Thursday, December 10, 2009

Musings: Hope Springs Eternal

Just before getting out of bed this morning, I saw a falling star through the skylight, which motivated me to get up and out, where Orion was preparing to set behind a clear-topped Waialeale.

It was dark, very dark, giving the appearance of being much earlier than it was, and as my neighbor Andy and I walked along the road, with four dogs between us, the eastern sky brightened, some clouds over Lihue turned peachy and it was evident it would be another glorious day.

The beauty of the past few days made it hard to want to spend Tuesday morning at a planning commission meeting, where the room was so cold that one staff member donned a fur-trimmed parka.

But I went because a petition to revisit the approval given for Joe Brescia’s house atop burials at Naue was on the agenda, and since I’ve been following this story for quite a long time, I figured no sense stop now, even though it's been rather heart-wrenching process.

Attorneys from all sides were there to argue their case. At one table sat Harold Bronstein, Camille Kalama and Alan Murakami. At another sat Walton Hong and Cal Chipchase. In the middle sat deputy attorney Mauna Kea Trask and planning director Ian Costa, who had recommended that the commission reject the petition.

The line up of players alone spoke volumes.

I won’t go into all the details here, even though they’re interesting, because I'm pressed for time and they’re all written up in my story in The Hawaii Independent. And if you’re interested in the issue, or plan to comment here, I hope you will read it, as it gives more background and context.

But the gist of it was that Mauna Kea was telling the commissioners all the reasons why they shouldn’t do anything, although one in particular was repeated often:

“He [Brescia] will sue you. It will amount to a taking and there will be considerable damages involved, and that’s a matter of fact.”.

He also offered a reason that might have been made up: they were bound by Judge Kathleen Watanabe’s court order, and couldn't go against it. He insisted they were, even though Harold, Alan and Camille said they were not, because the county had never been a party to the suit that Native Hawaiian Legal Corp. filed against Nancy McMahon and the State Historic Preservation Division, and so couldn't be held to an order resulting from it.

But the commissioners never asked their own attorney to clarify, most likely because they wanted a way out, and Mauna Kea was giving it to them, with his reassurances that they had done their duty and any fault in the matter had been the state’s and not theirs and if they took no action it would be appealed to the higher courts, anyway, and that, he said, is as it should be, because that’s where the case belonged, since the role of the Burial Council and the extent of its powers needed to be clarified legally.

And besides, he kept saying in various forms and fashions, to do otherwise would be messy and expensive:

“The house is up,” Trask said. “It’s painted green with white trim. The windows are in. If you’re gonna revoke this permit you gotta be prepared to buy that house for however many millions that will take because it will be a taking. Let the courts decide this.”

When it came time to deliberate, commissioners didn’t go into their usual executive session, but shared a few awkward moments of silence, followed by minimal comments. I was interested in what Chairman Jimmy Nishida had to say, and finally he spoke:

”I don’t think anybody likes the idea of this house being built there,” he said, and my heart leapt.

But then he kept talking, telling the commissioners:

“You’ve gotta vote your conscience, but get all these issues of private property. Sometimes you sit on a commission and you make decisions you just don’t want to do.”

And my heart fell, because I knew then how he was going to vote, and that I wouldn’t like that expression of his conscience.

Only Commissioner Herman Texeira said no, he wouldn’t go along with the planning director’s recommendation:

“It seems the developer knew what the situation was. He went into this with his eyes wide open and then seemed to deliberately circumvent what was on the land.”

Then it was over, with the usual stunned, sad silence that always seems to follow any action, or more accurately, inaction, in this particular long-running matter, until one person in the audience broke it by calling out, “Shame!”

“You didn’t really think they’d do anything, did you?” asked an incredulous friend, who is also a veteran commission watcher, when I called to report the results.

Well, yes, I confessed, I did. Hope springs eternal.

Because surely, there's gotta be a way out of this. As Jimmy said, nobody really wants that house there atop all those burials. It's costing Brescia a fortune in legal fees, and what's the likelihood, anyway, that he'll be able to sell it?

