High court ruling backs Ewa planned community

Hawaii’s highest court cleared the way Tuesday for a controversial master-planned community with 11,750 homes on 1,526 acres of prime farmland on Oahu’s Ewa plain.

The state Supreme Court issued a 4-1 decision to uphold a 2012 state Land Use Commission decision to urbanize the area for the Ho‘opili project planned by the local Schuler Division of Texas-based developer D.R. Horton.

Horton officials anticipate breaking ground on an initial phase next year.

The Sierra Club and former state Sen. Clayton Hee unsuccessfully contested Horton’s plans at commission hearings, then appealed the LUC decision to a state Circuit Court. The lower court sided with the LUC in 2013, and the appeal was carried up to the high court, which rendered its decision.

“The LUC in this case properly reclassified D.R. Horton-Schuler’s property from the agricultural land use district to the urban land use district,” said the written opinion authored by Justice Sabrina McKenna.

Justice Richard Pollack dissented, saying the case should be remanded to the LUC to do over because the commission’s written conclusions of law failed to state that its decision doesn’t violate a 2005 state law governing important agricultural land.

The majority opinion said that was a “harmless” error because the commission made separate findings pertaining to important agricultural land governed by the 2005 law.

Hee, who at the time was a senator representing the Kahuku-to-Kaneohe area, and the Sierra Club appealed the LUC decision largely on grounds that the commission violated a section of the Hawaii Constitution that calls for preserving agricultural land and that it should have adopted rules to designate important agricultural land under the 2005 law enacted as Act 183 before deciding whether to urbanize the Ho‘opili site.

The majority court opinion said a process exists for designating important agricultural land that doesn’t preclude the LUC from urbanizing land that might qualify for protection.

“The plain language of Act 183 does not require the LUC to identify (important agricultural lands) before reclassifying land,” the decision said.

The opinion also noted that the city excluded the Ho‘opili site from land it is considering for protection and kept the site within the urban growth boundary of its recently amended Ewa Development Plan.

Another key piece of the legal challenge argued that the commission violated its own rules that prohibit urbanizing farmland that has been cultivated within two years of a petition for urbanization if developing the land impairs Hawaii agriculture production or isn’t necessary to accommodate population growth.

Horton contended that its project is necessary to accommodate population growth and that farmers displaced from the Ho‘opili site could relocate to suitable land mainly in the Wahiawa area and maintain agricultural production.

Hee and the Sierra Club presented expert witnesses that claimed crop production on the Ho‘opili land would not shift to other areas.

The high court’s majority said the Ho‘opili opponents didn’t show that the LUC erroneously accepted evidence presented by Horton suggesting that crop production could shift to areas of fallow farmland on Oahu and therefore not impair crop production. The opinion also said no challenge was made to the commission’s conclusion that Ho‘opili is needed to accommodate population growth.

“As such, this court must accept that the reclassification was necessary for urban growth,” the decision said.

Eric Seitz, an attorney representing Hee and the Sierra Club, said he doesn’t envision any further appeal. However, he urged the Legislature to fix what he termed “abysmal” land-use actions where arguably the best farmland remaining on Oahu is converted for housing.

“I’m very saddened,” he said. “This is a loss for people of Hawaii for generations to come.”

Horton issued a statement saying the company is looking forward to starting construction next year.

“(Tuesday’s) milestone decision from the Supreme Court has brought us one step closer to providing local families with a vibrant community in the heart of West Oahu — schools, small family farms, and a way to achieve the dream of homeownership,” said Cameron Nekota, vice president of Horton’s Hawaii subsidiary.

Horton received zoning approval from the City Council in May. However, that approval is being contested by the nonprofit Friends of Makakilo, which also contested Ho‘opili at the LUC hearings.

The nonprofit, led by Kioni Dudley, filed a complaint with the city Ethics Commission in September seeking to invalidate the zoning approval because each of the nine Council members received campaign contributions from Horton, contractors, labor interests and other parties that would benefit from the project.