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HomeMy WebLinkAboutCOM 1051.003 1996-1998 November 2, 1998 ? RECWM A` B Honorable Bobby Jean Leithead-Todd, Chairperson rn"° ''7-i ryy and Members of the Planning Committee Do}°_-'--"" O;'"-~~ nty P Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 RE: KAUPULEHU DEVELOPMENTS Change of Zone and SMA Use Permit Dear Ms. Leithead-Todd and Committee Members, My name is Bo Whittenton. I am a carpenter by trade. I also, along with my wife Marta, own a small jewelry business on Alii Drive called Pacific Gold. We started the business with the hope that West Hawaii will continue to grow in responsible, well-planned ways. This in turn would allow Pacific Gold to likewise benefit and prosper in growth. Kaupulehu Developments have spent considerable time and energy working with the community to present a project that is acceptable and will be a success for them and other businesses such as ours. We have many friends and other businesses who are suffering financially during these lean times. This development will bring much needed construction jobs and money into our community where it will revolve many times. My wife Marta and I, ask your support for the requested zoning and Special Management Area permits. Sincerely, BO and MARTA WHITTENTON Pacific Gold Jewelry Oamm. No. l D~l yJ F91e No. -2-NG/KIJ Presented PG Rat. Date MN 5 1998 a A Yes. After the Land Use Commission proceeding ended, on the south side of Kaupulehu ahupua'a, the landowner-developer started a dredging operation off-shore to provide a better swimming area for the Four Seasons resort. Maile David, on her own, brought an action to halt such activity until the cultural issues were addressed and resolved. Q What was the result? A The parties stipulated to stop dredging. Thereafter, I believe the Kona Hawaiian Civic Club and the Office of Hawaiian Affairs took over and asked the United States Army Corps of Engineers and the state of Hawaii Department of Land and Natural Resources to determine if the landowner-developer had completed a satisfactory review of the historical and cultural resources of the area in question. Q And what was the result of that effort? A The landowner-developer prepared a report directly addressing "traditional cultural properties" of the area, finding that a rocky point, among other things, had a value as a cultural resource. That is the Coalition's Exhibit 7. The significance of this report is it reflects an effort to identify, assess and evaluate cultural resources of an area and to propose means by which those resources should be preserved and protected. This gives the decision-maker a basis upon which to make a reasoned decision on whether to permit (and the extent thereof) the landowner- developer to engage in construction activity in a particular area. I believe this is exactly what the Coalition is asking the planning commission to do in this 7 instance. Q Thank you. I have no more questions. Others may have questions of you. A I will be glad to answer any questions. 8 WRITTEN TESTIMONY OF MAILE P. DAVID November 2, 1998 CON TESTED CASE HEARING ON THE APPLICATION OF KA'UPULEHU DEVELOPMENTS FOR AN SMA USE PERMIT AND CHANGE OF ZONE My name is Maile P. David and I reside at 78-6894 Mamalahoa Highway, Holualoa, Hawaii 96725. 1 was born and raised in Kona where my family lived, farmed and gathered in the ahupua'a of Keauhou. During my lifetime my family has also gathered resources from various ahupua'as along the Kona coastline from Pu'uwa'awa'a to Miloli'i. In my capacity as the duly elected Po'o for the District of North Kona of Ka Lahui Hawai'i, I offer the following testimony with regard to the Application of Ka'upulehu Developments for SMA and Change of Zone. 1. The elected legislative body of Ka Lahui Hawai'i unanimously voted to petition for and was granted standing in Docket No. A93-701 before the State Land Use Commission, In Re: Application For Bounday Amendment of Ka'upulehu Developments. 2. Ka Lahui HawaiTs interest in the LUC proceedings were premised upon directives set forth in its Constitution relating to protection of its citizens' rights to: a. practice traditional native Hawaiian religion or beliefs; b. access the mountains, caves, seas and sites of religious and cultural importance for personal, subsistence, religious and cultural purposes, and c. gather, harvest, cultivate and propogate for subsistence, medicinal, cultural and religious purposes. 3. The directives above are consistent with native Hawaiian interests which stem from the Act of 1850 (Section 7-1, HRS), custom and usage (Section 1-1, HRS, state constitution, art. XII, Sec. 7) and the ceded land trust (resolution of annexation, Organic Act of 1900, Hawaiian Homes Commission Act of 1920, Admission Act of 1959, state constitution, Art. XII). 