So why, I keep wondering, does it keep going? Why does everyone keep passing on the issue, instead of risking the lawsuit, buying the house, taking a stand? How did it turn into this seemingly unstoppable runaway train, with people -- even those in positions of power -- joking about how the waves will one day take it out if someone doesn't burn it down first?

Jimmy said he wasn’t sure the Burial Council was really equipped to handle something like Honokahua — the massive burial disruption on Maui that prompted the burial treatment laws — and he thought it was likely that a similar situation existed up there at Naue, with burials crisscrossed through all the dunes that are now being filled up with houses.

Maybe they are equipped, and maybe they aren’t. But surely they aren’t if the other bodies that are supposed to work with and support the Burial Council, like the planning commission, keep cutting them off at the knees.

Who knows. Maybe this case will end up going all the way to the state Supreme Court, as Mauna Kea suggested, and the question of the Burial Council's authority will finally be resolved.

Who knows. Perhaps by that time Mauna Kea will have had his fill of the county and he'll be arguing the case himself -- on the Burial Council's side.

Hope springs eternal.

55 comments:

Anonymous said...

"He insisted they were, even though Harold, Alan and Camille said they were not, because the county had never been a party to the suit that Native Hawaiian Legal Corp. filed against Nancy McMahon and the State Historic Preservation Division, and so couldn't be held to an order resulting from it."

Just because you are not party to a lawsuit doesn't mean you don't have follow an order of the court.

Anonymous said...

Excellent point per the burial council. Their role and decision-making abilities have become the big question in this case. If their role was clearer, perhaps this would not drag on so long?

Anonymous said...

" doesn't mean you don't have follow an order of the court."
December 10, 2009 12:38 PM

The point is: It WAS NOT an order of the court that Brescia be allowed to proceed. Watanabe even stated that Brescia will proceed with construction at his own risk.

I think this should go to the Supreme Court. Why stop now is right.
To suggest M. Trask be in position to argue the case was very ʻcharitableʻ but I would like to see a win. Donʻt think he could deliver.

Anonymous said...

"But the commissioners never asked their own attorney to clarify"

-- mmm, one would think they know pretty well what a takings is, the concept of reasonable reliance, basic property rules, etc...even just recently in koloa they got a pretty good refresher


"the role of the Burial Council and the extent of its powers needed to be clarified legally."

-- sure would help. wonder if the ambiguity is deliberate, or just sloppy statutory drafting


that trask person does not seem very smart. it would have been an expensive takings a long time ago, prior to paint and windows


“It seems the developer knew what the situation was."

-- find out when the guy bought the property, then get his email records starting about a year prior up to recent times. i bet you there is evidence of notice in there that is not privileged. easy stuff, even for lazy lawyers


this plus the beach path thing so close together prob pisses off many


dwps

Kawahine a Kamohoalii said...

Your vote was appreciated Mr. Texeira...the other commissioners have no balls. Fear of a lawsuit seems to be the underlying reason for many decisions made by them. Brescia merely played the County and State and they come out looking like fools, while this absentee landowner/speculator gets what he wants (demands) at the expense of kanaka maoli and na iwi kupuna.

Ian, Imai and Mauna Kea will have to somehow reconcile their actions regarding Naue and the bike path with their own iwi kupuna. As Planning Director, Ian is a disgrace. He has lost any sensitiviy he might have had to his kanaka heritage and he has learned to play the game all too well. Imai, with no education and/or experience as a planner is another Ian in "training".

When all our cultural sites are built over and westernized, we can thank some of our fellow kanaka's for assisting the haole in that desecration. Auwe!

Anonymous said...

The Hawaiian elected and appointed officials have sold out. Brescia's Planning Commission hearing was the icing on the cake. I wonder how much they are getting paid (from the special interests)? Mayor Carvalho will feel the wrath of these Hawaiians' actions.

Anonymous said...

stop complaining, read the law, if you don't like it, CHANGE IT.

Anonymous said...

"Abandon All Hope, You Who Enter Here"

That should be a sign on all incoming airport ramps directed to aging hippies and other bleeding heart libs hoping for Hawaii in general, and Kauai in particular, to be their "last stand".

It is melting faster than the polar bear's ice flows.

Anonymous said...

