HomeMy WebLinkAboutCOM 0493.054 2000-2002 P.O. lox 1185
Volcano, HI 86785 , ~ ~ ~ ~ .
June 21, 2002
Chair Leithead-Todd and members of the Council Committee on Planning,
I would like to address the importance of the revisions to the General Plan, concerns regarding
"taking" of property, and shortcomings of the plan.
L THE IMPORTANCE Ol~ THE REVISIONS TO THE GENERAL PLAN
The proposed revisions to the General Plan for the first time acknowledge the importance of
protection our undeveloped and wild coastal areas. The proposed revisions protect the scenic,
undeveloped areas surrounding Kealakekua 13ay, Pu'uhonua O I-Ionaunau National Park and
KalokaHonokihau National Park. The significant new protection at Keopuka, I-Ionaunau,
Mauumae and Kohanaiki will help to keep these beautiful areas wild ...for our families and for
our future.
Removing resort designations at Kohanaiki, O' oma, Honaunau 13ay and Pohue Eay makes sense.
According to the Hawaii Tourism Authority's own survey, 72% of residents oppose more hotel
construction. A survey of 1000 Maui tourists found that 41% of respondents said that
preservation of natural areas was the most important factor in their decision to return to the
islands.
Wilderness coastlines such as these provide families areas to swim, whale watch, hike, snorkel,
surf, explore tidepools, picnic, seek tranquility and fish. They provide habitat for native species
and protection of native I-€awaiian cultural sites. And they create jobs for the visitor industry,
which is dependent on the preservation of Hawaii`s natural beauty.
We all suffer the consequences of inappropriate coastal development. Most local folks don't
want to go to the beach in front of a hotel or condos. When hurricanes, tsunamis and other
natural disasters strike, our tax dollars pay for the reconstruction of houses built too close to the
shoreline. And then there is the damage to our marine life as occurred twice in 2000 when soil
from I-Iokulia's golf course polluted Kona's pristine waters. A Board of Land & Natural
Resources report raised serious concerns about damage to the island's coral reef resources as a
result of the Hokulia sediment runoff.
If we are going to preserve our cultural heritage, provide recreational opportunities and support
our visitor-based economy, we must keep our wild places wild, as proposed in the General Plan
revisions.
II. THE REVISIONS DO NOT "TAKE" PROPERTY
The revisions do not constitute a constitutional taking as argued by some developers.
Coma, Nom
File No.
Ref. ~`o:
Ref. Date ~ ~
First, developers cannot argue that there is a taking where only a portion of a person's land
restricts development. In Tahoe-Sierra Pres. Council Inc. v. Tahoe Reg'l Planning Agency, 2002
U.S. Ll?XIS 3028 (2002) the U.S. Supreme Court concluded that a categorical taking does not
occur if only a portion of land is downzoned. The courts have also uniformly rejected the
proposition that diminution in property value, standing alone, can establish a taking. Penn
Central, 438 U.S. at 131; Keystone Bituminous Coal Association v. DeBenedictis, 480 U.S. at
498-99; Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 384, 397 (1926) (75% diminution
in value caused by zoning law); Lucas v. South Carolina Coastal Council, 505 U.S. 1003 at
footnote 8 (1992) ("It is true that in at least some cases the landowner with 95%a loss will get
nothing, while the landowner with total loss will recover in full."); see also William C. Haas &
Co. v. City & County of San Francisco, 605 F.2d 1117, 1120 (9th Cir. 1979) (value reduced from
$2,000,000 to $100,000); Concrete Pipe and Products, Inc. v. Construction Laborers Pension
Trust, 508 U.S. 602, 645 (1993).
Second, placing land in "open" or "conservation" does not leave landowners with no
economically beneficial use of the land and does not prohibit all future uses of the property.
Uses are still allowed by the underlying zone and the precise uses can only be definitively
determined after application for SMA permits etc. For example, Pacific Star's land at Keopuka is
currently using 30 acres of the land for agricultural uses and macadamia nut orchards. Another
30 acres could be used for agricultural purposes. None of these uses would be adversely affected
in any way by the proposed redesignation.
Third, none of the landowners in question have significant investment-backed expectations.
Investments to date have been minor. As the I°Iawai i Supreme Court held in County of Kauai v.
Pacific Standard Life Insurance, 653 P.2d 766 (1982):
"When a property owner has actually proceeded toward development pursuant to
existing zoning, the initial inquiry is whether a developer's actions constituting
irrevocable commitments were reasonably made or were speculative business risks not
rising to the level of vested property right. Thus, the Developers may not establish a
'taking' simply by showing that they have been denied the ability to exploit a property
interest that they heretofore had believed was available for development."
The I~awai'i Supreme Court long ago emphasized that rights do not vest until the last
discretionary permit such as the SMA permit has been issued. County of Kauai v. Pacific
Standard Life Insurance, 653 P.2d 766 (1982).
