The state Land Use Commission was scheduled to decide Tuesday whether to approve developer D.R. Horton’s plan to build an 11,750-home community called Ho‘opili on 1,554 acres of prime farmland in Ewa. But Horton sought and received more time to rebut a key argument made against the project.
Two Ho‘opili opponents, state Sen. Clayton Hee and the Sierra Club Hawaii Chapter, focused much of their case on the notion that a portion of the state Constitution calling for the preservation of prime agricultural land trumps the legal ability of the commission to approve such land for urban development.
The argument is a novel one that could set a precedent and affect other development projects.
Ben Kudo, an attorney representing Horton’s local Schuler Division in the case, said he is confident that the commission has the authority to urbanize prime ag land, but he said he wants to ensure that the commission can refer to additional information he intends to submit on the subject.
Kudo told commissioners it’s important to provide more information showing why Horton believes the commission has the authority to urbanize the site, especially given a Hawaii Supreme Court ruling two weeks ago that struck down a decision the commission made barring the city from accepting garbage at the Waimanalo Gulch Sanitary Landfill after July 31 as part of approving a landfill expansion.
Kudo also cited another court ruling that invalidated a commission decision to revoke an earlier approval for the Aina Le‘a housing project on Hawaii island because the developer missed a deadline to deliver affordable homes.
The city Department of Planning and Permitting, which supports Ho‘opili, supported Horton’s request if the commission felt it could use more information. The state Office of Planning, which also supports Ho‘opili, took no position.
Horton’s request was opposed by Hee, the Sierra Club and the third challenger of Ho‘opili before the commission, the community group Friends of Makakilo. The challengers said their positions had been made during hearings that stretched over several months and that Horton had ample opportunity to rebut their claims.
Kioni Dudley, a Makakilo resident leading the community group, called the move by Horton a ploy to delay a decision beyond a one-year deadline after which approval is automatic, or an attempt to allow the terms of two commissioners to expire at the end of June before rendering a decision.
"We need to finish this thing today," he said.
Added Eric Seitz, an attorney representing Hee, "I wonder what are they (Horton) are going to say that hasn’t been said? These issues have been raised again and again and again."
Kudo said Horton’s request, filed Friday afternoon two months after evidentiary hearings concluded in the case, isn’t a delay tactic. He said the developer wants to be sure that the constitutionality issue is thoroughly explored, especially because there is a "high probability" that Hee will appeal to the courts if the commission approves Ho‘opili.
Commission Chairman Normand Lezy expressed concern about the timing of Horton’s request but said there is merit to ensuring commissioners have a thorough record examining the issue.
The commission voted 7-1 to approve Horton’s request.
Lezy set a tight timetable for Horton to submit written arguments by Friday, allowing Ho‘opili opponents time to file responses by June 4. The commission could decide to allow oral arguments based on the written submissions, but will make a decision before June 30, Lezy said. A date for making a decision will be set before then.
