Loading...
HomeMy WebLinkAboutCOM 0853.058 2010-2012 RLs. 2 Testimony by James Waugh submitted to Hawaii County Council at its meeting of November 213`,2012. , -. These comments are directed, in the main,to testimony by Chris Yuen to Council at its meeting of November 9th, 2012. At one point in his written testimony, Mr Yuen writes: Yuen: "The remainder of this written testimony deals with side issues the property owner has raised, especially in his Oct. 16 presentation. None of these are [sic] directly affect whether the Council should authorize the purchase of this easement." Far from being"side issues the property owner has raised"the property owner's testimony has been strictly directed at the"facts"presented in the 27 Whereas clauses which form the substance of the Resolution itself. If these"facts"are now relegated to being"side issues"by the person who drafted the Resolution and included them in it, the Resolution itself is clearly without substance. My position all along has been that if the"facts"presented in the Resolution are in error,the Resolution is without substance. Mr Yuen obviates the need for this proof by his simple admission that the Whereas clauses are side issues. I note to you that the entire Resolution could have been reduced to: Whereas Jim Waugh built a perfectly good trail to the beach at Papaikou, and Whereas the County covets said trail, Be it resolved that. . . . I don't dispute that the County Council has the power to do this under Hawaiian law. However,with great power comes great responsibility. That responsibility extends to considering the law and the facts of a case,not just to raising a finger to determine the direction of the wind. That responsibility also extends to finding a process and a solution that heals the human conflict underlying the present situation. This Resolution and the politics surrounding it actually exacerbates the situation. Mr Yuen responds to what he now calls "side issues"by introducing more slipshod "evidence". (1)Road vs.flume. With respect to the photographs Mr Yuen introduced to Council on November 9th "that depicts a road", the sugar factory in 1878 consisted of not one but several main buildings which were serviced by a ramp connecting them with each other and with a purpose-built wharf. The factory was gravity fed with cane being brought into the top buildings by flume, and refined sugar coming out of the bottom buildings and being delivered to boats at the wharf. Equipment brought in by boat to the wharf was hauled up the ramp and into position in one or another of the factory buildings. Mr Yuen's photographs show a ramp connecting the several factory buildings, not a road connecting to the (distant) County road. The sugar factory at this time was a self- contained enterprise with no need for roads. Other photographs of the same date,conveniently neglected and not presented by Mr Yuen, show the ditch and elevated flume lines running from the factory,on up the hill,right where Lyon's sketches show them to be. These same side-view photographs show no road at all. Mr Yuen's speculation"it is only logical"is not evidence. As far as I am aware,wishing a road into existence does not meet the criterion required for inclusion under the umbrella of the Highways Act. Comm. No. 81-3. cg Ref. To: CiaAjacIL Ref. Date NOV 2 1 2012 2 With respect to Mr Yuen's new map dated 1915 and showing Mill Road,it is some 23 years too late for inclusion under the Highways Act umbrella. If Mr Yuen knew and understood his history,he would also know that in 1910(five years prior to this map),the railway was extended out from Hilo to Papaikou and a train depot opened near the present location of Pinky's store. This marked the beginning of rail shipments to the plantation, shipments which would, over the course of the next decade, culminate in the ocean landings at Kihapai Point and the plantation's wharves in Kapue Stream being abandoned,completely replaced by rail transportation. In 1910 there would have been a sudden need for a road extending from the factory buildings up to the new rail depot. Conveniently,the flume line and ditch shown on Lyon's sketches of 1878 were finally replaced by a new lower-level flume line ca. 1898, and by a buried pipeline bringing the water(formerly run in the open ditch) to the sugar factory under pressure to drive the more sophisticated equipment installed in the factory about the same time. Once the space occupied by the earlier above-ground flume and ditch was freed up,this linear corridor found use as. . . a road, Mill Road. [See Whereas#5 and my testimony and PowerPoint presentation on October 16 regarding this clause.] (2) Permissive use of Mill Road. With respect to permissive use of Mill Road, the plantation closings occurred where their road networks met public roads. By closing at these locations, they effectively shut down all access to their lands. The closings were not done to protect the roads;they were done to protect the entire property which lay behind the point of closing. Had they been done to protect the roads only, we would have seen closings at either ends of roads and at intermediate locations where access might occur along the way. This is not what was done. Mr Yuen fails to understand the purpose of the plantation closings. Signatures by the Estillore brothers and by Eulalio &Teopista Tulang, despite the easements claimed by Mr Yuen to have been in place on Mill Road by that time,indicate not only their acceptance of the plantation's rights in its land,but also a better understanding of the purpose of the closings—the protection of rights in the entire parcel of land closed,not just the road—than is shown by Mr Yuen. [See Whereas#15 and my commentary on October 16 regarding this clause.] (3)"Disappearing"beach.