Finally, the county's reasons for designating conservation and open areas serve legitimate public
interests. It is beyond question that government may downzone property to protect
environmental interests. The City and County of ;Honolulu did it, for example, at Queens Beach.
The U.S. Supreme Court has long recognized government's right to "protect the public interest in
health, the environment and the fiscal integrity of the area." Keystone Bituminous Coal
Association v. DeBenedictis, 480, U.S. 470, 488 (138`7}. In Lucas v. South Carolina Coastal
Council, 505 U.S. 1003 (1992), the U.S. Supreme Court recognized that government may act in
accord with background principles of property. One of the basic principles of property law, as
articulated by the I-Iawai'i Supreme Court, is the public trust doctrine, which serves to protect the
state's natural resources. As the I~awai i Supreme Court has recognized, "There can be no
question that the [constitution] declares and creates a public trust of public natural resources for
the benefit of all people (including future generations as yet unborn)." In Re: Water Use Permit
Applications, 94 Haw. 9'7, 132 (2000) (internal citation omitted). "Under the public trust, the
state has both the authority and duty to preserve the rights of present and future generations in
the" public natural resources of the state. Id. at 141. "The state also bears an 'affirmative duty
to take the public trust into account in the planning"' of natural resources, and "to protect public
trust uses whenever feasible." Id.
Just as the Water Commission has affirmative obligations, so too does the county. The county:
must not relegate itself to the role of a mere "umpire passively calling balls and strikes
for adversaries appearing before it," but instead must take the initiative in considering,
protecting, and advancing public rights in the resource at every stage of the planning and
decisionmaking process. Save Ourselves, 452 So.2d at 1157 (citing Calvert Cliffs'
Coordinating Comm. v. United States Atomic Energy Comm'n, 449 F.Zd 1109, 1119
(D.C. Cir. 1971); Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 620 (2d
Cir. 1965))) ...Specifically, the public trust compels the state duly to consider the
cumulative impact of existing and proposed diversions on trust purposes and to
implement reasonable measures to mitigate this impact, including the use of alternative
sources.... The trust also requires planning and decisionmaking from a global, long-
term perspective. See United Plainsmen Assn v. North Dakota State Water Comxn'n, 247
N.~.2d 457, 462-64 (N.D. 1976). In sum, the state may compromise public rights in the
resource pursuant only to a decision made with a level of openness, diligence, and
foresight commensurate with the high priority these rights command under the laws of
our state.
Id. at 143.
There are compelling reasons to designate Keopuka as "conservation" (or alternatively, as
"open."). The waters off shore are pristine class AA and contain a diverse population of corals,
aquatic life and endangered marine species. The land borders the Kealakekua Bay State
historical Park and the state Marine Life Conservation District at Kealakekua Bay. Two state
owned historic trails cross the property. The property contains dozens of archaeological sites
and stunning beauty. A portion of the property lies within the Kealakekua Bay Archaeological
and historic District, which is on the National Register of I-Istoric Places. As the Land Use
Commission recently recognized:
[T]he proposed Keopuka Lands project would border the State of Hawaii Kealakekua
Bay State Historical Park which includes the Captain Cook Monument and a Marine Life
Conservation District with class AA (pristine) waters.. .The Kealakekua Bay
Archaeological and Historic District is on the National Register of Historic Places. The
Commission was presented evidence that runoff into the ocean from a recent rainstorm
on developer's neighboring project which abuts the premises herein caused disturbing
affects to the class AA waters of Kealakekua Bay. The State of hawai'i has a strong
interest to protect the resources of the area " (DR00-23, October 19, 2000; emphasis
added. )
According to the Department of Land ~ Natural Resources,
Kealakekua gay is considered to be one of, if not the most. histor.~call~r si~nificant„places
inin Hawaa'i. this is because Kealakekua was one of the major royal centers of Kona in the
late pre-contact period, it was the site of the earliest extensive contact between
Westerners (Captain Cook) and the Hawaiians in 1779 that resulted in much of our
knowledge about the Hawaiian culture at the time of contact, and there are many
archaeological sites intact from the pre-contact and post-contact periods as a result of
limited modern development on the lands surrounding the bay.... While the 2.16 acres of
Kealakekua State Historical Park encompass this historically significant complex, the
surrounding lands provide the historical setting and cultural landscape for understanding
and interpreting the historical events and Iawaiian traditions of Kealakekua Bay.
(Internal Memorandum, August 16, 2000; emphasis added)
Any development at Keopuka threatens these resources, including water quality, corals, marine
life, and the state park.
Soil runoff from the Fdokulia Project, just north of Keopuka, damaged thousands of yards of
corals, according to DLNR. According to DLNR,
Findings by DLNR aquatic biologists are raising serious concerns about potential damage
to the I~ig.~.sland's coral reef resources, from sediment runoff into the ocean earlier this
month from a site being developed near Kealakekua Bay. The Hokulia residentiallgolf
course project, located approximately 2 miles north of Kealakekua Bay, is presently
under construction by 1250 Oceanside Partners. Considerable land clearing, road
building, and golf course development has gone on for about a year. .