4. Prior to Ka Lahui HawaiTs intervening in the LUC proceeding relating to Ka'upulehu Developments, its Motion to Appear as Amicus Curiae was granted in the Public Access Shoreline Hawaii v. Hawaii County Planning Comm'n, No 15460, Hawaii Supreme Court (1993) to assert the rights of native Hawaiians in that proceeding. 5. At the LUC hearings Ka Lahui Hawai'i argued and introduced into evidence, testimonies of various witnesses and supporting documentation that Applicant: a. failed to adequately identify and inventory all cultural resources located within the project area; and b. failed to conduct any type of ethnographic study to determine what cultural activities exist and to what extent these activities are traditionally practiced within the project area which the proposed development may impact upon. 6. Intervenor witnesses and cultural experts during the LUC hearings proved that Applicant's Final EIS did not satisfy Applicant's duty and obligation to adequately identify all cultural/historical resources and thus could not possibly address impacts its proposed development would have upon yet unidentified cultural and historical resources. The FEIS merely listed items which were archaeological in nature. 7. Applicant's IRMP on file with the Commission is the result of the above showing and although very comprehensive and well prepared, fails to demonstrate how it determined that the development does not adversely affect cultural resources located outside as well as within the established subzones. 8. Mitigation measures and treatment of cultural resouces outlined in the IRMP suggest that impacts of development upon resources located within the established subzones as well as outside the subzones have already been determined and are consistent with guidelines set forth in Section 205A-26, HRS when in actuality these impacts have not been determined 9. As an intervenor in this proceeding it would not be appropriate to suggest methods or criteria by which potential impacts upon cultural resources can be measured when in fact there are laws already in place and judicial rulings which mandate government agencies to create such mechanism by which these impacts can be measured. 10. Until such mechanisms are in place, to go forward on a case-by-case basis will further complicate and create an obstruction in processing future Applications before governmental agencies, to the detriment of the native Hawaiian community, the general public, landowners and developers. 11. The objectives and policies as set forth in Section 205A-2(c)(8) require that a public advisory body to identify coastal management problems and to provide policy advice and assistance to the coastal zone management program be maintained. Until this policy and objective is met, we recommend that no action be taken on Ka'upulehu Developments Application. Kohanaliki `Ohana malama Ijapai'i WRITTEN STATEMENT by Karen Foff November 2, 1998 before the County of Hawai'i Planning Commission on the Application of Kaupulehu Developments for an SMA Use Permit and Change of -Zone My name is Karen Eoff. I am representing the Kohanaihi 'Ghana. The Kohanaiki `Ohana is a non-profit community based organization centered in the district of North Kona on the island of Hawaii whose aim has been to protect the natural resources at Kohanailzi and other ahupua'a within the Lands of Kekaha. Our members, both Hawaiian and non-Hawaiian, have a substantial interest in the use, enjoyment, and impact of the proposed development on themselves, their immediate family and generations to come. We formed in 1991 to support Angel Pilago in his case against the Hawai'i County Planning Commission with regards to the impacts the proposed development at Kohanaiki would have on the traditional and customary practices of native Hawaiians. The Kohanailei 'Ohana was granted standing as amicus curiae in this case when it came before the State Supreme Court. Post Office Box 4753 • Kailua-Kona, Hawai'i 96745 • Tel (808) 325-6175 • Fax (808) 325-6322 P,nI,d - R,C ,I,d P,p,, -2- The Kohanaiki case, Public Access Shoreline Hawai'i and Angel Pilago v. Hawaii County Planning Commission and Nansa~LHi. began as an issue of 'standing" and became a vehicle to explore the dutys and responsibilities of our governmental agencies to address cultural impacts before issuing permits for large scale developments. After 8 years and several court victories, we find ourselves back full circle to the Hawai'i County Planning Commission"'Tt has been affirmed that the state of Hawai'i and all agencies of the State have a unique and particular responsibility to protect the traditional