Board Talk: Ka Iwi, Sand Island Off-Road Park, Pupukea Reserve

posted in: May 2015 | 0
Ka Iwi lands. Photo: Judy Harris
Ka Iwi lands. Photo: Judy Harris

Land Board Grants $1M to Save Ka Iwi Land From Development

On April 10, despite its staff’s recommendation to deny, the Board of Land and Natural Resources unanimously approved the release of  $1 million for Livable Hawai`i Kai Hui’s purchase of 181 acres of mauka lands on East O`ahu’s scenic Ka Iwi coast.

The nonprofit must still secure $2.5 million from the City and County of Honolulu’s Clean Water and Natural Lands program and raise an additional $500,000 in private funds to meet the $4 million sales price, but the April 10 Land Board decision was a key hurdle in the decades-long community effort to protect the land from development.

The hui had until April 15 to sign a purchase agreement with the U.S. bankruptcy court receiver appointed to liquidate foreclosed properties held by Management Solutions, Inc., including the Ka Iwi lands. But the nonprofit was not about to sign an agreement and plunk down a $25,000 non-refundable deposit without the $1 million in state Legacy Land Conservation Funds.

The Department of Land and Natural Resources’ Division of Forestry and Wildlife, which administers the Legacy Lands program, had suggested that the Hui try to obtain the funding in next year’s grant cycle, rather than this year’s, because recent amendments made to the initial application were too significant.

Laura Ka`akua of the Trust for Public Lands, however, told the Land Board, “We can’t wait another year to apply for funding in the next Legacy Lands cycle. The properties [Ka Iwi] are the last properties that have not been sold. The court-appointed receiver has sold the entire portfolio except for these two. The federal bankruptcy judge issued strong language to get rid of these properties.

“His duties are not to a charitable cause. … There are other entities that can move faster if this is not approved today. This is our only solution,” she said.

Ka`akua said the community group Ka Iwi Coalition asked TPL for help acquiring the property in the 1980s, but the opportunity to purchase arose only last year.

Proper Procedure

DOFAW’s main objection to the hui’s proposal was the timing of it. The project itself met perfectly the mission of the Legacy Lands program, which aims to provide government agencies or private nonprofits with funds to purchase the fee of or a conservation easement over ecologically, agriculturally, or culturally important lands that need protection from development. But DOFAW has typically only allowed applicants to significantly change their projects before the Legacy Land Commission’s final decision-making meeting.

In a typical annual cycle, applications are submitted to the program by a certain deadline in the fall and after initial review by staff are brought to the Legacy Land Commission for ranking and approval. The Land Board usually then approves the commission’s recommendations and authorizes the distribution of funds, which total, on average, a few million dollars a year.

In the case of the Ka Iwi mauka lands, Livable Hawai`i Kai Hui proposed to have the state hold the fee, with the City and County and the nonprofit holding a conservation easement over the land.

“For the purposes of this project, [the Hui] is representing the Ka Iwi Coalition, which has a role in caring for the area for over thirty years,” a DOFAW report states.

The Legacy Land Commission ranked the project as one of the top five for fiscal year 2015.

The DOFAW report on the project states that acquisition of the Ka Iwi mauka land would protect open space and safeguard undocumented cultural sites that include traditional Hawaiian rock walls, paths, terraces, and “at least two pohaku lele (balancing or floating rocks) that have religious significance.”

Because no specific state agency had been identified in the original application as the intended fee holder, DOFAW decided it would take ownership and designate the lands as a forest reserve. However, shortly before 2015 grant requests were brought to the Land Board for final approval, the state Department of the Attorney General expressed concerns over the compatibility of a privately held easement overlaying a state forest reserve.

By the time the Land Board voted in February on the fiscal year 2015 Legacy Lands package in February, the easement issue had not been resolved. The board approved a handful of other projects, but deferred action on the Ka Iwi purchase.

The intent of the deferral was to allow DOFAW staff to work with Livable Hawai`i Kai Hui on a lease or stewardship agreement that would give the nonprofit some say over how the lands would be managed, absent a conservation easement. However, the group quickly expressed its preference to become the fee owner, rather than DOFAW.

“The Ka Iwi Coast did not do this to be red-lined out at the last minute,” hui president Elizabeth Hurley explained to the Land Board.

Although DOFAW did not object to the change, it was a substantial departure from what had been represented in the original application for funds. The agency was concerned that allowing an applicant to significantly revise its project after the Legacy Land Commission made its recommendations would set a bad precedent and might also seem unfair to other applicants. So at the Land Board’s April 10 meeting, DOFAW administrator Lisa Hadway recommended that the Land Board deny the hui’s request for funds and instead award the money to the two projects ranked next in priority. Those both happened to be purchases by DOFAW, one for 3,717 acres at Pupukea and another for 1,420 acres at Helemano on O`ahu.

Although DOFAW’s recommendation was an attempt to maintain the integrity of the Legacy Land process, Hadway noted that the Land Board was free to grant the award. The Legacy Land Commission’s and program staff’s recommendations are merely advisory, she said.

According to Legacy Land program administrator Molly Schmidt, the commission met on March 31 to discuss the amended application, but ultimately chose not to comment on the appropriateness of amending the application so late in the process. Rather, it simply affirmed its support for the protection of the Ka Iwi coast.

