A city agency is asking a state judge to overrule a state commission’s decision earlier this year that upended a plan to preserve 41,407 acres of Oahu farmland under private ownership.
The city Department of Planning and Permitting recently filed an appeal in state Circuit Court seeking to reverse a state Land Use Commission decision that rejected a DPP recommendation to protect agricultural land amounting to 11% of Oahu’s landmass from future conversion to other uses.
DPP’s appeal was filed July 29 in response to a June 30 written LUC decision that followed a unanimous vote by commissioners in January against the city agency’s recommendation to designate the land held by 1,781 private owners as “important agricultural land” deserving protection possibly in perpetuity.
In the appeal, city attorneys called parts of the LUC decision “arbitrary and capricious and an abuse of discretion.”
DPP also contends the LUC decision was based on an unlawful quasi-judicial procedure instead of a simpler rule-making process.
The appeal extends what has been a slog to implement what LUC members have described as a “flawed” IAL law, which the Legislature established in 2005 to fulfill a long-ignored Hawaii Constitution amendment ratified by voters in 1978 mandating that prime farmland statewide be identified and protected.
Part of the law’s goal is to support more local food production and to make it harder to amend state-level classification of farmland to urban or other uses by requiring the LUC to consider additional criteria for any such change.
Landowners were offered incentives including tax credits to voluntarily seek the IAL designation for qualified land from the LUC, and several large companies did so. County governments were assigned the task of recommending land for involuntary protection, subject to final approval from the LUC.
So far, the only county to complete its assigned work is Honolulu.
DPP’s effort began in 2011 and included assessing land quality criteria specified in the law, holding community meetings that at times were heated, sending letters to affected landowners and inviting comments from landowners along with an opportunity to object.
In 2019, the Honolulu City Council held public hearings on DPP’s plan. Despite some criticisms and objections, council members voted 9-0 to approve the plan.
DPP’s recommendation was then submitted to the LUC last year, and the commission held its own public hearings at which more criticisms and objections were aired.
Some owners of land on the city’s recommended list claimed that they had not been aware of the plan. Some also complained that their property wasn’t suitable for protection for various reasons.
“We feel IAL should be a voluntary process and allow the Hawaii citizens and landowners to rightfully choose if they desire their land to become IAL,” Mike and Malia Pietsch said in written testimony to the LUC last year.
THE MARRIED couple said they use their farmland on the North Shore for cattle grazing and have started a nonprofit to help with reforestation. “We understand and support the goal of preserving agricultural lands but we do not feel the IAL process and structure supports the local land owner,” they wrote.
LUC members at one point last year sought an opinion from the state attorney general on whether the city properly followed the law with regard to identifying land deserving protection, and the written opinion backed the city’s selection process.
The city’s work also was largely endorsed by the state Department of Agriculture and the state Office of Planning and Sustainable Development.
Ultimately though, the LUC voted 7-0 in January to reject DPP’s recommendation and to have the city agency redo its work.
The commission in its June 30 written decision found fault with DPP’s public outreach, landowner notification process and other things, generally concluding that DPP didn’t meet minimum standards and criteria under the IAL law for selecting land for protection.
In its appeal, DPP said the LUC’s position that the city agency didn’t meet the minimum standards under IAL law is arbitrary, capricious, based on an abuse of discretion, and constitutes a denial of due process because it doesn’t identify specific standards or explain how the city failed to meet them.
“THE LUC decision is vague and ambiguous because it purports to remand the city’s IAL recommendation for ‘further action consistent with HRS 205’ but does not identify the specific actions that must be taken by the city,” DPP said in its appeal.
Some LUC members have blamed the Legislature for its construction of the IAL law and suggested that lawmakers amend the law to address issues raised by many landowners. No such bill was introduced this year at the Legislature, which convened about two weeks after the LUC vote in January.
