2003-07-28 TBLASMAN (4) - Laserfiche WebLink

Home

But I think under, as we talked about preserving a particular site under 205A and any particular historic site, yes, that can be, that can be required with an SMA permit. IÓm not sure on the issue, and itÓs reasonable when I say possibly on the issue of, say you had a historic site and you had people who showed that they had a cultural practice of going onto the site, but the site was fully developed. Whether you could require that access of a, as a condition of an SMA permit, I think so, yes, but subject to the possibility of this constitutional issue where you have an individual crossing over a piece of property. VITOUSEK:And how do you, how do you reconcile that with the stat Hanapi that if lands are fully developed, it is always inconsist traditional and customary native Hawaiian rights on such propert that with your statement that you could require, that the Planning Commission could require a landowner to permit, to continue to exercise the native Hawaiian rights on developed property? YUEN:On developed property, well, State vs. Hanapi is a criminal trespass case where the individual is trying to assert native Hawaiian rights in the context of, as a defense to a criminal trespass prosecution. The case does not tell us what are the outer limits of protection of Hawaiian cultural rights in an SMA permit. VITOUSEK:But, you know, in fact, what the interest is being protected here is not necessarily a physical intrusion but a visual intrusion, isnÓt that correct? I mean, arenÓt you saying that there are limitations placed on Mr. BlasmanÓs use of his land because of, among other things, a native Hawaiian right to have some sort of visual intrusion or visual easement into his property from adjoining property? YUEN:Yes; and itÓs routine in planning law and practice to have some kinds of conditions to shield neighboring property from visual intrusion of adjoining development. There are, landscaping is a routine condition of land use applications. I agree that this, that the scope of this landscaping condition is a bit unusual, but this is also a bit of an unusual situation in terms of the significance of the adjoining property. ItÓs, itÓs not at all unusual to put a condition on that limits either what people see when they look over at your property or what people can see when they look out from their property over to yours, in the context of a discretionary land use approval like an SMA permit or a rezoning. VITOUSEK:I think you did articulate that the issue that weÓre trying to eliminate here is that the, as you said, this is an unusual and extreme condition based on the culturally sensitive nature of the adjoining property, which is exactly what poses the issue of, of 23