BOARD TALK: Land Board Adopts Policy to Protect Conservation Lands From PLDC Abuse

posted in: Board Talk, January 2013 | 0

Cross Conservation District rules — and perhaps also the Coastal Zone Management Act — off the list of land use laws that the Public Land Development Corporation is exempt from.

On December 14, the state Board of Land and Natural Resources adopted a policy requiring PLDC projects to obtain a Conservation District Use Permit (CDUP) for any land it proposes to use that lies within the state Conservation District. Without one, the Land Board will not lease or transfer development rights to the PLDC.

The policy did not start out that way. The Department of Land and Natural Resources’ Land Division, apparently on behalf of PLDC staff, originally recommended that the PLDC not receive land or development rights to lands in the protective, limited, and resource subzones of the Conservation District, “except upon express waiver by the Board where the proposed project is either intended to protect natural resources or to create a great benefit for the general public.” (The division had also recommended that the Land Board not transfer any lands in fee to the PLDC or any land or development rights to lands in Koke`e State Park for the purpose of developing a hotel.)

PLDC executive director Lloyd Haraguchi called the recommendations a “bold step” that would relieve some of the concerns expressed by the public about Conservation District land, the sale of public lands, and the development of a hotel at Koke`e.

“We fully support the recommendation,” Haraguchi said.

On December 10, attorney David Kimo Frankel of the Native Hawaiian Legal Corporation submitted testimony to the Land Board opposing the recommendation regarding Conservation District lands.

Frankel noted that currently, uses in the Conservation District must meet eight criteria set forth in Hawai`i Administrative Rule 13-5-30(c). Among other things, the proposed land use must be consistent with the purpose of the Conservation District and the objectives of the subzone on which the land use will occur, and it must comply with the provisions and guidelines contained in the state’s Coastal Zone Management Act (Chapter 205A, Hawai`i Revised Statutes) where applicable.

Under the Land Division’s recommendation, “[i]nstead of these rigorous eight criteria, any land in the Conservation District could be used for any purpose by the PLDC so long as it would ‘create a great benefit for the general public.’ This subjective and, therefore, standardless standard provides no guidance and allows for unfettered decisionmaking.”

“This proposal seeks to create the appearance that Conservation District lands are being protected when they are not,” Frankel wrote. “Furthermore, as your staff can and should tell you, there are many portions of the general subzone [of the Conservation District] that contain valuable natural and cultural resources that are as deserving of protection as those in other subzones.”

At the Land Board’s meeting, Big Island member Rob Pacheco asked Haraguchi for an example of what a “great benefit for the general public” would be.

“The benefit to the public would be parks we could improve, beaches,” Haraguchi said.

DLNR director and Land Board chair William Aila explained that the exception was added to the recommendation in case “some useful project came up.”

“People who are mistrusting that to mean that’s just a way out for a secret project, there’s no secret project,” he said, adding that the Land Board always has the ability to add additional conditions based on public input.

Even so, at-large board member Sam Gon said the exception was unnecessary and just “muddies the waters.”

“It generates the appearance of a loophole,” he said. He recommended that the Land Board instead grant exceptions to projects that are intended to protect natural resources “or otherwise would qualify for a CDUP.”

Land Board member David Goode asked Haraguchi whether the PLDC board had reviewed and supported the recommendations.

When Haraguchi responded that it had, Goode suggested that the PLDC board could act on the recommendations, as well.

“We could,” Haraguchi replied, but “the title holders are the true drivers of the bus. This provides you an opportunity to do this. It’s helpful and would answer some of the concerns.”

During public testimony, Sierra Club, Hawai`i Chapter, executive director Robert Harris reiterated some of the concerns Frankel had raised.

Harris recommended the Land Board adopt a policy not to transfer Conservation District lands or development rights to the PLDC unless projects are consistent with the eight criteria.

Pacheco argued that what Harris was asking for is already in the discussion section of the Land Division’s submittal. It states, “The restriction on the transfer of lands within the Conservation District may be waived on a case by case basis where the project is consistent with the purpose of the Conservation District [and] meets all of the requirements for the issuance of a [CDUP].”

“I don’t see where this is skirting our rights over the Conservation District,” Pacheco said.

Office of Hawaiian Affairs senior public policy advocate Jocelyn Doane echoed Frankel’s and Harris’s comments regarding the exception for Conservation District projects. She also pointed out that the transfer of DLNR lands in fee is already prohibited by Chapter 171C, which governs PLDC actions.

When it was Frankel’s turn to testify, he first addressed the fact that, despite Haraguchi’s comments, the PLDC had not adopted the policy recommendations — at least not at an open meeting.

Aila explained that the PLDC board members individually had seen the recommendations.