Making the Case

The Land Board need not worry that the approval of the Ka Iwi project would corrupt the Legacy Land process because the circumstances of the case were so unique, Hurley told the Land Board. What’s more, she blamed the Attorney General’s office for the lateness of the group’s changes.

She noted that the group’s application, which clearly articulated what entities would hold easements, was circulated to all agencies last September. Although she seemed to sympathize with the AG’s concerns, she lamented that they came to light after the Legacy Land Commission’s last hearing in 2014.

“It put us in a position to come to you for an amendment,” she said, adding that she thought this was an isolated incident.

“And we didn’t cause it. … We’re simply reacting to it,” she said.

The TPL’s Ka`akua added that the changes were necessary not just to allay the AG’s concerns, but also because recent negotiations with the bankruptcy court receiver have disclosed that he will only be able to issue a special warranty deed for the property. Such a deed would not be acceptable to the state on land the state would own, but would be acceptable to a nonprofit, she said.

“This project at this point will only happen if it is owned by a nonprofit willing to step up,” she said.

Even so, Land Board member Chris Yuen asked Hurley whether her organization would be open to operating under a lease or other stewardship arrangement with DOFAW as the fee owner.

Had the possibility been raised earlier in the approval process, the hui would have considered it and there would have been ample time to work out the details, she replied.

“We don’t have the grace of time [and given] the additional hundreds of thousands of dollars we will have to raise … we cannot just go with ‘We’re well-intended, we’ll work things out,’” she said.

Yuen asked about what provisions would be in place to ensure the land’s protection if the Land Board voted to approve the hui’s proposal.

“What are the consequences if performance is not up to par?” he asked.

Ka`akua said that the city, which would hold a conservation easement over the land, could bring legal action, and the state would also be able to step in if the deed restriction terms were not met.

“It’s a very well-monitored situation,” she said.

In the end, the Land Board voted to approve the amendments to the Ka Iwi mauka lands project application and authorize the board’s chair to encumber the $1 million for the purchase.

***

Board Terminates Permit

For Sand Island Off-Road Park 

On March 27, the Land Board terminated the revocable permit held by the nonprofit Sand Island Off Highway Vehicle Association, Inc. (SIOHVA), at the organization’s request. Nearly a decade ago, aided by federal funds earmarked for motorized recreation, the DLNR’s Division of State Parks laid the groundwork for the development of an off-road vehicle park on about 30 acres of state land at Sand Island that had become a dumping ground and homeless camp. At the time, the only other legal place on the island for off-roading was the Kahuku motocross park on the North Shore, while illegal off-roading was a growing problem for State Parks at Ka`ena Point.

With a lot of volunteer labor from future users, a park was created. And after a successful trial period that began in 2006, the Land Board issued a revocable permit to the SIOHVA in 2010. Since then, however, the park, located near the Sand Island sewage treatment plant, has struggled with city and state violations and has failed to draw many off-road enthusiasts other than BMX bicycle riders and remote-control car hobbyists.

“Due to our inexperience, we got a series of violations from the [city’s] DPP [Department of Planning and Permitting] for grading without a permit,” State Parks deputy director Curt Cottrell told the Land Board.

The project then froze, federal money was lost, and the SIOHVA’s leadership changed out of frustration with the permitting elements, he said.

Even so, Cottrell said the portion of the park where children ride BMX bicycles has become a successful venue, and the remote-control car area is also used regularly. The 4-wheel-drive truck area, however, went fallow, as did the pee-wee motocross area, he said.

Over the past few years, new unauthorized uses have appeared, such as a commercial fitness/obstacle course training operation.

Cottrell said the park was meant to meet a desperate need to create a legal playground for off-road vehicles. With the obstacle course operation, “they want to create a demand. … This is not meeting an existing demand,” he said.

Cottrell said the park has been poorly managed in general, with gates left open and illegal storage of construction equipment.

After State Parks sent the organization notices of default, “they said, ‘We want out,’ ” Cottrell told the board.

He said his division has been working on drafting a revocable permit that would allow the entity that runs the BMX area to continue operations, and it may do the same with the remote-control car area.

The division is also negotiating with the group that runs the Kahuku motocross park.

“They’re interested in taking a chunk of the property for off-highway vehicle riding,” he said. “Our intent is to come back to you with new RPs.”

Without a continuous presence on the property, “there’s a whole chunk of land that is going to go fallow that may fill up with bad uses,” Cottrell said.

Although the owner of the obstacle course training company objected to the termination — and even submitted a request for a contested case hearing, which he later withdrew — Land Board member Chris Yuen said he couldn’t see forcing the SIOHVA to stay when its president has asked the board to terminate the permit.

***

Pupukea Agreement

On April 10, the Land Board approved a five-year agreement between the DLNR’s Division of State Parks and the North Shore Community Land Trust that allows the nonprofit group to continue its work helping to manage the 1,100 acres at Pupukea-Paumalu it helped the state acquire in 2007.

State Parks had issued special use permits to the trust for the past five years to assist with planning, management, and monitoring of the Pupukea-Paumalu State Park Reserve, which contains trails used for hiking, biking, and horseback riding.

— Teresa Dawson

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