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HomeMy WebLinkAboutCOM 0710.000 1996-1998 Nahekeaopono Ka`iuwailani AZLO/72Cy Clt LQW 56 Waianuenue Avenue • Suite 201 • Hilo, Hawaii 96720 • (808) 935-3385 • Fax 935-3389 2 February 1998 ~:iJ 1 ~ - _ i Councilman Dominic Yagong, Chair C~ Public Works Committee C;i Hawaii County Council ' 25 Aupuni Street Hilo, Hawaii 96720 Re: Helfant Property: Issues with Ha`aheo Sidewalk Project Dear Councilman Yagong, This is an urgent request that the Committee and the Council review as a matter of urgency the above-cited matter in order to effectuate a fair and equitable result and to avoid the expense and delay of litigation. Though you are familiar with the issues involved in the dispute, I will review them and the history of our attempts at negotiation, for the record. In October 1997, I was retained by David Benaroya Helfant, who owns the residence located at 667 Wainaku Street, to assist him in negotiations with the County. Mr Helfant considers Hawaii his permanent home, but is at present a resident of California, having had to relocate there to obtain treatment for his daughter's leukemia, which treatment has required athree-year stay in hospital and ongoing treatments and monitoring since. He has flown to Hawaii several times in recent months in efforts to persuade the Depaztment of Public Works to make minor modifications to the project design in front of his home, but he felt he needed local assistance with his efforts. Jiro Sumada told Mr Helfant that the Public Works staff were very offended that he had hired an attorney. They have been wholly uncooperative and intransigent in their opposition to any modification whatsoever. Mr Helfant only learned of the project shortly before work by the contractor was scheduled to begin. He and I both wntacted the responsible officials about the negative impacts of the project on Mr Helfant's property and proposed mitigation measures. In the face of our ongoing negotiations, and with no notice to Mr Helfant, bulldozers began removing earth from the embankments fronting the homes adjacent to Mr Helfant's. Upon discovering this, which was entirely serendipitous, I filed suit in the Circuit Court requesting a temporary injunction enjoining further excavation of the embankments until the disputed issues were resolved. Public Works, through their attorney Gerald Takase, then voluntarily agreed to suspend excavation along Mr Helfant's frontage pending negotiations, so I suspended action on my injunction request. The County is installing a sidewalk on the makai side of Wainaku Street in the vicinity of Ha`aheo Street, primarily for the benefit of the children attending Ha`aheo School who walk along that route. Mr Helfant approves and applauds that project, but objects to the proposed treatment of the frontage along his property on the mauka side of the street. All the neighboring properties along the mauka side of the street have two- to three-foot shoulders. The plans for the project as designed and approved by Public Works call for afour-foot shoulder in front of Mr Helfant's property only. When asked for an explanation of the dispazate treatment of Mr Helfant as compazed with his neighbors similarly situated, Public Works stated as their reason that the other homes were accessed by steps from the street while Mr Helfant's is accessed by a driveway. The embankment where Mr Helfant's home is situated is two to three times higher than those fronting his neighbors' properties, so steps would be impractical. Further, Mr Helfant's house is nearer the property line than are the houses on the properties adjoining his and t7uo~ ~ W. PSL 1l~. tom. ~+_.~.~i.~-v?P~C- ~.,.e FFR 5 Helfant 2/2/98 Page 2 those next door A drawing prepared by the County's own surveyors indicates that Mr Helfant's house is 7.95 feet from the property line. The roof overhang is even closer and will undoubtedly act as an amplifier for traffic noise. Mr Helfant is asking that the shoulder fronting his house be restricted to two feet, tapering to three feet toward the ends of his property, which is 180 feet long. The plans as accepted by the County also call for a sloped erosion wall that will be about lhrr_~ feet farther back towazd the house at the top than the bottom of the wall. This design will bring even more noise and pollution into the home, where the bedrooms face the street, and may not provide adequate lateral support for Mr Helfant's property. Mr Helfant has thus requested a straight retaining wall instead. Public Works asked Mr Helfant to submit design plans for his proposed alternative. Mr Helfant, himself an engineer, did submit such a drawing, in consultation with and approved by local licensed structural engineer John Callen. The County rejected the design, claiming that before they could approve it a soil study of the azea would have to be