lifestyle and rights of the Hawaiian people, to maintain, perpetuate and when possible restore cultural values, resources, and practices. As a member of Ka Pa'akai o ka 'Aina, and in the spirit of working with broad coalition of diverse groups, we are compelled once again to ask this Commission what changes, if any, have been implemented. In the Kohanaiki Decision the Supreme Court scolded the Hawai'i County Planning Commission and Nansay for the "cultural insensitivity" they demonstrated in refusing to acknowledge legal standing for Native Hawaiians attempting to protect subsistence, cultural or religious practices. The Court has now established that such "standing" must be recognized and reminds all government agencies they have an enforceable duty to protect and preserve traditional rights. This obligation carries the implicit duties to investigate their existence, explore ways to protect them, and take affirmative steps to protect them. In the L.U.C. proceedings we were told by the chairman that we are indeed at a "crossroads" in land use decision making policies. We were assured that the County would be the proper place to iron out our concerns. In 1987 the Hawai'i County produced a plan for assessing cultural impacts. This was a good start, but never was implemented. We see some new Special management area guidelines suggested to maintain an advisory body for the CZM program. This would be another step. -3- It is our opinion that the IRMP produced by the developer is a detailed historical document but does not provide a mechanism. In the absence of any mechanism or rules for which to determine how developments of this scale impact cultural traditions and resources, and until new policies are in place and objectives of section 205 A met, we suggest that the county deny action on this application. kiana Buivaiian (~iilir Cub f, J WRITTEN STATEMENT by Leimana DaMate November 2, 1996 before the County of Hawai'i Planning Commission on the Application of Ka'upulehu Developments for an SMA Use Permit and Change of Zone Aloha, my name is Leimana DaMate and I represent the Kona Hawaiian Civic Club. The Kona Hawaiian Civic Club is a non-profit organization founded in 1952. We are centered in the heart of North Kona on the island of Hawaii. Our purpose, as stated in our Constitution and By-Laws is to "...actively participate in the promotion and perpetuation of long-held traditional Native Hawaiian attitudes and values that dignify all human life and that are the moral and ethical underpinnings of our cultural expressions that comprise a unique, rich and enduring legacy of the first people of Hawai'i nei that is commonly acknowledged and appreciated by all the people of both our beloved islands and of our great nation". Our objectives are "to promote the theory and practice of the principles of good government and good citizenship; to take an active interest in civic, economic, social, health and moral welfare of our community and, particularly, the activities of those agencies and organizations who are responsible for the improvement of the conditions of the people of Hawaiian ancestry and to support programs of benefit to them and to the community at large. This interest will be pursued with a commitment to and a sensitivity for the traditional cultural values and assets of the Hawaiian people and our culture". P.O. Box 4098, Kailua-Kona, Hawaii 96745 kZ ulia 31 Na tiuu In keeping with our objectives, we have been active in this issue by participating in the L.U.C. proceedings opposing the Ka'upulehu Development request for a change of zone. We continue to oppose this developments application for a change of zone from the district classification of Open to the district classification of Project District for approximately 1,080 acres of land and for a Special Management Area Use Permit to allow for a resort residential community at that same location on the ahupua'a of Ka'upulehu. The developer has submitted an Integrated Resources Management Plan (IRMP) which is a detailed document of the history of Ka'upulehu. In its introduction, the IRMP states that "some of the traditional practices associated with Hawaiian culture are no longer observed, they live on in legends and chants and in the stories (mo'olelo) of the kupuna, the elders". We disagree! The Hawaiian culture is a living, breathing, constantly practiced culture. Our traditional practices are constantly in use. We know what our culture is, and who we are. The IRMP, while admirable, does not accurately define the Hawaiian culture. Rather, it is a developer's interpretation of a host culture that is molded to fit a development. The IRMP addresses management and identification of resources according to their