Standing granted for 3rd petitioner opposed to controversial proposed Punalu‘u development

The Hawai‘i County Windward Planning Commission on Thursday granted standing to a third organization for a contested case hearing involving a proposed controversial $350 million residential and commercial community project adjacent to a popular Ka‘ū beach park.

The Association of Apartment Owners of Colony 1 at Sea Mountain, which had its petition for standing derailed earlier this year because of a technicality, on Thursday had it approved because of another technicality.

The condo association now joins the Center for Biological Diversity and ‘Iewe Hanau o Ka ‘Āina, which were granted standing in May. They all are contesting a special management area use permit application requested by Black Sand Beach LLC for the proposed Punalu‘u Village project on 147 acres adjacent to Punalu‘u Black Sand Beach Park, about 6 miles southwest of Pāhala.

The park and property, located in the former Sea Mountain at Punalu‘u resort area, are east of Hawai‘i Belt Road (Highway 11) off Nīnole Loop Road.

Eva Liu owns the former resort property, a total of 434 acres, as well as Black Sand Beach LLC and the infrastructure systems that service the area.

Punalu‘u Village would feature 225 residential and short-stay units, a village and wellness center, rehabilitated golf course and tennis facilities, as well as extensive infrastructure upgrades. A portion of the coastline also would be dedicated as a conservation area.

Hundreds of people from Ka‘ū, greater Hawai‘i and even the mainland offered in-person, written and online testimony in nearly unanimous opposition to the requested special use permit and the project during two daylong meetings of the commission in March and May.

Opponents said the project would threaten the environment, desecrate cultural sites and potentially spike the cost of living in Ka‘ū.

Pushback also includes worries about outside influence in the community, destruction of the pristine Punalu‘u coastline, threat of wildfire because of the degraded state of the former resort buildings and water infrastructure, larger numbers of people in the area, and loss of a way of life along with historical and generational knowledge.

The Colony 1 owners association sought standing, a legal term that means the party has a connection or could be harmed by the project, because the condo and resort facility is located within 300 to 350 feet of the proposed development and completely surrounded by the project’s property.

The association based its request on the interest of who it represents — the owners of the facility’s 76 individual properties — and that it is clearly distinguishable from the general public’s interest.

The planning commission agreed.

Just 4 months after it initially failed to carry a motion to grant standing to the association by a 3-2 vote, with one member absent, because of questions about whether the person representing the condo board and the property manager who signed and submitted its petition were authorized to do so.

Documentation was available to prove they were, but it was not submitted in time to be included with the petition. Some commissioners at the time were concerned that without it there was no way of knowing if any of the association owners were misrepresented.

No other motions were made in reference to the condo and resort facility’s petition request, so Commission Chairman Dennis Lin declared its standing was denied.

That documentation, including approved condo owners association meeting minutes showing its representative and property manager were authorized on its behalf, is now part of the record with its petition.

Deputy Hawai‘i County Corporation Counsel Suzanna Tiapula said during Thursday’s meeting that despite Lin saying in May the association’s request for standing was denied based on that vote, upon review of the available legal frameworks the commission determined it was actually unfinished business and recognized a need to take a final action on the matter.

Lincoln Ashida, an attorney and director with Honolulu-based law corporation Torkildson Katz that represents Black Sand Beach, disagreed with the commissionʻs findings.

Ashida, also a former Hawai‘i County corporation counsel and former Hawai’i County prosecuting attorney, said in a letter to Lin that Colony 1 was already afforded a full hearing and standing was not granted. By bringing it back after the matter was already decided violates Black Sand Beach LLC’s due process rights.

However, he admitted during Thursday’s meeting that the “temperature check” was that the condo association’s petition for standing would be granted.

Just like the other two organizations whose petitions were approved in May, mediation will be the first step in the process for the two parties. The Planning Department will email both within the next week with a timeline to lay out those details.

Mediation did not work out with the other parties, so a contested case hearing is guaranteed. A search now is underway for a hearings officer.

But there is some hope that mediation could work between Black Sand Beach LLC and Colony 1 because the condo and resort facility is somewhat different in its opposition to the proposed development, mostly because of infrastructure concerns regarding the water, wastewater and fire suppression systems.

“We’re always hopeful,” said Daryn Arai, a land use planning consultant who is assisting Black Sand Beach with its special use permit application. “However, one issue could easily have an adverse effect on another issue, which is why we were pleased that the commission voted to consolidate the proceedings.”

Arai said while the issues might be distinct and separate for all three contesting parties, the outcome of resolving any specific issue could have an unintended and undesired effect on the other parties.

It’s always hoped mediation helps refines the concerns petitioners have and hopefully defines potential solutions, but some want the permit to simply be withdrawn.

“That basically means the project does not go forward,” Arai said. “Then it goes back to the fundamental purpose of what we’re trying to accomplish, is that keeping things as is has never been the right solution, at least how we see it. There needs to be some specific actions taken in order to provide opportunities where Punalu‘u can actually prosper.”

Punalu‘u is an existing community that should continue to prosper. The bigger question is how does that look moving forward. Different parties have different perspectives about how that should happen.

“That is what we’re hoping the proceedings will help define for everyone,” Arai said.

He said the commission’s decision Thursday was appropriate and fair. The Colony 1 residents are part of the Punalu‘u area and the developer understands their concerns, which is exactly what is helping drive the proposed project and why it’s important.

Jeff Silva, vice president of the Association of Apartment Owners of Colony 1 at Sea Mountain and a condo owner, agrees that mediation could have a chance to work for his board and Black Sand Beach LLC.

“Many of our members have concerns that overlap with the other two petitioners that ended up getting standing, but the association is bound to the issues that directly affect each and every owner and the association, so that’s why ours had to be narrowed into this very unique and special kind of narrowed-pointed approach,” said Silva after the commission’s vote Thursday.

Silva said Thursday’s outcome was what he and his board originally hoped would have happened in May. He said everybody was kind of shocked by the commission’s decision 4 months ago, which was based on a “very weird” set of technicalities.

If mediation falls apart between Black Sand Beach LLC and Colony 1 and proceedings escalate, the commission agreed Thursday the matter would be consolidated with the contested case hearing already underway.