Effort to protect key Oahu farmland paused for legal review

The state Land Use Commission has paused a highly contentious effort to potentially preserve 41,407 acres of privately owned farmland on Oahu as important agricultural land.

The commission, which is considering a city recommendation to protect 11% of the island’s land mass, decided Wednesday to seek a state Department of the Attorney General opinion as to whether the city properly followed one element in a state law governing how the city decides what land deserves protection.

Wednesday’s unanimous move by LUC members followed a hearing in April at which the commission heard a daylong barrage of landowner complaints about their property being recommended for protection.

“There is a lot of angst out there,” said commissioner Arnold Wong. “It deals with a lot of peoples’ livelihoods.”

Wong made the motion to seek the Attorney General opinion after commissioners spent about two hours in a private executive session discussing legal matters with a deputy Attorney General representing the commission.

The specific issue to be examined is whether the city applied all eight criteria of a state law that instructs the city to assess what privately owned farmland should be protected. The city’s recommendation is to be acted upon by the LUC, which may approve, reject or modify the recommendation.

Under this law, land doesn’t have to meet every criteria, and can be given an initial consideration for protection by meeting a single criteria. However, the law also states that designating land for protection “shall be made by weighing the standards and criteria with each other.”

Dawn Apuna, deputy director of the city Department of Planning and Permitting, told the commission in April that the city’s assessment of land included weighted scoring of all eight criteria, and that to be as inclusive as possible land was recommended for protection if any one of three top-weighted criteria was met.

These three criteria are prime soil quality, water availability and existing agriculture use.

The other five criteria describe land that:

>> Contributes to maintaining a critical land mass important to agricultural operating productivity.

>> Includes or is near support infrastructure conducive to agricultural productivity.

>> Is associated with traditional Native Hawaiian or unique agricultural uses, which include taro, coffee, vineyards, aquaculture and energy.

>> Is already identified under an agricultural productivity rating system.

>> Whose designation as important is consistent with general, development and community plans of the county.

Protecting such land aims in part to support more local food production, and protects the state ag-use classification on property from being changed by requiring the LUC to consider additional criteria for any future change.

The effort to protect important ag land statewide stems from a 2005 state law enacted in response to a long-ignored Hawaii Constitution amendment ratified by voters in 1978 mandating that prime farmland be identified and protected.

This law established incentives for private landowners to seek the protection themselves, and several of the state’s biggest landowners did so. The law also directed each county to identify land for protection, and Honolulu was the first to complete the task with a recommendation to protect 1,781 parcels.

The city’s work began in 2011 and included assessments of land quality, community meetings, sending letters to affected landowners, a comment period, an opportunity to object, City Council hearings and Council approval.

City officials along with the state Office of Planning and state Department of Agriculture endorsed the city’s work as meeting all requirements.

Yet many affected landowners complained to the LUC that they weren’t informed, and some also said they were alarmed after receiving a letter from the Durrett Lang Morse LLLP law firm warning them about how the protection would diminish their rights to use their land.

DPP’s Apuna has said the protection doesn’t materially reduce currently allowed uses of ag land, and noted that some landowners who expressed concern about not being able to legally keep a home on their land if their land is protected could be in present violation of state law.

On Wednesday, LUC Chairman Jonathan Likeke Scheuer questioned whether the adverse impact claim made by the law firm is valid, but recognized that some landowners have significant concerns and haven’t benefited from better communication.

“I still have very very significant concerns,” he said, adding that if the Attorney General review is favorable to the city then he sees merit in a proposal put forth by the Office of Planning to exclude all or the vast majority of parcels that are no more than 2 acres.

“This has been a difficult proceeding so far, and we’re not even close to being done,” Scheuer said.