POSTED: 25 January 2004 - 11:00am

Fake Farms

synthetic Hokulia Golf course built on arid lava rock nurtured with chemicals and diverted water

It is time for the government and the media on Kauai to pay some attention to one of the most significant court decisions of the last twenty years regarding the illegal use of agricultural land.
On September 9, 2003 Judge Ronald Ibarra of the Third Circuit Court on the Big Island ordered all work stopped at the Hokulia development in South Kona.  And last week the judge issued his final ruling that both the developer and the County of Hawaii had ignored the law by not obtaining a land use change from the Land Use Commission before proceeding with the super luxurious resort development.  The Hokulia project, on 1250 acres, would have 750 lots, selling between $650,000 to $2.5 million a piece, golf course, club house and all the amenities of a resort except for any farming on the 1250 acres of land classified as Agricultural Land under State Law.
In his final ruling the judge said the county and the developer deliberately collaborated to avoid Land Use Commission involvement and allowed a private luxurious resort residential subdivision to be built on agricultural land.  He not only slapped down both the county and the developer, he also handed down an award of $1.75 million in attorney fees and costs to plaintiffs Protect Keopuka Ohana and the Jack Kelly Group.  The award is split evenly against the developer and thereunto. 

Responding to this huge award and the tongue lashing, Mayor Harry Kim, who was not the mayor when all this conspiracy was going on, said government has to be accountable to residents, who will foot the bill for the county’s share of the award.  In other words, the residents lose both ways:  They lost the potential use of agricultural land for agriculture and they have to pay for the malfeasance of their officials.  They might find some satisfaction of sorts, however, to know that some of the people who have bought these expensive “farm lots” have brought suit against the developer and want their money back, and the “money” could amount to half a billion dollars since close to 200 lots had already been sold.
Most observers of the governments in this state eventually come to the unfortunate conclusion that the only effective way to make the governments behave as their office holders have sworn to do is to go to court.  Let’s hope the officials on Kauai will take note and mend their ways so we taxpayers would not have to pay the bills as our brethren on the Big Island are having to do.  In the mean time we might develop a grading system for our elected officials based on how much they cost the taxpayers in lost lawsuits – wasted tax dollars being a much more tangible measure of performance than the usual election rhetoric.



POSTED: 25 January 2004 - 10:30am

Court Says Hokulia Case Now Closed

Heavy equipment works on Hokulia bypass highway south of Keauhou on the Big Island

by Bobby Command on 23 January 2005 in West Hawaii Today

The Hokulia development is stalled indefinitely after a Third Circuit Court closed the books on the case Wednesday.

But before Judge Ronald Ibarra issued his final judgment, he also handed down eye - opening attorney fees and a significant recognition of the public's ability to protect natural resources when government fails or refuses to enforce the laws.

The decision by Ibarra also paves the way for next step: Developer 1250 Oceanside Partners appealing any and all of the rulings, including the award of $1.76 million in attorney fees and costs to plaintiffs Protect Keopuka Ohana (PKO) and the Jack Kelly group.

PKO and Kelly successfully sued the developer of the South Kona luxury subdivision over a number of issues, including treatment of Native Hawaiian burials, removal of an ancient trail and the use of agricultural land for luxury homes.

Ibarra also ruled the plaintiffs successfully acted in defense of public resources after the state and county failed to do so. "At great cost to them," Ibarra wrote, "Plaintiffs persisted in seeking private enforcement of the Ala Loa and the burial sites, and enforcement of state land use laws."

The fees and cost awards were split evenly among the taxpayers and Oceanside 1250. While Oceanside 1250 will pay its share of $880,596, the county will pay $658,995 since the Kelly group has waived its share of attorney fees and costs from the county.

However, Kelly, speaking for his group, as well as Protect Keopuka Ohana, said no individual in either group will profit from the awards.

"I'm not taking anything," Kelly said. "Neither is Protect Keopuka Ohana."

Kelly said the most significant action is proof that the public attorney general doctrine is valid.
"It has always been there, but the award of attorney fees is proof that any citizen can stand up to protect public resources, and find an attorney who will be able to invest significant time into a case with hope of some return at the end," he said.

Ibarra wrote the trial enhanced the capability of the community to insist on enforcement of its rights, including Hawaiian cultural concerns.

"Furthermore, they clarified for the first time the importance of following prescribed processes mandated by legislative action, which were previously being ignored by both government bodies and private developers without restraint," Ibarra wrote. "The decisions of this court were of significant statewide importance."

John DeFries, Hokulia chief executive officer, said Thursday company attorneys will review the orders, and almost certainly will appeal the rulings.

"While we had hoped the final judgment would be delayed so the parties would not have to gear up for the appeal process, we respect the judge's actions, and will act accordingly," DeFries said.
Neither Kelly nor DeFries would comment on mediation between the parties. Neither party's willingness to discuss the mediation, which is supposed to last through the end of the month, indicates the mediation may be ongoing.

However, the final judgment by Ibarra probably has nixed any chance the case will be dismissed in Third Circuit Court.

DeFries said Hokulia expects documentation that will support its share of the award. "It's premature for us to make an assessment," he said. "But it will be appealed and we hope for accountability."
Hokulia, DeFries said, is still in compliance with Ibarra's Sept. 9 order stopping any development of luxury homes at the 1,550 - acre property makai of Kealakekua.

"With the exception of the golf course, which is a permitted use, little has changed since Sept. 10, the day after the ruling," said DeFries, who added the work force has been reduced from 185 to 80 employees.

Big Island Mayor Harry Kim said government has to be accountable to residents, who will foot the bill for the county's share of awards. "I didn't add it up but we have exposed taxpayers to this and it is something that should not have happened," Kim said.

Kim added Ibarra's statements that government had not done its job refers to the whole system, and must be addressed by the county and state.

"I'm befuddled that this problem with ag lands got this far," he said. "But this is a complex issue that needs clarification."