Wednesday, January 13, 2010

Musings: What Kind of Legacy?

The moon, a thin sliver of white, had just topped the Giant and was barely visible in a robin’s egg blue sky that slowly turned golden when Koko and I went walking this morning. It was cold, about the same temperature — 60 degrees — as my house, and things were looking rosy above Lihue.

Then all the color drained from the sky, leaving it that washed-out white that precedes the dawn, and we kept on walking, stopping to pet two very lonely and very dirty dogs. Just as suddenly, the color reappeared in a flush of scarlet above Kealia, transforming Waialeale from a steel-blue hulk into a majestic purple mountain.

Meanwhile, Joe Brescia continues to transform a Hawaiian burial ground into a luxurious oceanfront spec home, and once again, the Planning Commission refused yesterday to take any action to stop him.

For the second time, Commissioners refused to consider a request by the Native Hawaiian Legal Corp. and attorney Harold Bronstein to require Brescia to show that he has complied with all conditions of his permit.

Commissioner Hartwell Blake, who was absent at the last session, this time joined Commission Vice Chair Herman Texeira in voting against the motion to dismiss the matter. Blake, a former county attorney, also had the courage to recognize the process for the full-on sham that it is. As The Garden Island reported:

The requested order, had it been approved, would have made clear that the commission believes Brescia has not complied with Condition No. 5 of the building location, material and design review, approved in December 2007, which states, “No building permit shall be issued until requirements of the State Historic Preservation Division and the Burial Council have been met.”

Blake said Brescia cannot possibly have met all of SHPD’s requirements because he does not even know what those requirements are because there is no approved burial treatment plan. Responding to his own rhetorical question whether Condition No. 5 has been met, Blake said, “The answer is no.”

It’s hard to believe the Commission can get away with this crap, until you read a little bit farther in the story and see the real reason — as articulated again by Deputy County Attorney Maunakea Trask — why this matter is being swept under the rug (emphasis added):

Trask argued revoking the permits now or even issuing a declaratory order stating the permit conditions have not been followed would fly in the face of Watanabe’s “bifurcated” order and would expose the county to a lawsuit by Brescia claiming the action is a “taking.”

So what it really comes down to is it’s OK to take from Hawaiians and their culture, but it is not OK to even consider taking anything from a mainland developer who knowingly built atop a burial site and has failed to comply with his permit.

“The issue is not whether he had a permit. That’s undeniable,” said Harold Bronstein, an intervenor in the case on behalf of the North Shore ‘Ohana and Caren Diamond. “The issue is whether he violated the permit. And that’s undeniable.”

But hey, don’t let the facts, much less morality, get in the way of your fear over a frigging lawsuit. So what kind of precedent is being set here? That you can just thumb your nose at the Burial Council and breeze on through?

Unfortunately, blowing off cultural concerns — and the law — is nothing new in Hawaii’s approach to land use, nor is it unique to the Islands.

That’s why I was interested to read about an ongoing conflict between between the Mashpee Wampanoag and Aquinnah Wampanoag Indian tribes in Massachusetts and Energy Management Inc. (EMI) a New England based energy company that wants to develop Cape Wind, the nation’s first offshore wind farm, on Nantucket Sound.

The tribes are arguing the 130-turbine project would disturb ancient burial grounds and interfere with ancient spiritual sun-greeting rituals, which require a clear view of the horizon. They want the project, now in its ninth year of the approval process, relocated or dropped.

Now this is really fascinating. Here in Hawaii, it’s culture vs. greedy, insensitive developers. But the stakes are even higher in the Cape Wind case, which pits cultural considerations against energy, the thing that most Americans hold more sacred than anything else.

Not surprisingly, the issue is generating comments like this:

”If there is any legitimate hope for this country to have a renewable energy strategy, we have to demonstrate individual stakeholders cannot block entire agendas,’’ said Robert Kaufmann, professor and chairman of Boston University’s department of geography and the environment.

East Coast newspapers are also pushing for the project, saying it would send a symbol to the world that America is serious about “green” energy.

The National Park Service recently weighed in with native concerns, saying the Nantucket Sound is eligible to be listed on the Historic Register, which affords it more development protection. Now Interior Secretary Ken Salazar is trying to hammer out a compromise, and the developer is talking financial compensation to the tribes.

But you know, some things just don’t have a price tag. As Cheryl Andrews-Maltais, the Aquinnah Wampanoag Tribe told Indian Country Today:

“My fear is that they’ll try to throw money at us just to go away and let it happen, but what kind of legacy would we be leaving for our children?”

It seems that’s a question that the five Kauai Planning Commissioners who refused to revisit the Brescia permit issues might want to be asking themselves today.


Anonymous said...

Cultural concerns will always, sooner or later, take a back seat to energy-producing concerns or private development concerns.

Only national or state park designation or something like it can limit/halt it.

