Honolulu pushes back on notice requirements before property is set aside as farmland

The Hawaii Supreme Court questioned if Honolulu did enough to notify nearly 1,800 landowners before seeking to preserve their Oahu land for agriculture.HONOLULU (CN) — A yearslong effort to preserve 41,000 acres of Oahu farmland came before the Hawaii Supreme Court Tuesday, where justices pressed the city on whether it did enough to notify nearly 1,800 landowners before asking the state to designate their properties as “Important Agricultural Lands.”Honolulu says it followed state law in identifying the land and submitting its recommendation to the Hawaii Land Use Commission. The commission found the city hadn’t satisfied notice requirements under state law and administrative rule and rejected the proposal.Brad Saito, representing the city, said Honolulu was making an advisory recommendation, not asking the commission to resolve a dispute between property owners. He argued the commission should have moved directly to rulemaking, where it would propose which lands merit the designation and take public comment.“Our position is that this is purely advisory,” Saito said.The city’s Department of Planning and Permitting spent roughly six years developing maps of agricultural land that met state criteria for IAL designation to close them off from future non-agricultural use. The commission rejected Honolulu’s recommendation in June 2022.Saito said the city mailed roughly 1,800 notices; about 138 came back unclaimed. Planning staff researched ownership records, sent a second round, and only a couple of those bounced back. The city also ran a half-page notice in the local newspapers.During public hearings, the commission fielded around 100 phone calls from landowners who said they’d never been notified, more than it had ever received on a single matter.“There was no follow-up action with constituents,” Saito said, adding under questioning he didn’t know why the city didn’t follow up.Deputy Attorney General Miranda Steed, representing the commission, said Honolulu had a single statutory duty to take reasonable action notifying landowners, and the commission wasn’t conducting final IAL rulemaking when it rejected the proposal.It first had to decide whether the city cleared that bar, a step she described as a declaratory action, distinct from both rulemaking and a contested case.Justice Lisa Ginoza asked why relying on real property tax records wasn’t enough. Steed said the statute doesn’t require actual notice to every landowner, but the commission found real gaps in the city’s effort: notices sent to only one owner on jointly held properties, outdated addresses and landowners who were never informed at all.Ginoza asked what recourse landowners would have once a designation is finalized. The IAL designation would limit future rezoning and restricts farm dwellings to family members and workers who are actively farming.Steed said they could testify during rulemaking and later challenge the rule in circuit court, or petition the commission to lift a designation if the land no longer met the criteria. Ginoza pushed back, asking why landowners wouldn’t get a formal chance to contest the designation during rulemaking itself.“Because once it goes to the LUC, it does become rulemaking under 205-49, and so a property owner would not be a party to that,” Steed said.Ginoza noted that the constitutional provision behind Important Agricultural Lands dates back nearly 50 years, while the statutory framework only took effect in 2005, and no county had gone through the process until now.“There certainly were growing pains in figuring out how this worked,” Steed said.In rebuttal, Saito said the law doesn’t actually require the city to guarantee that every landowner actually receives notice.“The requirement is that the counties take reasonable action to notify,” he said. “It doesn’t require that people receive reasonable notice.”He pointed out that the process hasn’t produced a final rule yet.“When you’re regulating zoning and you make a mistake, you can fix that mistake with the click of your keyboard,” Saito said.The justices took the matter under advisement and gave no indication of when they’ll rule.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads