When Honolulu city officials met with the public on April 8, 2015, to discuss a legal change that would affect some 1,800 land owners and 12% of Oahu’s land, the event at the Mililani Mauka Middle School Cafeteria was a big deal: not merely public relations outreach, but required by the law the city was helping implement.
More that 40 years in the making, Hawaii’s Important Agricultural Lands law is designed to preserve productive agriculture land and provide incentives for land owners to help expand Hawaii’s agriculture economy and increase agricultural self-sufficiency.
But, despite an effort for Oahu land that’s been in the works for years, many property owners are angry, saying they’ve been caught by surprise and that the city has blundered.
Among the 1,800 affected owners are residents who say their family has been living in their houses for generations on land they’re suddenly being told they’re supposed to farm.
The Hawaii Land Use Commission is in the awkward position of having to approve a plan that many say is flawed. The commission could reject the plan outright despite years of work by city officials, or find some middle ground.
Whether the city’s public meetings were adequate to fulfill a statutory requirement is one issue the commission is considering.
The April 2015 meeting was the first public meeting on the city’s plan to map out parcels to designate as IAL. The meeting was important enough that then-Mayor Kirk Caldwell showed up, along with George Atta, director of the Department of Planning and Permitting. Although the mayor’s team and their consultants spent hours briefing the public, there was one problem: not everything the city said about how the new law could affect landowners was precisely accurate.
Specifically, among other things, the city said, the law doesn’t affect permitted uses of land under state law. Fast forward six years, and the Department of Planning and Permitting’s deputy director told the Hawaii Land Use Commission something different.
The law “does appear to create relatively greater restrictions on farm dwellings and employee housing on IAL designated lands,” Dawn Takeuchi Apuna, the department’s deputy director, said during an April 29 hearing.
Apuna went on to say the restrictions were mostly technical and would have little if any practical effect on the way people can use their land. She reiterated that point in an interview.
If city officials or consultants overstated the situation by saying there would be no effect at all, Apuna said, it might be that the officials and consultants were not fully aware of the provision concerning farm dwellings.
Regardless, the city’s misstatements raise a question: Were those errors – and other mistakes critics assert the city made – big enough to upend the city’s years-long effort to help implement a key part of the law?
On Wednesday, the Land Use Commission will begin two days of hearings as it decides whether to adopt the city’s recommended plan, which would designate approximately 41,000 acres as Important Agricultural Lands.
The Department of Planning and Permitting argues it followed the process outlined by law, including notifying landowners, when mapping the IAL.
But a growing army of opponents, including many small landowners, say their land simply isn’t suited for farming – and certainly not the sort of important agriculture the law is designed to promote.
Opponents have pointed to the community meetings, where they say city officials misinformed them, as one example of what they characterize as a flawed process. Others say the city erred by identifying their land as important for agriculture, when it isn’t fit for growing much at all.
There’s also the question of notice: despite the city’s assertions, many say they didn’t know their land was being changed until it was too late to do much about it.
And at least some members of the Land Use Commission are equally concerned.
“It may have met the criteria and the requirements of the law, of the statute, but I think it’s really inappropriate to the people involved in the City and County,” Nancy Cabral, the commission’s vice chair, said during an April 29 hearing.
After hearing the city describe its process, Cabral likened the process to a barnyard animal decorated with makeup.
“Even with lipstick, a pig is still a pig,” she said. “Thank you for the lovely lipstick job.”
The origins of the IAL law date to 1978, when Hawaii voters approved a new, landmark constitution, including a provision requiring the Legislature to create criteria to “conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency and assure the availability of agriculturally suitable lands.”
Under the constitution, once designated Important Agricultural Lands the state Land Use Commission would need a two-thirds majority vote to reclassify the land. Classification is essentially state-level zoning.
It took legislators another 30 years to pass laws, adopted in 2005 and 2008, enabling the constitutional provision to be implemented. Many big landowners quickly stepped up to take advantage of incentives encouraging people to voluntarily designate their land as IAL. Some 12,300 acres, or 10% of Oahu’s ag land, have already been designated as IAL through that process, according to the planning department.
But it’s been a different story to impose the change on other landowners. It’s taken the Honolulu Department of Planning and Permitting more than a decade to finally craft a plan, including a map of the important ag lands. The Land Use Commission now must decide whether to adopt that plan.
Hawaii Land Use Commission Chairman Jonathan Likeke Scheuer declined to say what the commission is inclined to do when it takes up the matter this week. But he did confirm there are several issues the commission is likely to take a hard look at, including the question of whether the city fulfilled its statutory obligation to hold public meetings when the agency gave out inaccurate information to the public during the meetings.
Minutes of the public meetings show city officials or consultants repeatedly told people the designation would not change their land-use rights. DPP’s Apuna has acknowledged the law “more narrowly defines the use of farm dwellings and employee housing on IAL,” but she insists the changes are minimal: a distinction without a difference. The problem is more one of perception, she argues.
“I think it’s just a problem in that it seems like it’s very restrictive and that it’s taking away rights, which it’s not,” she said.
Regardless, Scheuer said it’s reasonable to ask whether DPP can check the box saying say it fulfilled its obligation to hold community meetings when the department misled the public at the meetings by saying there would be no effect at all.
