|By Eloise Aguiar and Andrew Gomes, The
Honolulu AdvertiserMcClatchy-Tribune Regional News
Apr. 9, 2010--The Hawai'i Supreme Court yesterday ruled that an updated environmental impact statement is necessary to expand Turtle Bay Resort, reversing lower court decisions and handing a victory to opponents of the long-delayed development plan for the North Shore property.
The decision means the resort's owner must produce a supplemental EIS, which will allow public comments and provide opponents an opportunity to block the resort from moving forward with a master plan to build five hotels with 3,500 rooms and condominium units at Turtle Bay. The plan was approved by the city in 1985.
Gil Riviere, president of Keep the North Shore Country, said the group is excited.
"We're happy that the court read the law correctly and is requiring a supplemental EIS," Riviere said. "I haven't read it but from what I understand, we won very strong."
Keep the North Shore Country brought the lawsuit in 2006 with the Sierra Club Hawaii Chapter against developer Kuilima Resort Co. and the city.
The environmental groups, joined by Defend Oahu Coalition, argued last December that the circumstances surrounding the project had changed so much in the past 25 years that the original EIS completed in 1985 was no longer valid. Hotel workers union Unite Here Local 5 also sued over the issue.
The city and Kuilima Resort had countered that subsequent updates to parts of the EIS were enough to ensure environmental safeguards. The old EIS was upheld in two lower court decisions.
"I believe we had a very strong case and that the law was in our favor as was the trial court and the Intermediate Court of Appeal," said Sharon Lovejoy, an attorney for the developer. "So we're disappointed the Supreme Court justices saw it differently."
Lovejoy said she is still reviewing the decision and will consider new action depending on an analysis of the ruling.
Essentially, the court ruled that Turtle Bay's EIS is no longer valid because it contained a time frame by projecting the project would be completed in three phases, with the last phase starting in 1996.
Various owners of the property never expanded the resort much beyond the initial 443-room hotel and two golf courses.
"For an EIS to meet its intended purpose, it must assess a particular project at a given location based on an explicit or implied time frame," the ruling said.
The court's ruling also noted that several elements of the old EIS fail to address what may be present environmental issues, such as the presence of monk seals that were nearly nonexistent in the area 25 years ago and not addressed at the time. Traffic projections upon which the old EIS were based are out of date by a decade.
Chief Justice Ronald Moon wrote the decision, joined by three other justices. Associate Justice Simeon Acoba wrote a separate, seven-page concurring opinion.
"It would seem irrefutable that an environmental impact statement cannot exist in perpetuity," Acoba wrote.
Robert Harris, director for the Sierra Club Hawaii Chapter, said the decision brings an end to the supplemental EIS issue.
"It does appear like there's finally closure and that this is a decision that appears at this stage to firmly support the contentions that we're bringing," Harris said.
Stanford Carr, a local developer who has been overseeing the operations at the resort, declined to comment.
Mark Cunningham, a board member for the Defend Oahu Coalition, said the Supreme Court upheld the will of the people but the fight to maintain the area as country is not over.
"It by no means stops the proposed expansion but it is certainly going to put a finer-tooth comb over the whole project and I certainly think it needs that," Cunningham said.
Defend Oahu Coalition has asked the state Land Use Commission to consider whether 236 acres at Turtle Bay should lose its resort land designation because so much time has passed without the property owner fulfilling conditions of a 1986 land-use change that approved development of the former agricultural land.
Junior Primacio, who headed a committee that drafted the 1986 agreement that imposed conditions for developing the resort including public parks, workforce housing, day care and road improvements, said the agreement should stand.
"My personal opinion is that I think it was a done deal back in '86 and we felt comfortable that's why we put the clause, the agreement goes with the sale of the land," Primacio said.
Primacio said he still supports the agreement but has doubts that all the conditions can be honored because of the economy.
Carr has said that the resort owner, a consortium of lenders including Credit Suisse, is working to fulfill the agreement conditions with the intent to proceed with expansion of the 880-acre property.
Reach Eloise Aguiar at email@example.com and Andrew Gomes at firstname.lastname@example.org.
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