Protecting Rural Hawai`i

Preserve local lands for local people
Stop the "fake farm" fix to the Land Use Law

Despite the out-of-court settlement of the Hokulia litigation, a measure that would retroactively approve such residential developments on agricultural lands is still moving through the legislature. HB 1368 HD2 is pending a hearing before the Senate Committees on Water, Land, & Agriculture and Judiciary and Hawaiian Affairs. Senator Russell Kokubun, the Chair of the Water Land committee, has said he wants to move the bill forward with amendments that would not only retroactively approve "fake farm" subdivisions, but allow future developments on certain farmlands subject only to county approval.

Read David Kimo Frankel's Op-ed piece on the issue here.

Please help!
Please, take one minute today to write or call Senator Russell Kokubun. Please ask Senator Kokubun not to support any amendments to the State Land Use Law.

Senator Kokubun’s phone number is 808-586-6760 (you can also reach him toll-free from the Big Island by calling 974-4000, waiting for the tone, then 66760). His email address is senkokubun@capitol.hawaii.gov. His fax number is 808-586-6689.

Click here for a list of other committee members who will be voting on HB 1368.

How would this bill change Hawai`i?
Measures under consideration focus on agricultural lands with soils classified as "C," "D," "E," or "U" -- that is, lands that were not traditionally the most productive during the sugarcane and pineapple plantation days. Of course, farming in Hawai`i has diversifed significantly since the soil classifications were established, and some of the most productive farmlands in the state (eg. Kona coffee belt) contain "C" and "D" soils. So how might your island change? Below are maps of each island showing lands which would potentially be developed under this bill in yellow.

• Statewide
• Kaua`i
• O`ahu
• Maui
• Big Island

Other key documents:

• Office of Hawaiian Affairs Hokula fix bill testimony in opposition
• Hawaii Farm Bureau fix bill testimony in opposition
• Land Use Commission Director fix bill testimony in opposition
• September 2003 Third Circuit Court ruling
• Legal analysis of Hokulia project sent to project developer in 1994

WHAT IS WRONG WITH THE "FAKE FARM" FIX BILL?

1. The premise of the bill is flawed.

The trial court’s decision in the Hokulia case is not a “new way” of interpreting chapter 205. It is the same interpretation provided by the Legislature itself in 1976. It is the same interpretation that the Land Use Commission articulated over a decade ago in 1994 and repeated 2000. It is the same interpretation that caused state agencies to warn Oceanside 1250 regarding the inappropriateness of its project. It is the same interpretation that Hokulia’s lawyers provided to the developer prior to construction.

The trial court did not rule that “a subdivision creating one-acre lots in the agricultural district had to go to the state land use commission for reclassification to urban.” Rather, it ruled that a gated-luxury resort residential subdivision consisting of 730 residential lots surrounded by a golf course, club house, dining facilities, beach club, spa and a hotel (aka a “guest lodge”) is not agricultural; and that such a project can only proceed in the urban district. Who in their right mind can argue with a straight face that such a development is agricultural?

2. The bill undermines the land use law and jeopardizes farmlands.

The proposed changes in the forthcoming HB 1368 legislative fix would destroy the Kona coffee-belt. These productive lands are not A&B lands. Nevertheless, this bill would allow all those lands to be developed without any agricultural component. Wealthy mainland speculators with no interest in agriculture would be free to transform these lands as exclusive gated-communities.

3. The proposed fix is unnecessary.

The Hokulia decision has no effect on other housing developments in the agricultural district developed years ago. A campaign has been orchestrated to scare many people into believing that. While it is true that the Hokulia order will have a significant effect on future development proposals, it has no effect on already existing houses in the agricultural district (e.g., Puna). No one could – or would – sue an individual homeowner over the fact that their house is not sufficiently agricultural. The unique facts relating to the knowledge of the Oceanside developers allowed the plaintiffs to circumvent the legal principle of laches. Consider just a few key differences:

• development in progress (Hokulia) vs. house built years ago;
• major developer of a private, luxury resort residential subdivision with a golf course, hotel, and spa (Hokulia) vs. an individual homeowner; and
• concrete evidence of ignoring the law, ignoring the advice of attorneys, and deliberate circumvention of the law (Hokulia) vs. innocent homeowner.

Moreover, it would not be difficult for a single family homeowner in the agricultural district (for a lot approved after 1976) to make an effort at engaging in agricultural activity.

4. The proposed legislative fix undermines the rule of law.

The measure sends the message to developers: “go ahead, you can ignore the advice of your attorneys and government agencies. If you are found to have violated the law, we will change the law for you.”

Video of Hokulia development muddy runoff from the air - Sept 2000 (2.8 MB mpg)

Video of Hokulia development muddy runoff from underwater - Nov 2000 (3.8 MB mpg)