Kona’s Community Development Plan was upheld as law Monday by the Intermediate Court of Appeals, sending a proposed development back to the county Planning Department.
The ruling could have ramifications not only for the South Kona project, but also for projects countywide that run contrary to the community development plans that are put together by resident volunteers. The CDPs create in-depth plans that are then adopted by the County Council as part of its general plan.
“The county argues … that by adopting the Kona CDP, the county was not adopting law, but only recommendations,” the three-judge panel wrote in its 30-page opinion. “We disagree.”
The ICA decision upholds a 2013 ruling by 3rd Circuit Judge Ronald Ibarra, who said former Planning Director Bobby Jean Leithead Todd and the county Board of Appeals failed to uphold the county’s duty to protect natural resources in awarding a planned unit development permit to a South Kona developer.
The planned unit development, known as Waikakuu Ranch, seeks to subdivide a 72-acre lot with current zoning that allows 5-acre lots, into 13 two-acre lots and one large lot making up the balance of the property.
Patricia and Richard Missler, who live in a neighborhood adjacent to the proposed project, sued after the board ruled the project was not subject to the Kona Community Development Plan.
“The Intermediate Court of Appeals ruling is of great importance and affects everyone in Hawaii,” the Misslers said Friday in a statement.
“It reaffirms that our Hawaii County officials have an obligation to not only follow the law but to uphold the Public Trust Doctrine of the Constitution of the State of Hawaii. This is a win for the people of Hawaii and helps to protect our environment for future generations.”
The appellate court agreed with Ibarra that the application needs to include uses, dimensions and locations of the proposed structures on the property.
The ICA, however, didn’t agree with Ibarra’s finding that the planned unit development permit was not valid because it didn’t include an agricultural plan and didn’t have specific rules requiring the lots be used for bona fide agricultural uses.
The Misslers’ attorney, Michael Matsukawa, argued county planners also ignored an old-growth ohia forest on the property and the possible presence of the Hawaiian hawk and a rare palm tree.
Planning officials admitted they never conducted a site visit, despite the Misslers and other neighbors requesting one.
“An important decision from the ICA,” Matsukawa said. “The decision is very important to West Hawaii and the planning process.”
The Board of Appeals argued the CDP didn’t apply to planned unit developments, that the CDP ordinance did not have the weight of law and the project was grandfathered in because it preceded the CDP.
Attorneys for the county and the developer couldn’t be reached for comment Friday.
