|
3/6/24, 12:06 PM Unite Here!Local 5 v.City and Cty.of Honolulu,231 P.3d 423-Haw: Supreme Court 2010-Google Scholar
<br /> A.Are you asking simply because of the passage in time?
<br /> Q.Let's start there.Yes.
<br /> A.No.
<br /> (Emphases added.)
<br /> c. evidence of"significant changes"
<br /> i. traffic studies
<br /> The plaintiffs enlisted the services of Tom Brohard,a professional engineer,and submitted his declaration,as well as his October 2006 review of traffic studies for the Turtle
<br /> Bay resort expansion project on the North Shore of Oahu.In his review,Brohard asserted that"[a]n appropriate traffic impact analysis of the[project]has not been conducted
<br /> as of this date."Acknowledging the existence of various documented traffic studies for the project area—including those prepared in 1985,1991,and 2005,discussed supra,
<br /> —Brohard opined that such reports"do not match the EIS project description"and"contain fundamental errors in methodology."He stated that"[t]he 1985 Report is
<br /> outdated[,]and there are numerous errors,conflicts,and omissions throughout the 1991 Report and the 2005 Report[.]"
<br /> Brohard explained:
<br /> The traffic analyses for the[project]have used a lessening annual background growth rate from 4%in 1985 to 3.5%in 1991 to 2.7%in 2005.Reducing the
<br /> background growth rate is contrary to a number of factors including the significant increase in the number of vehicle registrations on Oahu and increased visitor
<br /> trips to the North Shore created by factors such as the increasing popularity of observing basking sea turtles and the proliferation of surfing schools catering to
<br /> tourists.Each of these has contributed to the increase in traffic at Turtle Bay,with half of the overnight Waikiki visitors in 2005 traveling to the North Shore during
<br /> their Oahu stay.
<br /> None of the traffic analyses have quantified vehicle trips generated by"pipeline development"in the study area.Certainly,a number of projects have been
<br /> approved but not yet constructed or fully occupied.There are also others that are"reasonably foreseeable"in the next 15 to 25 years.Trips to and from"pipeline
<br /> development"must be included in the base traffic volumes before trips for the[project]are added and analyzed.
<br /> 438 The flawed approach used in each traffic study significantly underestimates future base volumes.The revised evaluation must include vehicle trips from"pipeline
<br /> *438 development"that come on line as the major phases of the[project]are occupied.All planned and funded road improvements assumed to be in place at each
<br /> project phase must also be identified.
<br /> Failing to identify the proper baseline traffic volumes could certainly result in the failure to disclose significant traffic impacts when project traffic is added to the
<br /> [project].The future baseline traffic forecasts must be corrected and each of the resulting significant project traffic impacts must be identified,analyzed[,]and
<br /> mitigated.
<br /> ii. monk seals and other species
<br /> The plaintiffs submitted a July 5,2006 report prepared by marine biologist Jason Baker on behalf of the Pacific Islands Fisheries Science Center pursuant to the plaintiffs'June
<br /> 2006 Freedom of Information Act request.Baker's report"summarize[d]all documented sightings of Hawaiian monk seals in the area of Turtle Bay resort,between Kawela Bay
<br /> and Kahuku Point,"as well as all monk seal births at or near the project site.Since the early 1980s,monk seal sightings at and around the project area were sporadic.
<br /> Sightings were reported in 1984 and 1991.The record indicates no sightings between 1985 and 1989 nor between 1997 and 1999.In 2001,monk seal sightings at or around
<br /> the project area began to increase,with three sightings in 2001 and 2002,six in 2003,nine in 2004,twenty-one in 2005 and fifty four in 2006.According to Baker's report,"
<br /> [sixty-nine]of[the]101[documented]seal sightings[since 1984]are attributable to[eleven]known individual[seals],""[give of[which]are adult females who are documented
<br /> to have given birth and nursed their pups on remote beaches on Kaua i,Moloka'i,Hawaii,Niihau,Rabbit Island,and Oahu."As of this report:
<br /> [a]single birth has been recorded in[the project]area.A pup was barn on Kaihalulu Beach,on the Kahuku side of the resort,on June 1,2006,and the mother
<br /> and nursing pup are currently in the area as of July 3,2006,along the beach or in nearshore waters.The nursing period generally lasts[five to seven]weeks.
<br /> Although not in the immediate area of interest,a second birth was documented at nearby Waiale'e Beach Park on March 15,1991.
<br /> The plaintiffs also referenced three water quality reports administered by Kuilima in 1989 that summarized observations of green sea turtles over periods of five days during
<br /> daylight hours only.These reports indicated that,in July 1989,no more than three turtles were observed simultaneously in one time interval.The October 1989 report
<br /> estimated a maximum of nine turtles in the bay during morning hours.In December 1989,there was an average of about ten turtles in the bay during early morning hours and
<br /> three or four turtles in the bay during the mid-day and afternoon hours.
<br /> 3. Defendants' Evidence in Opposition to Plaintiffs' Cross-Motion
<br /> In opposition to the plaintiffs'cross-motion for summary judgment,the defendants pointed to,inter alia,other portions of Challacombe's deposition testimony regarding the
<br /> DPP's SEIS procedures,both in general and specifically as to Kuilima's project:
<br /> Q.[By the plaintiffs'counsel]When[,]...based on your understanding,would a[SEIS]be required for a project that involves a[]SMP[I11]or a unilateral agreement?
<br /> A.[By Challacombe]When the scope of the project has changed,the size has changed,density.Whenever there's a significant—as per the[HEPA]rules,
<br /> whenever there's a significant change in the development.
<br /> Q.How about the timing of the development?
<br /> A.That's a component,but it's not necessarily the only thing.[I]t's everything.Again,size,scope,you know,it could be the timing,but it's not necessarily.
<br /> Nowhere—
<br /> 439 *439 Q.It could be any one of those,though,right?
<br /> A.It could be,yes.
<br /> https://scholar.google.com/scholar_case?case=4308700817237546533&q=unite+here+local+5&hl=en&as_sdt=2006 7/17
<br />
|