Island Watch

posted in: December 1992 | 0

Debate Flares Anew as State Releases EIS for Maui Airport

The state Department of Transportation has released its final environmental impact statement on its proposal to expand the Maui airport runway to 9,600 feet (from the existing 7,000) and build a parallel runway of 8,500 feet. The DOT has determined that there will be no environmental harm. Nor, it claims, will there be any adverse social impact.

The EIS also advances the idea that with or without runway expansion, the number of visitors flocking to Maui in the year 2010 will be “relatively the same” a proposition that would seem to undercut the position of those who advocate runway extension as a means of shoring up the tourist industry.

Timing of the release of the EIS has caused many opponents of the runway extension to suspect collusion between the state Department of transportation and groups working to amend the county’s General Plan, which prohibits any lengthening of the runways at Maui’s main airport in Kahului and at airports on Moloka’i and Lanai. In June, a coalition of business and union interests began taking out full-page and three-quarter page ads flashy if not slick in The Maui News, advancing (sometimes inconsistent) arguments in favor of the longer runway. The magazine Maui Inc., known for its pro-business slant, surrendered itself to the pro-extension forces.

At virtually the same time the EIS was released, the Maui Economic Development Board disclosed its own study, whose findings included a determination that without the longer runway, there is “a real danger” that the visitor industry will “spiral downward” (according to a report in The Maui News of July 22, 1992). The study was conducted by Don Fields, identified as “formerly a management adviser for Ernst & Young accounting firm, where he did a strategic study for the state Airports Division,” according to the report in The Maui News.

The state Department of Transportation has now formally requested the County Council to amend its General Plan to accommodate runway expansion. The council was expected to begin considering this as early as August 7.

Increasing Acrimony

Battle lines in the dispute were drawn last year, when the council amended the General Plan to include the ban on runway extension. In the last month, however, the level of acrimony has soared, even as the level of debate has fallen into the gutter. One prominent leader of the pro-extension faction all but accused a leader of the opposition of responsibility for break-in at his office (unreported to police).

Dana Naone Hall, who has organized the Maui No Ka ‘Oi coalition of groups opposed to runway extension, has taken much of the heat. Her husband, Isaac, is the attorney for several environmental organizations, prompting Wayne Hedani, president of the Maui Chamber of Commerce, to accuse Hall of having a financial interest (through legal fees to her husband) in organizing opposition to the longer runway. (The charge is absurd; providing legal representation to environmental groups is one of the least remunerative occupations one can choose.)

Dana Naone Hall, in turn, says the evidence of collusion between the DOT and the pro-runway extension groups “taints the whole EIS process” by making a selected group privy to elements of the public report before the rest of the public is allowed to see it.”

Hints of Collusion

Hall’s statement that the DOT released elements of its EIS to selected groups would seem to be borne out by the content of the newspaper ads placed by the coalition for the longer runway (which calls itself the Pu’eo Coalition).

Early discussion of the runway lengthening proposed several lengths. A 9,600-foot-long runway, the length eventually endorsed in the EIS, was but one of the options. In June, a month before the EIS was released, the coalition was advocating a 9,600-foot-long runway as a “compromise.” An ad that ran in July (again, before the EIS was officially released) sported the slogan, “96 in ’96” an apparent reference to the 96 hundred foot length for the runway, whose completion would supposedly occur in 1996.

Another element in the Pu’eo Coalition ads that leads some to suspect the DOT has helped the group is the claim that the runway extension will cause “$70 million in new infrastructure improvements to flow into Maui now.” Under questioning by members of the county Planning Commission, DOT Director Rex Johnson said he didn’t know where that idea came from. But when two commissioners asked Airports Division director Owen Miyamoto how tightly extension of the runway was connected to other infrastructure improvements around the airport, Miyamoto reportedly answered, “Very.” (For years, Maui County has been seeking without success to get the DOT to improve access to the airport, undertake improvements at Kanaha Beach Park, and carry out other projects whose need is nearly universally acknowledged. The DOT’s position generally has been an all-or-nothing attitude; if the county balks at accepting the longer runway, no funds will be available for other projects, either.)

