In Judgment, BLNR Concedes It Violated Open Meetings Law
The state Board of Land and Natural Resources has acknowledged it violated the state Open Meetings Law on many occasions. The concession was contained in a stipulated judgment settling a lawsuit against the board brought last year by Environment Hawai`i and Common Cause-Hawai`i. The judgment affirms the claims of Environment Hawai`i and Common Cause that all meetings of the Land Board fall under the jurisdiction of Chapter 92, the state’s Sunshine Law.
Included in the definition of meetings, the board agreed, are so-called “briefings.” Before the lawsuit was filed, the Land Board would often call and conduct such briefings — where it heard presentations on specific issues by invited parties – without providing notice of them to the public, as required by law. After both Environment Hawai`i and Common Cause complained about this practice (discovered only by accident), chairman Mike Wilson responded by having his staff send out notice to the public of the briefings, but stopped short of allowing public testimony at them — again, contrary to the clear language of the law.
On three occasions, Environment Hawai`i and Common Cause, through their counsel, Paul Achitoff of the Earthjustice Legal Defense Fund, gave notice of their intent to sue to force compliance. With no response from Wilson, the lawsuit was finally filed in June of 1997.
In the judgment, entered on July 8, 1998, the board agrees that briefings are “open meetings as defined by HRS [Hawai`i Revised Statutes] §92-3;” that “public participation, as described in HRS §92-3, is required at BLNR briefings;” that the board failed to “provide proper notice of some of its meetings required to be open;” and that “Defendant BLNR has violated HRS §92-3 by failing to allow public testimony at BLNR briefings.”
Another point raised by the lawsuit was the Land Board’s failure to provide minutes of its meetings within the time frame prescribed by law — 30 days. At the time the lawsuit was filed, minutes from meetings held more than two years previous were still unavailable.
In the judgment, the Land Board agrees that it “violated H.R.S. §92-9 by failing to timely complete minutes of some regular BLNR meetings” and for BLNR briefings. Moreover, it acknowledged that it also has failed to keep minutes for some executive sessions, as legally required, and that it had convened executive meetings anticipated in advance without following proper public notice and procedure.
The plaintiffs now have 60 days to file to recover attorneys’ fees and costs.
Ongoing Problems
Despite the lawsuit, the Land Board continues to fall behind in the production of its minutes. In the first six months of 1998, the board held 11 regular meetings. Minutes for just one of those meetings — that held February 27, 1998 — were available within the 30-day time frame required by Chapter 92.
Moreover, at its regular meeting of July 10, the Land Board conducted business without having given proper notice to the public. The board recessed the meeting for a “lua and lunch” break, and chairman Wilson announced to members of the public in attendance that the board would reconvene at 1:15 p.m. When Environment Hawai`i and others returned at that time, however, the meeting was already reconvened. Wilson then remarked, “It’s after 1:15. We did a little work while everybody was gone, but, now that it’s 1:15, we’ll go on to our move-up agenda,” referring to agenda items taken out of order to accommodate members of the public.
A review of tapes prepared by BLNR staff indicated that in the half-hour or so “while everybody was gone,” the board acted upon at least 22 — and possibly more — agenda items.
Afterward, Achitoff lodged a protest with Nishioka. As a result, Nishioka said, the board has been reminded of its need to comply with Chapter 92. In addition, she said, all the agenda items that were acted upon while the public was waiting for the regular meeting to resume will be reheard, in public session, at the board’s first meeting in August.
No Annual Reports
State law requires executive branches to publish annual reports. The last annual report produced by the Department of Land and Natural Resources was for the fiscal year 1993-94, which was released in the spring of 1995. On July 1, fiscal year 1998-99 began.
