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Impact of Aina Lea decision remains unclear

By Erin Miller

Stephens Media

Legal experts are split on what the impacts of last year’s 3rd Circuit Court ruling on a Land Use Commission action could have on development here.

Developer DW Aina Lea and its predecessor Bridge Aina Lea successfully took the commission to court last year, with Judge Elizabeth Strance overturning the LUC’s decision to revert the Aina Lea project in South Kohala from urban to agricultural land. Hawaii County officials have allowed Aina Lea to continue working on the project, despite the state’s decision to appeal Strance’s ruling.

LUC Executive Officer Daniel Orendenker said neither he nor the commissioners have been given instructions to change how they make decisions based on the Aina Lea ruling.

“Nobody has brought that up with me,” Orendenker said. “We disagree with the decision.”

Commission Chairman Kyle Chock, who is also president of Kamehameha Investment Corp. in West Hawaii, said in a voicemail message commissioners have an informal policy not to talk with the media. An attempt to reach the state deputy attorney general who works with the commission was unsuccessful this week, because she was out of the office for several days.

Strance’s ruling shouldn’t have too much of a negative impact on the LUC, either now or after the appeal, if the appeal is unsuccessful, said David Callies, University of Hawaii’s William S. Richardson School of Law professor. For one, he said, the commission really shouldn’t be imposing conditions on developers anyway.

“It has very little authority to impose conditions” for boundary amendments, Callies said. Instead, the LUC should focus solely on determining whether the land should remain agriculture or conservation, or should be zoned urban to allow development.

The state has plenty of land for agriculture and conservation uses, he added, despite what other people may argue.

Right now, the ruling only applies to the 3rd Circuit Court. If the state Supreme Court eventually hears the case, its ruling would be statewide precedent.

The LUC should “leave (conditions) to the counties,” he said.

The counties do a good job of deciding those conditions when making rulings on granting entitlements, he said, adding he sees Hawaii County Mayor Billy Kenoi doing an especially good job.

“There’s been a nice balance between conservation, preservation and business,” Callies said. “Mayor Kenoi is obviously sensitive to the economy. He’s a down-the-middle kind of guy.”

Counties across the state are better prepared now to handle land use issues, he said.

“Thirty-five, 40 years ago, the Neighbor Island counties barely had a professional planner,” Callies said. “Now, they have whole departments.”

Callies wrote a brief supporting Aina Lea’s position in the litigation. He said Strance rightly ruled that for the LUC to revoke the development’s urban classification, “you still have to go through all the fact finding and hearings. There’s nothing in the statute that gives them a pass on that.”

Roy Vitousek, a Hawaii Island attorney who has worked on land development cases, said he thinks the ruling could have some implications for the commissioners. He disagreed with Callies that the LUC shouldn’t be able to impose conditions or enforce those conditions.

“As long as we have two levels of land use regulations and there’s not a complete overlap, I don’t know why any agency that can grant entitlements would not also be authorized to impose conditions,” Vitousek said. “If you have the authority to impose conditions but not enforce, that’s kind of toothless, meaningless.”

The conditions are important, he added, because they allow the LUC and the county to ensure that development is responsible, and that cultural and historical sites and public access are protected.

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