The city does not yet own the land under the two major construction sites in Waipahu and Kapolei where crews this year began building portions of the $5.26 billion rail transit project.

City officials said they began work on the rail guideway columns in Kapolei and started grading land for a rail yard near Leeward Community College earlier this year before they actually owned those lands because they wanted to keep the rail project “on time and on budget.”

The Kapolei property where the first guideway pillars have been built is owned by developer D.R. Horton; the property near the community college is owned by the state Department of Hawaiian Home Lands.

Rail opponents have criticized the city for prematurely pushing ahead with the rail project, but officials with the Honolulu Authority for Rapid Transportation said this is not a case where the city jumped the gun.

The city intends to acquire both properties later, and this is “standard practice for larger parcels where we gain a legal right of entry pending closing on the sale,” said a written statement from HART.

However, a consultant hired by the Federal Transit Administration to oversee the Honolulu project has repeatedly warned the city over the past year that it must obtain a more detailed license agreement giving the city control of the rail yard property now owned by DHHL.

The city began grading the rail yard site in August to prepare for construction, and in April the city started construction of columns for the elevated rail guideway on land owned by Horton.

HART has been under extraordinary pressure to press ahead with construction, in part because rail construction delays have already proved to be very expensive.

The city signed a $487 million contract with Kiewit Infrastructure West Co. to build the first segment of guideway in 2009, but construction was put off because of delays in obtaining approval of the rail environmental impact statement and other permits.

So far the city has agreed to pay more than $22 million in delay claims to Kiewit in connection with that contract, and additional delay claims are pending.

RAIL CONSTRUCTION work at both the Horton property in Kapolei and the DHHL property in Waipahu was stopped last month after the Hawaii Supreme Court ruled that the city should have completed an archaeological inventory survey along the entire 20-mile rail route before beginning construction.

The city has not yet finished that archaeological survey in the area extending from Aloha Stadium to Ala Moana Center, and the Supreme Court ruling is expected to trigger additional delay claims by contractors while the city completes the survey.

The city has estimated that each month of project delays costs an estimated $7 million to $10 million.

When asked why HART began construction in Waipahu and Kapolei before the city actually owned the lands involved, HART issued a written statement explaining that, “On a project of this size it is critical to keep things moving so that we are on time and on budget.”

The city has not yet purchased the Horton property where the guideway is being built because “we are waiting to complete the final design (of the rail system) for that area so that we know exactly how much land we will need. We want to be prudent and acquire only what we will need, not more and not less,” according to the written statement from HART.

Caroline Sluyter, public information officer for the state Department of Transportation, said the state DOT Highways Division has also used right of entry as a legal bridge to begin construction before land purchases are finalized.

Right of entry is sometimes used due to the length of time it takes to complete the land acquisition process, she said. For example, the state started construction on the Kapolei Interchange Phase I in Leeward Oahu before actually purchasing the land, and that project was completed in October 2011, Sluyter said.

The city obtained a written right of entry for the property from Horton earlier this year.

Jerry Iwata, the HART real estate acquisition manager, said in a written statement that the city has been working closely with Horton “and they are committed to providing the necessary property for the rail guideway and area station. Once all design work is completed, we will know exactly how much property is required, and we will finalize that agreement.”

HART said it is “unlikely” that landowner Horton will make extra demands for a higher sale price or other concessions after the city builds the rail guideway on Horton’s land.

That’s because the city will only pay fair market value for the land, and all land acquisitions worth more than $500,000 must be approved by the Federal Transit Administration, according to the HART statement.

Former Mayor Mufi Hannemann’s administration entered into a formal memo­randum of agreement with DHHL in 2010 to swap two city-owned parcels totaling 52 acres near Varona Village in East Kapolei with DHHL in exchange for the site the city needs for a rail maintenance and storage facility next to Leeward Community College.

The 56-acre rail yard site was formerly owned by the Navy, and is known as the Ewa Drum site. The planned land swap is worth an estimated $30 million.

The Hawaiian Homes Commission has issued two right-of-entry documents to allow the city accesss to the rail yard property, but the land swap has not yet been completed.

Jacobs Engineering Group Inc., a consultant hired by the Federal Transit Administration to oversee the Hono­lulu rail project, has been warning the city for more than a year that it must obtain a license agreement from DHHL that gives the city more permanent control over the rail yard site.

A proposed license agreement between DHHL and the city is being reviewed by lawyers, said Linda Chinn, administrator of the DHHL Land Management Division.

Chinn said the final land swap agreement will have to be reviewed by the U.S. Department of the Interior before it can be executed.