State officials on Tuesday granted the developer of a proposed 12,000 home master-planned community in Ewa extra time to file legal documents, pushing back what was supposed to be a major decision on the controversial development’s fate.
The Land Use Commission is ruling on whether or not to grant D.R. Horton’s petition to reclassify about 1,500 acres of agricultural land to urban for its Hoopili development. This is the second time the case, which has dragged on for nearly six years, has gone before the commission.
But on Tuesday, the developer said it needed more time to clarify a constitutional issue of whether or not commissioners even have the power to make a decision in the case.
The nine-member panel voted in favor of the extension with with one dissenting vote — Thomas Contrades from Kauai. All three opponents in the case — the Sierra Club, Friends of Makakilo and Sen. Clayton Hee — objected to the extension.
“We are really troubled by the game of filing the motion Friday afternoon at a quarter to three,” said Kioni Dudley, president of Friends of Makakilo, of D.R. Horton’s last minute request for a delay last week.
Both sides have had two months to file documents laying out their case. D.R. Horton’s filing is nearly 200 pages long.
On Tuesday, Hoopili opponents argued that D.R. Horton was attempting to delay proceedings to its benefit.
The terms of two of the nine commissioners expire at the end of June. Chair Normand Lezy and Lisa Judge will be replaced by appointees of Gov. Neil Abercrombie, who has said that he supports Hoopili. The commission also faces a July 26 deadline to rule in the case — if it doesn’t then D.R. Horton’s petition to reclassify the land is automatically granted.
D.R. Horton maintained that it was not trying to hold out for new commissioners, nor overstep the July 26 deadline.
During the hearing, the developer argued that it wanted to clarify the constitutional issue of whether or not commisioners have the power to reclassify the land. Eric Seitz, who is representing Sen. Hee, has made this a central issue of his argument from the start of proceedings last year. (You can read more about the debate in Civil Beat’s story published on Monday.)
Seitz, as well as other commissioners, questioned D.R. Horton about why it would need to further clarify the issue when it’s been a central part of the case all along. Both sides have filed extensive documents in the case already.
“Do you agree that the basic constitutional issue was raised considerably earlier in this case?” Ronald Heller, one of the commissioners, asked the attorney for D.R. Horton.
Benjamin Kudo, an attorney for the developer, argued that two recent court cases had implications for the powers of the state Land Use Commission: the Bridge Aina Lea case and a recent Supreme Court ruling on Waimanalo Gulch.
In the Bridge Aina Lea case, the Land Use Commission said developers had missed deadlines for building affordable housing, a condition for granting the reclassification of land for its high-end development. As a result, the commission reverted the land back from urban to agricultural. But a judge ruled last December that the state must switch the land back to urban. (You can read Civil Beat’s coverage of the case here.)
In the Waimanalo Gulch case, the Supreme Court struck down a condition in a Land Use Commission ruling that required the landfill be closed on July 31, 2012.
Specific details on how these rulings applied to the Hoopili case were not discussed during the hearing, but Lezy said that he felt D.R. Horton’s argument had some merit.
The developer had originally requested four weeks for both sides to file. But the commission only gave D.R. Horton until Friday to file its legal brief. Opponents have until June 4 to respond. Lezy assured both sides in the case that a final decision would be made by the commission by the end of June.
A new hearing date that works with the schedules of the nine unpaid commissioners has yet to be determined. Many of them are attorneys in the private sector.
Dudley was uneasy about the extension despite Lezy’s assurance that the case would be settled by the end of June.
“We are very concerned. Very concerned,” Dudley told commissioners after the decision.
D.R. Horton also intends to file a request for a 90-day extension to the case’s July 26 deadline, Kudo told commissioners.
The extension would stave off a default ruling by the commission if the case continues beyond that date.
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