. If the lot owners do sue the county, it seems that Oceanside will be brought into the litigation. Hawai'i County Managing Director Dixie Kaetsu said that because Ibarra ruled that both Oceanside and the county were at fault, the county will make sure that both are party to the lawsuit. "If [the lot owners] don't sue Oceanside, we will enjoin to bring them in," she said. Murakami said that while the county is responsible to a certain degree, he believes Oceanside should bear See HŌKŪLI'A on page 22

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An excavator sits idle on the Hokuli'a site.

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HŌKŪU'A from page 9

the primary liability for its failure to follow land-use law. Ibarra ruled that Oceanside acted in bad faith and ignored their own attorneys, who advised them to submit their plan to the LUC for review, he said. Oceanside has tried to circumvent Ibarra's ruling through an extensive lobbying campaign at the state Legislature to change land-use law, but it now seems that the company has not been able to gather enough support to pass its measures. Rep. Robert Herkes (D-Puna, Ka'ū, South and North Kona) introduced House Bill 1418, whieh would have allowed agricultural lands, including Hōkūli'a, to be reclassified as rural. The bill, however, never made it out of the House. Herkes said that Senate Bill 1593, whieh has a section that would allow for reclassification of agriculture lands to rural, could also be used as a vehicle to address Hōkūli'a. "It's our last hope" for this legislative session, he said. But Sens. Russell Kokuhun (DWaiākea Uka, Volcano, Kalapana) and J. Kalani English (D-Moloka'i, Lānai, Hāna), two of the bill's co-sponsors, said they do not support the use of SB 1593 to solve Hōkūli'a's problems. Kokubun said the bill, as a package with two others, is intended to encourage the little-used rural classification for older communities in areas such as Puna and Ka'ū, whieh are on agriculture lands. He said that if the section of the bill thatallowsforone-timereclassification of lands is used to fix Hōkūli'a, he will remove it from the bill. "I'm not wed to that" portion of the bill, he said. "If it becomes too onerous to keep it in, I will take it out." He said that Oceanside needs to resolve their case either in the courts or by seeking a reclassification of their lands in the LUC, as Ibarra ruled. O