Or, how about "Arbeit Macht Free" (Work Brings Freedom) as that sign?

Work hard at your "local" initiatives and they will come about.

Right.

That sign was over Auschwitz.

Your fate is sealed...only a matter of time and it will "go up in smoke".

Anonymous said...

What do you suppose will happen if a citizen went through the process to build a house, the county told the citizen he had successfully met all the requirements and that he was good to build, the citizen relied on the county's assurances and spent maybe a million dollars building a house, and then the county says that due to a mistake by the state the county was revoking its okay and the citizen must, what? tear down the structure?

There's not a court in the country that would not either tell the county to go pound sand, or tell the county to pay the citizen for all his expenses, his attorneys fees, and maybe a hefty punitive damage as well. Mauna Kea is correct. It would have cost the county taxpayers out the ass if it had reneged on Brescia.

Anonymous said...

Who cares if "the owner went in with his eyes wide open"? The county gave him the big okay. The county takes it away, the county pays for its mistake.

Anonymous said...

If the county or the state wants to protect burials, then it has to purchase the land from the owner. It's the law. I understand that a mob of nobodies who hate "developers" and capitalism would like to simply take the land, but that is why we have the law, to protect individuals against mob rule.

Anonymous said...

this was a State ERROR, but yet the complainers continue to blame the county. if the county had revoked the permits all the tax payers, here, on this island would be paying for it.

Anonymous said...

It appears the burials laws, in regards to State and County (and burial council) responsibility are fairly unclear. It's evident that the laws must be clarified as to the role of each party. This will require legislation.

Call your leg and get the rules changed or confirmed so they are clear for future development.

Anonymous said...

Your fate is sealed...only a matter of time and it will "go up in smoke".

That was a pretty ugly threat.
I wonder if will come back to haunt the writer and this blog in court.
Are the writers here protected by the reporter / sources law?

Anonymous said...

"if the county had revoked the permits all the tax payers, here, on this island would be paying for it."
Not a bad investment. A burial park and re-internment site for found iwi.

Anonymous said...

Your threshold for "ugly threat" is pretty damn low.

Any person with more than an idiot's (i.e., yours) grasp of grammar will see that the "it" refers to the "local initiatives".

Get a life.

"up in smoke", indeed! How scary!


BOO!!!!

(bet that scared you, too)

Anonymous said...

I thougt it refered to one of the commissioners statement that read something like ..if it doesn't burn down first...

Anonymous said...

I thougt it refered to one of the commissioners statement that read something like ..if it doesn't burn down first...

Which was an exceedingly irresponsible comment for a board member to make, by the way.

Anonymous said...

" If the county or the state wants to protect burials, then it has to purchase the land from the owner. It's the law. I understand that a mob of nobodies who hate "developers" and capitalism would like to simply take the land, but that is why we have the law, to protect individuals against mob rule."

December 10, 2009 9:37 PM

You mean kinda like the mob of smelly white people who came to Hawaii and enforced forced their mob rule on Hawaiians?
Is that what you mean?
Foolish person.

Anonymous said...

You mean kinda like the mob of smelly white people who came to Hawaii and enforced forced their mob rule on Hawaiians?
Is that what you mean?
Foolish person.


Maybe you should read Hawaiian history so you don't say such foolish things. Foolish person.

Andy Parx said...

I’ve never seem the planning commission revoke a permit because the one of the conditions weren’t met, which is supposed to be what they are there for- to make and enforce conditions. Instead they extend or ignore them. Look at Coco Palms.

Remember the 30 years it took to get the Safeway bridge- and then the county “settled” so they could build their precious “coastal” bike path through the Safeway/Foodland parking lot and back across the busiest intersection on the island.

Where were all you “no bike path on he beach” protesters then? Maybe if you had woken up to what a sham the sleight-of-hand segmented EA process was when these other travesties were in their infancy instead of selfishly supporting and praising your dog path it might not have come to this- but I digress.

