If you want to understand how the Papa’ikou Point project might effect the community that surrounds it, by all means, do not read the recent petition submitted to the Land Use Commission by the developer. As it stands, what Carlsmith Ball LLP produced on behalf of Stephen Shropshire is a conglomeration of absurdity, unsubstantiated assertions and outright wishful thinking. All of which leaves simple folk scratching their heads but LUC staff acting as if such nonsense is worth expending taxpayer resources to process.
If you are the type who reads the Commission’s administrative rules and thinks that a requirement to demonstrate need for the project means prove the community will suffer without it, you qualify as far too simple to play the development game. Here’s how a real developer responds to § 15-15-50(c)(15) — the Assessment of Need requirement: “Reclassification of the Petition Area from Agricultural and Conservation to Urban is necessary in order for Petitioner to develop Papa’ikou Point.”
Translation for the simple folk: I am the one in need here and if you don’t change the zoning, I can’t build my subdivision.
“In addition,” the response continues, “the current Agricultural (A-20a) zoning does not allow for the proposed Papa’ikou Point development. Reclassification will allow residential development to occur in an area designated by the County for Low Density Urban uses, thus allowing other Agricultural District lands, located further from Hilo and existing residential and commercial uses, to remain available for agricultural uses.”
Translation: If you let me build my houses here, whether or not anyone needs them, then other people with agricultural lands farther along the coast will not have to rezone their land to build homes, whether or not anyone needs them.
Bert Saruwatari is the LUC staffer responsible for processing Shropshire’s petition. He says the disconnect between what the commission requires and what got submitted in this case is typical, although he can’t explain why developers are in the habit of providing such incomplete paperwork. “I can only say that it’s been the practice,” he said in a recent phone interview. Later, during the same discussion, he referred to it as a way for the developer to “get their foot in the door.”
Sarawatari confirmed that “the administrative rules are legal requirements,” but, like most of those familiar with how this particular game gets played, he didn’t want to say much more. The LUC staffer was the only person interviewed who was willing to be quoted on the subject at all; off the record comments proved much more informative. One attorney experienced at representing the public’s interests before the LUC criticized developers who are notorious for complaining about delays. “If they would submit the paperwork the right way to begin with, it would take far less time,” he said.
And cost far less taxpayer money.
In the Shropshire petition, the legal requirements are addressed with assertions followed by: “A detailed discussion of the (fill in the blank) will be provided in the EIS.” Whether the subject is how Papa’ikou Point might affect the school system, existing infrastructure (including the availability of solid waste disposal services), recreational resources, drainage, natural resources, flora/fauna, and visual resources . . . the tactic is the same. The petitioner dismisses a wide range of concerns by saying there is no problem because I say so and as for the evidence to support my claims, that will come later.
To be fair, in one instance Shropshire mentions “initial market studies” in response to the requirement that he demonstrate his 200 (plus or minus) homes can actually be sold: “Projected selling prices have not been determined, but initial market studies indicate that both market-level and affordable housing would be absorbed by buyers in light of Papa’ikou Point’s close proximity to Hilo, which allows for easy commuting to work and access to shopping and recreation.”
Oh, ye of simple minds look not at the multitude of homes unsold in Hilo with a much easier commute to work and better access to shopping and recreation. Consider not recent U.S. commerce department statistics indicating that construction of new homes and apartments plunged 15.5 percent to an annual rate of 550,000 units last month — this following a year in which the number of homes breaking ground was at its lowest level in 50 years, a 33.3 percent decrease over the previous year. Ignore the Federal Housing Finance Agency which reported that prices are dropping rapidly and that a survey of builders provided no indication that the situation would change anytime soon.
Shropshire says his homes will sell even though he doesn’t know how much they will cost, logic that fits quite well with his response to the requirement that he prove he has the financing to build them to begin with.
Condition IX of the LUC administrative rules, titled “FINANCIAL CONDITION AND FINANCING, § 15-15-50(c)(7),” calls for “a statement describing the financial condition together with a current balance sheet and income statement, and a clear description of the manner in which the petitioner proposes to finance the proposed use or development . . .”
Here is Shropshire’s response: “Prior to the Commission’s granting of the requested reclassification, Petitioner will secure the financial ability to develop Papa’ikou Point. Petitioner intends to finance the infrastructure improvements by obtaining construction loans, possibly through investor equity, and may also use proceeds from the sale of lots to fund later stages of development. Petitioner has not fully determined the estimated costs for the development of Papa’ikou Point, but will provide that information in the EIS. At that time, Petitioner will submit a statement describing its financial condition together with a balance sheet and income statement, with a clear description of the manner in which Petitioner will finance the development of Papa’ikou Point.”
In plain speak that would read: Don’t ask me that now! I don’t know how much it will cost. I am asking you to change the zoning even though I don’t have the money. I’m gonna get it, don’t you worry. And, by the way, never mind how I can know they will sell when I don’t know how much they will cost.
Saruwatari is not concerned about any of this. No decisions get made until the petition is complete and formally accepted. In the meantime, his role in the game is to point out the deficiencies and wait for the Draft EIS to come in. Then LUC staff will look at whether or not the legal requirements have been met, although no reality checks are performed at this stage. That comes later in what can be — and will certainly be, considering the opposition brewing to this project — a grueling process.
Commissioners will ask questions of the petitioner during the decision making but don’t expect anything tough. (See the LUC roster below.) Similarly, the County Planning Department as well as the Office of State Planning, who are both automatically part of the process, are likely to be in rubber stamp mode. Look to citizen interveners — who have the right to cross examine Shropshire’s experts as well as present their own — for true due diligence.
The recommendation from our off-the-record lawyer to those concerned about potential impacts from Papa’ikou Point — intervene. Although they might have a hard time crossing over to the alternate reality where Shropshire’s initial market studies were conducted, the way the game gets played, citizen interveners are the only parties empowered to establish the simple truth as the playing field.