“That’s a violation of the Sunshine Law. You cannot serially communicate,” Frankel argued.

“That’s not what we did,” Aila said.

Regarding Pacheco’s assertion that the DLNR staff submittal covers the concerns raised about the exception, Frankel said, “The key is what you adopt.”

Wai`anae’s Cynthia Rezentes added, “If we can’t provide that criteria for what [great benefit for the general public] means, what are we passing through? … If we have no criteria, [it means] anything I damn well please.”

Land Board member Gon asked Haraguchi whether it would be fine if the exception for projects with a great public benefit was replaced with a requirement that projects be consistent with Conservation District rules.

“Yes, it would be,” Haraguchi said.

Gon also preferred to have the policy apply to all Conservation District lands, not just those in certain subzones.

Pacheco was fine with including the general subzone under the policy, but expressed frustration with what he seemed to think was an unnecessary effort to protect Conservation District lands from inappropriate development.

“It’s my understanding, for the PLDC to do anything it has to have approval from the landowner. So this idea that we’re giving up the ability to make decisions over our lands, that’s frustrating to me,” he said, again pointing out that language in the discussion section of the Land Division’s staff submittal

Gon said he understood Pacheco’s frustration, but just wanted to make things explicit.

“What was stated [by the DLNR] obviously had some ambiguity in the eyes of the public,” Gon said.

Pacheco moved to go in executive session to discuss legal issues. Upon returning, Gon moved that the Land Board adopt the following policies:

  • The Land Board will not transfer any lands in fee to the PLDC.
  • The Land Board will not transfer land or development rights for any Conservation District lands. However, waivers may be considered on a case-by-case basis if the PLDC successfully goes through the Conservation District permitting process and the project meets Conservation District rules.
  • The Land Board will not transfer land or development rights for land within Koke`e State Park for the purpose of developing a hotel.

The motion was unanimously approved.

***

Kealakekua Bay Closes,

Kayak Permits are Renewed

The state Department of Land and Natural Resources can’t say whether Kealakekua Bay will be closed to non-U.S. Coast Guard registered vessels for one month — beginning this month — or four. The DLNR’s Division of State Parks has said that it hopes to resume normal activities in the bay within 90 days, but the length of the closure will depend on how long it takes for the department of get control over the unauthorized commercial use and other illegal activities occurring at the Kealakekua Bay State Historical Park.

Beginning this month, however, the department will make monthly status reports to the Land Board, which may then adopt new management measures, if necessary.

Last year, the Land Board granted its chair, who is also the DLNR director, the authority to close all or portions of state parks. Although the move applies to all state parks, Kealakekua Bay was clearly a target at the time.

During a November 30 briefing to the Land Board, State Parks staff explained that it needed to freeze for a few months all kayaking, stand-up paddling, etc., at the bay to address resource abuses at Ka`aawaloa flats, which contain significant archaeological sites, to curb rampant unauthorized commercial use, and to rein in alleged drug trafficking and extortion, among other things.

In the meantime, the division would work on developing an online permitting system to better track authorized uses.

“We do know how important kayaking is there to the local economy, but we haven’t done a good job of protecting the resource,” said Parks deputy administrator Curt Cottrell. “It’s like a free-for-all.”

Big Island Land Board member Rob Pacheco, a commercial eco-tour operator based in Kona, expressed concern about imposing an indefinite closure, noting that the area is very popular with local residents as well as tourists.

He stressed the economic importance of the tourism industry at Kealakekua and voiced concern over what a closure at high season for four months would do.

“What’s the minimum that has to happen” to reopen the park, which includes the bay’s waters, Pacheco asked.

“Illegal activities cease,” answered Land Board chair William Aila. Cottrell added that in addition to getting an online permitting system set up, signs would also need to be installed at the park.

The three permitted kayak tour companies operating in the bay have expressed a willingness to cease their tours there for one month. Beyond that, however, they’ve asked the Land Board to allow some tours — perhaps half of what’s allowed under their permits — to allow enforcement officials to get an idea of what normal operations will be like and to allow the tour companies to generate revenue.

“We are small businesses. … We are willing to step aside for 30 days, no problem. But into the second month, we’ll start to see a pinch in our savings,” said tour operator Iwa Kalua at the Land Board’s December 14 meeting.

At the meeting, the Land Board approved the renewal of Kalua’s kayak tour permit, as well as those for Kona Boys, Inc., and Adventures in Paradise, LLC, but left it to Aila to determine when tours could resume. The board approved the permits on the condition that State Parks staff provide the board with monthly progress reports.

“We may have to come back for some adaptive management,” Aila said.

— Teresa Dawson

Volume 23, Number 7 January 2013

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