Brescia did not meet the condition that he get approval from the burial council, whatever the law is currently. flawed or not. That’s why Watanabe said “proceed at your own risk”. That’s why the petition was even able to be heard by the commission. The matter was entirely discretionary on the part of the commission and if they can’t enforce “reasonable” conditions- especially one as basic as burial council approval- then why have one. Ian and Imai could just rubber stamp them without the commission for all the enforcement they do.

If you wear the kings uniform you carry the king’s sword. Jimmy has discovered that. If they were really upset over the decision they were “forced” into they would fire Ian, which is their kuleana according to the charter. Instead they are King Bernard’s lackeys and do his bidding to keep the prestige of their appointments... truly a disgusting way to “serve”.

Anonymous said...

Truly.

Anonymous said...

Brescia did not meet the condition that he get approval from the burial council, whatever the law is currently

There's no such thing as "approval from the burial council." Burial councils don't have authority to grant or deny approval of anything.

Anonymous said...

Despite the undeserved abuse he's taken from a bunch of know-nothing haters on this site, Mauna Kea is the one who knows what he is talking about.

If the planning commission followed NHLC's advice, Brescia would keep and finish his house, and the county would get nothing and would have to pay all of Brescia's attorneys fees.

Anonymous said...

I thougt it refered to one of the commissioners statement that read something like ..if it doesn't burn down first...

Which was an exceedingly irresponsible comment for a board member to make, by the way.

December 11, 2009 10:33 AM



You guys need to improve your reading comprehension. It said "even those in positions of power -- joking about how the waves will one day take it out if someone doesn't burn it down first?"

Nobody said anything about commissioners/

Anonymous said...

It's all a done deal now. Too late to appeal a decision from October of 08. And appealing this planning decision won't get anywhere. Court can't overturn the planning commission just because it disagrees with its outcome.

Anonymous said...

Too late to appeal a decision from October of 08.

Yeah, don't you have 30 days to file an appeal?

Anonymous said...

"If you wear the kings uniform you carry the king’s sword"

-- point taken. pretty eloquent too


dwps

Punohu's Politics,Environment and Culture said...

My comment part 1(also on my blog in its entirety)

When I look at this issue, I remember when the burial council believed it might actually have some might and power to stop developments when bones were found, work with developers, educate, and care for the iwi kupuna. It was a noble cause and one that everyone was hopeful about even though it was a state agency.

But again, it has turned into yet another way to divide and conquer Native Hawaiians and Native Hawaiian interests. It has perpetuated an "us vs them" mentality, while seeming to be yet just another feel good look good rubber stamp to developers who continue to get there way to dig up and pave over the bones of the Hawaiian people.

The most important thing however, that the Brecia incident and situation underscores for me, at least is the PRECEDENT that it is setting, and the actual weakening of the force of burial laws.

The very fact that we are dealing with a state funded entity who must tow the line of the philosophical ideals of whomever is making the appointments in this case the current Governor will never be a commission that is allowed to make an honest appraisal and decision. You can be a dedicated commission member, the same goes with the planning commission, make a decision and go with your heart but for the most part, in a state or government agency whomever and whatever it is you go with whomever butters your bread.

My fear with the Brescia incident is that the precedent that this sets will weaken any other decisions, claims or actions that the burial council will make in the future for any other projects that come up, and the same goes for the planning commission.

Further, when we look at this entity funded by political interests, rather than being an independent and required review board I feel that it is not serving its original intent which was to prevent something just like this from happening.

Developers and landowners know how to sue. It is what they do best. People who objected are also learning how to sue. The most feared word in any county, state or federal attorneys office is the word "sue". That is because you have to use the peoples money to pay for court proceedings, and you need a very strong case to proceed. WIth property rights issue the favored laws tend to run with the landowner so these cases are tough to win in court. It cannot be just public opinion that wins these cases, but clear evidence and a pristine action history by the state, county or federal agency, board or commission involved in any such action. If there was even a hint of something or someone who did not cross the "t's", and dot the "i's" along the way the case would be extremely weak in court even though public sentiment and resentment may run high against a landowner or developer in a case such as this.

