The developer of a proposed 12,000-home master-planned community in Ewa has asked state officials to delay Tuesday’s final decision on whether its project can move forward by a month.

D.R. Horton filed the motion on Friday with the state Land Use Commission and the last-minute move is raising eyebrows among opponents who are trying to stop the controversial project known as Hoopili.

At issue is whether a delay would push a final decision past the end of June, when the terms of two commissioners expire. They will be replaced by appointees of Gov. Neil Abercrombie who has said that he supports the project.

“The new people would be Abercrombie people and the administration has been favorable to the development,” said Kioni Dudley, president of Friends of Makakilo, a chief opponent of the development.

An executive at D.R. Horton brushed off the notion that the company is trying to get a more favorable commission. Cameron Nekota, an executive vice president, said the company is asking for an extension in order to clarify a constitutional issue.

The developer has requested three weeks to file legal briefs in the case, with a one week opportunity for opponents to respond.

“After a five year process, we want to make sure everything is covered and that the commission has everything it needs to make a fair decision in this case,” Nekota said. “From our perspective, it’s been a long process that has attracted much scrutiny. We want to make sure the commission has all that (information).”

This is D.R. Horton’s second attempt to convince the commission to reclassify more than 1,000 acres of prime agricultural land to urban use. Last time, the commission rejected its petition saying that the company had failed to provide an adequate timeline for completing the project.

Other intervenors in the case include the Sierra Club and Sen. Clayton Hee, who is being represented by attorney Eric Seitz.

Seitz said he plans to object to D.R.Horton’s motion and that the commission’s schedule for the proceedings was aimed at concluding the process before members left the commission.

“To bring something like this up at the last minute is just bizarre,” Seitz said.

The terms of Normand Lezy, chair of the commission, and Lisa Judge expire June 30. Abercrombie has already appointed Lance Inouye, president and CEO of Ralph S. Inouye Co., a general contractor and developer of government properties and commercial real estate, to fill Lezy’s position. A replacement for Judge has not been announced.

New commissioners could vote on the case even though they haven’t sat through the quasi-judicial proceedings. But they must attest to having read all of the documents and files in the case. The case has stretched out over the past eight months and both sides have presented hours of testimony on issues including the loss of farmland, traffic impacts, the impact on water resources and expected job creation.

At least six of the nine members on the commission must approve D.R. Horton’s petition to reclassify the land.

The commission is also up against a July 26 deadline — if commissioners don’t make a decision by then, D.R. Horton’s petition is automatically granted.

Ag Land and the Constiution

D.R. Horton has been trying to reclassify the land, which it currently leases to two of Hawaii’s largest farms, for nearly six years.

A central argument of Hoopili opponents is that reclassifying the prime agricultural land violates the state constitution, which states that important agricultural land be protected. In 2008, the Legislature directed all counties to identify important ag lands that would remain classified as such in perpetuity unless changed by a two-thirds vote of lawmakers. The counties have been slow to implement the law, and opponents have argued that Hoopili lands would have received this special designation.

It’s this issue that D.R. Horton says it wants to clarify for the commission.

Opponents argue that “the constitution mandates the preservation of agricultural lands, and they certainly argued that in front of the commission for the last year now,” Nekota said. “We’re mainly clarifying it from our perspective. We just don’t want any commissioner to think that they can not do that.”

But opponents say it’s too late for D.R. Horton to be coming to the commission about the issue now, when it’s been a central component of the whole case.

“My take is that it is eight months too late,” said Seitz.

Hoopili Fight Likely to Continue

Both sides are also gearing up for a potential appeal of the commission’s decision.

The Sierra Club told Civil Beat that if the commission grants D.R. Horton’s petition, it will appeal the decision in court.

Seitz said it was premature to comment on the possibility of an appeal. But he did say that he had approached the proceedings in a way that created a record that would support an appeal if necessary.

D.R. Horton is preparing too, and wants the extension of time in order to more fully address the constitutional issue, said Nekota.

“The decision and order that we filed runs through the findings of fact and law, it provides a roadmap. It doesn’t speak specifically to that issue (of the constitutionality of reclassifying important ag lands) because it’s not the forum in which we would make that argument,” he said. “It’s really outside the decision and order itself. You would think that the ability to file legal briefs in the end makes the record a lot cleaner if someone were to appeal.”

The commission is expected to consider D.R. Horton’s request for an extension at the start of proceedings on Tuesday.

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