Collect Petition Signatures!

JEFF MIKULINA, DIRECTOR
Sierra Club, Hawai`i Chapter
P.O. Box 2577
Honolulu, HI 96803
Telephone: (808) 538-6616

BEFORE THE LAND USE COMMISSION OF THE STATE OF HAWAI`I

IN THE MATTER OF ) Docket No. A00-734
Castle & Cooke Homes ) INTERVENOR'S PROPOSED FINDINGS
Hawai`i, Inc. & Pacific Health ) OF FACT, CONCLUSIONS OF LAW,
Community Inc. request to remove ) AND DECISION AND ORDER;
1,247.983 acres of land from the ) CERTIFICATE OF SERVICE
agricultural district. )

INTERVENOR'S PROPOSED FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND DECISION AND ORDER

INTRODUCTION

Intervenor's Interest
The Sierra Club is a California non-profit corporation, registered to do business in the State of Hawai`i, with its principal place of business in Hawaii at 1040 Richards Street, Room 306, Honolulu, HI 96813 (phone: 538-6616). The Sierra Club is a national conservation organization comprised of approximately 700,000 members, with state chapters and groups focusing on local issues. The Sierra Club's Hawai`i Chapter represents over 5000 members who live in the state of Hawai`i. The Sierra Club's O`ahu Group represents over 3000 members who live on O`ahu. The general purposes of the Sierra Club, Hawai`i Chapter and the O`ahu Group include: educating the public about Hawaii's natural resources through hikes; exploring Hawaii's wild places and natural resources; restoring and preserving ecosystems through hands-on service trips; protecting open space through lobbying and litigation; ensuring sound planning through proper application of Hawaii's environmental laws; protecting the integrity of the state's Land Use Law and the Land Use Commission.

Sierra Club members hike trails on Koa Ridge and trails that overlook the petition area. They drive on H-1 and H-2 freeways. The Sierra Club and its members have educational, cultural, recreational, aesthetic, scientific and environmental interests that would be directly and indirectly affected by development of Koa Ridge.

The Sierra Club has a long-standing interest in rational land use planning; protecting the integrity of the Land Use Law, agricultural lands, open space and water resources; fighting suburban sprawl; and supporting sound transportation planning.
Approval of the petition risks aesthetic and environmental interests that would be directly and indirectly affected by this proposed reclassification of over 1200 acres from the agricultural to the urban district. The Sierra Club is interested in the continuance of diversified agriculture on Oahu, both for preservation open space and increased agricultural self-sufficiency. The Sierra Club works both locally and around the country to promote the concepts of "smart growth," where distinct, compact communities are built around shopping and working opportunities.

FINDINGS OF FACT
PROCEDURAL MATTERS

1. The Commission opened the hearing on September 6, 2001.

2. The Commission closed hearing on March 7, 2002.

3. The LUC has decided not to require an Environmental Assessment for this project.

Pacific Health Community

4. The business plans for the Pacific Health Community project were not done with the assumption that houses were going to be developed nearby. (Suzuka, 9/6/01, p.86:3-7)

5. The Pacific Health Community didn't count on any of the 6,000 new homes in their business plans. (Suzuka, 9/6/01, p.97:3-6)

6. If none of the residential development occurred, the Pacific Health Community project could survive financially. (Suzuka, 9/6/01, p.97:8-11)

7. The project proposed by Pacific Health Community could be developed regardless of whether or not the residential component as proposed by Castle and Cooke is developed or is approved. (Yuen, 1/31/02, p. 27:21-25)

8. No marketing studies have been performed for the proposed senior care facilities that would occupy 80 of the 210-acre Pacific Health Community project. (Patton, 9/7/01, p.41:17 to p.42:1)

9. The first phase of the Pacific Health Community project is 80 acres. (Cook, 9/7/01, p.86:15-21)

10. The first phase of the Pacific Health Community can exist financially without the other phases being built. (Hess, 9/7/01, p.88:18-25)

11. One of the reasons that 210 acres are needed for the Pacific Health Community Project is to provide land for the University of Hawaii School of Medicine. (Rook, 9/7/01, p.124:1 to p.129:21)

12. The amount of land needed for the University of Hawaii School of Medicine and private research components would total 120 of the 210-acre Pacific Health Community project. (Rook, 9/7/01, p.148:9-20)

13. Without the University of Hawaii School of Medicine, the research components would be "a much harder sell, much harder sell." (Rook, 11/7/01, p.145:6-7)

Smart Growth

14. There is a nationwide trend called "smart growth" which, among other things, focuses development as much as possible on redevelopment of the existing urban centers. (Rue, 1/17/02, p. 101:21 to p. 103:22)

15. There are opportunities for smart growth in the existing 1,509 developable acres in the Central Oahu Development Plan area without reclassifying more agricultural land to urban. (Rue, 1/17/02, p. 145:23 to p. 146:11)

16. According to research done by SMS Research and Marketing Services, Inc., residents of Central Oahu have indicated a desire to protect agriculture from urban development. (Petitioner's Exhibit 10, Appendix H)

17. No other alternatives to the proposed urban development were investigated for the petition property. (Hastert, 9/20/01, p.118:5-18)

Groundwater

18. The Waipahu-Waiawa aquifer is part of the Pearl Harbor aquifer system. (Intervenor's Exhibit 19)

19. The source of the water would be wells developed on site. (Nance, 11/15/01, p. 37:15-17)

20. Water requirements for the entire Petitioner's Project total 3.76 million gallons per day. Of that total, 1.63 million gallons per day will be for Koa Ridge Makai; and 1.56 for Koa Ridge Mauka; and 0.57 million gallons per day for the Waiawa parcel. (Nance, 11/15/01, p. 37:7-13)

21. The State Commission on Water Resource Management's (CWRM) sustainable yield for the Waipahu-Waiawa Aquifer is currently estimated to be 104 million gallons per day. (Intervenor's Exhibit 19, p. 6; Petitioner Castle and Cook, Exhibit 10, Appendix B, p. 6)

22. The sustainable yield of the Pearl Harbor Aquifer system has been revised downward twice in the past 20 years, from 250 million gallons per day in the 1980s to 184 million gallons per day in the 1990s to 165 million gallons per day currently. (Intervenor Sierra Club's Exhibit 13)

