Musings: Just Right

A fiery red eye was blinking above the horizon when Koko and I stepped out onto the porch this morning, and I watched it open wide as I put on my shoes. It caused the sky to form a mosaic of pink, gray, orange, blue and white when we set out walking in a world washed fresh by a rain that had departed just minutes before.

The mountains were obscured, the pastures were glistening and so were the trees, adorned as they were in sparkling raindrops. The air was balmy, yet fresh; in short, it was all just right.

Assuming that Paul Curtis’ reportage is right, which is a major assumption, Kauai Prosecutor Shaylene Iseri-Carvalho was dinged by Circuit Court Judge Kathleen Watanabe for “prosecutorial misconduct” stemming from her sloppy, unprofessional actions in an incest case. As a result, the judge reluctantly dismissed some of the charges. Shaylene’s been taking quite a few cracks in the courtroom lately, which is no surprise, given the general consensus that she’s “out of control.”

The competency of the Native Hawaiian Legal Corp. team has taken some unfair cracks over the years from people commenting on this blog, but yesterday it prevailed in a case that went all the way to the Hawaii Supreme Court.

The high Court found that Peter Young, former chair of the Board of Land and Natural Resources, had improperly denied Paulette Kaleikini’s request for a contested case hearing challenging a Burial Treatment Plan (BTP) that called for removing iwi from the General Growth Properties site in Honolulu.

The plan was endorsed by a 6-3 vote of the Oahu Island Burial Council, with Kaleikini contending in her legal filings that some of its members lacked the understanding of Hawaiian cultural practices required to serve on the Board. Not all Burial Council members are Native Hawaiians or cultural practitioners; some members are appointed to represent development interests.

The Court's decision underscores an important point that has been brought up repeatedly by preservationists, and that’s the need for developers to do good archaeological surveys before they design their projects and begin construction.

But even though the state was rapped for arbitrarily denying Kaleikini her right to a contested case hearing, and lower courts were rapped for denying her appeal on the grounds that it was moot, since construction was already under way — the Justices disagreed, saying Hawaiian burial issues are of “great public importance” — it’s not likely to change the disrespectful way that the state and developers handle burials.

As one attorney noted:

This has been the law for years. You think DLNR is going to start following the law now?

Because what it comes down to in this and other cases — including Joe Brescia’s house at Naue, where DLNR also was found by the court to have acted improperly — is that it took four years to get to this point, some of the iwi already have been moved and construction is proceeding.

Delay is an extremely effective tactic.

Besides, as one legal observer noted about the decision:

I really do not see it as significant since all it does is require an administrative hearing the results of which will be clear before it begins....

While we're on the topic of done deals, a reader challenged a comment I’d made in my last post about transient vacation rentals that the new bill “actually opens the door for TVR owners not just in the ag district, but everywhere else who didn’t apply the last time around:"

really? I don't think that is an accurate statement. I thought it said something about 2008 use date?

It's true that applicants do have to provide a sworn affidavit attesting that the use of the residence as a TVR occurred prior to March 7, 2008. What I'm saying is that some people didn't apply when the last TVR bill was adopted because they weren’t in compliance with zoning laws — you know, they were doing stuff like operating multifamily TVRs and putting guests into ground floor units that were illegally enclosed in a flood zone — or knew their structure did not conform with their building permits.

Now they can come in and apply because, thanks to wording added by Councilman Tim Bynum, there is no longer a mandatory inspection process.

As another reader commented:

And Tim, if the new ordinance didn't open the process back up for more business' to apply, why didn't the new language just address ag?

Good question, especially since this bill was also widely touted as being needed for the sake of "fairness” and to give the poor mistreated ag land TVR operators their right to “due process.”

That was all window-dressing. Instead, the bill re-opens a door that was properly closed and put the burden for decisions on the Planning Commission. Given its past performance, it's unlikely to provide the kind of rigorous review that some Councilmembers imagined would magically occur. So who knows what kind of substandard stuff is going to be rubber stamped, or how many TVRs will be added to the inventory under this bill.

And that's just not right.