The Pu’eo Coalition ads link expenditures for these projects with the extension of the runway, although The Maui News was told by a DOT spokesman that funds for these projects had lapsed and it would be more than a year before money was available for any of them. When the newspaper asked Miyamoto for comment on the availability of funds, he told the reporter that “he did not want to say anything that would undermine the coalition’s arguments in favor of expansion.”

Supreme Court Ruling: A Blow to Beach Access

In a little-heralded ruling issued July 7, the Hawai’i Supreme Court decided that the rights of private landowners to take title to accreted beach land supersede the rights of the general public, notwithstanding the public use of those lands, without challenge by the adjoining landowners, for more than two decades.

The case involved an appeal of a Land Court decision that gave trustees of Kalama Beach Park, along Kailua beach in Windward O’ahu, title to about a quarter-acre of land that had accreted on the makai side of their property, but the Land Court reserved two easements over the accreted land in favor of the state for long-term public use. The trustees, unhappy with the easements, took their case to the Supreme Court, which sided with them.

As one might expect, the dispute is complicated. The accreted land in question fronts one of two parallel paths running from Kalaheo Avenue to Kailua beach. Both paths are owned by the trustees of Kalama Beach Park. One path, called 20-A, was for private beach access by people living in the Kalama Tract subdivision. The other path, called 20-X, was subject to an easement acquired in 1967 by the City and County of Honolulu to allow public access to the beach.

An ironwood tree eventually grew up at the beach side of lot 20-X, forcing the public to gain access to the beach by crossing over to lot 20-A. As stated in the court’s decision, written by justice James Wakatsuki, “previously the city had intermittently maintained the access way by cutting vegetation and clearing the sand…. However, the Bremners [owners of a lot one removed from the beach, and which adjoins lot 20-X] insisted that the area on which the ironwood tree had grown belonged to the state, and to the detriment to the public, refused to allow the city workers to cut the ironwood tree near the end of the access way.”

Public access to the beach over lot 20-A, therefore, was well-established, and the Court accepted the Land Court’s finding of public use.

No Implied Dedication

One of the standard precedents in cases such as this is Gion v. City of Santa Cruz. That judgment was used by the Land Court in determining that rights to accreted land (as it was accreting) could be acquired by adverse public use under a theory of “implied dedication.” “We decline to adopt the theory of implied dedication as espoused in Gion,” Wakatsuki wrote on behalf of the Supreme Court.

“The Gion approach has been called ‘controversial’ as it allows adverse public use of the land for period necessary to acquire rights by prescription to raise the conclusive presumption of the landowner’s intent to dedicate the land to the public, where adverse use is described as use of the land ‘without asking or receiving permission to do so and without objecting being made by any one,'” Wakatsuki wrote.

In a remarkable twist of logic, the Supreme Court held that statutory language encouraging private landowners to allow public access over their holdings argues against granting the public rights to accreted land. “The implied dedication theory set forth in Gion is inconsistent with the legislative purposes expressed in HRS Chapter 520,” Wakatsuki’s ruling states. “In keeping with this intent to encourage landowners to make their property available to the public for recreational uses, the Legislature specifically prohibited the general public from acquiring any rights by prescription in the property as a result of such use under URS §520-7.” That particular paragraph reads: “No person shall gain any rights to any land by prescription or otherwise as a result of any usage thereof for recreational purposes as provided in this chapter.”

Wakatsuki acknowledges that in a previous ruling (County of Hawai’i v. Sotomura 1973), the Supreme Court held that public policy “favors extending to public use and ownership as much of Hawai’i’s shoreline as is reasonably possible,” but he quickly adds that “this interest must be balanced against the littoral landowner’s right to the enjoyment of his land.”

In any case, Wakatsuki adds, the Supreme Court action will not impair public access, pointing to the public easement over lot 20-X (blocked by the ironwood tree) and other rights of way elsewhere available for public use.