23. The BWS cannot determine at present if there is an adequate groundwater supply in the Waipahu-Waiawa water management area to accommodate the petitioner's proposed project. (Usugawa, 11/15/02, p.153:2-5; Office of Planning, Exhibit 1, p. 8)

24. Petitioner's witness on water resources, Mr. Tom Nance, testified that he did not to have a "handle" on what the total water requirements for other projects in Central Oahu are. (Nance, 11/15/01, p.46:25 to p.47:1)

25. The CWRM submitted critical comments to the City & County of Honolulu Department of Permitting and Planning on the draft Central Oahu Sustainable Communities Plan regarding water availability in the petitioner's project area. (Intervenor Sierra Club, Exhibit 34)

26. The CWRM estimates that Oahu groundwater resources may be fully committed in less than 20 years. (Intervenor Sierra Club's Exhibit 34)

27. The CWRM also believes that land use planning should not be separated from water resource planning and that land use plans better address water availability and sustainability in the planning process. (Intervenor Sierra Club, Exhibit 34)

28. The State Water Code requires the integration of land use planning and water resource planning so that land use plans incorporate water availability and sustainability in the planning process. (HRS Section 174C-31)

29. The Oahu Integrated Resources Plan and the Oahu Water Management Plan has been delayed since 1988. (Hudes, 1/31/02, p:97:12-14)

30. The State Commission on Water Resource Management set up a "milestone" regulatory framework to provide intermediate benchmark numbers for pumpage and water allocations for the Waipahu-Waiawa aquifer. (Intervenor's Exhibit 19)

31. As milestones are reached, they would trigger additional regulatory oversight by the Water Commission through setting resource management criteria, resource monitoring, and development of water shortage and well infrastructure optimization plans. (Intervenor's Exhibit 19)

32. Milestones would allow for the reevaluation of the sustainable yield for the Waipahu-Waiawa aquifer. (Intervenor's Exhibit 19)

33. The CWRM's current allocation milestone for the Waipahu-Waiawa Aquifer is 82 million gallons per day. (Intervenor's Exhibit 19, p. 6; Petitioner Castle and Cook's Exhibit 10, Appendix B)

34. The pumpage milestone for the Waipahu-Waiawa Aquifer is 62 million gallons per day. (Intervenor's Exhibit 19, p. 6)

35. The current allocation in water use permits for the Waipahu-Waiawa Aquifer system is 89.412 million gallons per day at January/February 2000. (Petitioner Castle and Cook's Exhibit 10, Appendix B) This is over 7.4 million gallons per day above the CWRM milestone.

36. Current permit holders are authorized to pump their full allocation in the Waipahu-Waiawa aquifer. (Hudes, 1/31/02, p. 101:1-24)

37. The adjacent undeveloped, but approved Gentry Waiawa development has not been allocated any water from the Waipahu-Waiawa aquifer. (Nance, 11/15/01, p.58:14-18)

38. As of December 1999, the current pumpage for the Waipahu-Waiawa Aquifer is 52.3 million gallons per day. (Intervenor's Exhibit 19, p. 6)

39. The location of wells in a regional context can negatively impact groundwater quantity and quality. (Usugawa, 11/15/01, p.149:9-13, p.161:5-12; Hudes, 1/31/02,. p. 95:16 to p. 97:2)

40. There are seven BWS county wells downgradient from the petition property. (Usagawa, 11/15/01, p. 148:20-23; Office of Planning, Exhibit 1, p. 8)

41. The seven county well stations downgradient of the proposed project have a total pump capacity of approximately forty million gallons per day. (Office of Planning, Exhibit 1, p. 8)

42. Wells drilled on the petition property will intercept the groundwater flowing toward BWS county coastal wells and detrimentally affect them. (Intervenor's Exhibit 12, p.35)

43. Wells drilled on the Koa Ridge property may negatively impact the quality and quantity of BWS county wells downgradient. (Usagawa, 11/15/01, p.148:20 to p. 149:13; Hudes, 1/31/02, p. 94:19 - p. 95:3)

44. The proposed wells will adversely impact BWS wells downgradient in Waipio Heights and Waipahu. (Office of Planning, Exhibit 1, p.8)

45. BWS county wells in Waipahu serve downtown Honolulu as well as Central Oahu. (Usugawa, 11/15/01, p.141:24 to p.142:2, p.143:14-17)

46. The BWS plans to use water from the Waipahu-Waiawa aquifer to meet Honolulu's needs and the high summer demand. (Usugawa, 11/15/01, p.168:16-19)

47. In the Waiahole contested case hearing the Board of Water Supply testified that if present and future new wells were placed along the Waiahole Ditch route which traverses the property, the new wells would have a negative impact on Board of Water Supply county wells that were located further makai. (Intervenor's Exhibit 12, p. 35)

48. Interception of flow at proposed well locations reduces flow to existing Board of Water Supply wells and can cause increased salinity and reduce the capacity of the BWS to meet existing demands. (Office of Planning, Exhibit 1, p. 8-9)

49. There is a close correlation between the volume pumped from the Waipahu-Waiawa Aquifer and the quality of the aquifer's groundwater. (Usugawa, 11/15/01, p.162:11 to p.163:3)

50. When O`ahu Sugar stopped pumping from the Waipahu-Waiawa aquifer, the chloride content in the BWS wells downgradient decreased from about 120 milligrams per liter to about 100 milligrams per liter. (Usugawa, 11/15/01, p.162:11-22)

51. The petitioner's witness on water resources, Tom Nance, admited that the increased pumpage of the Pearl Harbor aquifer by the proposed project may increase salinity in makai wells. (Nance, 11/15/01, p.56:13-19)

52. Castle & Cooke have not demonstrated and cannot prove at this time that the proposed wells will not have a detrimental impact to downgradient wells. (Hudes, 1/31/02, p. 96:23 to p. 27:2)

53. Petitioner has not submitted any reliable, much less convincing, evidence on the potential impacts from project wells on downgradient BWS wells. The petitioner's witness on water resources, Tom Nance, dismissed the issue with a single conclusory sentence. Petitioner submitted no supporting analysis or data to show that petitioner's wells will not impact downgradient BWS wells. (Nance, 11/15/01, p.48:20-23)

