By Cynthia Sweeney

O’oma Beachside Village is an award-winning community, on paper. It is a mixed-use shoreline community, with up to 1,200 residential and small business units, and environmentally conscious with lots of housing opportunities for all economic levels.

The proposed location, however, between Kohanaiki and the Natural Energy Laboratory of Hawaii (NELHA), which is next to the airport, is a problem. Last December, the Hawaii Land Use Commission (LUC) denied O’oma’s petition to convert 181 of the 303 acres of land from conservation to urban.

In January 2011, O’oma’s developers appealed that decision, filing a lawsuit against the LUC among others. The petition claimed that the LUC misunderstood the law and the facts as they relate to conservation land, ignored expert testimony, were swayed by public opposition to the project, and exceeded the scope of their authority in making the decision.

“It’s as if the LUC turned its back entirely on the decision-making criteria,” said O’oma attorney Jennifer Benck at the July 13 hearing in Kealakekua’s Third District Court. Benck also accused the “quasi judicial” LUC of being uncomfortable making a difficult, unpopular decision. “By ignoring the facts, it’s as if they closed their eyes to justify their decision. This is an example of the LUC acting beyond its statutory ability.”

Some may recall the O’oma beachside property as the former Clifto’s Kona Coast parcel. (Clifto’s had proposed, on the mauka portion of the property, a 400-room hotel and 240 luxury homes, as well as a shopping center. One of the issues that caused the defeat of Clifto’s by the Hawaii County Council was traffic.) Midland Pacific Homes, based in Atascadero, California and its founder and chief executive officer Dennis Moresco, have $35 million invested in O’oma. The Village’s design received the 2009 Outstanding Planning award from the Hawaii Chapter of the American Planning Association, which cited the plan as a “visionary process for sustainable communities.” According to their website, oomabeachsidevillage.com, nearly one-third of the project site would be preserved for open-space, including 18-acres for a publicly-accessible shoreline park with public parking. It states: “We worked closely with stakeholders, from area residents to cultural descendants and regional leaders, to ensure the master plan not only incorporated the thoughts and needs of the community but is also consistent with the Kona Community Development Plan.”

A vocal portion of the Kona community, however, has consistently expressed their objection to development of this property, largely because of its proximity to Pines Trees, a revered local beach.

Last week, Judge Ronald Ibarra’s small courtroom was filled with a dozen concerned citizens, including Kona resident Michelle Tomas. She frequents nearby “Pine Trees” with her sons. Tomas has been to every hearing related to this development. In the beginning, she listened, and then she started testifying against the project. Her presence as the voice of opposition escalated, to where she was represented by the Native Hawaiian Council to act as a friend of the court.

“I’ve never done this before, but this is my home,” Tomas said. “It’s just wrong for him (Moresco) to come in and make this Waikoloa when it’s Kona. We don’t want this (development).”

Indeed, another of Benck’s accusations was that the LUC was swayed by negative public opinion in making their decision. She argued that testimony from experts, including Native Hawaiians who are support of the project, were left out of the LUC’s decision-making process.

“The LUC was uncomfortable making a difficult, unpopular decision. Considerable public testimony in support was ignored,” she said. “This was a difficult decision with a lot of public sentiment against it.”

Arguing for the LUC at the hearing was State Deputy Attorney General Robyn Chun. Chun told the judge the Commission did not act inappropriately and their decision was not arbitrary. They were not convinced that O’oma was in compliance with DOT requirements to protect the State from future liability, nor with the absence of adverse impacts on traffic, shoreline access and water treatment.

“In the end, the LUC weighed the evidence and was not convinced,” Chun said.

The County, also represented at the hearing, took no position.

Last December, O’oma convinced only four out of nine Land Use commissioners that the land should be reclassified. In their appeal, they accused the LUC of not doing their job, and not specifically addressing each testimony and each piece of evidence given, and the reason for the rejection of such. Benck called for a “rational and clear decision making process so unsuccessful applicants can figure out where they went wrong.”

In turn, Judge Ibarra pointed out that it was not incumbent upon the LUC to defend it’s decision, nor to respond to each piece of evidence given, only those that support their decision. He also asked the plaintiff several times which specific items she would like listed and how much weight should be given to each statute. The law does not make this specific, he explained, and allows for discretion in the LUC’s decision.

While Benck acknowledged the discretion allowed the LUC, her gripe fell back onto the LUC failing to do their job several times throughout the hearing.

“The LUC did not do their job. We met all the necessary criteria. Their (LUC’s) decision is not supported by the record. They operated outside their jurisdiction with a capricious abuse of statute,” she said.

The Attorney General’s office was not available for comment as of press time. Still, at least three commissioners are on the record, from the November 2010 hearing, as saying they could not get past the proximity of the project to the airport. An excerpt: “… I think it is inevitable that if a number of homes are built that close to the airport, that is going to lead to problems down the road. And regardless of what language is put into warnings to purchasers, regardless of what easements are put into deeds, I believe… that there are going to be serious problems down the road as the airport expands… I do like the Project, but I think it’s just in the wrong place with respect to the airport.”

In the appeal, Benck objected that O’oma addressed all of the issues the State required, including hiring an expert from the DOT on airport noise, who cited that current and future uses at KOA will not be impacted or restricted by the development of O’oma. The DOT did, however, state their primary concern with the proposed land reclassification and the development of the village was the project’s proximity to an active runway, also requiring O’oma to sell the State an avigation easement, or airspace rights. In their petition, O’oma also sited the DOT’s requirement that they “release and indemnify the State of Hawaii from any and all liability claimed by owners, occupants, users and guests of the Project arising from noise, fumes, smoke, vibration…” etc. coming from the airport.

“What’s troubling is when State experts on aeronautics provide evidence, and the LUC ignores the report and relies on less substantive evidence and their gut feeling,” Benck said.

Michelle Tomas works at the airport, where she is well acquainted with the daily routine of take offs and landings. She has more than a ‘gut feeling’ about the location of O’oma’s development.

“People from all walks of life are coming out against this; locals, seniors, teenagers. We’re not just going to let developers with unlimited funding do whatever they want. I will fight for my community. It’s the right thing to do,” she said.

Judge Ibarra is expected to issue his ruling in the coming week.