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Home My WebLink AboutCOM 0493.088 2000-2002MICHAEL J. MATSUKAWA ATTORNEY AT LAW TERRITORIAL CENTRE, SUITE 201 75-5751 KUAKINI HIGHWAY KAILUA-KONA, HI 96740 TELEPHONE NO. (808) 329-1385 FAX NO. (808) 329-0512 July 2, 2002 Ms. Bobby Jean Leithead-Todd County Council County of Hawaii 25 Aupuni Street Hilo, HI 96720 RE: GENERAL PLAN ORDINANCE SITE G-6, HELCO GENERATION STATION SITE Dear Councilmember Leithead-Todd I had earlier written of my clients' concern on the proposal to designate the HELLO generator site as an Urban Expansion area. During the Kailua-Kona meeting, the planning staff stated that the reason for the designation is to conform to a 1994 ruling that the planning director had made that the site fell within the Urban Expansion, not Extensive Agriculture, designation on the LUPAG map. However, in Civil 97-017K, the circuit court found that the HELCO site falls within the Extensive Agriculture designation. HELCO was a party to this action and did not object to the court's finding. For that reason, I believe it improper to assert that the basis for the current proposal to designate the HELCO site as Urban .Expansion is to conform to a prior ruling of the planning c'irestor when a circuit court has already ruled that the HELCO site is in the Extensive Agriculture designation. Thus, the only reason for the current proposal is for the County to endorse its support to rezone the HELLO site in order to allow HELCO to expand its power plant. At this time, whether HELLO can or cannot complete the proposed expansion of its power plant under its so-called default entitlement is still before the state Supreme Court (since 1998) and the Court could rule that HELCO has no such entitlement. I:. File Fief. To: Ref. Date JUL - 2 MICHAEL J. MATSUKAWA ATTORNEY AT LAW Ms. Bobby Jean Leithead-Todd July 2, 2002 Page 2 In that event, HELCO will have t land to validate what is on the ground now fact, as a result of a recent Board ruling Board required HELCO to initiate proceedings its land out of the Conservation district state Urban district. o seek rezoning of its "after the fact." In on March 25, 2002, the before the LUC to take and to place it in the If this takes place and if the state LUC grants HELCO's petition for a boundary amendment to the state Urban district, then the underlying county zoning would take effect -- Extensive Agriculture general plan designation and Open zoning. Since the county charter allows general plan amendments to be made only by the county council or planning director, HELCO could not move forward with its rezoning until and unless the current Extensive Agriculture designation on the general plan is changed to Urban Expansion (as is currently proposed). I do not believe the public has been adequately informed on this subject. The question to the county council is, "Is the county council at this time supporting HELCO's proposal to rezone its land to allow HELCO to continue with its expansion project at the Keahole station after -the -fact?" I believe this matter needs to be fully discussed and not be allowed to slip into the general plan unnoticed and without debate. This is an important policy decision for the county council to make. I trust you will give this matter the attention that it deserves and the county council will exclude the Urban Expansion designation. Thank you. Yours truly, Michael J. Matsukawa MJM: j ff\017\todd-ttt.gp xc: Anthony Ching, LUC James Arakaki Curtis Tyler Christopher Yuen Cr °tl o. o CD a- �. � n o C < 0) c ccCD CD c 0 0 �� wooa ❑ ° °�• „ ° CD w v � �c�o�R� �NwM0 CD CD a IDo co o ° ?9 UQ <ro o�c' �(�yW °v�o o w .CDSM�uRc " -•0 CCwSo wCD0 2�"cD L � cwQon�. 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O �w Cr - fn O n `C w CD i (D i "CLQ M- U,Q P. -I . 0 O' M• D7 C1 eIr ::e '0 t�CIQ ■• O �•.� •,�O�n CO woS w �n. °oG'-p -Ji w °° CD <CD - CDMo Co p CD o 14 Cl 0D CWD p 1-11 ocDoow bo cID �0pO< ; 0 CD (D OCD CD CD O a' : 0 CCD' CD .eCQ ° ' VC rn �'. ry n O p� r•t eD w �e ° y �t r• 0. `� �• w " ... ,0.. w�'C N ' p. R A. Cp 6 — y ��, N .