The state Land Use Commission’s denial of an application by Connections New Century Public Charter School for a special use permit to build a campus in Hilo on about 70 acres of state land zoned for agriculture is being appealed.
Ted Hong, the attorney for the Community Based Education Support Services, the charter school’s board; Kevin Richard and Carter Siu, deputy attorneys general representing the school itself; and Michael Matsukawa, attorney for the intervenor in the case, Jeff Gomes, all filed notice of appeal documents to the state Supreme Court in mid-March.
Hong said Tuesday the case has been designated by the high court for appellate mediation with retired Maui Circuit Judge Joel August.
“We’re headed for our premediation conference this Friday with the attorneys, just to get the ground rules straight. And then we go into a mediation session,” Hong said.
Plans for the campus, which would be built near the corner of Kaumana Drive and Edita Street, have been in the works since 2006 and have been met with opposition from neighbors who have cited concerns about increased traffic, water availability, and the potential encroachment by the school on the neighborhood’s quiet lifestyle.
Those plans call for a student body of 381, a 30-bed dormitory, gym, cafeteria, library, caretaker’s residence and two parking lots with a total of 140 stalls.
The county’s Windward Planning Commission in 2014 denied the school’s permit application. The school and CBESS appealed.
The Intermediate Court of Appeals remanded the matter back to the planning commission in February 2020, and the commission in October held a new set of hearings but decided not to open the record to additional evidence. The result was a 4-1 vote by the planning commission recommending approval of the permit, which was forwarded to the LUC.
That led to the LUC denial of the permit by a 6-0 vote in January.
Hong said he doesn’t know what counsel for the school will choose as its grounds for appeal, but he plans to appeal what he said was a “mistake” made by both the LUC and WPC. The land use panels, Hong said, thought the school should have sought a district boundary amendment instead of a special use permit. The amendment, if granted, would’ve changed the property’s zoning designation to low-density urban, the same as the surrounding neighborhood.
Another ground for appeal, according to Hong, is the LUC “held us to the same erroneous standard that the planning commission held us to.”
“They were basically conjuring facts and administrative requirements that we didn’t have to meet or that we had already met,” he said. “But their thinking was, well, we met them, but it wasn’t to their own particular liking.”
Hong cited the example of Dawn Chang, an at-large commissioner who opined the school hadn’t made enough of an effort to contact Native Hawaiian advocacy groups about its plans and their effects on customary Native Hawaiian cultural practices. At least part of the property sits over Kaumana Cave, a lava-tube system created by the 1881 eruption of Mauna Loa.
Hong said he was “struck like a lighting bolt” by Chang’s assertion that the applicants “should’ve known that Native Hawaiian advocacy groups do not respond to letters requesting their input.”
“One of the letters we sent out was to the (Edith) Kanaka‘ole Foundation,” he said. “Now, you can’t tell me they don’t understand or appreciate what these letters are for. We’re talking about college professors … and one of the foremost Native Hawaiian advocacy groups. And you’re saying they don’t respond culturally because of letters? That’s ridiculous.”
Another bone of contention, according to Hong, was Lee Ohigashi, the Maui commissioner, “basically (comparing) the charter school and the request for the change of land use to a landfill on Oahu and also a water park on Oahu and saying the use is the same.”
“I’m going, ‘Yeah, that doesn’t quite make sense,’” Hong said.
According to Matsukawa, although Gomes — a neighbor of the proposed school campus project — was successful in seeking a denial of the permit request, he’s appealing, as well, so the high court can consider the public trust doctrine when making its decision. He said both the WPC and LUC failed to take the public trust doctrine into account in making their decisions.
The doctrine is defined by Cornell Law School as “the principle that certain natural and cultural resources are preserved for public use, and that the government owns and must protect and maintain these resources for the public’s use.”
Joe Clarkson, who cast the lone “no” vote on the Windward Planning Commission, cited the lack of discussion about the public trust doctrine as his reason. Matsukawa said he thinks the LUC didn’t see the need for discussing the doctrine because “they were going where they were going” in denying the permit application.
“The whole point is we didn’t want to lose track of the subject or the standing that we have,” Matsukawa said. “The last court ruling put it in a footnote, saying that you’re allowed to raise this issue on remand. Which we did. And then, nobody wants to deal with it.”
Romeo Garcia, Connections’ principal, said the school is taking “a two-track approach, just to see what works for us the soonest.”
“We are appealing to the next-level appellate court, and we’re also going back to the Windward Planning Commission to ask for a special use permit for a smaller acreage, 15 acres.,“ Garcia said.
The planning commission can grant the permit for 15 acres or less without forwarding the application to the LUC.
“It’s been a long, long ordeal. So, at this point, we don’t want to abandon the opportunity to build another campus,” Garcia said. “We’re going to continue to use the land with the permissions that we have right now to use it for agricultural purposes. We’re still applying for agriculture grants so we can do the farm-to-school program. And that’s going well.
“I think our decision to go back to the Windward Planning Commission for a smaller footprint is good and makes sense — and, hopefully, will give us an opportunity to build on the land sooner rather than later.”
Richardson didn’t return a call in time for this story.
Email John Burnett at jburnett@hawaiitribune-herald.com.