Hawaii County Council members urged the county’s lawyers not to file an appeal in a South Kona planning case, but Corporation Counsel has already lodged one request with the 3rd Circuit Court seeking clarification on its ruling.
Patricia and Richard Missler, whose neighborhood is next to the proposed Waikakuu Ranch development, sued the Hawaii County Board of Appeals for a decision supporting a Planning Department approval of a planned unit development plan. The Misslers’ attorney argued the county failed to take the Kona Community Development Plan into consideration when approving the PUD, and failed to conduct site inspections and environmental surveys. Judge Ronald Ibarra ruled the planning director acted in violation of the development plan and failed to uphold the county’s duty to protect natural resources.
The County Council voted 6-3 Wednesday to advise Corporation Counsel to accept the court’s decision and not appeal the ruling. Kohala Councilwoman Margaret Wille introduced the resolution, noting the ruling’s focus on community development plan concerns.
“I would like to see the county embrace this decision and acknowledge the importance of the CDP,” Kohala Councilwoman Margaret Wille said. “The key issues I feel are pretty clear.”
South Kona/Ka‘u Councilwoman Brenda Ford said she saw a financial issue in appealing the ruling.
“We lost and lost badly,” Ford said. “Are we going to expend more taxpayers money in a losing proposition going forward? … We need to cut our losses and stop spending the taxpayers’ money on this one. … We need to stop the bleeding.”
The case protects Hawaii County residents, Ford said.
Council Chairman J Yoshimoto and Puna Councilmen Greggor Ilagan and Zendo Kern voted no.
“I’m not comfortable with that. I don’t think we should be telling the Corporation Council what to do,” Kern said.
“That’s the latitude they’re afforded as legal counsel. To me that’s outside of our domain and they should take the course they’d normally take.”
Council members are allowed to express their “collective will,” Corporation Counsel Lincoln Ashida said.
Ibarra, in his April 25 ruling, remanded the application to the county. Deputy Corporation Counsel Renee Schoen last week filed a motion seeking clarification from Ibarra on what exactly he wants the county to do with the application.
“This court affirmed the board’s decision on two of the issues and reversed the board’s decision on the remaining four issues raised by (the Misslers) in their appeal to this court,” Schoen wrote. “Thus, the court affirmed in part and reversed in part the board’s decision. Accordingly, the board seeks clarification of the issues being (remanded) to the board by this court or, in the alternative, an amendment to the order to reflect that the court’s decision is a reversal, thus eliminating the need to remand to the board.”
Cory Harden, of the Serra Club’s Moku Loa Group in Hilo, testified on the issue, noting she wasn’t making comments on legal issues, but that she did have concerns about the Waikakuu project.
“For this place, the Planning Department approved a housing development that would chop down almost every tree,” Harden said in written testimony. “If most of the trees were cut, water could rush down the steep hills, preventing natural percolation into the ground, and perhaps causing hazardous flooding on the highway below. Would the county be liable?”