Eastside resorts approved
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Attorney: Planning Commission leaves EA ball in DOT court
By Michael Levine - The Garden Island
Published: Wednesday, January 28, 2009 3:11 AM HST
LIHU‘E — The Kaua‘i Planning Commission on Tuesday unanimously approved amendments to three conditions for a pair of proposed Waipouli resorts — Coconut Beach Development and Coconut Plantation Holdings — complying with a December court order and likely bowing out of the process.
The projects, when completed, will sit on 32 acres and house a total of 535 multi-family units, 12 hotel rooms, 964 parking stalls, thereby adding a host of travelers to what is already the busiest stretch of road on the island.
The amendments — which alter the first, second and 13th conditions of the already approved special management area use, project development use and class IV zoning permits — were met with agreement from attorneys of both developments, who said in joint testimony to the commission that they believed the language was in compliance with a court order from 5th Circuit Judge Kathleen Watanabe.
Attorney David Minkin, who advised the commission throughout the hearing, said during testimony that the changes “will not force the county to do something it’s never done before” and would prevent the developers from being treated differently than “all other projects in history.”
The permits were originally approved in January 2007 with more than a dozen conditions to be met before the Planning Department would issue building permits. Upon appeal, three of the conditions were found by Watanabe to be unconstitutional, and were sent back to the commission for adjustments.
After taking one failed crack at meeting Watanabe’s order late last year, earning a second instruction by the judge to consider essential nexus and rough proportionality, the commission adopted new amendments, proposed in a Planning Department staff report.
The most critical of the amendments will require the developers to make monetary contributions to traffic mitigation projects recommended by the Department of Transportation rather than design, construct and install the measures on their own.
Attorney Greg Meyers, representing environmental group 1000 Friends of Kaua‘i, said the subtle distinction could allow the developers to skirt an environmental assessment, normally triggered under Hawai‘i Revised Statutes Chapter 343.
Rep. Hermina Morita, D-Hanalei-Kapa‘a, chair of the House Energy and Environmental Protection Committee, said in a Tuesday afternoon phone interview that simply contributing funds towards traffic mitigation rather than managing construction would not, by itself, preclude an EA, because such projects would still presumably involve public lands.
However, DOT has a long list of exemptions that protect developers from smaller potential EA triggers like installing traffic signals, one of the mitigation measures advocated in a traffic study conducted a year before the permits were first approved. Whether acceleration/deceleration lanes and road widening, other measures specified, trigger an EA remains to be seen, as does the scope of an EA triggered by DOT.
Asked if a hypothetical DOT-mandated EA would take a broad look at the full development projects, DOT Director Brennon Morioka said in a Tuesday phone interview, “We typically take a look at things from just the transportation aspect, and we would rely on other agencies to make the determination” about other potential environmental impacts.
Morioka, who pointed to agencies like the Department of Land and Natural Resources and the Office of Environmental Quality Control, said the benefit of a multi-agency review is that it “acknowledges the fact that different agencies have different expertise.”
As for a broad, big-picture look at the overall impact of the project as a whole, Morioka said that burden often falls on the county planning departments.
“If their process knowingly furthers the action of an applicant to do something that will require an EA in the future, then that is the point at which an EA should be required,” he said.
That ship appears to have sailed.
A written statement from 1000 Friends of Kaua‘i, provided by attorney Dan Hempey following the hearing, said the group “has always contended that the environmental impacts of these projects should be studied and mitigated before the resorts are built. The end result of today’s vote is that it will be the DOT and other agencies, but not the Planning Department, that decides whether to require an environmental assessment.”
While Tuesday’s vote appears to be the commission’s final act on the two developments, it could also be one of the last major development applications for tourist accommodations to be heard by the body for some time.
On Nov. 4, voters approved a charter amendment essentially transferring the power to approve permits for tourist accommodations to the County Council upon a two-thirds affirmative vote of the council and allowing the council, if it enacts a rate-of-growth limit that is consistent with the General Plan, to delegate the approval authority to the Planning Commission. How, and when, the council assumes control remains up in the air.
“There’s an urgency for us to get clarity in the legal interpretations,” said Councilman Jay Furfaro, chair of the council’s Planning Committee, adding there is a “series of interpretations” the council must make, such as whether the growth rate is tied to a unit count or, as in the General Plan, to a daily census number of visitors.
“We’re in uncharted territory,” said Councilman Tim Bynum, who said he understands the intent of the new legislation, but is unclear on “the interpretations of what the law means and how we implement that appropriately. I don’t have a good answer. I don’t know at this point. I’m not an attorney and I’m not a planner.”
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I know how some developers can be and it always amazes me how some of them do not seem to understand that they should not make any kine. Hale already mentioned Judge Kathleen Watanabe.