54. Development in the mauka property may negatively impact groundwater recharge to the Waipahu-Waiawa Aquifer. (Office of Planning, Exhibit 1, p. 7; Hudes, 1/31/02, p. 95:4-10)

55. The petitioner's proposed project may increase the volume of water runoff from the petition property by creating additional "impervious" surfaces. (Muranaka, 10/19/01, p.100:19-22)

56. The project may cause a loss of recharge to the Waipahu-Waiawa Aquifer because of increased surface runoff from urban development. (Office of Planning, Exhibit 1, p. 7)

57. The Office of Planning has formally requested that an environmental assessment explain the mitigation measures for loss of recharge and prevention of contamination to the underlying aquifer. (Office of Planning, Exhibit 1, p. 9)

58. The CWRM's sustainable yield estimate for the Waipahu-Waiawa Aquifer was based on the assumption that the three petitioner's property parcels remained as agriculture, not in urban. (Office of Planning, Exhibit 1, p. 7)

59. The amount of recharge from the Waiahole Ditch that is used in Central Oahu and Ewa significantly affects the availability and sustainable yield of Pearl Harbor aquifer. (Office of Planning, Exhibit 1)

60. The BWS has requested that an environmental impact statement discuss the impact of runoff from the development on decreasing the sustainable yield. (Usugawa, 11/15/01, p.140:5-19)

61. The recharge losses to the Waipahu-Waiawa Aquifer are most significant at Koa Ridge Mauka which receives an average annual rainfall of 50 inches to 80 inches. (Office of Planning, Exhibit 1, p. 7)

62. A BWS hydrologist has determined that development in areas with rainfall over 50 inches may impact groundwater recharge. (Usugawa, 11/15/01, p.141:15-17)

63. If the same number of homes as proposed for Koa Ridge Mauka were built in the Ewa region instead they would have less of an effect on groundwater recharge. (Usugawa, 11/15/01, p.162:4-6)

64. The State Agricultural Water Use and Development Plan has not been completed. Agricultural water demands for Leeward Oahu have not been identified. The State Agricultural Water Use and Development Plan needs to be completed to determine water allocations for agricultural and urban demands that are in competition for groundwater from the Pearl Harbor Aquifer System and water from the Waiahole Ditch. (Office of Planning, Exhibit 1)

65. The Hawaii Supreme Court's August 22, 2000 decision on the Waiahole Ditch contested case directed the Water Commission to complete the State Water Resources Protection Plan prior to the adoption of the County Water Use and Development Plans for determining groundwater sustainable yields and instream flow standards which in turn govern water planning and regulation. (Office of Planning, Exhibit 1)

66. The availability of the Waiahole Ditch water for Central Oahu and Ewa irrigation use cannot be determined or presumed until the instream flow standards are established for the affected Windward streams. (Office of Planning, Exhibit 1)

67. The CWRM has adopted groundwater sustainable yields but they have not yet adopted the instream flow standards. (Usugawa, 11/15/01, p.147:23-25)

68. The Water Code requires and the Hawaii Supreme Court has mandated that instream flow standards be set for Windward Oahu's natural streams. (Hudes, 1/31/02, p. 98:22 to p. 99:1; HRS 174C-71)

69. The setting of in-stream flow standards may reduce recharge of groundwater in the Waipahu-Waiawa Aquifer. (Hudes, 1/31/02, p. 99:2-20)

70. Windward O`ahu streams flow year-round in part due to leakage of groundwater. (Hudes, 1/31/021, p. 99: 4-11)

71. If Windward parties are successful in their appeal to increase the flow standards for the Waiahole-Waikane Streams, less water will flow from Windward streams to the Pearl Harbor aquifer. (Hudes, 1/31/021, p.99:14-20)

72. The City and County of Honolulu has not yet approved the Primary Urban Center Development Plan. This uncertainty raises serious questions about the amount of groundwater available for the petitioner's project. (Usugawa, 11/15/01, p.143:12-21)

73. Another uncertainty regarding the amount of groundwater available for the petitioner's project is the State Agricultural Water Use and Development Plan. It has not been completed, thus, the present and future needs of agriculture in this area remain unquantified. (Usugawa, 11/15/01, p.146:4-12)

74. The expert from the BWS is not sure "if we're in the right ballpark" regarding the amount of groundwater available from the Waipahu-Wahiawa aquifer because both sustainable yield and the amount required for instream flow standards is varying. (Usugawa, 11/15/01, p.171:15-21)

75. As of July 28, 2001, the water level in five of Honolulu's seven main monitoring stations has fallen so low that BWS listed in the "alert" stage. (Intervenor's Exhibit 9)

76. The City and County of Honolulu Board of Water Supply is currently in the planning stage to develop a desalination facility at Kalaeloa on Oahu. (Intervenor's Exhibit 22)

77. Desalination represents a radical shift in how water is produced and developed on Oahu. (Hudes, 1/31/02, p. 103:23 to 104:16)

78. The desalination facility will have a capital cost of $12 per gallon of product water capacity and an annual operations and maintenance cost of $6.80 per 1,000 gallons for the initial 5 million gallons per day. (Intervenor Sierra Club's Exhibit 22, p. 18)

79. The operating cost of the proposed desalination facility is approximately ten times as expensive as the current cost to produce water from existing sources. (Usagawa, 11/15/01, 165:15-18)

80. Increases in water production and delivery costs to the Board of Water Supply are spread evenly among all users in the form of water use increases and water system and facility charges. (Nance 11/15/01, p.52:14-22; Intervenor Sierra Club's Exhibit 12, p. 29)

81. A three-year study is currently being undertaken to determine whether it is safe to use reclaimed effluent over the potable aquifer. (Usugawa, 11/15/01, p.139:3-12; Hudes, 1/31/02, p. 105:2-20)

82. The results of the reclaimed effluent study is likely to have major infrastructure development implications on how and where wastewater treatment facilities are designed and constructed. (Hudes, 1/31/02, p. 105:2-20)

83. The use of non-potable water for large landscaped areas on the petitioner's lands was not studied in any detail. (Nance, 11/15/01, p.47:12-16)