-. O' ,..y CD C7 r �, o. C Q w end cocDpW, CDDr CD °�oG�a yp C c CD =1 0-0-0 o o- CD p o` < O c�D m a C) = CDD � F o 0 p Io 0 Ozi w UQ •� �Z� � o wo C� ;��CD ° CD w P) oo = is o o. o o 0 C " °° o '^ C of oma° .,cDao cD�CCDD � +o" o 80.cD oCDao •�,o Mr. Christopher Yuen Planning Director County of Hawaii 25 Aupuni Street Hilo, Hawaii Re: Dear Mr. Yuen: MICHAEL J. MATSUKAWA Attorney at Law Territorial Center, Rob- 2,01 75-5751 Kuakini Highway Kailua-Kona, Hawaii 96740 Telephone 329-1384-" July 1, 2002 (VIA FAX: 961-8742 — 4 kgs./ORIGINAL BY MAIL) General Plan Ordinance (Proposed) Site G-6, HELCO Generator Station At the Kailua-Kona meeting, Mr. Hayashi said that the HELCO station was being designated Urban Expansion because of a ruling that the Planning Director made in 1994. However, even if so, in Civil 97-017K, the circuit court ruled that the area was Extensive Agriculture in 1999. This is the "law of the case" and HELCO did not object. Now we are being told that the county council intends to make this area Urban Expansion to accommodate HELCO's alternate, back-up plan to rezone its land for its proposal to expand the station. The back-up plan became a reality when the BLNR ordered HELLO to remove its site from the Conservation district on March 25, 2002. Meanwhile, we have not heard from the state supreme court on the question of whether HELCO has a valid entitlement under the Board's 3-2 vote in 1996 to deny HELCO's CDUA. It appears that the forces at work, including the supreme court's long delay, is forcing HELLO to pursue a rezoning action (as Keith Ahue, BLNR chair had recommended back in 1993. Thus, my clients feel that this issue has not had the public attention as did the Kohanaiki open designation proposal. I fear that this matter, G-6, is going to slip into the general plan without public notice and debate. It sets the stage for HELCO to rezone its land to industrial if it succeeds at the LUC. I do not know if you, with your background on this matter, truly endorse this idea when valid alternatives exist to the expanded proposal. I trust that you Mr. Yuen July 1, 2002 Page Two will investigate this matter and recommend the removal of G-6 from the LUPAG map. Thank you very much. Yo Michael J. Matsukawa c: Curt Tyler Ms. Leithead-Todd i•Iu��1:�1'� jpnNv.Ai..EE GOVERNOR OF HAWAII .��• STATE OF HAWAII ' 4 DEPARTMENT OF LAND AND NATURAL RESOURCES P. O. BOX 621 HONOLULU. HAWAII 96809 Hawaii Electric Light Company, Inc. 54 Halekauwila Street Hilo, Hawaii 96721-1027 Attn: Clyde Nagata Dear Mr. Nagata, KEITH W ^"UE. C�AJ.FEQSG-. BOARD OF UL.,O ANO NATURAL RCSC�nZET DEPUTIES -JOI,N P KEPPELEA. n DONA L NANAJKE AOUACLILTL'RE DEVELOPMENT AOUATIC RESOURCES BOATING AND OCEAN RECREAtION CONSERVATION ANO EAAfIfi )NME dTAL AFFAIRS CONSERVAT*N AND RESOURCES ENFOACEMENT CONVEYANCES FORESTRY AND WILDLIFE MSTORIC PRESERVATION LAND MANAGEMENT STATE PARKS WATER AND LANO DEVELOPMENT File No.: HA -487A .,ubject: Revised Draft Environmental Impact Statement for the Keahole Generating Station Expansion Thank you for revising the Draft Environmental Impact Statement and addressing the concerns raised in our July 1, 1993 letter to you. Since full disclosure is required for the document, we would appreciate your addressing the following concerns in the final environmental impact statement. - The outtoq .growth estimates ; hown in section 3.3.3 is based on figures available during the late 1g�0's. _ hli"""s period of extraordinary economic growth in the State and not reflective of current conditions. The most conservative projections of table 3-11 may be considered optimistic under present circumstances. (We note that several resort projects in West Hawaii have delayed their development schedule.) Assuming that the forecasted annual peak power demand shown in table 1-1 is based on population growth estimates of section 3.3.3, we would expect the projections to be lowered. The 9°lo etd incree gp. annul ftarecast p power dan.ci�. been 1 93 a 9� appears to be very high given current economic realities. It may be `useful ..... .. rt or+art ...,urr ... .7 to demonstrate in the appendik" iltc' fir