A Silver Lining

About the only positive note for public rights struck in Wakatsuki’s decision comes at the very end, when the standing of the Bremners to challenge the trustees’ action in Land Court was upheld. Citing a case called Akau v. Olomana Corp. (1982), Wakatsuki writes: “We held in Akau ‘that a member of the public has standing to sue to enforce the rights of the public even though his injury is not different in kind from the public’s generally, if he can show that he has suffered an injury in fact, and that the concerns of a multiplicity of suits are satisfied by any means, including a class action.’”

At a time when the Legislature continues to pussy-foot on the matter of granting citizens the right to sue for environmental enforcement, a ringing affirmation of this principle by the Supreme Court is welcome indeed. Apart from that, in this day and age of global warming and expected rising seas, and in light of the recent State report on beach erosion and accretion, which underscores the need to regulate strictly use of land adjoining beaches, any action by any agency that reinforces private property rights against the common weal of the public in matters of shoreline access or ownership is most unfortunate.

Big Money Wins Big In Conservation Disputes

On July 24, 1992, the Board of Land and Natural Resources took action on the application for an extension of time to build the Lanikai house proposed by Ralph and Betty Engelstad and on the after-the-fact application for violations at the huge house at Puakea Bay owned by George and Shirley Isaacs.

Both applications got the thumbs-up sign from the Land Board.

Down-sizing

The extension for the Engelstad house was especially noteworthy, inasmuch as the permit had been granted by court action rather than Board action. By granting an extension, the Land Board, for the first time in its history, endorsed the construction of a residence in the Limited subzone of Conservation District land without the extenuating circumstance of nonconforming rights. The Board set certain limits on the Engelstad house. It did not grant the unlimited extension that had been sought by the Engelstads’ attorney, Ben Matsubara. Nor, however, did it grant the two-year limit recommended by staff of the Office of Conservation and Environmental Affairs (within the Department of Land and Natural Resources). Instead, Board Member Sharon Himeno made a motion to give the Engelstads three years in which to build their house. The time increase was appropriate, she stated, “because of constraints on the applicant” and difficulties in obtaining county permits. The three-year deadline “adds pressure to the developer to get going,” she said – more pressure than the two-year deadline proposed by staff. She did not explain this.

Himeno’s motion also provided for the house to be no larger than 110 percent of the largest house in the “surrounding neighborhood,” a term whose vagueness was much discussed in debate before the vote. The neighborhood did not extend to all of the Lanikai area, she said, but would be confined to that depicted on the scale model of the Engelstad house submitted by his agents (representing though some would say not to scale – the proposed house and other houses in the immediate vicinity). Earlier plans submitted by Engelstad called for a house whose size ranged (depending on whether one counted pools, lanai, garages and the like) from about 17,000 square feet to about 35,000 square feet. Estimates of the largest house in the “neighborhood” ranged, at the July 24 meeting, from about 5,000 to 8,000 square feet.

Finally, the house would have to be built at an elevation no higher than 200 feet above sea level; original plans called for it to be as high as 375 feet above sea level.

A Shoreline Trail

The decision in the Isaacs case also was unusual in several respects. The OCEA staff had looked into complaints filed by Citizens for Protection of the North Kohala Coast and had determined that the Isaacs house went far beyond what had been approved in the Conservation District Use Permit authorizing its construction (issued in 1984). To attempt to settle those violations, agents for the Isaacses filed an after-the-fact permit for improvements on their house lot as well as on an adjoining private park lot.

The Citizens formally requested a contested case hearing. In lieu of that, the Land Board and all parties concerned agreed to try to negotiate a settlement. Big Island Board Member Chris Yuen was designated to act as mediator, and at the July 24 meeting, lawyers representing the Isaacs read the agreement that had been hammered out. It called for the shoreline access trail to be rerouted from a quarter-mile inland back to the shore, where it had been before Isaacs built the house and park. The Isaacses agreed to pay for the construction of the trail, but (for liability and other reasons), the state would have to undertake its construction. When the makai trail is complete, the state will take over ownership of the land in fee and the Isaacses will be able to take back the public access easement over land on the mauka side of their property.