Agriculture

84. The Land Study Bureau map indicates that the Waiawa area contains mostly A and B soils with a small amount of E soil. (Office of Planning, Exhibit 1)

85. The Koa Ridge Makai parcel contains primarily B soil with some A and D soils on the land on the edges of the petition area. (Office of Planning, Exhibit 1)

86. The Koa Ridge Mauka parcel contains primarily B soil with some C lands to the northeast side of the petition area. There are small areas of D and E on the edges of the property. (Office of Planning, Exhibit 1)

87. The USDA states that even the Koa Ridge Mauka lands which are stated to be lower quality or unique for agricultural production are prime for timber species such as koa and other species. (Office of Planning, Exhibit 1, p. 14)

88. Diversified agriculture is thriving on Oahu. (Bowen, 02/07/02, p. 151:21-25)

89. Diversified agriculture has grown at 4% real growth on average per year in the last five years. (Yamamoto, 11/15/01, p.53:17:20; Bowen, 02/07/02, p. 152:3-7)

90. The value of agriculture on O`ahu grew 37 percent between the years 1997 and 2000. (Bowen, 1/31/02, p.153:12-21; Intervenor's Exhibit 33)

91. Dole's agricultural operations in pineapple have expanded over the past two years. (Vriesenga, 10/19/01, p.145:1-4)

92. Farm revenue for the State of Hawai`i totaled $521 million in 2000. (Bowen, 1/31/02, p.163:17-19)

93. Residents and tourists both find that agricultural landscapes are pleasing. (Bowen, 1/31/02, p.164:6-11)

94. Studies performed at the University of Hawai`i have demonstrated that residents are willing to pay to keep land in agricultural use. (Bowen, 1/31/02, p.164:12-15, Intervenor's Exhibit 8)

95. Oahu's diversified agriculture situation is different from the Neighbor Islands because it benefits from having the main market in Honolulu, the lack of inter-island shipping costs, the lower cost of shipping to the Mainland as compared with the Neighbor Islands, and has some of the best agricultural lands in the state. (Bowen, 02/07/02, p. 153:22 to 154:8)

96. In Central O`ahu, landowners have no problem finding farmers to lease their lands. (Bowen, 1/31/02, p.154:23-25)

97. Most farmers on O`ahu would like longer-term land commitment than is currently being offered in leases. (Bowen, 1/31/02, p.159:17-20)

98. Short-term leases in Central O`ahu prevent the establishment of long-term crops, such as tree crops. (Bowen, 1/31/02, p.159:25 to p.160:7)

99. It has been standard practice for Dole/Castle & Cooke to include "withdrawal" clauses, which allow the landowner to withdraw all or part of the lands from the lease within 12 months, in their leases with farmers in Central O`ahu. (Bowen, 1/31/02, p.160:19 to p.161:9; Intervenor's Exhibit 30)

100. Dole/Castle & Cooke has previously executed leases that include a provision that penalize the lessee retroactively if they oppose actions on the land before the State Land Use Commission. (Bowen, 1/31/02, p.161:10-20; Intervenor's Exhibit 30)

101. Central O`ahu lands offer good parcel size, good agriculture infrastructure, and buffers between the agricultural and urban areas. (Bowen, 1/31/02, p.158:16:17)

102. Koa Ridge lands are not adjacent to housing tracts. (Bowen, 1/31/02, p.158:17:18)

103. Koa Ridge lands are buffered by gulches and by the Waipio Industrial Park (Bowen, 1/31/02, p.158:17:19)

104. Central O`ahu provides crops with superb climactic conditions and a consistent source of labor from Leeward farmers who want to work. (Intervenor's Exhibit 10, p.84)

105. Some of Oahu's farmers are able to compete directly against imports from California and other places. (Bowen, 02/07/02, p. 154:7-12)

106. There is a "big potential" that Dole/Castle & Cooke would lease out the petition lands for agriculture in the future. (Vriesenga, 10/19/01, p.148:4-7)

107. Dole has not tried to cultivate a diversified agriculture industry at Koa Ridge. (Vriesenga, 10/19/01, p.137:18 to p.138:1)

108. A majority of the property at Koa Ridge Makai was being intensively cultivated on January 31, 2002 (Bowen, 1/31/02, p.157:20-21; Intervenor's Exhibits 31a, 31b, 32a, 32b).

109. Harvesting of corn at Koa Ridge Makai occurred recently from the reference of a January 30, 2002 photo. (Bowen, 1/31/02, p.157:16-21; Intervenor's Exhibit 32B)

110. Petitioner's witness in the field of agriculture testified that at least 60 acres of the petition land are being used to grow pineapple. (Vriesenga, 10/19/01, p.134:19-20)

111. Removing this land from agricultural productivity would decrease current agricultural activity in Central O`ahu by 226 acres. (Office of Planning, Exhibit 1)

112. Agricultural production at the petition lands has historically been profitable for Dole. (Vriesenga, 10/19/01, p.145:16-17)

113. Petitioner's witness in the field of economics could not estimate a percentage of food currently imported in the State of Hawai`i, beyond saying "a very high percentage." (Plasch, 10/19/01, p.163:24 to p.164:6)

114. It would be unwise to limit the amount of land in diversified agriculture to current productive needs. (Yamamoto, 11/15/01, p.54:8-12)

115. To tie down the amount of agricultural land to only what Hawai`i consumers demand is quite dangerous. (Yamamoto, 11/15/01, p.54:13-15)

116. Over 1000 acres of the petition property is classified as "important" according to the Agricultural Lands of Importance to the State of Hawai'i classification system developed by the State Department of Agriculture. (Petitioner's Exhibit 10)

117. Approximately 815 acres of the petition property is classified as "Prime Agricultural Land," according to the Agricultural Lands of Importance to the State of Hawai'i classification system developed by the State Department of Agriculture. (Petitioner's Exhibit 10)

118. Approximately 215 acres of the petition property is classified as "Unique Agricultural Land," according to the Agricultural Lands of Importance to the State of Hawai'i classification system developed by the State Department of Agriculture. (Petitioner's Exhibit 10)

119. The U.S. Department of Agriculture states, "This project would consume a significant acreage of prime farm lands." (Office of Planning, Exhibit 1, p. 14)