The team inspected the reef fronting the project at a spot with sediment still suspended in
the water, just south of Kalukalu Bay, within the Red 1-Ii11 Fisheries Management .Area
and close to the Red Hill Fish Repleaushment Area. Visibility declined, and dark brown
sediment was immediately obvious .
At 30 feet, stickv
Anud covered much of the bottom aften more than an in..4:h deep, to as
dee~a
as
3 ine es.... Some fish were observed in the area, but fewer than is typical for
this general location.
In deeper water (to 50 feet), sediment remained heavy. Corals there appeared to be much
more severely impacted than, in shallow waters. Mud covered portions of many corals,
especially colonies of lobe coral, Porites lobate. When the sediment was "fanned" off
these corals, the underlying polyps were bleached white, appearing dead. A number of
other corals, including finger coral, Porites compressa, had similar patches of dead tissue.
Welsh's report concludes, "Sedimentation to the extent we observed appears neither
typical nor natural along the Kona coast: in 2S years of diving in Kona, I have never seen
such intense siltation, even after storms producing much more rainfall. t,~.ssoS:iati~n with
construction aet~vi~,es at H~kulia is unavoidable. (Department of Land ~ Natural
Resources press release, September 29, 2000).
On Friday, November 3, 2000 Judge Ibara found that the class AA waters and the marine
environment were so seriously jeopardized that he issued a TRO stopping all construction
activity at the I-3okulia Project.
Given the damage and violations of the law that have occurred only two miles from
Kealakekua Bay, should we take a chance on allowing the same developer to damage the
resources at Kealakekua Bay?
Data in at least three reports clearly document that ocean currents, freshwater inflows and land
topography are important factors in the diverse ecosystem of Kealakekua Bay. (1~I.S. Doty,
December 1961, Biological and Physical Features of Kealakekua Bay, Hawaii. University of
I°Iawaii Botanical Science Paper No. IVIaPine Environmental Monitoring Program, Kealakekua
Bay, South Kona, I-Iawaii, Report 2-~, 1990; The Kealakekua Bay State I~Iistorical P~.~°k
Conceptual Plan prepared for the DL.'tiiR by Belt Collins.) These studies demonstrate that ocean
currents will carry effluent or runoff from the proposed conservation area (should it be
developed) into the IO~Ianine Life Conservation District (1VILCD), Subzone A of Kealakekua Bay.
Subzone A of the Kealakekua Bay MLCD contains one of the most abundant and diverse array
of near shore marine species in the entire state of I•Iawaii. Equally important is the fact that any
development of the area could significantly reduce the influxes of freshwater that occur along the
coastline of Kealakekua Bay. The influx of freshwater is sufficient in quantity to significantly
reduce the salinity of the ocean within Subzone A of the MLCD of Kealakekua Bay. The areas
of reduced salinity (highest inflow) are precisely where the most abundant life within the bay has
been documented. Therefore it can be postulated that this is one of the factors for this abundant
life, if not the reason for it.
Furthermore, the DLNR's Parks Division notes, development at Keopuka, "will have a
significant impact on the parkin terms of visual impacts with substantial changes to the natural
and cultural landscape and greater public access to Ka awaloa section of the park and
Kealakekua Bay that may threaten the archaeological and marine resources, without proper
management and visitor facilities." (Internal 1l~Iemorandum, August 16, 2000)
The community wants you to protect this area. Over 1900 people objected to developing the
area in comments on a Dn~.ft Environmental Impact Statement. Over 2,000 citizens have signed
petitions opposing development of the area. I-Iundreds turned out at hearings to voice their
support for keeping Kealakekua wild.
III. ROOM FOR I1vIPROVEMENT
I support the revisions to the general plan. They are not perfect, however. It would have been
nice if the general plan:
- prohibited any more gated communities, which are an anathema to the aloha spirit,
reduce public access to natural resources and create a stratified society separating the haves from
the have-Hots;
- required that all proposed projects be examined as a whole rather than in piecemeal
fashion (to ensure that connected actions are analyzed together and cumulative impacts
assessed);
- ensured that industrial waste does not contaminate our aquifers and coastal waters by
including a provision saying:
* Except for quarrying operations, no new industrial area shall be zoned without
provision for disposal of all wastewater in a wastewater treatment facility that threats
waste to at least a secondary level.
- provided better protection of agricultural land from urban encroachment by including
the following policies/principles:
*Analyze all subdivision proposals on state designated agricultural land to ensure that
any dwellings are true farYn dwellings, as defined by the State Land Use Commission
titles and OPdePS.
* In considering whether farm dwellings in a proposed subdivision are legitimate,
examine the price of the proposed dwellings, the amount of agricultural activity
proposed, the location and the connection to agricultural activity.
- prohibited new golf courses on agricultural land and within 1000 feet of the shoreline;
Sincerely,
-
David Kimo Frankel