Efforts to preserve Oahu farmland resuming after query

A contentious government effort to preserve potentially 1,781 private parcels of farmland on Oahu is expected to resume in January after pausing in May for a legal review of a key element in the proceeding.

The state Land Use Commission is considering a city recommendation to protect the parcels amounting to 41,407 acres, or 11% of the island’s landmass, from being reclassified in the future for uses not permitted on farmland.

Commissioners have been inundated with complaints from landowners over how the city selected their property for protection as “important agricultural land” under a process established by state lawmakers in 2005.

In May the LUC asked for a publishable opinion from the state Department of the Attorney General on whether the city properly followed the law with regard to identifying land deserving protection.

On Thursday the commission made public a Sept. 23 letter from state attorneys stating that the city’s selection process followed the law.

The letter was drafted not as a formal opinion for publication, enabling the LUC to keep the advice secret under attorney- client privilege.

However, the commission unanimously decided to waive privilege and post the letter on its website after spending two hours meeting privately with counsel as part of a public meeting Thursday.

“I think it’s always in the best interest of our community if our community is fully informed,” said commissioner Dan Giovanni. “I believe in full transparency.”

The letter also suggested that the LUC should reconsider how the proceeding is being carried out.

Under the 2005 law, the commission may approve, reject or modify the city’s recommendation as a rule-making proceeding that doesn’t allow affected landowners to present arguments to the LUC with expert witnesses and legal counsel who could cross- examine city officials.

But the state attorneys advised the LUC that Hawaii courts are likely to conclude that important ag land designation is adjudicatory and therefore should follow a quasi-judicial process.

If the LUC makes the change, it will add another layer to what already has been a long and contentious process.

Lawmakers passed the 2005 law in response to a long-ignored Hawaii Constitution amendment ratified by voters in 1978 mandating that prime farmland be identified and protected.

Part of the law’s goal is to support more local food production and to make it harder to amend state-level classification of farmland to urban or other uses by requiring the LUC to consider additional criteria for any such change.

Under the law, each county was directed to identify land for protection, and so far only Honolulu has completed the task.

The city’s work began in 2011 and included assessments of land quality, community meetings, sending letters to affected landowners, a comment period, an opportunity to object, City Council hearings and Council approval.

Eight criteria are specified in the law for determining what land should be protected.

A parcel selected doesn’t have to meet every criterion, and can be given an initial consideration for protection by meeting a single criterion. However, the law also states that designating land for protection “shall be made by weighing the standards and criteria with each other.”

The city’s assessment involved weighted scoring of all eight criteria. To be as inclusive as possible, land was recommended for protection if any one of three top-weighted criteria was met: prime soil quality, water availability or existing agriculture use.

Some of the other criteria involve whether a parcel contributes to maintaining a critical landmass important to agricultural productivity, or if it’s near support infrastructure conducive to agricultural productivity.

Yet many affected landowners have complained that their property isn’t appropriate for protection and that the city never informed them of what was going on.

“We, as landowners and major stakeholders, were basically unaware that this was going on,” Nodie Namba- Hadar and Sam Hadar said in written testimony to the LUC in April.

The couple said in a follow-up June letter that no portion of their property in Haleiwa meets any criteria in the law, and they suggested that expensive legal proceedings, including a possible class-action lawsuit, could be ahead.

Michael Ford, a California resident who owns land in Pupukea, asked the LUC in an Oct. 15 letter how he can contest his property from being designated.

“I DO NOT WANT that designation,” he wrote, adding that it could possibly result in reduced value and more expensive upkeep. “The (agriculture) possibilities for this parcel are already limited and impacted by the size and location of it. I am not eager to have additional limitations applied as I seek to use the property.”