120. The State Department of Agriculture is opposed to the reclassification of the Koa Ridge Mauka parcel. (Office of Planning, Exhibit 1, p. 14)

121. The Office of Planning recommends that Koa Ridge Mauka remain an agricultural district. (Office of Planning, Exhibit 1, p. 22)

Planning

122. The existing development plan for the Central Oahu Development Plan area call for Koa Ridge Makai, Koa Ridge Mauka and Waiawa to be in agriculture. (Rue, 1/17/02, p. 108:23 to p. 109:2; City & County of Honolulu, Exhibit 5)

123. The O`ahu General Plan directs growth to the Second City at Kapolei and to the Primary Urban Center/Downtown. (Intervenor Neighborhood Board 25, Exhibit 1)

124. The politics of land use have compromised the plan to direct growth to the Second City and instead have allowed urban growth to spread through the Central Oahu agricultural plain. (Intervenor Neighborhood Board 25, Exhibit 1)

125. In his 1998 State of the City address, Mayor Jeremy Harris suggested that instead of continuing to allow urban sprawl in Central Oahu, rigid and absolute urban boundaries be drawn and all future urban growth be redirected to the Second City and the Primary Urban Center. (Intervenor Neighborhood Board 25, Exhibit 1)

126. By redirecting growth to the Second City and to the Primary Urban Center, increased traffic coming from Central Oahu would be stemmed. (Intervenor Neighborhood Board 25, Exhibit 1)

127. By redirecting growth to the Second City and to the Primary Urban Center, transportation tax dollars could be redirected to provide increased mobility and quality of life for current and future residents of the Second City and the Primary Urban Center. (Intervenor Neighborhood Board 25, Exhibit 1)

128. The Central Oahu Sustainable Communities Plan has a 2025 vision that sets a goal of approximately 173,000 people or almost 17% of the island-wide population in the year 2025. (Rue, 1/17/02, p. 110:9-13)

129. The Sustainable Communities Plan goal of 173,000 people would be an increase of 25,000 people from the year 2000 population of 149,000 people. (Rue, 1/17/02, p. 110:11-13)

130. As of June 30,1998, the total developed land in the Central Oahu Development Plan area was 4,299 acres. (Intervenor's Exhibit 25,)

131. Given the 2000 population of 149,000 people in the Central Oahu Development Plan area the density is approximately 34.5 people per acre. (Intervenor's Exhibit 25 and Rue, 1/17/02, p. 111:1-4)

132. At a density of 34.5 people per acre, 725 acres would be necessary to meet the Central Oahu Sustainable Communities Plan vision of 173,000 people in the year 2025. (Rue, 1/17/02, p. 111:11-14)

133. The density of the petitioner's proposed development would be equivalent to Mililani Town currently. (Hastert, 9/20/01, p.131:22-23)

134. According to the annual report on the status of land use on Oahu for fiscal year 2000, there are 1,509 vacant developable acres. (Intervenor's Exhibit 25)

135. If future development in the Central Oahu Development Plan area was only half as dense as it is currently or 17.25 people per acre, 1,449 acres would be needed to accommodate all future growth to meet the 2025 vision of 173,000 people. (Rue, 1/17/02, p.111:23 to p.112:4)

136. According to the Central Oahu Sustainable Communities Plan, the rate of absorption for new houses between the years 1995 and 2001 was 300 houses per year. (City and County of Honolulu, Exhibit 1, p. 221-222)

137. According to the Central Oahu Sustainable Communities Plan, there are 13,130 units that have been approved for development, but not yet built. (City and County of Honolulu, Exhibit 1?)

138. The 13,130 units that have been approved do not include any of the Petitioner's proposed development. (City and County of Honolulu, Exhibit 1?)

139. At the current rate of absorption of 300 houses per year, it will take 44 years to develop the 13,130 units that have been approved, but not yet built. (Rue, 1/17/02, p. 113: 6-9)

140. If the rate of absorption of new houses doubles from 300 to 600 units per year, it will take 22 years to develop the 13,130 approved but not yet built units in the Central Oahu Development Plan area. (Rue, 1/17/02, p. 113:12-16)

141. Twenty-two years is roughly the City and County of Honolulu's planning horizon. (Rue, 1/17/02, p. 113:17-19)

142. The current percentage of Oahu's population living in the Central Oahu Development Plan area currently exceeds the guideline set in the exiting Central Oahu Development Plan. The 2000 population is 16.9% of the total Oahu population that exceeds the guideline range of 14.9% - 16.5% for Central Oahu. (Rue, 1/17/02, p. 113:24 to p. 114:4 and Intervenor's Exhibit 25, p. 11)

143. The Sustainable Community Vision of 173,000 people living in Central O`ahu in 2025 can be attained without approving any additional development in Central O`ahu. (Rue, 1/17/02, p. 114:9-13)

144. Between 1990 and 2000, the population in the Mililani Census Data Place decreased from 29,359 to 28,608 or a change of -2.56%. (Intervenor's Exhibit 26)

145. The number of housing units in the Mililani Census Data Place increased from 8,900 to 9,280 units, or a 4.27% increase between 1990 and 2000. (Intervenor's Exhibit 26)

146. The number of vacant units for the Mililani Census Data Place increased from 124 to 270; or roughly a 100% increase between 1990 and 2000. (Intervernor's Exhibit 26)

147. For the Wahiawa Census Data Place, between 1990 and 2000 the population decreased from 17,386 to 16,151 or a change -7.1%. (Intervenor's Exhibit 26)

148. Between 1990 and 2000 the number of housing units for the Wahiawa Census Data Place increased from 5,765 to 5,900 or 2.34%. (Intervenor's Exhibit 26)

149. For the period between 1990 and 2000, there was a 200% increase in vacant units in the Wahiawa Census Data Place or an increase of 146 to 524 vacant units. (Intervenor's Exhibit 26)

150. The population of the Waipio Census Data Place decreased between the years 1990 and 2000 from 11,812 to 11,672, or a change of -1.19%. (Intervenor Sierra Club's Exhibit 26)

151. The population of Schofield Barracks Census Data Place decreased from the 1990 population of 19,597 to the 2000 population of 14,428 or a -26.38% change. (Intervenor's Exhibit 26)

