Open Space: What Are We Actually Protecting?

Bernard Markowicz

Sep 22

5 min read

Updated: Oct 4

Friends of Princeville

“Save open space” is an appealing message. Most of us want Princeville to remain green, attractive and enjoyable. But the debate over the Woods Course needs to distinguish four things:

the appearance of the land,
its zoning,
restrictions on its use, and
the right to enter it.

Friends of Princeville believes the campaign led by Save Open Space Hui and Lorraine Mull and Frances White, who brought the lawsuit, has focused on saving open space without clearly explaining what rights or benefits owners would gain. Protecting a landscape, preserving a golf-course restriction and securing a maintained place where everyone can walk and play are different outcomes.

We support protecting Princeville. We want the community to understand precisely what is being protected, for whom, at whose expense and under what legally binding commitments.

“Open” does not automatically mean open to everyone

A privately owned landscape can provide views, habitat and a sense of space without being a public park. The county’s ‘Open District’ zoning category sets rules for how land may be used; it does not, by its label alone, establish a general invitation to enter private property. Public access must rest on a recognized right or the owner’s permission, for example, a public-access easement allowing people to use a particular path.

Kauaʻi’s code treats public access routes and the number of homes allowed on land as separate issues. Privately owned land may still have a public right of access—for example, along a trail covered by a public-access easement. The relevant documents and rights must be examined. [S.1] Anyone suggesting that an owner is “stealing” public access should identify the access right at issue. Equally, anyone claiming unrestricted development rights should identify the restrictions that still apply.

Open zoning can allow development—with qualifications

Kauaʻi’s Open District rules do not impose a universal ban on houses. Section 8-9.2 includes a general maximum of one stand-alone house per three acres for land within State Urban or Rural districts. It also contains exceptions, including a one-acre standard for qualifying Urban land with an average slope no greater than 10%.

Those are zoning standards, not approval to build on this particular property. Special designations, permits and other restrictions can change what is allowed. Quoting the three-acre rule alone therefore does not establish what can be built on the Woods Course. [S.1]

The court case adds another layer

We disagree with treating the Mull/White litigation as the only way to protect Princeville. But we must describe its outcome accurately. The August 6, 2025 judgment favored Lorraine Mull and Frances White. The court ruled that the Golf Course Dedication (the restrictions setting aside the land for golf-course use) renewed automatically under the property’s covenants, conditions and restrictions (CC&Rs). It prohibited uses that conflict with those restrictions, including housing and overnight accommodations. It also restricted work that disturbs the ground until the required testing, oversight and court approval are in place.. [S.2]

The case therefore involves more than the meaning of open-space zoning. It concerns enforceable restrictions on privately owned land. The judgment does not establish a general right for everyone to walk or play there. Preservation and public access remain separate questions. Starwood filed its appeal on September 5, 2025. Mull and White are defending their judgment against that appeal. [S.3] Disagreement with the ruling does not make it disappear, and any negotiated solution must address the court orders and applicable rights.

A community agreement deserves consideration

Our understanding of PHCA’s earlier negotiations is that an agreement was being explored to confine potential housing to a limited area. We supported that approach and continue to support the principle of a fair, enforceable agreement that protects the wider community. In our view, the lawsuit shifted the focus away from negotiations. That does not mean a completed agreement was guaranteed, or that the Board could have given up members’ rights on their behalf.

The test for any future agreement should be concrete:

Development limits: a published map, defined boundaries and binding limits on permitted construction.
Access: an explicit statement of who may use which areas, for what activities and on what terms.
Maintenance: responsibility for mowing, landscaping, drainage, safety and continuing costs.
Enforcement: the required approvals, protection of existing rights and a clear way to enforce the agreement if either side breaks its commitments.

A promise of “open space” should be translated into terms people can read and evaluate. Owners should be able to compare a negotiated outcome with continued litigation—including what each option would deliver and cost.

Who pays for continued litigation?

SoS Hui openly seeks donations for its legal efforts. Its published updates acknowledge continuing legal bills and the cost of defending the judgment on appeal. [S.4] The court ruled that the plaintiffs could recover reasonable legal fees and costs, but they still had to submit a formal request for the court to determine the amount. That does not tell us their present unpaid balance, what has been reimbursed or what an appeal will cost. [S.2] We do not have a verified basis for stating that Mull and White currently owe their attorneys $1 million.

PHCA members should nevertheless ask a direct question: Is anyone proposing to use association money, including reserves (money set aside for future major repairs and replacements), to support this private litigation? If so, the proposal should explain how much PHCA would spend, what authorizes that spending, how the whole community would benefit, whether anyone involved has a conflict of interest, what other options exist and which maintenance projects could be affected. Supporters can choose to contribute their own money. Any proposal to use PHCA funds requires an independent decision serving the entire membership. The concerns of owners of homes next to the Woods Course deserve consideration; so do those of condominium owners, timeshare associations and households elsewhere in Princeville.

Our position is independent

Friends of Princeville is not associated with the owner of the Woods Course parcel. We have no formal or informal arrangements with that owner. We reject suggestions that our support for a negotiated agreement means we represent the owner’s interests. We support negotiation because we believe it can produce defined protections and practical benefits for the community. Our position should be judged on those proposed terms.

Princeville needs a clear discussion about development limits, access, maintenance and money. No group should be allowed to suggest that supporting open space means supporting its lawsuit. Protect the landscape. Define the rights. Show the costs. Serve the whole community.

Sources

S.1: Kauaʻi County Code, Article 9: Open Districts, especially §§8-9.1, 8-9.2 and 8-9.4.
S.2: August 6, 2025 judgment, Civil No. 5CCV-21-0000063. Court document hosted by SoS Hui.
S.3: September 5, 2025 notice of appeal, opening pages, CAAP-25-0000609. Court document hosted by SoS Hui.
S.4: SoS Hui donation page and litigation updates. These establish the group’s own funding requests and stated position.