New & Noteworthy: TMT, Kahala Permits

posted in: January 2019 | 0

Final Word on TMT? The Hawai‘i Supreme Court has refused to reconsider its majority decision, issued October 30, that upheld the Conservation District Use Permit allowing for construction of the Thirty Meter Telescope.

Several parties had asked the court to reconsider the ruling, which was joined in by four members of the five-member bench. Only Justice Michael Wilson dissented.

The court did amend its decision in response to an amicus brief filed by attorneys for Kua‘aina Ulu ‘Auamo, Colette Machado, and Dan Ahuna. As co-counsel Earthjustice states on its website, the decision included two footnotes “that dropped legal bombshells: one suggesting that Native Hawaiians must bear the burden to prove their rights, exactly opposite to settled precedent that developers and agencies bear the burden to justify any harm to Native Hawaiian rights; and the other endorsing a false and offensive distinction between ‘contemporary’ (read: fake) and ‘traditional’ (read: real) Hawaiian practices.” The court deleted the footnotes and added one clarifying that impact analyses are not “limited to the project footprint,” the website states.

What’s next?

While opponents have indicated they will continue to protest, the process of setting out exact terms of what will be allowed has yet to begin. According to the Department of Land and Natural Resources’ Office of Conservation and Coastal Lands, there will be two phases of permitting for the TMT: civil construction, which involves geotechnical studies, access improvements, and rough grading; and actual construction.

“Construction plans need to be approved by the DLNR … for consistency with the permit. We will also review the status of the required pre-construction mitigation measures contained in the permit.

“Examples of pre-construction mitigation measures include establishing full-day cultural training, funding for educational programs and the community benefits package, implementa- tion of studies on wekiu habitat, and establishment of mentorship programs.”

As of mid-December, no plans had been submitted for review.

If at First You Don’t Succeed: On December 6, David Kimo Frankel filed a complaint in 1st Circuit Court seeking to invalidate the Board of Land and Natural Resources’ November 9 decision to approve a revocable permit to the owner and operator of the Kahala Hotel & Resort for the use of a beachfront parcel of filled land.

The Department of Land and Natural Resources’ Land Division had for years allowed what many considered to be commercial uses of the property, which previous revocable permits restricted to recreational and maintenance uses. Late last year, the agency recommended that the Land Board issue a new permit to Resorttrust Hawai‘i to officially authorize some of those uses, including the setting of cabanas and lounge chairs for rent.

Frankel has argued that such a permit requires, at the very least, an environmental assessment or impact statement be done beforehand. He requested a contested case hearing on the division’s initial recommendation to approve the new permit, but the Land Board denied his petition on November 9.

In his complaint to the court, Frankel points out that the 1963 agreement between the state and the hotel’s then-owner states that the parcel “shall be used as a public beach.”

He also argued that by approving the permit before Resorttrust obtained a Special Management Area permit from the city, the Land Board violated the state’s coastal zone management law “and its approval is void.”

In addition to seeking to overturn the board’s decision, Frankel is asking the court to require the board to adopt rules that govern its decision-making on the issuance of revocable permits.

[This post has been edited to reflect’s Frankel’s argument that the board violated the state’s coastal zone management law (Hawai`i Revised Statutes Ch. 205A), not the state land use law.]

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