152. Communities surrounding the Petitioner's proposed development have witnessed a decrease of population and an increase in vacant units between 1990 and 2000. (Rue, 1/17/02, p. 116:3-7)

153. There is currently enough developable land in the foreseeable future to accommodate growth projections for Central O`ahu. (Fujiki, 11/15/01, p.109:20-23)
Open Space

154. The American Planning Association has expressed that the urban growth boundaries in the Central Oahu Development Plan are too large and should be "pinched in" to maintain scenic visitas. (Petitioner's Exhibit 10, Appendix H)

155. The development of the petition areas for residential, commercial and community health uses will alter existing views from the H-2 interstate. (Petitioner's Exhibit 10)

156. The views of the Waianae mountain range from H-2 will be negatively impacted by the petitioner's proposed project. (Hastert, 9/20/01, p.111:6-16)

157. Koa Ridge Mauka provides an exceptional open space view. (Office of Planning, Exhibit 1, p. 12)

158. To reduce the impacts on houses from noise from cars along the H-2 highway, barriers or berms may be built along H-2. (Adams, 9/20/01, p.66:13-17; Petitioner's Exhibit 10, Appendix C)

159. The petitioner does not know at this time what impact the berms or noise attenuation structures along H-2 will have on the views from H-2. (Hastert, 9/20/01, p.111:17-23)

Traffic

160. Traffic and commute times are a major concern for Mililani residents. (Sealander, 1/31/02, p. 28:23 to p. 29:4; Markham, 1/31/02, p. 27:6-11; Bass, 1/31/02, p. 76:9 to p.77:9, Fabrey, 9/6/01, p.53:11-17)

161. Normal traffic flow at the H-1, H-2 interchange starts breaking down to stop-and-go traffic around 5:45 in the morning through 8:00 A.M. (Brothers, 9/20/01, p.23:11-17)

162. At 6:30 A.M. it takes a commuter 1.25 hours to travel from Mililani to the Honolulu downtown financial district. (Brothers, 9/20/01, p.39:22 to p.40:1)

163. The petitioner's proposed project would contribute to longer travel time into downtown. (Brothers, 9/20/01, p.40:6-20 and p.67:4-5)

164. The petitioner's proposed project would contribute to the traffic problem in Central O`ahu. (Tsuzuki, 11/15/01, p.111:7-16)

165. The traffic problem is a local concern that is due to the local development that is proposed at Koa Ridge. (Tsuzuki, 11/15/01, p.112:4-5)

166. The proposed project will further add to traffic congestion in the region, especially during peak hours. (Office of Planning, Exhibit 1, p. 21)

167. The petitioner cannot provide information regarding the amount of time that their project would add to the commute time from Mililani to downtown. (Brothers, 10/19/01, p.47:2-6 and p.48:1-4 and p.57:9-10)

168. The Oahu Metropolitan Planning Organization has prepared a regional transportation plan that includes Koa Ridge Makai and Castle & Cooke Waiawa but not Koa Ridge Mauka. (Brothers, 10/19/01, p.51:2-12).

169. The transportation improvements contemplated by the Oahu Metropolitan Planning Organization regional transportation plan may not occur due to various types of issues, including environmental factors and limited funding. (Brothers, 10/19/01, p.50:7-14)

170. The Transportation Research Board, a division of the National Science Foundation, uses a traffic evaluation method known as level-of-service (LOS) which describes traffic operations on a letter basis from A to F, which signify excellent to unacceptable, respectively. (Petitioner's Exhibit 10, Appendix I, p.2-1)

171. LOS E describes operations with a delay in the range of 40 to 60 seconds per vehicle, poor signal progression, long cycle lengths, and high volume-to-capacity ratios. (Petitioner's Exhibit 10, Appendix I, p.2-3)

172. LOS F describes operations with a delay in excess of 60 seconds per vehicle and is describes an unacceptable condition. (Petitioner's Exhibit 10, Appendix I, p.2-1 and 2-3)

173. The Petitioner's Traffic Study indicates that with the project, the interstate H-1, East and West of the Waiawa Interchange will operate at a level of service E and F, Eastbound and Westbound during the A.m. and P.M. peak hours in the year 2020. (Petitioner's Exhibit 10, Appendix I)

174. The Petitioner's Traffic Study indicates that with the project the intersection of Kamehameha Highway and Ka Uka Boulevard will be operating at an unsatisfactory level in the year 2020. (Petitioner's Exhibit 10, Appendix I)

175. The Petitioner's Traffic Study indicates that with the project the intersection of Kamehameha Highway and Lumiana Street will be operating at an unsatisfactory level in the year 2020. (Petitioner's Exhibit 10, Appendix I)

176. The Petitioner's Traffic Study indicates that with the project the intersection of Kamehameha Highway and Waipahu Street will be operating at an unsatisfactory level in the year 2020. (Petitioner's Exhibit 10, Appendix I)

177. The Petitioner's Traffic Study indicates that with the project the intersection of Ka Uka Boulevard and Moaniani Street and the H-2 Southbound off-ramp will be operating at an unsatisfactory level in the year 2020. (Petitioner's Exhibit 10, Appendix I)

Power

178. The electrical load for the petitioner's proposed project is 54.3 megawatts. (Funasaki, 10/19/01, p.90:7-11)

179. The electrical power for the project will be supplied by the Hawaiian Electric Company. (Peitioner's Exhibit 10, Appendix B).

180. Petitioner's witness in electrical engineering claims that there is adequate capacity to serve the petitioner's proposed developments, but he is unaware of the timeline for new power generation facilities on O`ahu. (Funasaki, 10/19/01, p.90:12-15)

181. Petitioner's witness in electrical engineering is unaware of the fuel source for the needed 54.3 megawatts of electricity for the project. (Funasaki, 10/19/01, p.90:16-20)

182. There are no plans to generate power on-site at the petitioner's proposed development. (Funasaki, 10/19/01, p.90:21-23)

Other

183. The Pacific Golden Plover exists on the petition property. (Office of Planning, Exhibit 1, p. 11)

184. A basalt adz was found within the northern portion of Koa Ridge Makai. (Office of Planning, Exhibit 1, p. 11)

185. Existing school facilities are operating near or above capacity. (Office of Planning, Exhibit 1, p. 21)

186. Over 76 individual postcards in opposition to the reclassification were submitted to the Commission. (11/15/01, p.12:11-15; 1/17/02, p.5:24 to p.6:14; 1/31/02 p.5:2-6)

RULING ON PROPOSED FINDINGS OF FACT
Any finding of fact herein improperly characterized as a conclusion of law should be deemed or construed as a finding of fact; and any conclusion of law herein improperly characterized as a finding of fact should be deemed or construed as a conclusion of law.

