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Appeals court sends charter school’s permit request back to Windward Planning Commission

A decision by the state’s Intermediate Court of Appeals sends a Hilo charter school’s special permit application to develop a campus in Kaumana back to the Windward Planning Commission, where the request was denied in 2014.

In the process, the appellate court also overturned a 2015 ruling by Kona Circuit Judge Melvin Fujino upholding the commission’s denial of the permit sought by Connections New Century Public Charter School to develop on about 70 acres of agricultural-zoned land on Edita Street off Kaumana Drive.

Connections’ plans for the site— located on state land leased to the school for 65 years at $480 per year — were opposed by neighbors. Those named as “intervenor-appellees” in the case include Jeffrey Gomes, owner of Hawaii Bookmark; Sidney Fuke, a private planner and former county planning director; and Terence Yoshioka, a retired judge.

Also named in the appeal by the school were the planning commission, the Planning Department and Sandra Song — a retired judge and the contested-case hearings officer hired by the commission whose report recommended denial of the permit.

The 44-page opinion and memorandum filed Jan. 31 by the appellate court said the commission’s conclusion that the development “is not consistent with the uses permitted in areas of low-density urban use” provided “no satisfactory explanation … why building a school in a low-density urban area is contrary to the general plan.”

The appeals court’s memo instructs the commission to convene “further proceedings consistent with” its opinion.

Ted Hong, a Hilo attorney representing Connections and Community Based Education Support Services — the kindergarten-to-12th-grade charter school’s board — said he’s grateful for the time the appeals court “spent in crafting such an important decision.”

“This decision tells the county that planning and development decisions will be governed by the objective rule of law and not by who you know, how much you contributed to a political campaign, or how wealthy you are,” Hong said. “This is an important decision that should help guide the county and planning commissions to make decisions fairly and impartially instead of rewarding friends. The court spelled it out very clearly.

“The question is whether the county will bother to listen.”

Song died in 2015 and, according to Hong, Fuke and Yoshioka were later dropped by the Circuit Court as intervenors in the case, but their names remain as appellees on the appeal’s court’s opinion.

Plans for the proposed campus, which have been in the works since 2006, call for a 30-bed dormitory, gym, cafeteria, library, caretaker’s residence and two parking lots with a total of 140 stalls. The campus would support a projected student body of 381.

The school, which currently operates out of the Kress Building in downtown Hilo, received an $8 million low-interest loan from the U.S. Department of Agriculture to assist with construction costs. The overall cost of the project, which would be done in phases, was previously pegged at $20 million.

John Thatcher, the Connections’ principal, said the school would place a heavy emphasis on cutting-edge sustainable agricultural practices and a forestry/conservation program.

“Kids should at least have an opportunity to have an education that’s oriented towards the future, not the past,” Thatcher said. “We’re trying to teach sustainability and for our students to have an opportunity to live on this island — and not have to move away to be an indicator of success. Agriculture, forestry, these are industries that are sustainable industries for the future for the island.”

Fuke, who testified against the project in the contested-case hearing, told the Tribune-Herald in 2016 the proposed project’s neighbors were “concerned about traffic, water availability and impact to the lifestyle” in that area.

“It’s a low-density residential community,” he said at that time.

According to the opinion, the planning commission found the development is not “specifically intended to serve the immediate community surrounding the school” and therefore, “not consistent with the uses permitted in areas of low density urban use.”

The appeals court’s decision said “a plain reading of the general plan does not forbid or even discourage the building of school facilities in low density urban areas.”

“How much ‘community concern,’ however calculated, is required before a special permit is found to be contrary to the general plan is unclear and is ripe for arbitrary and capricious abuse,” the court stated.

The decision said about 50% of the school’s students would come from the immediate Hilo area. According to Thatcher, many of the school’s students come from Puna, and “about 90%” of the students come from low-income backgrounds.

“There’s a point that people really need to demand their rights. The kids that live in Puna, the poor kids that live in Hilo … these kids deserve to have a really good school,” he said. “We’re really grateful that the (appellate) court took a close look at it. You could tell from the memo that they released that they really saw what we were saying. And we were saying this from the beginning. It’s encouraging to know that you can still fight for something that so many powerful people are trying to take away from us.

“I’m sure you’ve heard the term ‘good ol’ boy network’ applied to Hilo a lot, and it’s hard to go up against it. But I think that what we’re trying to do is bigger than that, and things are changing.”

Calls to Gomes and Michael Matsukawa, attorney for the intervenor-appellees, weren’t returned in time for this story.

Email John Burnett at
Source: Hawaii Tribune Herald

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