In early 1990, Grant and Sharon Gerrish bought a lot in Laupahoehoe Valley, on the Big Island north of Hilo. The land was about an acre and a third large — just right for the modest house and garden that the Gerrishes wanted to place on it. Although it was in the Limited subzone of the Conservation District, the land had been the site of a house in the not-too-distant past, when Laupahoehoe was a thriving village. The Gerrishes were confident they would be granted permission by the Board of Land and Natural Resources to build their 900-square-foot house (with composting toilet).
What happened next to the Gerrishes was straight out of Kafka. Shortly after they submitted their Conservation District Use Application, they were informed that a new attorney general’s opinion made them ineligible to qualify for nonconforming use. While their property was indeed being put to the residential use they proposed when the applicable statute was enacted (Chapter 183-41, Hawai`i Revised Statutes), their particular parcel was not included in the areas affected back then. By the time their land was placed in the Conservation District — about a decade later — the house that had stood on the land was apparently no longer there.
The Gerrishes had rested their hopes for a house on long-standing practice of the DLNR to award nonconforming use generously, based on the actual or even intended use of the land in 1957. Without warning, the Gerrishes were being forced to play by what amounted to a new set of rules. And, if that were not enough, the Gerrishes were not being allowed to see the attorney general’s opinion that was the source of their difficulty. The Office of Conservation and Environmental Affairs, that branch of the DLNR responsible for processing Conservation District Use applications, maintained that the opinion was privileged attorney-client communication — and, as such, the agency could withhold its disclosure to the public.
A Nightmare …
To add to the Gerrishes woes, the Department of Land and Natural Resources slapped them with a notice of a Conservation District violation on their property. Someone had cleared a number of trees from their lot — and the DLNR was blaming the Gerrishes.
The trees had indeed been removed, but not by the Gerrishes. Hawaiian Electric Light Company had been asked by Grant Gerrish to repair or remove transformers on poles that crossed their land. The electrical line had been strung years before, and apparently without HELCO having obtained a legal easement to cross the property from its then-owner. After putting the line up, however, HELCO had neglected to maintain it. When the Gerrishes noticed what seemed to be a leaking transformer, they asked HELCO to remove the line to a more convenient location on their property or, better yet, to take it out altogether. Without bothering to obtain the Gerrishes’ permission, HELCO unilaterally decided to hire a tree-removal contractor to cut down trees and vines that had grown over the line — following which the Gerrishes received the notice of violation.
When the OCEA learned that HELCO had actually cut the trees, HELCO was not subject to the same penalties with which the Gerrishes had been threatened. Quite the contrary. In the staff submittal presented to the Land Board on December 20, 1991, the tree-cutting was described as normal maintenance; HELCO is in fact applauded for maintaining the electrical line and thus “improving the safety of the system and the protection of the public health and welfare in the Laupahoehoe area.” (Not mentioned in the staff submittal is the fact that fluid from leaking transformers was found to contain polychlorinated bipheynls at the alarming concentration of 14 parts per billion. So much for HELCO’s concern for public health and welfare in the Laupahoehoe area.)
That’s Not Over Yet
The Gerrishes are not wealthy. The house they planned to build at Laupahoehoe would be their primary residence, not a rustic vacation cabin. As Sharon Gerrish told the Land Board (the Gerrishes did not have representation before the Board by a high-powered Honolulu lawyer), all they wanted was to make the land healthy again, to clean it up and make it a productive and wholesome place to raise their family.
The Land Board appeared moved by the Gerrishes’ case — but not enough to override the staff’s recommendation that the Gerrish application be denied. With the land in the Limited subzone, and with the new (albeit secret) policy on nonconforming use, the Board told the Gerrishes that the only way they could build a house on that property would be to ask the Board first to place it in the Resource or General subzone. (Indeed, it would appear that but for a map-maker taking the shortest distance between two points at the mouth of a small valley, the Gerrishes property would have been legitimately in either of those subzones to start with. By no stretch of the imagination does it meet the Board’s definition of land deserving classification in the Limited subzone.)