interpretation. They have not factored in tha ::-pact of this development on a living breathing culture. There is no methodology in the IRMP, nor is there an enforcement plan. In 1996, the Kona Hawaiian Civic Club successfully initiated a federal lawsuit regarding dredging at Ka'upulehu, against the U.S. Army Corps of Engineers and Hualalai Development Company. The focus of this suit was to protect the shoreline from dredging and to protect our natural resources. A result of this suit was a Cultural Resource Management Committee created to implement a similar integrated resource management plan. The Hualalai Cultural Resource Management Committee, as a part of their resource management plan, promised that the shore and its resources would not be affected by the presence of a golf course. Our people have stated, as recently as a month ago, that the opihi and limu are polluted in front of and along the coastline of the Hualalai Resort, Ka'upulehu Development's neighbor. Our gathering has been deeply affected. 2 - In the Ka'upulehu Development Integrated Resource Management Plan Introduction, it is stated that " The Ka'upulehu Resort Expansion project is envisioned as a residential/recreational development which will complement the resort and residential land uses ofthe neighboring Hualalai," and further states, "the project will share infrastructure with Hualalai", and will include "approximately 530 single-family residential units and 500 multi-family residential units. It will also include a 36-hole golf course with a golf club house, 11 acres of commercial development, a Resident's Club, and appurtenant infrastructure. Again, there is no methodology or enforcement procedures in the IRMP. How can we be sure there will be no adverse impacts on our cultural gathering when the IRMP states they will "minimize" impacts on the groundwater aquifer and nearshore water quality, but cannot assure us there will be no impact. Hualalai also assured us there would be minimal impact, but the opihi and limu cannot be eaten or gathered. The IRMP states they will "limit" the use of fertilizers and pesticides on the proposed golf course, but they cannot guarantee it. The examples shown above illustrate just some of the areas in the IRMP that we feel are defective. It is our opinion that since there are no rules for which to determine how developments of this scale impact our cultural traditions and practices as well as our resources, and until there are published rules and policies in place, we cannot chance the destruction of the cultural and natural resources, including open space and lava flows, We respectfully request that the County deny action on this application. 3 - WRITTEN STAT M NT of Hannah Klhalant Springer Kukui'ohiwai, Ka'upulehu October 16, 1998 before the COUNTY OF HAWAII PLANNING COMMISSION on the Appficalion of KA'UPULEHU DEVELOPMENTS for an S.M.A. Use Permit and Change of Zone Aloha mai kakou I request deferral of the applications by Ka'upulehu Developments for a change of zone from the district classification of Open to the district classification of Project District for approximately 1,080 acres of land and for a Special Management Area Use Permit to allow for a resort residential community at that same location at the ahupua'a of Ka'upulehu. Our children are the sixth generation of our family to reside at Ka'upulehu, in the uplands at Kukui'ohiwai, a privately owned parcel. From 1888 to 1960, our family held the Bishop Estate lease on this property. Prior to that and into the wa mamao we lived at Kukl'o immediately adjacent. We continue to gather salt from Kalaemano and consider the walk across the so called 1800 lava flow, a walk through the dominion of the gods. As a "practitioner", the abscence of archaeology speaks as clearly as its presence. And it says, "Dominion of Gods. Not men." The natural, geophysical resources are also cultural resources. I participated in the contested case before the State Land Use Commission addressing this same property and am among those awaiting the decision of the Hawai'i State Supreme Court on the appeal of the LUC decision. Though lawful, it seems a fracturing of sequence, to begin this County process before the State process is concluded. Serious questions were raised in the State case regarding the collection and analysis of data, particularly with regard to the evaluation of impacts to culture Iri-this case Hawaiian and of Ka'upulehu in particular. What new rules or protocols have been duly authorized and adopted to afford confidence in this process to properly evaluate impacts upon traditional and cultural practices as expressed at Ka'upulehu? As was noted by then LUC Chair Alan Hoe, the Kohanaiki / PASH decision raised