New & Noteworthy: Waikaku`u Subdivision, ATST recommendations

posted in: August 2012 | 0

Waikaku`u Subdivision OK’d: The Hawai`i County Board of Appeals has given the green light to a planned 14-lot subdivision in an old-growth `ohi`a forest in South Kona. At its July 13 meeting, the board voted 6-0 (with one recusal) to deny the appeal of Richard and Patricia Missler of the planning director’s approval of the subdivision.

In a statement, Patricia Missler said she and her husband believed that they had presented evidence and testimony during the five hearings of this contested case showing that Planning Director Bobbi-Jean Leithead-Todd’s decision was “in fact erroneous, illegal, capricious, and an abuse of discretion.” She indicated that they are considering an appeal of the board’s decision to Circuit Court.

In the meantime, County Council member Brenda Ford has introduced a measure that would allow the county to purchase the land through its Open Space Council.

“We do not want to stop our fight to protect this jewel,” Patricia Missler said. “Thousand-year-old trees are worth fighting for.”

One issue that was raised by the Misslers’ attorney, Michael Matsukawa, was a possible conflict of interest involving board member Dwayne Yoshina and Kenneth Goodenow, one of the attorneys who played a role in representing the landowners. Goodenow participated in the contested case hearing through the end of March, when he left the Carlsmith Ball firm to campaign for a seat on the County Council. A report in West Hawai`i Today stated that Yoshina was “consulting on Goodenow’s campaign.”

In a July 9 letter to the Board of Appeals chairman, Rodney Watanabe, Matsukawa stated that the relationship appeared to run up against the section of the County Charter intended to discourage conflicts of interest: “It shall constitute a conflict of interest for … officers of the county to … [engage] in any … transaction or activity … which might reasonably tend to be incompatible with the proper discharge of their official duties or to impair their independence of judgment in the performance of their official duties.”

ATST Recommendations: The hearing officer in the protracted contested case hearing over the proposed construction of the Advanced Technology Solar Telescope on Haleakala has recommended that the state Board of Land and Natural Resources issue a Conservation District Use Permit (CDUP) for the project.

On July 16, hearing officer Lane Ishida — the third to be appointed to the case — submitted his proposed findings of fact, conclusions of law, and decision and order to the Land Board. That same day, the Land Board issued a minute order giving parties to the contested case — the University of Hawai`i (the applicant) and Kilakila `O Haleakala (the petitioner) — until August 23 to file their exceptions. The board has scheduled oral arguments for September 14 at 1 p.m in Honolulu.

Ishida recommended that, as a condition of the CDUP, the university submit grading and construction plans to the Land Board chair or designated representative for approval. He also recommended that most of the mitigation set forth in the project’s environmental impact state be incorporated into the CDUP and that the permit state that it does not convey any vested rights or exclusive privilege.

To protect traditional and customary rights, Ishida recommended that the permit require the university to allow access to two ahu, “to the extent feasible and safe,” during and after construction of the ATST.

The original hearing officer in the case, Steven Jacobson, was discharged earlier this year by the Land Board, which found that his communication with the university regarding political pressure to expedite a decision was illegal.

Volume 23, Number 2 August 2012

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