done. Such a study has already been done by the county and is on record with Public Works. Mr Helfant offered to compromise his request further by agreeing to accept as an alternative a wall design that is part of the project farther down the street, though he doesn't believe that wall is as good as the one he proposed, for which he offered to pay any additional costs. The plans also call for modifications to Mr Helfant's driveway that are acceptable to him. The design sketch submitted to him only days ago, after repeated requests by him, was unacceptable and no alternative has yet been offered. Public Works staff, and their attorney, have adopted the attitude that Mr Helfant's requests are aimed at his "trying to get more land" at the top of the wall, reducing the size of the County right of way. The grant of Mr Helfant's requests would not result in such as acquisition in that the County would still own the land and could, if the need arose in the future, take its full right of way for a widening of the road, though this would call for the condemnation of Mr Helfant's whole property as it would lose its value as a home site. In the alternative, if the County wanted him to buy that strip of land at the top of the wall, he would be happy to pay for it at the same rate as the County paid his neighbors for the strips of land they condemned for this project. Mr Helfant also offered in exchange for compromise by the County, to save the County money by allowing the land excavated from [he embankment in front of his house to be dumped on the adjacent flat portion of his parcel, thus avoiding the hauling and disposal charges that would otherwise be incident to the excavation. Mr Helfant has gone to great lengths and great expense trying to work with rather than against County staff on the issues of concern to him. He has made several trips here from California to meet with various officials and other staff on these matters, in addition to paying me to act and advocate on his behalf during his absence. With great reluctance, resistance, and resentment, Public Works staff have gone through the motions of looking at Mr Helfant's various proposals, but they have not changed their position. Bowing to your pressure to mediate the dispute, Jiro Sumada agreed to meet with Mr Helfant at the Ku`ikahi Mediation Center on Friday 23 January 1998. Mr Helfant Clew in from California for the meeting. After Mr Helfant was already here, Public Works determined that Mr Sumada, and even his Division Chief Galen Kuba, had more important things to do than keep their commitment, so they sent Ben Ishii to meet with Mr Helfant. Although Mr Ishii carried a letter stating that he had been delegated the authority to negotiate and make decisions, and although he stated, "I have my orders," he was clearly either unwilling or unable to negotiate, as he did not. Thus Mr Helfant had to prolong his stay in order to continue the mediation on Monday 26 January 1998. Jiro Sumada did attend that session, and did not budge from the positions he had taken previously. Clearly Public Works had no intention of actually negotiating anything, and merely went through the charade so they could say they had done as you asked. Helfant 2/2/98 Page 3 We have thoroughly exhausted all other avenues of resolution and have met only stubborn resistance and unreasonable objection to every suggestion for compromise. If this matter cannot be resolved at the Council level, our only remaining alternative will be the courts. If no other option remains, we will ask the court for a mandatory injunction based on equal protection of the laws (i.e. the County policy of "maximizing the shoulder width wherever possible" that is claimed as the justification for Public Works' refusal to treat Mr Helfant's frontage the same as that of his neighbors). We will also raise as an issue the adequacy of the lateral support provided by the proposed erosion wall. We should not be forced to that extreme. If the County had notified Mr Helfant and his neighbors of the proposed design, had given them an opportunity for input at the planning stage of this project, the kinds of issues being raised here could have been addressed and resolved before the plans were finalized and approved by Public Works and before the bid was let and a schedule of construction established. Whatever disruption to the staging of the project occurs as a result of the modifications requested here and the County's immovable resistance to them is a result of that fault in the planning of the project and not of Mr Hellant's request that his property be treated the same as that of his neighbors. Your assistance in achieving a just and timely resolution of this dispute is and will be deeply appreciated. Youts sincerely, / ~~Lfi~po~SR/- ~~L Nahekeao o Ka`' ailani Attorney for David Benaroya Helfant xc: all members of Council