And so the Gerrishes are girding for another go-round with the DLNR, this time seeking the subzone change. More public hearings, more filing fees, more time, and more money.
Meanwhile, at Kukuiopa`e
If the DLNR chooses to bring its full weight to bear, it can make life miserable for malefactors — even when they are unjustly accused, as the Gerrishes were. But for malefactors more powerful, the DLNR seems to have endless capacity for forgiveness.
Take the example of the cabin at Kukuiopa`e. As the documents quoted in this edition of Environment Hawai`i make clear, people at all levels of the DLNR seem to be aware of the identity of the “owner” of the cabin. Not only do there appear to be ongoing and flagrant violations of state hunting laws, state laws concerning the use of publicly owned property, and laws concerning the Conservation District, the number of violations of county laws (grading, clearing, construction without permits, etc.) would seem to be just as great.
Despite the manifest record of violations, the Department of Land and Natural Resources has yet to resolve the matter with penalties or prosecution. Environment Hawai`i was able to learn the identity of the party clearing at least some of the roads to the cabin. We also were able to learn that among the parties suspected to be behind the cabin’s construction were certain high-level officials in the Department of Agriculture.
When will the Department decide that it knows enough to act? The same department, so eager to jump on the Gerrishes, is glued to the ground when it comes to acting on far more serious violations that would appear to involve people with political connections or financial means. And we would include here not simply those responsible for the many violations at Kukuiopa`e, but those who have abused the land and its attendant resources at Pu`uwa`awa`a, Puakea Bay, Keauhou Ranch, and elsewhere.
Big Island Blues
The articles in this issue have focused on the Big Island — but that is not to say that they provide anything approaching a comprehensive list of the Big Island’s problems. We have left for another day a discussion of recent events concerning geothermal energy, the many golf courses that have sparked public controversy, and a host of other concerns.
One proposal before the County Council would give the council, as opposed to the appointed Planning Commission, authority to approve or deny applications for golf courses. Other potentially helpful measures, such as one intended to guide the county in the setting impact fees on developments, seem to be stalled.
Regardless of action by the County Council, the director of the Planning Department wields great influence in deciding the outcome of development proposals in Hawai`i County. Norman Hayashi, the current planning director, has lately come under fire for what appear to be reversals of position. Not only did he do a flip-flop on the Special Management Area permit application made by the Hawai`i Tropical Botanical Garden, he did much the same in regard to a golf course and lodge planned in South Kona. Moreover, Hayashi makes a practice of negotiating terms with some applicants, leading inevitably to questions about even-handedness and equity in the processing of proposals.
One of the most far-ranging issues on the Big Island concerns the fate of the Hamakua Sugar Company. Environmentally, socially, economically, what happens to this business portends monumental change not just for Hawai`i County but for the entire state. The April issue of Environment Hawai`i will be devoted to this topic.
Back to Basics
In the 1970s and 1980s, when Ferdinand Marcos ruled the Philippines with an iron hand, his opponents would routinely find themselves jailed for violating laws that Marcos had issued but which, for reasons known only to him, he had decided could not be made public. The result was a whimsical, arbitrary, and wholly unjust exercise of state power.
The DLNR’s use of a secret attorney general opinion may be different in degree from Marcos’ secret laws, but it is no different in kind. If public officials are going to use a document as a guide to their actions and to the setting of agency policy, that document must be available as well to the people upon whom those policies and actions are forced. Failure to do so undermines the express will of the Legislature in establishing the public rule-making procedures outlined in Chapter 91 of Hawai`i Revised Statutes.
Perhaps more to the point, failure to do so eats at the very core of democratic principles. The members of the Board of Land and Natural Resources cannot help but place a great deal of faith in the staff reports that come to them in regard to the hundreds of decisions they must make each year. But when they are asked to change policy, as they were in the Gerrish case, they should not be cowed by staff into agreeing that the basis for that change shall forever be locked away from the public, visible only to the privileged. Shame on the staff at the Office of Conservation and Environmental Affairs for the way the Gerrishes were treated. Shame on the Board members for condoning that treatment.
Volume 2, Number 9 March 1992