The state has a constitutional obligation to protect productive farmland, Hawaii Supreme Court justices were told Thursday during oral arguments in a lawsuit challenging a land reclassification for D.R. Horton’s 11,750-home Hoopili development.

The justices heard oral arguments Thursday morning in the lawsuit by the Sierra Club and former Sen. Clayton Hee, who contend that the state Land Use Commission’s 2012 decision to reclassify 1,500 acres of agricultural land violated the state constitution.

Attorney Eric Seitz argued on behalf of the plaintiffs that the state is supposed to designate “important agricultural lands,” but has so far made little headway. The land that’s slated to become Hoopili would fit most of the criteria for that designation, Seitz contended, and its loss would remove the best farmland in the state.

The fate of a massive planned housing development is at stake as justices hear oral arguments regarding Hoopili on Thursday.

Cory Lum/Civil Beat

The oral arguments were the culmination of years of debate over the project that D.R. Horton has been working to push through Hawaii’s lengthy permitting process since 2008. The City Council passed a bill to approve rezoning the land from agricultural to urban May 6 and Mayor Kirk Caldwell signed it May 20.

Caldwell emphasized that Hoopili will help ease the city’s affordable housing crisis by providing thousands of homes for moderate-income families, along with about 100 rentals.

The development has been staunchly opposed by environmentalists who see the paving over of productive farmland as counterproductive in a state where 85-90 percent of food is imported.

That concern seemed to resonate with Associate Justice Richard Pollack, who grilled defense attorneys and noted that the amount of agricultural land in the state rated as having the highest potential had fallen from 53,000 to 41,000 acres.

“It seems to me that it’s been trumpeted that we’ve only lost 22 percent of that land,” Pollack said. “Keeping up at that rate there won’t be any in 100 years.”

Associate Justice Paula Nakayama questioned Seitz about whether Hoopili could ever be designated as “important agricultural land,” given that it’s within the urban growth boundary.

That’s a key argument by the defense, who contend that Hoopili’s location makes it ineligible for an agricultural designation. In their answering brief, attorneys representing D.R. Horton and the state said the lack of such a status is the plaintiffs’ “fatal flaw.”

After the hearing, Seitz said he felt comfortable answering the justices’ questions but couldn’t predict how or when they’ll rule.

“It could be next week, and it could be next year,” he said. The court is also considering a similar case challenging Castle & Cooke’s Koa Ridge development that Seitz also argued on behalf of the Sierra Club last month.

Gregory Kugle, attorney for D.R. Horton, said he thought the hearing went well.

“Overall we are optimistic that the court will see that the Land Use Commission did a thorough review and also consider the very important general plan and development plan that the city and county has had for Ewa for over 40 years,” he said.

Availability of Farmland

The attorneys clashed on whether there’s enough farmland available to make up for the loss of some of it if Hoopili is built.

D.R. Horton attorneys referred the justices to testimony by consultant Bruce Plasch, who concluded that there are nearly 30,000 acres of high quality farmland that are not being farmed.

That’s the same expert the company relied upon during the 2012 Land Use Commission hearings. His testimony was hotly contested by some faculty members from the University of Hawaii.

As Civil Beat reported, Plasch’s 2011 study relied heavily upon outdated farmland ratings and didn’t take into account how much of that land has been diverted for other purposes, such as luxury housing or solar farms. The study also didn’t specifically evaluate key characteristics such as the availability of water and the slope of land.

Another analysis of the availability of agricultural land by the social investment firm Ulupono Initiative found there are fewer than 5,000 acres of prime, irrigated farmland on Oahu that are not already in use.

“If this were a situation where there were agricultural lands available and somebody could demonstrate some degree of productivity equivalent to Hoopili, we would not be here,” Seitz said.

Brian Yee, a deputy attorney general representing the state Office of Planning, told the justices that all of the current lessees on the farmland have “to a certain extent” other available land.

“Why to a certain extent? Is that enough?” Chief Justice Mark E. Recktenwald asked.

In response, Yee acknowledged there is no standard that the lessees receive equivalent acreage.

Defending the Planning

Attorneys representing D.R. Horton and the state emphasized that the case is about planning.

“The loss of prime agricultural land in Ewa is the cost of ensuring that the rural lands (elsewhere on the island) are protected from development,” said Don Kitaoka, deputy corporation counsel for the City & County of Honolulu.

While that’s often how the discussion of building a “Second City” in Kapolei is framed, the city also had the option of growing more compactly by intensifying the urban corridor.

Officials decided not to pursue that due to several factors, including the high cost of redevelopment and political pressure to build more single-family homes rather than dense urban development.

Attorney Gregory Kugle answers justices’ questions on behalf of D.R. Horton.

Cory Lum/Civil Beat

Gregory Kugle, attorney for D.R. Horton, said the city made a conscious decision to direct urban growth to the Ewa plain, noting the city’s decision to build the Second City in Kapolei.

“This has never been planned by the county for anything other than residential use,” he said.

John Whalen, who led the city planning department in the late-1980s, said that when the Second City was envisioned, the area between Waipahu and Kapolei was intended to be preserved as open space.

But he noted that plans change, and the land has since been encroached upon by development such as the University of Hawaii’s West Oahu campus.

A 1987 city development plan also indicates that the land where Hoopili would be built was at that time still slated for agricultural use. But by 1997, the Ewa Development Plan included a reference to 11,750 homes in Hoopili.

Former state Sen. Clayton Hee listens to his attorney, Eric Seitz, argue before the Hawaii Supreme Court.

Cory Lum/Civil Beat

Kugle and the state attorneys implored the justices to consider the hard work of the Land Use Commission members as well as all the community outreach and deliberation that went into the county planning process.

But after the hearing Anthony Aalto, who leads the Oahu chapter of the Sierra Club, said that building 11,750 homes within the heart of Kapolei rather than on top of productive agricultural land would help turn the city’s plan for a Second City into reality.

“You step out of Kapolei town hall, you look around and you see barren land,” he said. “It’s like a ghost town, there’s almost tumbleweeds over the land.

“Build a tall dense city there that actually has some life, some energy, that will start to entice some traffic to go westward instead of Hoopili, which we believe will be largely a bedroom community… that will contribute to the commuting nightmare,” Aalto said.

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