The Hawaii Land Use Commission has asked the state’s top lawyer to weigh in on whether the City and County of Honolulu followed state law when proposing to impose a new land designation that would affect about 1,800 Oahu landowners and about 12% of the island’s land.
The commission’s request for a formal attorney general’s opinion puts on hold for now an increasingly contentious proceeding to implement the state’s so-called Important Agricultural Lands law on the state’s most populous island.
More than 100 landowners have testified in the matter, but the Land Use Commission first wants to see whether the city conducted a basic but key procedure required by the statute, LUC Chairman Jonathan Likeke Scheurer said Wednesday at the start of what was supposed to be a two-day hearing.
“Sometimes that’s referred to as a threshold issue,” he said, explaining that the attorney general’s opinion could determine whether the commission will move forward with the matter.
Regardless of what the attorney general says, Scheuer said the commission might consider a recommendation from state planning officials to exclude parcels of less than two acres from the city’s proposed IAL map.
The Important Agricultural Lands designation is established in the Hawaii Constitution and statutes. Designed to protect productive ag land and encourage farming, the designation makes it harder for owners to reclassify their land from agriculture to rural or urban and imposes some other restrictions.
Although the statute allows landowners to voluntarily designate their land as IAL, which many large ones have done, the statute also outlines a process by which the counties are supposed to identify lands that meet certain criteria for IAL and map those out in a recommendation submitted for the Land Use Commission’s approval.
The Honolulu Department of Planning and Permitting spent more than a decade crafting and getting City Council approval for its plan recommending which properties on Oahu should fall into the category. But that plan has come under a growing storm of opposition as the Land Use Commission has held hearings on whether to adopt it.
On Wednesday, the commission promptly went into a private executive session to confer with its lawyers and emerged to approve a request for the attorney general’s opinion.
The question concerns a provision of the state IAL law that lays out eight criteria for determining whether land is “important agricultural land.” The statute says it’s acceptable to use just one criterion for an initial determination provided that the one is weighed against the other seven and the designation meets the broad purpose of the law, which is to promote development of food production and ag jobs and income.
Rather than apply that analysis to nearly 2,000 individual parcels, the city relied on a framework created by an advisory committee of mostly farmers and government ag officials. The committee winnowed the criteria from eight to three it said were most important, then said the city could deem any land that met those three criteria as IAL.
Dawn Takeuchi Apuna, a deputy director of planning for the city who inherited the job of pushing through the plan from a previous administration, has defended the city’s process. But several landowners and their attorneys have said the process does not follow the plain language of the statute.
On Wednesday, the Land Use Commission asked the attorney general to say which side was right. Apuna asked whether the city would have a chance to present oral arguments to respond to the Attorney General’s opinion. Scheuer said an opinion from the attorney general “is not something we necessarily put up to argument,” although he said the city would have the opportunity to rebut the attorney general’s opinion.
Gary Yamashiroya, a spokesman for Attorney General Clare Connors, did not respond when asked how long it might take to provide an opinion.
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