In other words, there have been no annual reports for fiscal years 1994-95, 1995-96, 1996-97, and 1997-98. Many changes have occurred in the time elapsed since the last annual report. For example, Manabu Tagomori is no longer head of the Division of Water and Land Development; he has retired, and DOWALD is no more, under a reorganization of the DLNR undertaken by Mike Wilson. Mason Young is no longer head of the Division of Land Management; he has been replaced, and his division’s duties expanded, under the direction now of Dean Uchida. Roger Evans, notorious head of the Office of Conservation and Environmental Affairs, is also out — and his office with him.
Many new leases have been added and old ones have expired. Without an updated report, the public has no easy way of knowing who occupies state land, how much revenue state lands are generating, and the like.
According to the DLNR’s information office, one report covering the first two fiscal years (94-95 and 95-96) is to be published within a “couple of months.”
BLNR Is Sued Over Kane`ohe Permits
As described in the July issue of Environment Hawai`i, in June, the Land Board issued new permits to commercial tour-boat operators in Kane`ohe Bay, ignoring the request of two Kane`ohe residents for a contested case hearing.
The two, John Reppun and Joe Pickard, have since sued the board and all but one of the tour operators in state circuit court. (The operation run by Pickard is the exception.) Among other things, their appeal asks the court to find that the board violated their due process rights, that board chair Wilson overstepped his authority in extending the former permits, and that the new permits violate the terms of the Kane`one Bay Regional Plan, which requires non-conforming uses to expire with the old permits.
No trial date has been set.
Miller Is Denied Access At Wai`oli, Kaua`i
Michael Miller, owner of a 1.5-acre parcel of land at the back of Wai`oli Valley on Kaua`i’s north shore, has been seeking to obtain legal access to it ever since he purchased it – knowing it was landlocked — in 1980. In 1986, he requested an easement from the state. The Board of Land and Natural Resources granted it, contingent upon Miller’s obtaining, within five years, easements from the private parties and taro farmers owning the jeep road that led up to the state-owned easement.
This Miller did not do. However, he did build a house on his lot (probably — it may be on state-owned land), cleared a 40-foot-wide swath of forested state land in the Conservation District, and installed at least two culverts under the cleared area. (For details, see the April 1993 issue of Environment Hawai`i.) He also installed a cesspool without a Department of Health permit. Because he has not complied with DOH requirements, he has not been granted a permit to occupy the house. As recently as last month, the Kaua`i office of the Department of Health said that Miller had not submitted the requested plans and that no approved wastewater system exists on Miller’s property.
Miller sued his neighbors in an effort to get the court to force them to provide him with legal access. This, too, did not work out. In 1996, the court stayed prosecution of the case until Miller obtained an easement from the state and other landowners.
Despite a history of involvement with the state that could be described as fractious, the staff recommendation from the DLNR’s Division of Land was that the Land Board grant Miller an easement.
Testimony in opposition to the staff recommendation was provided by taro farmers and representatives of Wai`oli Corporation, a landowner that leases most of its holdings in the area to the taro farmers. Don Wilson, an attorney for Wai`oli, noted that at the very least, the easement should be subject of an environmental assessment before board action.
After going into executive session to discuss some of the legal issues, the Land Board voted unanimously to deny the staff recommendation.
Action Is Deferred On Judd Trail Easements
Nohona Partners, owner of a parcel of land south of Kailua-Kona, is seeking permission from the Land Board for easements across the state-owned Judd Trail in conjunction with plans to subdivide the property. The request came before the board at its meeting of July 10.
Because of his participation as deputy county planning director in the permitting of the subdivision at the county level, new Big Island board member Russell Kokubun recused himself from any part of the board’s deliberation.
Testimony from members of the public expressed concern over several issues. First, there was the fact that the challenge period for the final environmental assessment (which began on July 8) had not yet run its course, and therefore board action would be premature. Others objected to the vagueness of the proposed action: the staff submittal did not identify where the easements requested would be sited. Finally, some noted that the breaches proposed in the trail by the easements were not needed; to effect access to subdivided parcels, the developer could simply reconfigure the lots.