“That could disqualify you from checking that box,” Scheuer said.
Another issue involves the criteria the county used to designate land as IAL. The statute lists eight criteria to be considered, including factors like whether the land is now being used for agriculture, whether it has adequate water and soil to grow stuff, and whether it’s close enough to infrastructure, like roads needed to get the produce to market.
The statute says the county can rely on any one criterion when making an initial determination, but that it also must weigh the various standards and criteria with each other and to meet the statutory and constitutional purposes of the IAL law: to protect lands “capable of producing sustained high agricultural yields” that can “contribute to the State’s economic base and produce agricultural commodities for export or local consumption.”
DPP used a “Technical Advisory Committee” composed almost entirely of farmers and government agriculture agency officials. The only person on the 26-member committee representing property owners was David Arakawa, executive director of the Land Use Research Foundation, which represents Hawaii’s largest landowners and developers.
The committee narrowed the eight criteria down to three it considered most important. Those were whether farming was occurring, whether there was available water and whether there was other needed infrastructure. After some debate, the committee decided it was enough that the land meet one of those three criteria to be IAL.
“It’s supposed to be a good thing. It’s supposed to help farmers and people living on ag land.” — Dawn Takeuchi Apuna, DPP deputy director
Minutes show Arakawa at one point questioned using just one criterion. In a recent interview he said he came to believe using just one made sense for voluntary designations. But he said using one criteria for an involuntary designation is not consistent with the statute.
“I would agree that it is inconsistent with the intent,” he said. “And the reason why is it was never about getting as many acres of ag land as possible into IAL; it was about getting as many acres of productive ag land as possible into IAL.”
Many landowners have echoed that point. Timothy Irons, a lawyer with Dentons, testified that 2,060 acres belonging to his client, The Edmund C. Olson Trust No. 2, consist of “steep slopes, ravines and rocky terrain covered by non-native Guinea grass.”
Relying on one criterion to designate the land IAL is “contrary to State law requiring a ‘weighing’ of criteria,” Irons testified. He asked the commission to send the matter back to the city and require it to consult with landowners to determine lands that meet the purpose of the IAL designation. “Consultation and cooperation with landowners” is also required by the law.
In an interview, Apuna said the city had complied with the legal requirement to weigh the criteria and follow the purpose of the law because the Technical Advisory Committee had done that when it weighed the criteria and prioritized three of the eight before deciding one of those top three was enough.
Anyway, Apuna said, the Land Use Commission could choose to eliminate parcels from designation case by case, possible through contested case hearings. The city’s plan, she said, is merely a recommendation.
“It’s not a take it all or nothing kind of thing,” she said.
Although the committee included a representative of large landowners, Scheuer said the city might have been able to avoid the backlash if it had included small landowners on the technical advisory committee, even if that was not required by law.
“Good public outreach is to make sure you have at least some representative of all key stakeholder groups involved in the process,” he said.
He also said the Land Use Commission will take a hard look at the city’s criteria.
“The LUC will need to look at both whether the city complied with the statute in terms of applying criteria as well as whether what the city has proposed meets the overarching purpose of the statute and constitution,” he said.
Finally, there’s a question of whether the city gave property owners adequate notice that it was recommending the state designate the owner’s land as IAL.
The statute says, “the counties shall take reasonable action to notify each owner of those lands by mail or posted notice on the affected lands to inform them of the potential designation of their lands.”
In this case, the City and County of Honolulu sent letters to all affected landowners. Still, many say they never got the letters.
Linda Baptiste, a widow in Waimanalo who lives on land that’s been in her family for generations, said she didn’t know about the change to her property until April, when she received an alarming letter from a lawyer who reached out to all of the affected property owners.
Like others, she asks why the city didn’t send her a certified letter to make sure she got it.
In an interview, the Land Use Commission’s Scheuer said whether the letter was enough might depend on whether the change in designation changes the landowners property rights. If so, he said, a certified letter might have been required.
In an interview, Apuna said the city had followed the statute by sending notice to property owners. If the law affects property rights, she said, then perhaps the Legislature should have required heightened notice. But Apuna insisted the change has no significant impact on property rights.
Not all property owners are convinced.
Christine Kubota is a Honolulu lawyer who represents Honbushin International Center, a religious organization in Mililani. Honbushin practices agriculture and farming “to seek harmony with nature and the environment,” Kubota testified in writing to the Land Use Commission. But, she wrote, designating the center’s property as IAL could affect its right to use its land.
This, Kubota said, “would amount to a regulatory taking” – something the city’s Apuna has denied.
Asked to respond to Apuna’s assertion that designating land as IAL does not affect a property owner’s land-use rights, Kubota said, “Why are they going to do it if it’s not going to change anything?”
Ultimately, Apuna said, the IAL designation is meant to help and not hinder owners of ag land. One challenge, she said, is that the city hasn’t yet crafted incentives, as it is supposed to do, to benefit the landowners. In that sense, she said, the city has put the cart before the horse.
“It’s supposed to be a good thing,” she said. “It’s supposed to help farmers and people living on ag land.”
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