STATEMENT OF LAW

1. The Petitioner bears the burden of proving, by a preponderance of the evidence, that among other things, the proposed reclassification and the development of a residential and commercial community is consistent with preservation of important natural systems or habitats and maintenance of valued cultural, historical, or natural resources. HRS 91-10(5); HRS 205-17(3). HRS 91-10(5) governs contested case hearings and provides: Except as otherwise provided by law, the party initiating the proceeding shall have the burden of proof, including the burden of producing evidence as well as the burden of persuasion. The degree or quantum of proof shall be a preponderance of the evidence.

2. This Commission must find, based upon a clear preponderance of the evidence that the reclassification of the subject property from the Agriculture into the Urban District is reasonable, nonviolative of HRS Section 205-2, is consistent with the Hawaii State Plan as set forth in HRS Chapter 226, and the policies and criteria established pursuant to HRS Sections 205-17 and 205-2. (HAR 15-15-77)

3. HRS 205-17 (3)(A)-(C) requires that, in its review of any petition for reclassification of district boundaries, the Commission shall specifically consider the "(3) The impact of the proposed reclassification on the following areas of state concern: (A) Preservation or maintenance of important natural systems or habitats; (B) Maintenance of valued cultural, historical, or natural resources; (C) Maintenance of other natural resources relevant to Hawaii's economy, including, but not limited to, agricultural resources. (emphasis added).

4. In approving any petition for reclassification, the Commission may impose conditions necessary to uphold the general intent and spirit of Chapters 205, 205A and 226 HRS. (HAR 15-15-90)

5. As a State agency, this Commission also is obligated to uphold the Hawaii State Constitution.

6. The Hawaii State Constitution Art. XI, Section 1 states that:
a. For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii's natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State. All public natural resources are held in trust by the State for the benefit of the people.

7. Article XI, Section 3 of the Hawaii State Constitution requires the Commission to not only protect agricultural lands, but increase agricultural self-sufficiency: "The State shall conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency and assure the availability of agriculturally suitable lands."

8. Article XI, Section 7 of the Hawaii State Constitution requires the State to "protect, control and regulate the use of Hawaii's water resources for the benefit of its people."

9. Pursuant to Section 205-17(1), HRS, and Section 15-15-77(b)(1), HAR, the reclassification of the Property must conform to the applicable goals, objectives, and policies of the Hawaii State Plan, Chapter 226, HRS, as amended.

10. The State Constitution requires the state to "conserve and protect Hawaii's natural beauty and all natural resources." Article XI, Section 1. "All public natural resources are held in trust by the State for the benefit of the people." Id. As the Hawai`i Supreme Court recognized in the Waiahole case, "There can be no question that the [constitution] declares and creates a public trust of public natural resources for the benefit of all people (including future generations as yet unborn)." In Re: Water Use Permit Applications, 94 Haw. 97, 132 (2000) (internal citation omitted). "Under the public trust, the state has both the authority and duty to preserve the rights of present and future generations in the" public natural resources of the state. Id. at 141. "The state also bears an 'affirmative duty to take the public trust into account in the planning'" of natural resources, and "to protect public trust uses whenever feasible." Id.

11. Just as the Water Commission has affirmative obligations, so too does the LUC:
i. [T]he Commission must not relegate itself to the role of a mere "umpire passively calling balls and strikes for adversaries appearing before it," but instead must take the initiative in considering, protecting, and advancing public rights in the resource at every stage of the planning and decisionmaking process. Save Ourselves, 452 So.2d at 1157 (citing Calvert Cliffs' Coordinating Comm. v. United States Atomic Energy Comm'n, 449 F.2d 1109, 1119 (D.C. Cir. 1971); Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 620 (2d Cir. 1965))) . . . Specifically, the public trust compels the state duly to consider the cumulative impact of existing and proposed diversions on trust purposes and to implement reasonable measures to mitigate this impact, including the use of alternative sources. . . . The trust also requires planning and decisionmaking from a global, long-term perspective. See United Plainsmen Ass'n v. North Dakota State Water Comm'n, 247 N.W.2d 457, 462-64 (N.D. 1976). In sum, the state may compromise public rights in the resource pursuant only to a decision made with a level of openness, diligence, and foresight commensurate with the high priority these rights command under the laws of our state.
Id. at 143.

CONCLUSIONS OF LAW

1. In acting on a petition for land use boundary reclassification, the Commission has a statutory and constitutional obligation to independently assess impact of proposed reclassification on Hawaii's natural and agricultural resources and environmental quality, including natural resources relevant to Hawaii's economy, views and vistas for aesthetic enjoyment of mountains, scenic landscapes, and other natural features, and existing and potential water supply.

2. The Commission has a statutory and constitutional obligation to promote diversified agriculture and increase agricultural self-sufficiency. (HRS 205-17 (3), State Constitution, Article XI, Section 3)

3. Due to development of areas that are available for recharge, petitioner's project will reduce recharge to the Waipahu-Waiawa Aquifer and consequently have an adverse impact on available water. This conflicts with the Commission's duty to consider maintenance of natural resources relative to Hawaii's economy and commitment of state fund's and resources.

4. Because petitioner's proposed wells will intercept groundwater flows serving the Board of Water Supply municipal wells, this project will reduce available groundwater in the region and impair the Commission's duty to maintain natural resources.

5. Approval of the Petitioner's Project conflicts with the preservation or maintenance of important natural systems or habitats by allowing development to proceed which would use groundwater that otherwise feeds natural streams and habitats.

6. The Hawaii Supreme Court's August 22, 2000 decision on the Waiahole Ditch contested case indicated that the Water Commission must complete the State Water Resources Protection Plan prior to the adoption of the County Water Use and Development Plans for affirming groundwater sustainable yields and instream flow standards that guide water planning and regulation.

