In this issue of Environment Hawai`i, the operations of the City and County of Honolulu Department of Parks and Recreation at two of its sites are examined in some detail. Work at one site, Salt Lake, involves the construction of a city park. Work at the other, in Palolo Valley; concerns the destruction of a city park.
As dissimilar as the cases are superficially, both share a number of features – most prominent, perhaps, being the rather casual regard by the Department of Parks and Recreation of the need to protect the natural resources of the lands for which it has assumed stewardship.
The cases examined here are hardly exceptional. More widely publicized has been the city’s management of Camp Kailua, where citizens opposed to the camp’s destruction had to take the city to court to force it to comply with its own laws concerning development in the coastal area. Less well known but equally significant has been the city’s destruction of archaeological resources at Kualoa Park. That area, one of the richest troves of archaeological treasures on the island, was grubbed and graded despite ongoing archaeological excavation. Indeed, archaeologists engaged in desperate, last-minute efforts to salvage what they could were almost chased off the site by the city’s bulldozers.
Or take the case of the city’s model airplane field in Kawainui Marsh. The field, built for the exclusive use of a handful of people whose hobby is to fly remote-controlled model planes, was illegally expanded in 1990. The city had to pay the state fines for violating Conservation District regulations. Worse yet, the city’s promise to the airplane clubs to keep the airfield open held up for more than a year negotiations of terms under which the state is to assume management of Kawainui Marsh. (Those negotiations were completed only in August of this year. Apparently, the city will continue to maintain the airfield, despite the state having gone on record as describing the area it occupies as a vital part of the marsh.)
Pick a park, any park, and the chances are better than even that in its construction and operation, whatever natural resources were on the site have been compromised in the service of one or another special interest or political constituency.
Trading Favors
Of course, that’s hardly surprising, when one considers that in many cases (including the two examined here), the park land itself was acquired as a favor to developers. When Ruddy Tongg’s prospects for developing his remaining land in Palolo were nixed by the federal government, which refused to underwrite mortgages for any houses built on the steep, unstable slopes, all he had to do to unload it was turn to the city.
Similarly, when Clarence T.S. Ching was prevented from getting approvals for developing the rugged sides of Aliamanu Crater, taxpayers bailed him out, with the state’s purchase of the so-called mauka area, followed by the city’s purchase of the makai portion (with help from the federal Department of Housing and Urban Development).
One might argue that the lands were purchased for no more than fair market value, as determined by independent appraisers. But, given that the market value of both properties had been increased by the developers’ own activities in the adjoining areas, the fact remains that the developers were paid far more for their land than they had paid to acquire it, even if one factors inflation into the picture.
Forgiving of Trespass
Another common feature of Kawao and Salt Lake parks is the matter of trespass. At Salt Lake, development of the mauka area is proceeding without the city having taken title to the land. The state, which is doubly responsible for the property first, as landlord and, second, as overseer of lands lying within the Conservation District, has been negligent in the extreme in allowing work to proceed without approved plans. Should the city be in violation of federal laws protecting endangered species or wetlands, the state would certainly face legal exposure as well. In the event that any work on site resulted in a private claim for damages, the state, as landowner, might well be held liable.
So why, 16 years after the state Board of Land and Natural Resources asked that the land be turned over to the city, does it still turn up on the state’s inventory of vacant, unencumbered properties? If it has to do with stalled negotiations over the wildlife refuge proposed for whatever is left of the wetland when the city completes its park, we would suggest that the state Department of Land and Natural Resources order the city to cease work immediately pending completion of those talks and development of a workable, effective wetland and wildlife management plan.
The trespass at Kawao Park is even more egregious. The contractor for the bankrupt developer walked off the job, leaving the city with a pile of rubble that could come tumbling down the hill any minute. Drainage ditches have been filled, opening up a very real prospect of flooding for houses downslope. The city seems content with the assurances of the developer’s engineering consultant that the rock pile is stable – this despite studies to the contrary made by soils engineers, who were worried over the area’s instability even before loose fill was dumped on the site.
The city’s piddling grading bond of $20,000 is wholly inadequate to clear the rubble. One would think that as a matter of course for anyone wishing to disturb city property, city departments would require a bond be posted in advance sufficient to cover full costs of the project, in addition to an insurance policy that would protect the city in the event of damages resulting from work conducted on city property by other than city employees.
The Taxpayer as Chump
Everyone involved with the Kawao Park mess agrees that mistakes were made, although no one is willing to confess to error. A planner at the Department of Land Utilization, which issued the subdivision approval and imposed conditions on the developer, said his agency would have been happy to require the developer post a performance bond for the full cost of the reservoir, but was never asked that this be done by the Board of Water Supply.
The Department of Parks and Recreation, which essentially left all aspects of negotiating away the use of Kawao Park to be handled by the Board of Water Supply, denies culpability. If errors of omission count, however, the Parks Department scores high.
Bearing chief responsibility for the mess is the Board of Water Supply, which trusted the developer’s agent Gray Hong Bills & Associates to a fault and continues to do so. Not to be overlooked, though, is the timid Office of Corporation Counsel, which thought it would be easier to twist the contractors arm and have the contractor go after the developer, on the city’s behalf than to make its own case against the developer in court. (Until now, we were possessed of the apparently mistaken belief that the Corporation Counsel was not afraid of going to court to protect the city’s interests.)
