Four months ago, the Hawaii Land Use Commission asked for an attorney general’s opinion on whether the City and County of Honolulu followed state law when devising a plan that will change property rights of 1,800 Oahu landowners and affect 41,000 acres.

The good news: the commission now has an answer. The bad: the attorney general’s analysis is privileged, and it’s not clear how much if any the commission will make public, or when.

The Land Use Commission today is scheduled to discuss the attorney general’s analysis on whether the City and County of Honolulu followed the state’s Important Agricultural Lands law when crafting a plan to impose the designation on 12% of Oahu’s land, primarily belonging to small landowners.

But, the meeting’s agenda shows, the commission plans to hold the bulk if not all of the discussion behind closed doors, using an exception to the state’s open meeting laws that lets agencies talk about legal matters in private.

LUC Chairman Jonathan Likeke Scheuer declined to comment on whether the commission had gotten what it requested from the attorney general.

Minutes of the commission’s May 26, 2021, meeting show that the commission voted to request “a formal published opinion from the Attorney General.” And James Walther, a deputy attorney general, confirmed the office did not provide that.

Instead, the office “provided advice, but not in the form of a formal opinion,” Walther said. The information falls under attorney-client privilege and thus is not public, Walther said. But he said the commission could opt to make the information public.

“They can do with it what they will,” he said.

Scheuer said the commission will discuss whether to make the analysis public, but must do so in private executive session as an initial step.

“I can assure you, we’ll discuss it tomorrow,” he said.

More that 40 years in the making, Hawaii’s Important Agricultural Lands law is designed to preserve productive agriculture land.

The broad mandate to protect “important agricultural lands” was established in the Hawaii Constitution of 1978. But it wasn’t until 2005 and 2006 that the Legislature got around to passing laws needed to put the constitutional provision into action.

Along with some other restrictions, the designation generally makes it harder for landowners to reclassify their land for a use other than agriculture. Classification is essentially state-level zoning that provides a broad framework to guide county zoning.

The statutes also provide processes for designating lands as important agricultural lands. One process lets landowners opt in voluntarily in exchange for valuable perks – a process many large and sophisticated landowners have already used. The other process, which is now at issue, requires the counties to impose the designation on Important Agricultural Lands where owners haven’t asked for the designation.

The specific issue the commission has asked the Attorney General to address is whether the City and County of Honolulu followed statutory criteria when designating property as IAL without the consent of landowners.

Law Professor: City And County Violated Statute

The statute lists eight criteria meant to make sure lands designated as IAL are productive ag lands. And while the statute says it’s enough to meet just one of the eight criteria to receive “initial consideration,” it also says, “the designation of important agricultural lands shall be made by weighing the standards and criteria with each other” to meet the broad purpose outlined in the Hawaii Constitution and statutes. That purpose is to preserve highly productive agricultural land.

But instead of applying that analysis to each parcel, the City and County of Honolulu essentially did its weighing at the front end, by winnowing the eight criteria to the three most important; it then designated as IAL any land that met just one of the three.

That pulled in numerous parcels of less than an acre, as well as rocky or steep plots that owners say aren’t productive ag lands at all, much less the highly important ones that the statutes and constitution seek to protect.

David Callies, a professor emeritus at the University of Hawaii, William S. Richardson School of Law, said the city and county’s process was improper.

“This sounds very much like the city and county has decided it’s not convenient to follow the statute, so they didn’t do it,” said Callies, who is author of “Regulating Paradise: Land Use Controls in Hawai’i,” a legal treatise on the state’s land use laws. “It should be a slam dunk.”

Dawn Takeuchi Apuna, deputy director with the Honolulu Department of Planning and Permitting, said the city had in fact followed the law.

“There is nothing in the statute that requires the counties to weigh the standards and criteria for each individual parcel,” she said in an email.

“It would be practically infeasible to apply the standards and criteria to each parcel on an individual parcel-by-parcel basis,” she wrote. Of the 5,240 parcels of ag land, 1,800 were subject to screening for IAL recommendation.

“Can you imagine applying all eight criteria to each of the 1,800 parcels?” she asked.

But Callies said if it wasn’t practical for the city and county to apply the statutory analysis to thousands of parcels of land, officials should have sought help from lawmakers.

“I know it’s hard,” he said, “but your solution is to go back” to the Legislature to amend the statute.