Dissenting Commissioner Analyzes Legal, Environmental Failings of Project

posted in: July 1996 | 0

M. Casey Jarman is a professor of law at the University of Hawai’i’s William L. Richardson School of Law. She and Lloyd F. Kawakami were the only members of the Land Use Commission to vote against the Ka’upulehu Developments petition. At the dose of the hearing immediately prior to the vote, Jarman read a statement summarizing the reasons she was opposed to the project. Here are excerpts from that statement:

I am convinced that this petition should be denied as the petitioner has failed to meet its burden under the law and the proposed find–ings of fact and conclusions of law are inad–equate to justify granting of the petition.

It is important for us to keep in mind the magnitude of the proposal; this is not a small area. It encompasses over 1,000 acres of undeveloped land located in the state Conserva–tion District. It will radically and perma–nently alter a nearly undisturbed natural open area consisting of pahoehoe and a’a lava flows that contain numerous significant historical and cultural sites; in addition, native Hawai–ians have historically used and continue to use the area for cultural and spiritual practices. In fact, it is the makai portion of one of the last remaining undeveloped ahupua’a in the state.

I intend to show that the petition fails in four key areas – native Hawaiian rights, impacts on natural resources, environmental considerations, and economic analysis. I be–lieve that each area alone is sufficient to vote against this reclassification. When combined, the case is even stronger.

Native Hawaiian Rights

The Hawai`i Supreme Court, in its most recent decision regarding the responsibilities of state agencies such as the Land Use Com–mission under Article XII, Section 7 of the Hawai’i State Constitution, HRS [Hawai’i Revised Statutes] 1-1, HRS 7-I, and custom, has made it clear that we can not give only lip service to the cultural and spiritual practices of native Hawaiians. If we were to adopt the proposed findings of fact and conclusions of law, we would be doing just that.

The only findings of fact in the proposed Decision and Order relative to PASH appar–ently envision the petitioner’s conceptual -and notice I say conceptual – Resource Management Plan as adequately protecting PASH rights. Finding of fact 48 states that the goals of the petitioner’s conceptual plan “are to provide for resource management and ensure public access to the coastal area while balancing petitioner’s needs with the tradi–tional needs of native Hawaiians and the recreational needs of the public.” This state–ment and the conceptual plan fall well short of ensuring that native Hawaiians can carry out their traditional and customary practices within the petition area.

First, the objectives of the conceptual plan fail to reference at all protection and perpetu–ation of legally protected native Hawaiian rights. Second, the conceptual RMP encom–passes only 235 acres of the total project; presumably, native Hawaiians will only be allowed to continue their practices within this restricted area and the publicly owned coastal area adjacent to the project. Testimony at the hearing indicates that the project, including the resource area, will increase public access to the coastal line. Thus, native Hawaiians will have to compete with increasing numbers of people in order to exercise these rights.

Third, reliance on the conceptual RMP as adequate to preserve native Hawaiian rights ignores testimony of several interveners’ wit–nesses that setting aside a geographic area for limited cultural purposes fundamentally mis–conceives the nature of native Hawaiian cul–tural and spiritual practice. The only rebuttal witness that addressed the issue testified that the landowner, Kamehameha Schools/ Bishop Estate, has formulated a draft plan to manage and protect cultural resources within the entire ahupua’a of Ka’upulehu. The draft plan was developed without consultation with members of the interveners in this petition and is admittedly incomplete. It was never introduced into evidence. Thus, it cannot be relied upon as adequate to protect native Hawaiian rights in the petition area.

In fact, this seems to be a case of putting the cart before the horse. The fact that a plan is being developed at all is evidence that the area is important culturally for native Hawaiians. Without seeing the draft plan (or a final one), it is now impossible for anyone to know whether this development will be consistent with it – we are simply asked to trust the landowner on this. That is difficult given the fact that development of the draft plan was started well alter the decision had been made to develop the property as proposed. The temptation to make the plan consistent with the proposed development is too great. Courts recognize this problem: they look with disfa–vor on similar situations where facts exist to support a likelihood that a document is a post-hoc rationalization for a decision.

Fourth, proposed LUC Condition No. 18 does not cure the problems raised by inadequate findings of fact. It simply states the obvious: the petitioner must preserve and protect native Hawaiian gathering and access rights. It fails to identify with specificity what those rights are, thereby making the condi–tion so vague as to be virtually unenforceable. In fact, it is impossible for the Decision and Order to do so, because petitioner failed to present sufficient evidence for us to it know what rights are being exercised.

Impacts on Natural Resources

The state’s duty to conserve and protect Hawaii’s natural beauty and all natural resources are enshrined in Article XI, Section I, Provision I of the Hawai’i Constitution: “For the benefit of present and future generations, the state and its political subdivisions shall conserve and protect Hawai’i’s natural beauty and all natural resources, including land, water, air, minerals, and energy sources, and shall promote the development and utiliza–tion of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the state.” All statutory pronouncements regarding natural resources must be read in a manner consistent with this constitutional provision.