It takes that entity to have a backbone and be willing to call the bluff of the "sue-ee" to undermine the intimidation of our county and state governments by those who just automatically say "sue" rather than "compromise", or realize that they have presented something that just will not fly and is totally unacceptable without having to land up in court to force the issue.

part 2 to follow(also on my blog)http://punohublog.blogspot.com

Punohu's Politics,Environment and Culture said...

pat 2 comments

Therefore, this is why Maunakea had to push this issue. The county cannot fight Brecia because he has the almighty power to sue the county, which will take time and cost money and the county is saying they don't have the money to fight Brescia, or maybe even the will to fight him, or the county or the state may not have dotted the "i's and t's" perfectly in this case, and are then vulnerable and they do not feel that their case is strong enough to win in court. This of course angers the public who have a huge issue and want something done as in this case when the iwi was not adequately protected and that was the mandate of the Burial Commission who tried to do their duty but was hampered by technicalities and loopholes and threats of lawsuits.

When we stop being intimidated in this way, when the people can stand up and say go ahead and sue, do your worst but we are not backing down from our position, when we can truly say as commissioners and board members we will show a united front and let them sue, things actually might start to change.

It is the commissioners themselves who are appointed and serve in the voluntary capacity that are given the power and authority to make these decisions.

I have often testified at planning commission meetings two things:

1. You, as commissioners have a lot more power than you think you do, and the attorney is there to advise. In this case, Maunakea had to advise that if you do this, Brescia will sue. The commissioners can show a united front get a backbone and "just say no".

2. Enforcement and the due diligence of properly funding enforcement operations. We continue to make laws that look good on paper, and continue to say to developers you must do A,B,C, or else, and then when they do not comply it is either a slap on the wrist or we give extensions and exceptions and exemptions because we hope they will do the right thing, or we are afraid of a lawsuit if we don't.

When we truly take the power of the people in hand and stop being afraid and intimidated, when we appoint commissioners and board members to positions where there is no conflict of interest, and that will have a backbone then we will see enforcement and the funding for it occur, and the full power of these commissions and boards realized.

Until then, precedents will continue to occur that will weaken their power, and we will continue to be bowed and broken by the word "sue"

Anonymous said...

I have often testified at planning commission meetings two things:

1. You, as commissioners have a lot more power than you think you do


Maybe the reason you have to keep repeating it is that in fact they know a lot more about their powers and limitations than you do and they are in fact right while you are wrong; and because you give them no evidence that they have more power than they think they do but just repeat the same unsupported fallacy over and over.

Anonymous said...

Do you know how expensive such a lawsuit would be to the county/state?

They would lose, no doubt about it.

They would pay their own legal fees and costs, Bresca's legal fees and costs, compensatory damages and punitive damages.

Many, many millions. On an already strapped county/state government.

The obvious answer, and best answer due to practicality, is to drop it, let the house get built and fix the problems with county/state bureaucracy to prevent the stupid mistakes that got them in this place to begin with.

Bresca's going to win small by getting his house or win big by getting suit awards. No matter what, the county/state loses in this mess....and it's all their fault.

Dawson said...

"Maybe the reason you have to keep repeating it is that in fact they know a lot more about their powers and limitations than you do and they are in fact right while you are wrong..."

Then again, maybe the reason they keep siding with developers and tourism is money -- and the power that comes with it.

Anonymous said...

Then again, maybe the reason they keep siding with developers and tourism is money -- and the power that comes with it.

Dawson, you obviously don't know anyone on the burial council or anything about them if you think "money and power" is what keeps them limited to deciding whether to relocate or leave in place burials. Your habitual go-to conspiracy theory is not serving you well.

Dawson said...

"Your habitual go-to conspiracy theory is not serving you well."

Beach mansions built on bones is testament to how well the government of Kaua'i serves the Joe Bresicas of the mainland.

Dawson said...

"Dawson, you obviously don't know anyone on the burial council or anything about them if you think "money and power" is what keeps them limited to deciding whether to relocate or leave in place burials."

Especially in an economy beholden to real estate development and tourism, money and power are inevitable, subtle and often overwhelming influences on local government and affiliated agencies. See Cunningham's Power, Participation and Local Government: The Communal Struggle for Parity. 2008: Pittsburgh, Journal of Urban Affairs 5:3.

Anonymous said...

