I recently met a charming couple from Southern California. She's an architect and former planning commissioner for her city; he is an editor and journalism professor. They read my blog, and so had some questions about our puzzling land use planning process that they hoped I could answer.
They arrived for lunch carrying a copy of The Garden Island that featured a front page photo of Councilman Tim Bynum seated outside the railing that separates the Council from the hoi polloi. “Why is he sitting out there?” they wanted to know. “Is he dangerous?”
Ummm, only if it's possible to inflict death by whining.
That wasn't their only question, and most of them weren't easy to answer, except with a shrug and one word: “cronyism.”
I know some people would've responded with a couple of other “isms,” like racism and sexism. Yes, I've heard the stories of Michele Hughes, and others, shaking their booty at the planning counter, and of the haole developers and vacation rental owners languishing in limbo because they didn't have enough dough or smarts to hire to hire an insider to shepherd their projects through.
Anyone who follows planning issues has seen it: the former county planners and attorneys who now shill for developers; the mayoral buddies named to the planning commission, despite (or perhaps because of) their inexperience and apparent lack of conscience and/or will; the political appointees within the planning department allowed to stay far too long — and then replaced by a fresh batch of mayoral boosters.
It's been going on for an awfully long time, as I came to understand while researching and writing the Kauai chapter of a book that chronicles Hawaii's land use struggles. So my ears pricked when Councilwoman JoAnn Yukimura spoke at a community meeting on Grove Farm's plan to evict people from their lifelong homes at Koloa Camp:
”I feel I'm back in the '60s when the Niumalu tenants and Kilauea farmers were being evicted,” she said.
Yes, here we are, some 40 years later, and not much has changed, except some of the folks who were fighting for the people and the `aina in those early land use struggles have since crossed over to the other side to play a very different role in the battles waged today.
Consider the resort at Nukolii, now the Hilton. Citizens objected intensely, but still the county approved the rezoning. This was followed by lawsuits and finally a referendum in which voters rejected the zoning by a margin of 2-1. The developer, meanwhile, had continued to build, in the belief that his rights had been vested. Citizens demanded that the permits be revoked; the county refused. Kauai Circuit Court Judge Kei Hirano sided with the county and opponents appealed all the way to the Hawaii Supreme Court, which overturned Hirano's decision.
The high court found that the government had not taken final discretionary action — issuing a Special Management Area permit — prior to the referendum, so the developer had no guarantee the resort could be completed. It ordered all permits revoked and construction halted. A second vote came out differently, and that's why the resort remains.
Fast forward to this century, and the development debacle involving Joe Brescia. The county and state allowed him to construct a house atop 31 known burials at Naue, thus setting a precedent that a Burial Council's decision to “preserve in place” means a structure could be built atop iwi that have been capped in concrete. The Native Hawaiian Legal Corp. fought the project in court, and though Judge Kathleen Watanabe found that the state had acted improperly, she refused to halt construction, saying substantial work had already been done on the project.
Of course, that work — including capping the burials with concrete against the wishes of the Burial Council — was sped up precisely so Brescia could claim at the hearing that he'd already invested too much to stop.
But the interesting point in all this is that when attorneys petitioned the Planning Commission to revoke the building permit, which had been issued based on the state's faulty actions, Commission Chairman Jimmy Nishida — the same guy who had been on the frontlines, risking arrest in the Nukolii fight — said no. He was worried about Brescia's private property rights, about the county being sued, about doing a “taking.”
I didn't know then about the Hawaii Supreme Court ruling in the Nukolii case, although Jimmy surely did, and the county attorney's office. While the circumstances weren't exactly the same, the state's high court had already said, decades earlier, that a project far more valuable than Brescia's house could indeed be stopped if the process was flawed. The court had already approved a "taking," much to the shock of government and the business sector. The county didn't need to be afraid of losing a lawsuit. Commissioners could've voted their conscience. As I reported then:
Only Commissioner Herman Texeira said no, he wouldn’t go along with the planning director’s recommendation [to deny the petition]:
“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.”
All this ran through my mind as I sat in the meeting room, listening to JoAnn speak and residents object, as I've heard them object so many times before to what is happening to this place we call home.
And I thought, if we don't learn from history, or choose to ignore it, if we lose our moral compass, or choose to ignore it, how many more bitter land use battles will have to be fought? How many more lawsuits will be filed, protests staged?
How can we correct the flawed process that allows bad developments to move forward, at great social, environmental and cultural cost?
Our visitors, it seems, aren't the only ones puzzled by a process that tenaciously endures, even though it is so obviously faulty and flawed.