Some members of the public testified that the 5-acre “agriculture” lots Nohona Partners planned to create would themselves be further subdivided. They noted that the property had been included in the county of Hawai`i’s petition to the Land Use Commission for placement into the Urban land use district. Should the land be placed in the Urban district, the size restrictions on agriculture lots would no longer obtain. Consequently, the number of potentially developable lots would increase manifold, as would traffic across the trail.
Jon Gomes, president of Nohona Partners, said that this would not happen. “Our subdivision is going to be a gated, underground-utilities, five-acre estate lot subdivision,” he told the board. Restrictive covenants placed on the lots would prohibit their further subdivision — “that will be in the deed,” he told the board. Still, `ohana dwellings and guesthouses may be built, and “it’s reasonable to assume there will be two homes on any of these lots,” he said, explaining why he was asking for easements as wide as 20 feet. When asked by the board for a copy of the covenants and restrictions, Gomes said they were not ready yet.
The Land Board, in the end, had several questions over the scope of the project and the extent to which the developer had consulted with interested members of the public. It asked to have these resolved and voted to defer action on the request for easements.
LUC Action
“We don’t have any plans to make this any more urban,” Gomes told the Land Board, attempting to emphasize his intention to keep the property’s rural character. “It was in the Land Use Commission urbanization [petition], and we pulled it out. This is going to be a five-acre subdivision on 160 acres – pretty minimum use, as far as an urban area goes.”
Gomes’ statement that he “pulled it out” does not quite match up with the documentary record in the LUC file. On April 28, 1998, Gomes’ attorney, Steve Lim, wrote to the County of Hawai`i Planning Department, which was the petitioner before the LUC, notifying the county of the fact that Nohona Partners was the new fee owner of the land and authorizing the county to continue to include the land in the county’s petition. “On behalf of Nohona Partners,” Lim wrote, “… this will authorize the County of Hawai`i … to proceed with an application for boundary amendment from the Agricultural to the Urban district.”
Lim attempted to make the authorization conditional. In part, he stated that the authorization was contingent on the county agreeing “to release my client from the subject petition, and any and all proceedings related thereto, at anytime prior to the actual vote by the LUC on the petition filed by the County … should conditions of approval being recommended or considered by the LUC, or any other requirements and duties to be placed upon my client therein, be deemed unacceptable in my client’s sole discretion.”
Two days following Lim’s letter, the LUC declared the hearing on the county’s petition to be closed, an action that makes moot further efforts to intervene, present testimony, or otherwise add to the record under consideration.
In May and June, the parties to the case negotiated over language in the proposed findings of fact, conclusions of law, and decision and order to be voted on by the commissioners. By June, Nohona Partners had sold off parcels it had already subdivided on the makai end of the property.
By the middle of the month, Nohona Partners apparently got cold feet. If the LUC does not approve a petition for redistricting, owners may not reapply for redistricting for another year. Or, should the LUC approve redistricting but with conditions that are not to the liking of the landowner, the landowner will be stuck.
One proposed condition in particular was bothersome to Lim’s client. This was noted in Lim’s April 28 letter. Language contained in the county’s proposed findings of fact proposed that no improvements be allowed within the Judd Trail right of way “except for public purposes.” Lim proposed including a clause that would include “private uses as allowed by the state Board of Land and Natural Resources.”
On June 15, Lim notified the county Planning Department and the Land Use Commission that “Nohona Partners, Inc., is hereby withdrawing its ‘fee owner authorization’ from further participation” in the matter. Also, Lim wrote, “since the new owners of the remaining portions of the former Matsuzato lands originally included in the Petition Area did not consent to the petition, we assume they will also be deleted from consideration in this matter.”
However, since the hearing had been closed effective April 30, Lim’s efforts to withdraw were unsuccessful. After LUC Acting Chair Casey Jarman announced that the request could not be considered by the commission, she asked Lim for some explanation. While making a “technical objection” to the exclusion of his client’s request, Lim went on to say that he had conferred with the county, whose position was to keep the petition intact.
Jarman: “So you are saying that the county is authorized by the landowner to represent them for this petition?”