The trouble with Dawson's theory is that it must fail to admit the inherent limits of the powers of burial councils in order to erroneously accuse the council members of "siding with developers." They're not siding with developers. How ignorant. They are straining against the limitations of their positions. Don't be such a hack.

Anonymous said...

http://www3.interscience.wiley.com/journal/120042307/abstract

just an abstract, but helps some


dwps

Punohu's Politics,Environment and Culture said...

One of my favorite quotes in the whole world is this: (I have it on my blog)

"To those who know, no explanation is required. To those who don't know, no explanation is sufficient."

I rest my case. :D

Anonymous said...

"To those who know, no explanation is required. To those who don't know, no explanation is sufficient."

I rest my case. :D


Telling that it's one of your "favorite quotes in the whole world." More like:

Those who know, explain. Those who don't know rest on glib and meaningless slogans. If you could explain how the burial council has ",more power than they think they have" you would say so.

Anonymous said...

Joan Conrow said...
I don't appreciate my blog being used to promote other sites, dwps.


tell it to Punohu's Politics. Thought it was pretty rude to post an entire post from her blog in the comments here. And such a long post that it required two comments! Using the popularity of joans blog to drive traffic to Punohu's blog. tsk.

Joan Conrow said...

Yes, I did raise an eyebrow about that myself, but after reading the posts decided they contained some thoughtful information that added to the discussion, which was not the case with the other link I deleted.

Joan Conrow said...

PS: Reference citations, such as the one dwps noted above, are fine.

Anonymous said...

"PS: Reference citations, such as the one dwps noted above, are fine"

-- good to know


"which was not the case with the other link I deleted"

-- cept that other blog is pretty funny :)


dwps

Anonymous said...

ANNE PUNOHU WROTE THIS POST
(There, no blog link comes up)

"The battlefields of idiots are the playgrounds of geniuses"

Joan and I appreciate you leaving my post up.

Thank you again, Joan for your courtesy.

"Class is not dependent on what is in ones pocketbook, but what is in ones manners."

Hope to see you soon
Anne Punohu

Anonymous said...

Cherry-picking from various "quotes" websites does not confer intelligence nor insight.

Coming up with a truly timeless phrase of your own, if you can, does point in that direction.

We could have a "war" of "equal but opposite" quote-pickers. That might be fun for a while...

Joan Conrow said...

You're welcome, Anne, and you're also welcome to post comments that show your blog link. At least you own your blog. I don't have much use for anonymously published blogs, especially those that strive to be clever, but fail.

Anonymous said...

I don't think anybody believes it was the blog's anonymity or its striving to be clever that got mention of it stricken from these comments. Pretty sure it was the blog's point of view that got it blackballed.

Joan Conrow said...

No, it was simply me exercising my right on how I want my blog to be used. If there's a blog reference to be made, I'll do it.

Dawson said...

I don't think anybody believes it was the blog's anonymity or its striving to be clever that got mention of it stricken from these comments. Pretty sure it was the blog's point of view that got it blackballed.

I don't believe you understand the difference between "public" and "private," "yours" and "mine."

The concept that the builder of a blog has no right to control its words is breathtaking in its entitlement -- like those who believe walls exist for tagging, beaches exist for building, cultures exist for dominating, and ancient bones don't exist at all.

Anonymous said...

Dawson, Joan can do whatever she wants. But dollars to donuts, had the reference been to an anonymous, not too clever blog spoofing Lingle, she wouldn't have deleted it.

Joan Conrow said...

You're a persistent little bugger, aren't you? And still wrong.

Punohu's Politics,Environment and Culture said...

Joan you should see what the "anonymous" are doing over at the path blog post. but I am holding my own! (I think). They are persistant aren't they? ;D But only here where they are safe, warm and dry, and snuggled in the protective arms of anonymity. *G*

Anonymous said...

"had the reference been to an anonymous, not too clever blog spoofing Lingle, she wouldn't have deleted it."

-- true. but not new news


Q - who makes this blogs rules?
A - blog owner

Q - was my above blog cite deleted?
A - yes

Q - do i care?
A - no

small matter. lots of blogs. next
(hopefully interesting) topic


dwps