Patrick Hannifin is another one. He succumbed to the MANA on the surgery table and unexpectedly died.
You no like mess with dat kine stuff!
But they will learn the hard way....
Some title is questionable though and some have encumbrances. Their B.S. will cost the title company millions. It's a huge clusterf*ck yet who do they try to blame? Hawaiians! Isn't it ironic???
FWIW the State of Florida has a Growth Management Act while the "state" of Hawai'i like many any kine from the start. Much of it falls on the legislature and alot of them have been in bed with developers for years. Not all developers are like this though. Some actually have honor, integrity, and RESPECT... for the iwi. The rest.... wow. I would be very very careful dealing wit the iwi and kupuna. No mess with dat kine stuff!! Obviously they like find out the hard way. For me... no way! But greed makes some people do strange things.
For example... some make rules then break the very rules they made. Hypocrits LOL For example with the new "rules" regarding the Iolani Palace:
I'm with Stephanie on that point about gotta DO something:
QUESTION AUTHORITY while respecting the law of course because at every minute, every moment in time they will try to make criminals out of US when it comes to land and title. I'm referring to those of us who are mostly non-pilau ;) (This also includes Keanu Sai who knows about title yet they portrayed him as what... a monster/ felon.) Those who protested on Kauai were condemned, trivialized, and portrayed as monsters in the local B.S. media (who have some interests in land in their portfolio) so instead of discussing the real problem (the possibility of some title with encumbrances) they discuss the very people who are protesting mostly out of respect for the iwi and/or for the kupuna when they SHOULD be discussing title that MAY have encumbrances.
Growing up, I heard stories about Waipouli and Wailua area that the battles fought there, the fallen warriors were buried where they fell and cocnut trees were planted for every fallen warrior. So I do believe there has to be at least 600 burials in the area. It's Kaua'i's Punchbowl Cemetary.
Basically what they have done here is broken the law to desecrate hundreds of remains that lay just below the foundations of these proposed developments. The other Waipouli resort that was built about 4 years ago speaks for itself as the remains of our ancestors there rest just below its foundation and at the reinterred remains in the vicinity of the hotels septic tanks.
Kind of makes you wonder what they have planned for those who are resting here at this new proposed site.
Something MAJOR needs to be done about this. I was following this case some time ago but had not heard about this come up on the planning commission's agenda. Definitely a sad day for these developers who will stop at NO COST to break laws, desecrate our 'aina and kupuna, and make money off of land that does not belong to them.
The DLNR and the STATE has proved that they are unable to follow their due process in their system that is tearing at the seams to expose their ass. The county would rather pass it then deal with another lawsuit from a developer, even if it goes against the judicial guidelines set by Kathleen Watanabe. And the while the County does battle with itself in court litigation the developer gets to go ahead and do whatever the hell they please. This system of law they falsely call democracy is DISGUSTING!
HEWA! I already hear the kupuna screaming from below the depths demanding that we come forward on this. These proposed developments need to be stopped. No questions asked!
A major archaeology study needs to happen. On the scale of about 100 plus people, all by hand, shovel, and dusters. SERIOUSLY! THIS IS A MAJOR IWI KUPUNA ZONE! We are talking possibly 600+ remains... These people need to think about it.
And you wonder why Judge Kathleen Watanabe fell severely ill for the Naue civil lawsuit on Monday... don't mess with the iwi! PERIOD!
Irregardless of who is the real owners which is something that is hard to contest in any government hearing...
Sounds like the General Plan needs to be amended to have the community in the area of concern provide "what they want for themselves" From there an ordinance to take place for the community to set it in stone. It took us 30+ years to make some changes and our county started the COMMUNITY DEVELOPMENT PLAN (CDP) to make changes to our General Plan by modifications in adding a CDP. We now have a commission for our community to make sure this is followed through - it's volunteering your time but a position you must apply for with the County - kind of a watchdog neighborhood watch for developers...LOL.
We are aware too that departments/divisions of government who is to work with the Planning Department and laws in place with our county and state must be made accountable to the laws that make rights for the people. Working on expired permits without an EA or state/fed EIS is not pono....but this is something that is common because developers do not want "in your face" protestors..so we start contested cases and sometimes then into court to sue...then you have to deal with county council members and when administration changes that is scary.
We have that scenario here right now where we see corporations change their name 3 or 4 times to hide behind original lawsuits filed against them on a project at a same piece of parcel. After years and years of paperwork piling in the Planning Dept and a change over in a few planning directors due to change in administration...these developers keep trying to push their project. It's a grueling battle but ya gotta keep going until they are put in their place...may take a decade or two but never give up.