In return for the restored shoreline access, the Citizens agreed to drop the contested case actions raised at the state and county level.

At the July 24 Board meeting, representing the Isaacses were no fewer than three lawyers (possibly more). Steve Strauss of Hilo was the attorney for the Citizens. After the agreement had been read by Steve Lim (an Isaacs attorney), George Lindsey (another Isaacs attorney) added that the Isaacses wanted to have resolution of the proposed fines totaling $5,500 (11 violations at $500 each) be included in the agreement. After the high personal and financial cost of resolving this case incurred by the Isaacses “Defending their house” had cost them more than $200,000 to date – it was only fair that they not be fined on top of that. Strauss vehemently objected, stating that the Citizens had not agreed to this but had rather understood that any action on violations or fines was to be left to the Land Board for decision.

Lindsey responded by stating that, on the contrary, fines were discussed at a negotiating session not attended by the Citizens. Yuen acknowledged having met with agents for the Isaacses where the matter of fines was raised, but, Yuen added, he, too, had told the attorneys for Isaacs that the question of fines would be for the Board to decide.

The Board ended up by accepting the negotiated settlement. Fines of $5,500 would be assessed, but the Isaacses would be allowed to apply payment of the fines against the overall costs of constructing the trail. As-built plans would be submitted for the unauthorized improvements and (so the Land Board can continue its fiction of “one house” per lot) a covered walkway would have to be built to link the two substantial free-standing structures on the Isaacs’ house lot (a guest house and their own large residence).

The OCEA staff had prepared a discussion of the violations on the adjoining park lot. Eighteen separate infractions had been identified, with fines totaling $9,000 proposed. The Land Board deferred action on the park violations, however, in order to allow the owners (Puakea Bay Ranch Owners’ Association) to file an after-the-fact Conservation District Use Application (the third such for this parcel – the two previous ones having been withdrawn).

Meanwhile, on Tantalus

In a meeting that lasted seven hours (interrupted only by executive sessions), the Land Board addressed several other controversial issues. It authorized a time extension for processing the Conservation District Use Application of Andy Anderson’s daughter and son-in-law for a house on Bishop Estate land in Tantalus (fronting state property). That application (discussed at length in the [url=members_archives/archives_more.php?id=789_0_32_0_C]January 1992 cover article[/url] of Environment Hawai`i) is the subject of a contested case hearing. Roger Evans, administrator of the Office of Conservation and Environmental Affairs, told the Land Board that it probably would not be ready for decision until November.

According to the staff planner handling the contested case, the Board earlier requested the state surveyor to determine the exact boundary separating the Resource from the Limited subzone on the area proposed for the house lot. Much hinges on this determination. If the house site is found to be within the Limited subzone, it is extremely unlikely that the Board would grant permission to build a house. On the other hand, if the land is in the Resource subzone, approval is nearly a foregone conclusion.

The staff planner told Environment Hawai’i that the surveyor had indeed determined that the area planned for the house is within the Limited subzone.

How Much Is an RP Worth?

In another case of far-reaching consequence, the Land Board was informed that the holder of a month-to-month revocable permit to occupy state pasture land had been paid $90,000 by the owners of Olomana Golf Course to give up her occupancy rights so that the golf course could apply for occupancy. The golfcourse wanted to use the four acres or so for parking and storage and, in fact, has already cleared the site for such purposes. Another revocable permit holder in the area had been approached by the golf course, but agents for the golf course said that they balked on learning that he wanted $2 million for surrendering his revocable permit.

The Land Board deferred action on reissuing the revocable permit to Olomana Golf Course, but not until after Mason Young, administrator of the Division of Land Management, had informed the Board that he had recently received from the federal government notice that all assets of the Olomana Golf Course (including its lease of state land) could be subject to federal auction. An owner of about 7 percent of the golfcourse, Ken Mizuno, is being investigated for money laundering activities. Should Mizuno be found guilty, his assets would be subject to federal seizure and auction.

Volume 3, Number 2 August 1992