Finally, there is the role of the elected officials. When the mayor’s office was questioned by the Palolo Neighborhood Board, answers were not only skimpy, but misleading as well. Council Member Leigh-wai Doo, who represents the area, was content merely to forward on to the Parks Department constituents’ requests for information.
Throughout it all, the taxpayer – whose park it was, and whose liability it has now become – seems to be regarded by the city agencies, the developer, the contractor, and the engineering consultant as the chump. No one with any degree of authority or responsibility seems to be concerned that if the contractor walks (as has happened), if the developer goes bankrupt (that happened, too), if the posted bond is insufficient (as it is), and if the corporation counsel is afraid to walk into court (and so it would seem), taxpayers will end up footing the bill for restoration and for damages, should any be claimed.
The contractor, H.F. Johnson, has escaped without a smirch on his license, free to undertake other jobs in the City and County of Honolulu. The consulting engineer, Gray Hong Bills & Associates, continues to lavish its campaign donations (individual and corporate) on the mayor and on council members – and receive, in turn, more contracts from the city.
This is an outrage. The city should file a claim against the developer in bankruptcy court and seek from the contractor the myriad remedies pointed out in the Corporation Counsel’s menacing letter of December 1991.
Finally, consulting engineers that act as developers’ agents, as Gray Hong Bills did in this case, should be required to post bond as well, to be forfeited in the event that their clients donor live up to the agreements entered into on their behalf by the consultants. If the consultants are going to be giving their word to the city that the developer will live by city rules, they should be willing to put their money where their mouth is. The way in which the city has continued to rely on Gray Hong Bills & Associates to help the city out of the morass that Gray Hong Bills & Associates led them into is nothing if not absurd. A bond required of engineering consultants would allow the city the opportunity to obtain independent engineering advice without dipping ever more into the taxpayers’ pockets.
Last and Least?
Salt Lake and Kawao parks have, finally, one more thing in common: Both lie within the state’s Conservation District. It was the intention of the Legislature, in establishing this district and in placing the Board of Land and Natural Resources in charge of activities therein, to try to make certain that Conservation District lands were developed, if at all, only after strenuous environmental review and subject to strictest regulatory oversight.
In the cases reviewed here, DLNR oversight has been conspicuous only by its near total absence. At Kawao Park, for example, the Conservation District Use Permit for the reservoir and subdivision required that construction begin within a year and be completed within three years of the date the CDUP was granted (May 9, 1986).
In May 1988, the then-owner of the land, Larry Clapp (of Palolo Estates Partnership) notified BLNR Chairman William Paty of ongoing “work,” although none of it entailed construction. (The only on-site activity reported by Clapp, in fact, was for soil investigation, which usually has not been regarded by the DLNR as sufficient to meet the commencement-of-work condition.) Paty replied on May 27, 1988, reminding Clapp that less than a year remained for completing work on the reservoir.
In May of 1989, Brian Gray, a consulting engineer on the project, asked the DLNR for a time extension. Paty replied on June 1, 1989. The extension could not be granted, Paty said, because the three-year time frame for completing work had expired already. “We must tell you that our prior authorization of your project is now void,” Paty wrote. “A new CDUA is required before you proceed.”
In flagrant disregard of Paty’s notice, a few days later Emma International, the new owner of the development site, and H.E. Johnson entered into a contract calling for Johnson to build the reservoir for $1.075 million. In May of 1990, nearly a year after Paty’s notice to Gray that the CDUP was void, Johnson began excavating the park site.
In spring of 1991, the DLNR appears to have learned, at long last, that excavation had actually commenced without DLNR approval and with a lapsed CDUP Paty once more was writing the consulting engineer, ordering work to stop at once. (Work had actually ceased in December 1990, the result of heavy rains and a dispute over payment between the contractor and the developer.)
David Bills of Gray Hong Bills replied on April 16 that the contractor had been ordered to stop work. The very next day, in an astonishing display of chutzpah or ignorance (perhaps both), Bills wrote Paty once more, requesting again an extension to the Conservation District Use Permit – the same one that Paty had pronounced void nearly two years earlier.
Mocking Enforcement
The public has a right to expect more of the DLNR. The elaborate ritual of public hearings and agonized Board review, to say nothing of the arcane and extensive rules governing the Conservation District, give the impression that the Land Board is a force to be reckoned with. But when cases of Conservation District abuse as flagrant as those at Kawao Park and Salt Lake Park arise, one cannot help but think of the DLNR’s Office of Conservation and Environmental Affairs as a paper tiger – blustering mightily during the permitting stage, then sleeping the sleep of the dead when it comes to any effort or interest in enforcing permit terms.
With the public unable to rouse the OCEA from its slumber, the task falls to the Land Board. We would urge it to ask for an accounting from the OCEA of the manner in which the Conservation District Use Permits governing these two parks have been handled.
Mahalo
This issue has been made possible by tips provided by two citizens – one a resident of Salt Lake, the other of Palolo Valley. Both had been trying to get straight answers out of city officials about what was going on in their backyards. With those efforts having come to naught, they shared their concerns with Environment Hawai’i for which we are sincerely grateful.
Volume 3, Number 3 September 1992