more questions than it answered with regard to the land use application and permitting process as it relates to traditional and customary practices. The case presently being appealed before the Hawaii Supreme Court, may nudge us towards some of those much needed answers. In this county, a new rule germane to the process requires citizens to apply for intervenor status and pay the attendant filing fee before the first hearing of the issue before the County Planning Commission. The questions of data collection and analysis remain unanswered. A well reasoned and prepared Integrated Resources Management Plan has been provided by the applicant. However this addresses the management of resources which they have self-identified and validated, not the systematic analysis and evaluation of impacts to cultural resources and practices. Awaiting the decision of the Hawai'i State Supreme Court will not only allow for logical sequencing of permits, but may also contribute to a more sound framework for data collection, analysis, evaluation and subsequest decision making. E oluolu mai nei, defer decision making on this issue until the Court's decison is rendered. WRITTEN STATEMENT of HANNAH KIHAIANI SPRINGER KUKUI'OHIWAI, KA'UPULEHU November 2, 1998 before the County of Hawai'i Planning Commission on the Application of KA'UPULEHU DEVELOPMENTS for an SMA Use Permit and Change of Zone Me Ka Ha'aha'a 1 My name is Hannah Kihalani Springer. 2 1 live at Kukui'ohiwai a privately owned parcel in Ka'upulehu. The mailing address is 72-3403 Mamalahoa Highway * Kailua, Kona, Hawaii Hl 96740. 3 Our family has lived at Kukui'ohiwai since 1919. 4 My direct ancestors are buried at Hu'ehu'e, Makalawena. 5 1 was born at the Kona Hospital on March 10, 1952. 6 Among my early memories is trekking out in the mawae pele of the Ka'upulehu lava flow to see the olivines in the lava there. The gabro and dunite inclusions associated with this flow are of interest of geologists today. 7 This flow surrounded Hinakapo'ula. Hinakapo'ula is a named wahi pana (Kumu Pono Associates, May 1998. Pg 31). 8 This flow emerges from the cloud and dry forests, the dominion of Kumokuhali'i. 9 Kuka'ohi'alaka is known from Pu'u Honua'ula near to the summit at Hainoa (Kumu Pono Associates, May 1998. Pg.32). 10 The southern margin of the Ka'upulehu flow is V a lava. The lava crept along, kulipe'e, moving like "an old woman", creating the jumbled flow front that we cross when coming to Kalaemano from the hema side. 11 Pole came from the inlands, hungry for the awa from the ponds at Kiholo and Ka'upulehu (Kamakau, 1961. Pg 184). 12 Archaeological features on this flow are few. 13 Archaeological features are the signature of our ancestors' presence on the land. 'The absence of our ancestors' signature upon the landscape speaks as clearly as the presence of their signature upon the land." (Kumu Pono Associates, May 1998. Pg. 96) This flow Is wao akua, a region of the gods, as compared with wao kanaka a region of rnEn. 14 Natural resources are cultural resources. The natural landscape is the cultural landscape. This lava flow is a cultural resource. 15 Appendix A (Kumu Pono Associates, May 1998) presents a collection of data. 16 An objective of Appendix A is to "assess the effect of the project on the significant (cultural or historic) sites". 17 Information on Hinakapo'ula, a wahi pana, and an informant's opinion on wao akua were presented in Appendix A of the Integrated Resources Management Plan (IRMP). 18 No assessment methodology is presented in either the IRMP or Appendix A. 19 The IRMP offers mitigative and interpretive treatment of certain types of cultural and historical resources. 20 In the IRMP discussion of "Sites associated with native Hawaiian religious and ceremonial practices" for both Subzone B-2 (IRMP, June 1998. Pg. 57) and Subzone B-3 (IRMP, June 1998. Pg. 61) indicates that "None were identified." 21 A wao akua was identified during data collection but not assessed for significance. 22 A wao akua was identified during data collection but the potential impacts upon it were not assessed. 23 The work is inadequate. Exhibits to be Copied/Exchanged 1. Testimony of Dr. Naleen Andrade Land Use Commission Exhibit C-104 and Transcript of Testimony 2. Testimony of Jon Matsuoka Land Use Commission Exhibit -118 and Transcript of Testimony 3. Selected Exhibits of Coalition from Land Use Commission which are not considered "laws and rules"' 4. Exhibit No. 7 (Rosendahl May 1996 "Potential Traditional Cultural Properties" As discussed at the Friday, October 30, 1998 meeting, the Coalition intends to use only a small portion of the exhibits. The Coalition will file a revised or amended exhibit list for the benefit of all parties.