HRS Section 205-17 requires us to consider the impact of the proposed reclassification on natural resources. Similarly, Section 226-12 of the state plan gives us guidance regarding the state’s objectives and policies for scenic, natu–ral beauty and historic resources.

To achieve these objectives, it is a state policy to “(1) promote the preservation and restoration of significant natural and historic resources. (2) Provide incentives to maintain and enhance historic, cultural, and scenic amenities. (3) Promote the preservation of views and vistas to enhance the visual and aesthetic enjoyment of mountains, ocean, scenic landscapes, and other natural features. (4) Protect those special areas, structures, and elements that are an integral and functional part of Hawai`i’s ethnic and cultural heritage. (5) Encourage the design of developments and activities that complement the natural beauty of the islands.” Section 205 A-2 of the Coastal Zone Management Act (CZMA) has similar provisions. This petition falls well short of these goals.

The testimony is far from clear that ap–proving this project will promote the preservation of significant natural and historic re–sources or the preservation of views and vistas. Testimony was conflicting at best regarding the adequacy of the petitioners’ conceptual RMP and other measures to protect signifi–cant historic resources. And the petitioners admit that the current expansive views both mauka and makai will be forever altered. It is impossible for a project of this magnitude to have only an insignificant impact on our aesthetic enjoyment of this truly spectacular vista. It will turn views of desert-like, jet black and deep brown lava fields into views of roof tops, commercial buildings, and golf courses.

The project will displace a herd of don–keys. While not native to the area, these “Kona nightingales” have become an estab–lished cultural and natural resource that resi–dents and visitors alike crane their necks to get a glimpse of during the dawn and dusk hours. The LUC’s proposed findings regarding the donkeys dismisses them as unimportant be–cause they are not endangered. Such a view–point fails to recognize the cultural signifi–cance of the donkeys. The statement that the petitioner “will participate with adjacent land–owners in a management program with re–gard to the donkeys” does not adequately address the displacement issue. The proposed D&O contains no conditions requiting the petitioner to participate in such a program.

The proposed project also fails to protect an area that is of historical cultural significance. Testimony was presented and the D&O makes a finding that the ahupua’a of Ka’upulehu is a “wahi pana.” Wahi pana are the storied, legendary places of significance in native Hawaiian culture. The proposed D&O attempts to get around that fact by finding that no particular place within the petition area has been specifically identified as “wahi pana.” That sleight of hand doesn’t change the fact that the petition area is of significant historical cultural significance.

Finally, approving a project that will in–crease public access to an area that is used by endangered marine animals such as the Ha–waiian monk seal and the Pacific green sea turtle can impede the recovery of these spe–cies. Both of these species are sensitive to human presence. Petitioner’s witness admit–ted that he had done insufficient research to determine the numbers of seals and turtles that use the coastal waters, lava shelves and beaches adjacent to the property.

Now, without that information, it is im–possible to assess the potential impact this project will have on these species. In fact, it can be argued that if the animals do use the area, increased public access could result in harm to the species to the extent that an illegal taking occurs under the federal and state Endangered Species Acts and the Marine Mammal Protection Act, Therefore, the pe–tition is inconsistent with Hawai’i’s Consti–tution, Article XI, Section I, Provision I, URS Section 205-17, Hawai’i State Plan Section 226-12, and CZMA Section 205A-2.

Environmental Considerations

Article XI, Section I, Provision I as quoted above and Article XI, Section 9 read together with Chapters 205, 20-A, 343, 344 and the Hawai’i State Plan compel the LUC to take a hard look at the environmental effects of this petition. Article XI, Section 9 guarantees “each person a right to a clean and healthful environment, as defined by law relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources.”

Information provided in the EIS and testi–mony at the hearings are insufficient for us to find that the environmental effects of this project will be insignificant or will be ad–equately mitigated.

First, the EIS and proposed D&O fail to address the air quality impacts associated with increased traffic in the petition area. Peti–tioner predicts that the proposed project will generate a total of 571 vehicles per hour during the morning peak travel time and 705 during the afternoon peak.

Air pollution is widely recognized as a serious health problem and is especially problematic for sensitive members of the popula–tion, such as children, the elderly, and those suffering from respiratory conditions such as asthma. Without adequate data regarding how the increased traffic will affect air quality in the region, it’s impossible to determine its impact on the health of Hawai’i’s residents and visitors or on the natural, historic, and cultural resources of the area.

Second is the issue of water availability. Evidence was presented that adequate water exists mauka of the subject property to meet the project needs and still remain within the estimated sustainable yield of the groundwater source.

However, the EIS admits that no potable water sources are on site. The question then becomes whether it’s consistent with sound planning and conservation of natural re–sources and the environment to authorize a district reclassification for a water-intensive development such as the one proposed by petitioner that brings questionable economic or other benefits to the state.