[See Whereas#1 and my Testimony on October 10 and 16 regarding this clause. Mr Yuen adds nothing new to the discussion. Mr Yuen seems to be practically religious in his expressed belief in anthropogenic global warming,and yet in the same breath scoffs at the validity of 150 years of detailed sugar company records. Those records, made by people with first-hand experience of what was happening on this site,and with no axe to grind,are far more worthy of consideration.] (4)Property owners' [sic] need to use the trail. Mr Yuen clearly does not understand the extent of damage which would be done to the"trail"by the demolition of the remaining factory buildings, and the extent of reconstruction which would be required after the factory demolition was complete. Any incentive the property owner might once have had to reconstruct this road to access his lower level agricultural lands would be effectively removed by the creation of an uncontrolled and unmanaged public access, as this Resolution proposes. The prospect of continuing and even increased vandalism and theft on this portion of the site would be too great to warrant the enormous cost of reconstruction. [see Whereas#15&#16 and my Testimony on October 16 regarding these clauses.] 3 The unprecedented aspects of the Resolution: At another point in his testimony, Mr Yuen argues that the use of eminent domain for this case is "normal"and entirely justified. As examples,however he provides nothing more than cases which are the normal meat of eminent domain cases: the construction of public roads,public utilities,and public buildings. He does not even give examples of the use of eminent domain to acquire beach access(although there are some). But those beach access examples that might have been available to him are all cases where there was no beach access prior to condemnation. The eminent domain process was used to create a trail where previously there was none,only a fence and a keep out sign. What is unprecedented in what this Resolution proposes are at least the following three things. I welcome Mr Yuen providing real examples of each in case law to show that they are entirely "normal"; to date I have been unable to find any examples myself: 1) Forced abandonment to the public of our lands by effectively preventing our compliance with Federal and State closing laws through the condemnation of what has so far been claimed in public to be a 24/7/365 easement. Under Hawaiian law,abandonment results in forfeiture. If,instead,the intention of the Resolution is to allow the landowner to continue his regular schedule of closings, the Resolution provides nothing that is not already available to users and does nothing to address one of the major complaints against the landowner that has resulted in this Resolution being brought forward. This(forcing a landowner to abandon his property rights)is an unprecedented use of eminent domain. I know of no examples. 2) Taking an access which is already freely provided by the existing owner. The County has presented no evidence to the effect that it would provide better stewardship of the property than is already provided. Indeed, in proposing to take only an easement, the County is presumably expecting the present owner to continue to care for the property,an expectation that will not be met. As well,the County has presented no evidence that it will actually provide increased access or access that is in any way better than what is currently provided. If it does make improvements to the access, the County may be forced to make the access comply with the requirements of the Americans With Disabilities Act. As well, the County's own rules for beach parks are, in fact, more extensive and more restrictive than the rules currently applied by the present owner. The County could claim to provide"better"only if it also shows conclusively that it has no intention to enforce its own rules. In addition,because of the special circumstances of this situation,the County may well be forced to actually reduce the access presently available. This (taking something that is already freely provided and then merely continuing to provide it but to a lower standard)is an unprecedented use of eminent domain. I know of no examples. 3) Taking an improvement with the intent of simply continuing to use the existing improvement. The condemnation and eminent domain processes are typically used to acquire land so that it can be put to a use not already provided. This frequently means that the authority using eminent domain will make an improvement after acquisition, such as building roads or running utility lines. Or the authority may transform the use,for example flooding the property behind a hydro-electric dam. The fact is that there are several other parcels of land across which the proposed easement could be taken, 4 and one of those parcels is currently for sale. In each of those other cases, the route is across raw agricultural land and the County would have to build a trail once the land was condemned. All are very similar to the appearance and condition of the taking proposed in the Resolution, prior to the construction of this trail by the present owners, and all are better situated in terms of County- approved vehicle access and the provision of the necessary parking. The Resolution proposes to take this land not because it simply lies between existing public roads and the ocean, but explicitly because the property owner has already built a trail. The proposal is approximately equivalent to the ridiculous example given earlier of the County taking an easement through the lobby of the Palace Theater and into and including the seating area of the theater. The County, if it saw theater- going as a public good it wanted to support,would be uninterested in that parcel if the theater were not already built. The County would be uninterested in the easement proposed in the Resolution were the trail not already built by the property owner. The Palace Theater example seems ridiculous to us because it would never happen:it would be unprecedented and unreasonable use of government authority. It might happen in Cuba or Russia, but not in the USA. This is an unprecedented use of eminent domain. I know of no examples.