Lim: “If that’s what it takes, then we’ll have to do that.”
Shortly thereafter, the LUC voted to approve part of the county’s petition, deciding to place three parcels, totaling 422 acres, into the Urban district. Not included among the remaining 500-plus acres in the county’s petition was the Nohona Partners’ land.
NBC Gets Break On Rent for TV Show
The filming of the NBC series “Wind on Water” at Kekaha Kai State Park, on the Kona side of the Big Island, has generated much controversy among people who have been closely involved with the park’s development. Many park users have objected to the presence of film crews at Mahai`ula Bay, saying it is out of keeping with the vision of the park as a wilderness area.
On July 10, the Land Board gave further concessions to NBC, approving its use of half an acre of warehouse and office space at Kawaihae Harbor for what was described as the nominal rent of $500 a month. This equates to about 2 cents a square foot for covered, paved space.
The staff recommendation says that the state, through its film office, is assisting NBC “with various ways to reduce costs related to basing the ‘Wind on Water’ television series on the island of Hawai`i…. Toward this end, the state and county have requested the use of facilities at Kawaihae Harbor at no cost for a period of one year.”
Part of the area to be rented is a Butler-type structure known as the Soulé building. This warehouse, consisting of 7,200 square feet, was most recently rented last March by HT&T Company, in connection with the transport of equipment (including mirrors) for the Gemini telescope. Although the telescope will contribute to the Big Island economy for a longer period, and provide more lasting and higher skilled jobs, than the NBC series, no discount was given in connection with this use. Rather, HT&T was charged $2,304 a month, or 32 cents a square foot.
If that rate reflects the market rent, then the total market rent for the property to be occupied by NBC would be more than $7,000 a month.
The same day the board approved the NBC use of the Kawaihae warehouse, it approved a revocable permit to GE Capital Modular Space Hawai`i, Inc. — like NBC, another holding of General Electric — for open, unpaved land at Kawaihae. Monthly rental of 3,600 square feet of uncovered land was set at $252 per month, or 7 cents a square foot. This, the staff report stated, “is the current rate being charged for open-unpaved land” at Kawaihae.
Two weeks later, on July 24, the board was asked by the Division of Boating and Ocean Recreation to authorize issuance of a revocable permit to NBC for use of 30,000 square feet of open land at Kawaihae Harbor. The proposed rent is $500 per month.
If the market rate is 7 cents a square foot, as suggested in the GE Capital Modular Space Hawai`i permit, the proposed rent reflects a $1,600 a month discount.
The total amount of the state discounts to NBC approaches $9,000 a month.
Eco-Tours Get OK For Kapapala Ranch
Kapapala Ranch, which borders Hawai`i Volcanoes National Park, has devised a plan to increase its income by engaging in “eco-tourism” activities. The planned activities include donkey tours, overnight camping, bird hikes, and renting out cabins once occupied by ranch hands to tourists. The ranch has a lease on more than 20,000 acres of state-owned land, so Land Board approval was required to change the nature of use of the lease.
The Land Board approved the plan in a series of three meetings — in August 1997, January 1998, and April 1998.
After obtaining the approvals, the ranch applied for the required Special Permit from the Land Use Commission. The permit is needed because camping is not a permitted use in the Agriculture district. Such requests are forwarded to the LUC by the responsible county agency — in this case, the County of Hawai`i Planning Commission.
Among other things, the commission staff — i.e., the Planning Department — considered whether an environmental assessment was required. One had been prepared by ranch owner Gordon Cran, but was not published in the state Office of Environmental Quality Control’s Environmental Notice.
A letter from Hawai`i Island land agent Charlene Unoki to the county settled the matter. Unoki said that the activities were exempt since they fell into the category of “operations, repairs, or maintenance of existing structures, facilities, or equipment… involving negligible or no expansion or change of use beyond that previously existing.”
The change in lease says that the state is to receive 2 percent of the gross receipts generated by eco-tourism activities.
Volume 9, Number 2 August 1998