A significant body of literature has devel–oped that recognizes the need to stress strict development to carrying capacity of the ecosystem or region in order to preserve resources for present and future generations. Hawai’i’s Constitution and State Plan Sections 226-I, 226-3, and 226-13 read together evidence a recognition that we must take care in allocat–ing the state’s limited resources so that we foster a community and social well-being and maintain the land, air and water quality now and for generations to follow.

Taking water from a water-rich area and transferring it to a water-poor area forecloses options for the future in the mauka areas while encouraging development inconsistent with the resource base in the makai area.

Furthermore, while the EIS proposes wa–ter conservation as mitigation, the petitioner has not guaranteed that it will require such devices in the development. And although I appreciate its willingness to use effluent from the sewage treatment plant to irrigate the golf course, such mitigation ignores the reality that sewage treatment plants themselves con–sume large quantities of water.

Third, the EIS contains no data to support the conclusion that the project will have an insignificant impact on the operation of the county landfill. No information is given re–garding the current and future capacity of the landfill; therefore, it is impossible to deter–mine whether the landfill will be able to accommodate the addition of 5.7 tons -5.7 tons! – of solid waste per day. Absent such data, there’s no way for the commission to assess the environmental impact of waste generation. Again, it renders suspect the petitioner’s figures regarding economic ben–efits to the county.

Even more troubling is a disclosure in the EIS of the energy needs of the proposed project: almost one-third of the current gen–erating capacity of the Ke’ahole generating station and 10 percent of its proposed future generating capacity. The EIS does not state whether the plant can handle the project’s energy needs. In addition, petitioner makes no promises that it will implement conserva–tion measures to reduce the demand; it only identifies the energy-efficient measures that could be used.

Based on the above, petitioner has not sufficiently addressed the environmental effects and not presented sufficient mitigation for those effects that have been identified throughout this hearing.

Economic Analysis

As discussed above, the petitioner’s economic analysis regarding the cost of the project to the state and county is fatally flawed for failure to account for environmental externalities and loss of natural resource and scenic values. Methods exist to do so, yet petitioner failed to do such analyses. Consequently, it is impos–sible for us to determine whether on balance, the benefits of this project outweigh its costs. In addition, the petitioners fail to substantiate the economic feasibility of the project as required by HAR [Hawai’i Administrative Rules] Section 15-15-18(2)(b).

Testimony of the agent of the lessor, Kamehameha Schools/Bishop Estate, established that the landowner has not agreed to conveying fee title to the property to the lessee. Evidence suggests that without the ability to sell lots in fee simple to prospective buyers, the project is not economically fea–sible. Until that issue is resolved, it is impos–sible to make the findings necessary for us to grant this petition.

Second, petitioner admits in the EIS that their market study shows no demand for this golf course, as sufficient courses have been approved to meet demand. Petitioner at–tempted to get around this fact by telling us that there’s no guarantee that all the others will be built. I find that argument spurious.

We rely on market studies to assist us in our decisions. Developers use them to demonstrate the economic feasibility of and pub–lic need for their projects. But they can’t have it both ways. They can’t ask us to accept only those conclusions that support their project and reject others, particularly on grounds as weak as those proposed.

Third, the Hawai’i State Plan, Section 226-6, is clear regarding the overall objective and policies regarding the economy: “(1) in–creased and diversified employment oppor–tunities to achieve fail employment; increased income and job choices and improved living standards for Hawai`i’s people; (2) a steadily growing and diversified economic base that is not overly dependent on a few industries.”

This petition again fails well short of both of these goals. Admittedly, it will create work for the construction industry. But almost any development project will do that. The golf course and commercial area will add some jobs. But the project does nothing to create diversified employment. In fact, it fosters an economy dependent upon tourism, the domi–nant industry in Hawai’i today. It is widely recognized that our over-dependence on tour–ism has contributed to the current economic problems in the state. The proposed project is designed to attract primarily high-income families from outside Hawai’i for second homes and retirement.

The project makes virtually no contribu–tion to solving the needs of the people of Hawai’i for reasonably priced residential ar–eas that are sensitive to the community needs and other land uses, as set out in Section 226-19 of the State Plan.

The project does nothing to increase in–come and improve living standards. Once the construction is over, the jobs available will be service-oriented jobs that are traditionally at the lower end of the wage scale. Thus, it is clear that the petition fails to meet the require–ments of Chapter 205, HAR Chapter 15-15, and the State Plan.

For the above reasons, I’m compelled to vote against reclassification and urge my fel–low commissioners to do the same. Petitioner has clearly failed to show by a clear preponder–ance of the evidence that the reclassification of the subject property from the Conservation into the Urban District is reasonable, non–violative of HRS Section 205-2, is consistent with the Hawai’i State Plan as set forth in HRS Chapter 226, and the policies and criteria established pursuant to URS Sections 205-17 and 205A-2.

Volume 7, Number 1 July 1996

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