But even that will not last forever as push comes to shove.

There's a lot of people with a lot of money coming for your land. The only question left is when, not if, they will get it.

stickler for the truth said...

The selective use and distorting of information is claiming that Brescia has "failed to comply with his permit." That's a distortion and it leaves out the fact that the court said Brescia complied completely with all his requirements and that the state screwed up.

It would be more accurate and less selectively deceiving to say that because of the state's screw up Brescia is now out of compliance. But it suppresses the truth and intentionally fosters conflict and polarization to say that he "failed to comply with his permit."

Joan Conrow said...

Dear Stickler for your own version of the Truth:

It would be more accurate and less selectively deceiving to acknowledge that regardless of the state's screw up, it is still Brescia's responsibility to prepare an acceptable BTP, and further, that it was his choice to continue building — at his own risk, the court noted — when he fell out of compliance.

Anonymous said...

seems a good thing that blake guy is in there, being a lawyer n all, and seemingly willing to pipe up (too often an amateur hour attorney throws around a bit of legal jargon and the dept runs for the trees). if the county depts and their attys had their shit together, they could pretty much skull crush most all legal actions against them (threatened and/or actually filed)

"Cape Wind, the nation’s first offshore wind farm, on Nantucket Sound."

-- i dunno if that was the one, prob not, but the kennedy clan also stopped one out there a few years back...also b/ it impacted the view. total horseshit, in my view

as to joe b, if i may take a guess: part of the problem now is that this guy would claim that he is being administratively blocked by not being granted an approved plan (ie, equal protection claim?), and that if the permit is yanked per not having such a approved plan that the result is, constructively and in effect, an uncompensated takings? sound right?

procedurally, administratively, its got some arms and legs on it for sure. still, i bet its not a totally one-sided case

otherwise, that green vs culture conflict is mega...will be for a long time for sure. interesting that the local tabloid paper has not really noted this yet


Anonymous said...

"There's a lot of people with a lot of money coming for your land. The only question left is when, not if, they will get it."

Global warming, you're our only hope. Raise the seas and drive back the evil investors who would buy our beach front property. May the force be with you.

Anonymous said...

Brescia prepared a burial plan that was indeed accepted by the 2008 I think? Thus, he was in compliance at that point. Then the judge said that the State had failed in their duties, but not that Brescia had failed. The latter met the req's and I guess has not fallen out of that compliance. If he fell out of compliance, the courts would have issued a TRO and the house bldg would stop. It has not.

The State is still on the hook for this one...

Anonymous said...

"Thus, he was in compliance at that point."

-- thanks January 13, 2010 1:35 PM


Anonymous said...

Fact #1 -- Watanabe threw out the BTP that SHPD had accepted.
Fact #2 -- JB submitted several new BTPs. SHPD rejected all of them as incomplete/inadequate.
Fact #3 -- JB does not now have a valid BTP.
Fact #4 -- Cond. #5 of his permit says No building permit shall be issued until requirements of the State Historic Preservation Division and the Burial Council have been met.
Fact #5 -- Requirements of SHPD and BC not met
Fact #6 -- JB not in compliance.
Fact #7 -- Previus compliance irrelevant.

Got it?

harsh but true said...

Fact #7 -- Previus compliance irrelevant.

Got it?

You are wrong. And still cherry picking facts and selectively omitting relevant information.

Somewhere in your list of facts belong:

a. Brescia submitted btp.

b. shpd accepted plan

c. Brescia obtains permits

d. Brescia constructs house in reliance on permits

e. someone challenges state's handling of btp and specifically asks court to stop construction and declare Brescia out of compliance

f. court says state screwed up, but refuses to stop construction and says Brescia has acted entirely legally

g. therefore that issue has been heard by the court and anyone who wishes to sue and claim Brescia is out of compliance is out of luck and the court will tell them "ou should have "intervened" when you have the chance." Now the issue is decided for all time and is what the legal types call, "res judicata." Which means, "that's all she wrote, folks!"

g. court says continued construction must leave access to the burials. Brescia complied with that court order.

h. "Previous compliance irrelevant"? Hardly. Previous compliance is what the legal types call, "dispositive."

Anonymous said...

Brescia prepared a burial plan that was indeed accepted by the 2008 I think?"
You are correct.
April 23, 2008
Doc # 0804NM23

Anonymous said...

This entire conversation makes me sick. Brescia's disregard for an entire culture and sacred ground will make his life here on Kauai very difficult. I hope his house is filled with all the pain and negative energy he has caused. This case should go to the Supreme Court. Fight this obnoxious wealthy developer.

Anonymous said...

"Brescia's disregard for an entire culture and sacred ground"
We have to assume that you live in lihue and never drive through Kapaa over the burials under every street from there to wailua.
You never walk over a dune along the shore.
The burials are everywhere we live with them. The question that has to be asked is how we live among, over and beside them.
Answer with respect and try not to disturb them.

