OHA understood restrictions on development in Kakaako Makai

The Hatfields and the McCoys. Mention either of these families and thoughts of unpardonable sins, generational grievances, and collateral damage come to mind. But despite all that had happened between these two families, at some point, peace was finally restored.

Kakaako Makai was intended to manifest the peace between the state of Hawaii and Native Hawaiians. The state and the Office of Hawaiian Affairs (OHA) agreed to settle their differences over millions of dollars in ceded land revenues without an admission of fault so that both could focus on good relations going forward. As settlement in 2012, the state agreed to convey, in lieu of cash, lands in Kakaako Makai to OHA that were worth approximately $200 million. At the time, there was already a restriction in place dating back to 2006 prohibiting residential development there.

When OHA agreed to the settlement, it understood that commercial use would be the extent of any future development of the Kakaako Makai lands. It wholeheartedly accepted those lands with that understanding, and everyone was happy because peace was restored.

Yet in just two years, OHA changed its mind and now wants to build residential units in Kakaako Makai. It says the only way these lands will generate sufficient revenue to fulfill OHA’s fiduciary duty to its beneficiaries will be if they are allowed the "highest and best" use. But if that is the case now, wasn’t that the case two years ago? If that was so, why did OHA agree to the settlement?

When OHA officials accepted those lands, they knew that the law prohibited residential development makai of Ala Moana Boulevard. They knew that Alexander & Baldwin had proposed build residential condominiums on those same parcels in 2006 but were stopped by the Legislature to protect public access to the ocean and preserve recreational uses of the area.

OHA even retained its own real estate appraisers, legal advisers and development experts in doing its due diligence. Moreover, OHA even repeatedly opposed passage of a law that would have provided the residential entitlements they are seeking today. The inescapable truth is that it accepted the bargain with eyes wide open.

Ask yourself: Would changing the law today be fair to Alexander & Baldwin? What about Kamehameha Schools that owns land in Kakaako Makai? What about its beneficiaries? How fair is this to all of the various community stakeholders who spent over five years working on the Kakaako Conceptual Master Plan? A master plan issued by the Kakaako Makai Community Planning Advisory Council, a group which included an OHA representative as an ex-officio member?

Buyer’s remorse, although understandable, is insufficient reason to renege on a settlement that OHA and the state fashioned through good faith bargaining and honest negotiations.

On June 14, 2003, an official truce was declared by the Hatfields and McCoys. An organizer of the truce said: "The Hatfields and McCoys symbolize feuding and fighting, but by signing this (truce declaration), hopefully people will realize that’s not the final chapter."

Like the truce declaration, Kakaako Makai was intended to broker an enduring peace between the state and Native Hawaiians. The bargain is a carefully balanced calculus of amount due and payment owed. Don’t let buyer’s remorse destroy all the good that was supposed to come with the agreement.

Granted, mutual reconsideration of past agreements is acceptable and can benefit all stakeholders, but it must be done so that both parties meet their legal and fiduciary responsibilities to respective constituencies for OHA, the Native Hawaiians beneficiaries; for the state and the Legislature, all the people of the state of Hawaii.