The Hawaii Supreme Court has invalidated the state Land Use Commission’s 2010 approval of the controversial Koa Ridge project in Central Oahu, but developer Castle & Cooke Hawaii said it plans to proceed based on a subsequent commission approval won in 2012.
The Sierra Club Hawaii Chapter lawsuit questioned the validity of the commission’s 2010 approval, specifically whether one-time commissioner Duane Kanuha should have been allowed to vote.
Kanuha, whose term expired June 30, 2009, had been nominated by then-Gov. Linda Lingle to a second term on the commission but was rejected by the state Senate in April 2010, months before the LUC’s final vote. Kanuha remained on the commission through early 2011 as a "holdover," pending the Senate’s approval of his successor.
The Supreme Court’s decision finds that a nominee rejected by the state Senate should not be allowed to remain on the commission, said Robert Harris, Sierra Club Hawaii chapter president. Additionally, the decision ensures continued compliance with an existing state law requiring a Native Hawaiian cultural expert be on the commission, he said.
The LUC’s 2010 vote reclassified 768 acres from agricultural to urban use between Waipio and Mililani for the 5,000-home Koa Ridge development. The city last month approved rezoning for 3,500 units of the project.
Kanuha’s participation was at the crux of the high court’s decision Monday. The LUC voted 6-0 in October 2010 to give final approval for the project. But Kanuha should not have been allowed to participate in that vote because the Senate had several months earlier rejected his nomination, the majority opinion said. Because six votes were needed for the approval, the application should have been denied, the court said.
The ruling reversed a state Intermediate Court of Appeals decision that concluded Kanuha was not disqualified, which had overturned a Circuit Court decision siding with the Sierra Club.
Chief Justice Mark Recktenwald disagreed with the majority’s conclusion, arguing that Kanuha was a valid holdover and therefore allowed to vote.
Bruce Barrett, Castle & Cooke executive vice president, said in a statement that the landowner is disappointed with the decision "based on a technicality beyond our control" and that the project’s merits were never in question. The decision also does not prevent the project from proceeding because the company repetitioned and won approval for the project from the LUC in 2012, he said.
"We remain committed to moving forward with the project that will fulfill a critical housing need for Hawaii residents," Barrett said.
Harris, of the Sierra Club, said that without the 2010 approval, the project’s standing rests on the 2012 reclassification, which his organization is also appealing.
That lawsuit, filed by the Sierra Club and state Sen. Clayton Hee, argues that the commission’s 2012 approval breached its constitutional mandate to preserve agricultural lands and that the state failed to establish rules designating important agricultural lands.
Castle & Cooke said that farmers displaced by the development are being relocated elsewhere.
The developer won that case in state Circuit Court, but the matter is pending before the Intermediate Court of Appeals. Harris said he doesn’t expect that case to be resolved for at least another year.
Even if the reversal of the 2010 LUC approval might not halt the Koa Ridge project, the decision will have permanent ramifications on future land use decisions, Harris said.
A 2006 law required that at least one member of the LUC "shall have substantial experience or expertise in traditional Hawaiian land usage and knowledge of cultural land practices." Kanuha was designated by Lingle to be the cultural expert, and the Senate rejected his renomination in large part because they felt he lacked expertise as a cultural practitioner.
The Supreme Court’s decision reaffirms the Senate’s authority as well as the requirement that a person have expertise as a cultural practitioner, Harris said.