The public has to assume the burial council thought that could be done at Wainiha or else they would have agreed to move them.

Anonymous said...

What the anti-development stepfords love about iwi is that they are everywhere. and if they can succeed in making the iwi sacrosanct, then they can stop all development everywhere. But the ubiquity of the iwi is the downfall of that tactic. Since they are literally everywhere, then they must give way to development.

Anonymous said...

"Fact #7 -- Previus compliance irrelevant.

Got it?

January 13, 2010 3:47 PM"

-- if you google "reasonable reliance" it will help explain what some of these other folks here are talking about

"Since they are literally everywhere, then they must give way to development."

-- well, unmarked graves (indians, settlers, soldiers, etc) pop up all over the place...and from jxd to jxd there are various protocols and statutes (some of them federal, i think) that govern. burials do have a recognized import


Anonymous said...

omitted facts
Building permit was issued long before the KNIBC made their decision, the county then helped brescia to desecrate the burial site by waiving its responsibility to be on site for the foundation work, instead letting the developer get his foundation in before the court date. Emminent domain the burial site, give him it's value. Certainly he won't be wanting to be part of the community he disrespects so. it's on the open space list for county acquisition, spend those funds to acquire the burial site, and remove the house to an appropriate location. Wonder how much money grescia has given to the planning department staff. Oh i hear it's boats and cars they get from the developers...

Anonymous said...

Certainly he won't be wanting to be part of the community he disrespects so.

Maybe your closeness to the issue makes it appear bigger to you than it really is. Disagreeing with a handful of people that "building where there are burials is completely beyond the pale" is not the same as "disrespecting the community." People keep saying that Brescia could never be welcome to live here but that's silly. Most people don't care about this bone thing and will welcome him or not based on other factors.

Anonymous said...

distorted fact:

"Building permit was issued long before the KNIBC made their decision,"

True fact:

Building permits are issued with long lists of conditions that must be met before building can commence under the permit. It is meaningless to say, for instance, "a permit was issued long before the water meter requirements were met" or "long before the KNIBC made their decision." That is the whole import of "condition 5" discussed here already.

So for you to imply that a permit was somehow wrongfully issued before a burial council decision is either purely ignorant or is purposefully deceiving.

Anonymous said...

"People keep saying that Brescia could never be welcome to live here but that's silly"

Yeah, he can always hang with Walton Hong, Joe Gallante and Nancy McMahon

Anonymous said...

"Yeah, he can always hang with Walton Hong, Joe Gallante and Nancy McMahon"

Exactly. Or any of the other thousands of people who probably don't give a rip where Brescia's house is and may even sympathize with him as a victim caught in the cross hairs of the local activist clique.

Anonymous said...

Yeah, he can always hang with Walton Hong

Not sure what would be wrong with that. He's highly respected in the community. One Walton Hong is worth a thousand local protesters.

Anonymous said...

No matter what happens, Bresca wins. If the house is build with no further legal problems, he wins.

If the courts stop the house it is because of the state's fault, not Bresca's. He will get way way more money than the material and labor he's put into the property. Way more than the market value. He will get compensatory plus punitive damages plus legal fees and costs.

Since he's not planning on living there anyway, so I've heard, I'd go for plan B myself. Huge payday.

Smart business people taking advantage of inept bureaucracy.

I like him.

Anonymous said...

-My culture and rights are more important than yours
-Oh no they're not
-Yes they are
-No, they're not
-Yes, they are
-Not, not, not
-Are, are are . . .

Anonymous said...

At the end of the game you count your money. That determines who won.

"Importance" doesn't matter.

Anonymous said...

"At the end of the game you count your money."

If you can count it, it must not amount to much.

Anonymous said...

Bill Gates knows how much he has to the dollar if he wants to.

Anonymous said...

"At the end of the game you count your money. That determines who won."

Only is who has the most money is the purpose of the game.

"He died without a penny to his name"

"Then he times it just right"

Now who won?

Anonymous said...

Who has the most money or power or influence or land (any one or more of them) is always the winner at any given moment. Whether or not they have the knowledge or wisdom.

Things come and go...but the rules of the game never change.

Always has been...always will be.

Anonymous said...

Continuing to fight this particular fight of futility is lazy activism. When there's no longer anything at stake (It's over baby), there is no personal threat from having an alternative viewpoint.
It's like Hawaii succeeding from the United States. Expressing such a politcal absurdity scores points in some circles; but, means you don't really have to do anything or sacrifice anything.
Instead, why not put energy into changing or supporting something that is meaningful and also has a ghost of a chance of happening.
Stop being lazy. Move on and make a difference.

Anonymous said...

"Bill Gates knows how much he has to the dollar if he wants to."

Given his philanthropy, I doubt he spends a lot of time thinking about it.