The way to make these changes to have the community speak up...start by petitions. When we started our community of 3000 signed up we have now doubled in size as recorded by the General Plan. The more you challenge the General Plan the better you make your community and better representatives you have to advocate for you.
Just my mana'o and experience.....keep the fight...gotta DO something GET ACTIVE!
Replies
Patrick Hannifin is another one. He succumbed to the MANA on the surgery table and unexpectedly died.
You no like mess with dat kine stuff!
But they will learn the hard way....
Some title is questionable though and some have encumbrances. Their B.S. will cost the title company millions. It's a huge clusterf*ck yet who do they try to blame? Hawaiians! Isn't it ironic???
FWIW the State of Florida has a Growth Management Act while the "state" of Hawai'i like many any kine from the start. Much of it falls on the legislature and alot of them have been in bed with developers for years. Not all developers are like this though. Some actually have honor, integrity, and RESPECT... for the iwi. The rest.... wow. I would be very very careful dealing wit the iwi and kupuna. No mess with dat kine stuff!! Obviously they like find out the hard way. For me... no way! But greed makes some people do strange things.
For example... some make rules then break the very rules they made. Hypocrits LOL For example with the new "rules" regarding the Iolani Palace:
http://www.hawaiistateparks.org/documents/hsp_13-146-51.pdf
I've dealt with these types of people before.
I'm with Stephanie on that point about gotta DO something:
QUESTION AUTHORITY while respecting the law of course because at every minute, every moment in time they will try to make criminals out of US when it comes to land and title. I'm referring to those of us who are mostly non-pilau ;) (This also includes Keanu Sai who knows about title yet they portrayed him as what... a monster/ felon.) Those who protested on Kauai were condemned, trivialized, and portrayed as monsters in the local B.S. media (who have some interests in land in their portfolio) so instead of discussing the real problem (the possibility of some title with encumbrances) they discuss the very people who are protesting mostly out of respect for the iwi and/or for the kupuna when they SHOULD be discussing title that MAY have encumbrances.
Aloha~~~
Lana
Tane
Kind of makes you wonder what they have planned for those who are resting here at this new proposed site.
Something MAJOR needs to be done about this. I was following this case some time ago but had not heard about this come up on the planning commission's agenda. Definitely a sad day for these developers who will stop at NO COST to break laws, desecrate our 'aina and kupuna, and make money off of land that does not belong to them.
The DLNR and the STATE has proved that they are unable to follow their due process in their system that is tearing at the seams to expose their ass. The county would rather pass it then deal with another lawsuit from a developer, even if it goes against the judicial guidelines set by Kathleen Watanabe. And the while the County does battle with itself in court litigation the developer gets to go ahead and do whatever the hell they please. This system of law they falsely call democracy is DISGUSTING!
HEWA! I already hear the kupuna screaming from below the depths demanding that we come forward on this. These proposed developments need to be stopped. No questions asked!
A major archaeology study needs to happen. On the scale of about 100 plus people, all by hand, shovel, and dusters. SERIOUSLY! THIS IS A MAJOR IWI KUPUNA ZONE! We are talking possibly 600+ remains... These people need to think about it.
And you wonder why Judge Kathleen Watanabe fell severely ill for the Naue civil lawsuit on Monday... don't mess with the iwi! PERIOD!
Hale Mawae
Eo Lono!
Don't know how she sleeps at night.
Sounds like the General Plan needs to be amended to have the community in the area of concern provide "what they want for themselves" From there an ordinance to take place for the community to set it in stone. It took us 30+ years to make some changes and our county started the COMMUNITY DEVELOPMENT PLAN (CDP) to make changes to our General Plan by modifications in adding a CDP. We now have a commission for our community to make sure this is followed through - it's volunteering your time but a position you must apply for with the County - kind of a watchdog neighborhood watch for developers...LOL.
We are aware too that departments/divisions of government who is to work with the Planning Department and laws in place with our county and state must be made accountable to the laws that make rights for the people. Working on expired permits without an EA or state/fed EIS is not pono....but this is something that is common because developers do not want "in your face" protestors..so we start contested cases and sometimes then into court to sue...then you have to deal with county council members and when administration changes that is scary.
We have that scenario here right now where we see corporations change their name 3 or 4 times to hide behind original lawsuits filed against them on a project at a same piece of parcel. After years and years of paperwork piling in the Planning Dept and a change over in a few planning directors due to change in administration...these developers keep trying to push their project. It's a grueling battle but ya gotta keep going until they are put in their place...may take a decade or two but never give up.
The way to make these changes to have the community speak up...start by petitions. When we started our community of 3000 signed up we have now doubled in size as recorded by the General Plan. The more you challenge the General Plan the better you make your community and better representatives you have to advocate for you.
Just my mana'o and experience.....keep the fight...gotta DO something GET ACTIVE!