d Y5 tfito forecast peak power demand. so, the statement on page 3-44 that the proposed expansion is consistent with the -date's land use classification is misleading A generator stat» a belongs. iii -the urban tst ct ..Th .exgsteatce.: Qi' the generator- station.in�anservat>on District is a result of unplanned historical c $cumstances. It would be appropriate to petition the Land Use Comm ss�o `t.o remove the parcel from the Conservation District. Please contact Don Horiuchi of the Office of Conservation and Environmental Affairs at 587-0381 if you have any questions. Vgq truly yours, Keith W. Ahue Chairperson cc: CH2M Mill OEQC [1 Warren H. W. Lee, P.E. Pvesfdent The Honorable Keith W. Ahue Chairman of the Board Department of Land and Natural Resources State of Hawaii 130 Kalanimoku Building Honolulu, HI 96813 Dear Mr. Ahue: Hawaii Electric Light Corr v, Inc. • PO Box 1027 • Milo, HI 96721-1027 December 8, 1993 I am writing about your September 20, 1993, letter in which you comment on the Revised Draft Environmental Impact Statement for the Keahole Generating Station unit addition. Hawaii Electric Light Company's consultant for the EIS, CH2M HILL, will be preparing a separate response to your comment letter. We believe our Revised Final EIS (EIS) and the responses to the comments on the Revised Draft will fully satisfy all legal requirements for your acceptance of our EIS. Acceptance of our EIS is a very important initial step towards satisfying the Island of Hawaii's 1995 electrical needs. Your acceptance is urgently needed in order to prevent rolling blackouts on the Big Island resulting from delays in completing future generating units when they are required. Your acceptance of our EIS and the Land Board's approval of our CDUP amendment, are two of the very significant approvals needed before we can proceed with the expansion of our existing Keahole generation plant. We need to have the next generating unit completed in mid-1995 when additional generation will be necessary. Uo other viable site has been proposed for new generating capacity in 1995, and the earliest date for which an independent power producer (IPP) has proposed new generating capacity is at the end of 1996 or later. We note that, very recently, an IPP proposing to build a 58 MW power plant on Department of Hawaiian Home Lands property near Kawaihae Harbor received a negative declaration for its EIS. Nevertheless, the IPP does not expect to have its generation unit completed until late 1996 or later. EX 181`91-A--.. a I FI Comoanv Ed LJ The Honorable Keith W. Ahue Page 2 December 8, 1993 Under these circumstances, we must not allow the residents of the Island of Hawaii to face the risks that would arise from waiting until late 1996 or beyond for power provided by an IPP. HELCO has learned, from the delays encountered by Puna Geothermal Venture, that the best -laid plans can go awry. So far, all of the IPPs with which HELLO has existing firm power purchase contracts have either encountered delays in developing their projects or have had unexpected periods in which they have ceased production. Especially in light of this experience, HELCO believes that it is in the public's best interest, first, to build the 1995 generation unit at Keahole, and, second, to plan for the following generation unit through concurrent planning by HELCO for a utility - constructed addition along with discussions with IPPs proposing units in that time frame. In this way, the public will have better assurances that a reliable source of generation, providing power at a reasonable cost to the consumers, will be available when it is needed. I would like to address the fourth paragraph of your comment letter, which states: "... the statement on page 3-44 that the proposed expansion is consistent with the State's land use classification is misleading. A generator station belongs in the urban district. The existence of the generator station in the Conservation District is a result of unplanned historical circumstances. It would be appropriate to petition the Land Use Commission to remove the parcel from the `Conservation District.' ' HELCO believes that the proposed expansion of the Keahole Generating Station should be permitted in this instance. This conclusion is based, among other things, on the following: HELCO constructed its generating station at Keahole in reliance upon a Conservation District Use Permit issued by the Board of Land and Natural Resources in December 1973. Subsequently, three CDUP amendments were issued by the Land Board in February 1984, February 1987, and September 1988. Since 1973, excluding operating costs, HELCO has invested more than $10 million in the Keahole Generating Station in reliance upon the CDUP approval and amendments granted by the Land Board over the last 20 years. We believe it would be unfair and unreasonable to now require HELCO to pursue the State Land Use and County rezoning approvalsefore undertaking the proposed expansion of the Keahole Generating Stat fon. a also believe that this would be very detrimental to HELCO and would prejudice HELCO's The Honorable Keith W. Ahue Page 3 December 8, 1993 investment and its ability under law to continue to provide the Sig Island's residents reliable power in a cost effective manner. As we had indicated to both Mr. Paty and Mr. Masumoto in mid-1992, if HELCO were to pursue the State Land Use and County rezoning approvals before proceeding with the expansion of the Keahole Generating Station, this could delay the project beyond 1995 and even for up to three or more years. Such a delay would not be in the public's best interest. 2. HELCO'S :current Application for an amendment to the CDUP was made f4Il wina _consultation with your predecessor, Sill Paty, in mid-1992, and in a separate meeting with Harold Masumoto, Director of the Office of State Planning, in mid-1992. 3. Since the CDUP amendment was accepted by DLNR in late 1992, HELLO has relied on DLNR's September 25, 1992 "Notice of Acceptance," which states in part that "The proposed use is a conditional use within the General Subzone of the Conservation District according to Administrative Mules, Title 13, Chapter 2, as amended ...." DLNR's staff report, dated January 21, 1993, to the Land Board for the initial hearing on the CDUP amendment restates the aforementioned finding. DLNR's staff report, dated September 1988, and the acceptance of the CDUP amendment HA -6/27188-487A, dated January 27, 1988, also makes an identical finding. In September 1988, the Land Board approved the 1988 CDUP amendment. HELCO has also relied on the direction provided in DLNR's finding add the �Ldnd:Board'approval of the 1988 CDUP amendment in pursuing tFe current amendment. 4. On the basis of the foregoing, the December 1992. Draft EIS, the June 1993 Final EIS, and the July 1993 Revised Draft EIS contained the statement that the expansion of the Keahole Generating Station "is consistent with ... the State's land use classification.... " . The comments in the fourth paragraph of your September letter were not previously raised in DLNR's draft EIS comment letter, dated January 21, 1993, or in either of DLNR's two July 1993 letters concerning the Final EIS (published in June 1993). DLNR staff also did not raise any; of the.. comments stated in the fourth paragraph .of your `letter in any of their meetings with representatives of HELCO acid/or CH2M t.4I1.L during -1992 and through September 1993. The Honorable Keith W. Ahue Page 4 December 8, 1993 5. Finally, we know of no reason to conclude that the present CDUP amendment for the proposed expansion of the power facility is not in conformance with all applicable statutes, rules, and standards relevant to the approval of the C®UP amendment. Mr. Ahue, without your timely acceptance of our Revised EIS, the residents and economy of the Sig Island may be again jeopardized by blackouts. We request your prompt action in accepting our EIS. Very truly yours, cc: The Honorable John D. Waihee, Governor, State of Hawaii Joshua C. Agsalud, Ph.®., Governor's Executive Administrator Harold Masumoto, Director, Office of State Planning Roger C. Evans, Administrator, Office of Conservation & Environmental Affairs, DLNR