7. If CWRM adopts higher Windward O`ahu instream flow standards necessary to protect habitat and traditional farming, less water will be available in the Waiahole ditch and therefore less water will be available to recharge the groundwater in the Waipahu-Waiawa Aquifer.

8. It is not reasonable to approve a development where the petitioner fails to demonstrate that the development will not have an adverse impact on natural resources such as fresh water. This is particularly so where intervenors present evidence suggesting that fresh water supplies will be adversely affected and where the state is obligated pursuant to the public trust doctrine to protect water.

9. A decision by the Land Use Commission to approve this development may discourage the Water Commission from taking the most appropriate action to protect water resources. HRS 174C-31(b)(3), 174C-49(a)(5)

10. Petitioner's Project would further decrease the sustainable yield of the Waipahu-Waiawa Aquifer, further forcing the Board of Water Supply to develop an expensive desalination facility whose costs will be ten times above current water production costs, thus conflicting with the Commission's duty to maintain natural resources relative to Hawaii's economy and consider the commitment of state funds and resources.

11. Where sufficient land has been approved for urban growth in Central O`ahu and when population is decreasing, the Commission cannot find that this project is reasonably necessary for urban growth.

12. The removal of 815 acres of prime agricultural land will impair agricultural production in the vicinity.

13. Petitioner has not carried its burden of proving, by a preponderance of the evidence, that proposed development is in conformance with the applicable goals, objectives, and policies of the Hawaii state plan.

14. Because the impact of the petitioner's proposed project on groundwater recharge cannot be proven at this time, reclassification of the petition lands would conflict with Hawaii State Plan, HRS Section 226-104 (b) (3) which establishes the goal of restricting development when drafting of water would result in significantly diminishing the recharge capacity of any groundwater area.

15. Because the necessary studies, plans, and monitoring has not been complete to prove how much water is available to be withdrawn from the Waipahu-Waiawa aquifer, reclassification of the petition lands would conflict with Hawaii State Plan, HRS Section 226-104 (b) (3) which establishes the goal of restricting development when drafting of water would result in exceeding the sustainable yield.

16. Because sufficient housing is available in Central O`ahu and because a sufficient amount of land has already been approved for urban development in Central O`ahu, approval of this project would conflict with the Hawai`i State Plan, HRS 226-104, which encourages planning and resource management to ensure that population growth rates throughout the state are consistent with available and planned resource capacities and reflect the needs and desires of Hawaii's people.

17. Because Central O`ahu already exceeds the desired population in the City & County's Central O`ahu Development Plan, Petitioner's proposed development conflicts with the Hawai`i State Plan, HRS 226-5(b)(7) which establishes the goal of planning and development of available land and water resources in a coordinated manner so as to provide for desired levels of growth in each geographic area.

18. Because Petitioner's proposed development conflicts with 1) the existing Central O`ahu Development Plan; and (2) portions of the Proposed, but not adopted Central O`ahu Sustainable Communities Plan; reclassification of the petition lands would be in conflict with HRS 226- 5(b)(7) which establishes the goal of planning and development of available land and water resources in a coordinated manner so as to provide for desired levels of growth in each geographic area.

19. Because petitioner's proposed development would develop mostly prime agricultural land at a time when the number of vacant units is increasing within the established communities in Central Oahu, reclassification of the petition property would frustrate compliance with Hawaii State Plan HRS 226-104 (b)(7), which establishes the goal of pursuing rehabilitation of appropriate urban areas.

20. Because the petition lands would convert over 1000 acres of "important" agricultural lands-of which over 800 acres are "Prime Agricultural Land"-reclassification of the petition lands would conflict with Hawaii State Plan, HRS Section 226-104 (b)(12) which establishes the goal of ensuring the protection of the environment and the availability of limited resources for future generations.

21. Because adequate lands in or near urban areas are available for urban growth and because over 1000 acres of the petition land is classified as "Important Agricultural Land," reclassification of the petition land to urban would conflict with Hawaii State Plan, HRS 226-104 (b)(1), which establishes the goal of encouraging urban growth primarily to existing urban areas where adequate public facilities are already available or can be provided with reasonable public expenditures and away from areas where other important benefits are present such as protection of important agricultural land and preservation of lifestyles. Petitioner's proposed development takes away agricultural resources and open space when enough developable land and housing units already approved to reasonably accommodate desired growth is available within the existing development plan area.

22. Hawaii State Plan Chapter 226-104 (b)(5) establishes the goal of preservation of green belts by giving priority to State Capitol Improvement Funds which encourage location of urban development within existing urban areas except where compelling public interest dictates development of a non-contiguous new urban core. Population is decreasing in areas nearby the Petitioner's proposed development while the number of vacant units is increasing. No compelling public interest exists when enough developable land and approved housing units already exist in Central Oahu Development Plan area.

23. Because the petition lands have been in intensive agricultural use in the two years previous to petitioner's filing, and because the action to reclassify the lands to urban will substantially impair the actual or potential agricultural production in the vicinity of the subject property or in the county or state, and because the lands are not reasonably necessary for urban growth, reclassification of the petition lands would be in violation of HRS Section 15-15-77 (b)(6).

24. The City and County's development plans are adopted pursuant to the city's general plan. Proposed development which is inconsistent with these plans has a heavy burden to overcome.

25. Because the petition lands are important and productive agricultural lands, reclassification to urban would conflict with Hawaii State Plan, HRS Section 226-104 (b)(2) which establishes the goal of distribution of regional growth for appropriate urban uses to occur on marginal or nonessential agricultural lands.

26. It is not reasonable to approve a development for an area for which a) enough development has already been approved to accommodate projected growth for the next twenty years; and b) population for the area has decreased while the number of built units has increased over the past ten years.

DECISION AND ORDER

IT IS HEREBY ORDERED that the Petitioners' Castle & Cooke Homes Hawai`i, Inc. & Pacific Health Community Inc. request to reclassify 1,247.983 acres of land from the agricultural district to the urban district be hereby denied.
Based upon the findings of fact and conclusions of law stated herein, it is hereby determined that the proposed project would have an adverse impact on groundwater resources, prime agricultural lands, and open space resources.