Update To all who have been asking about the Parker Ranch Connector Road Settlement Amendment:

1. Under the terms of the 2007 Settlement Agreement between my clients (and myself) and Parker Ranch, Parker Ranch was to complete Phase 1 of the Connector Road and the Pukalani Extension by May 8 2010 (and Phase 3 was also to be completed on the same schedule based on a separate agreement).   Parker Ranch did not complete the road by that deadline. In exchange for extending the time period in our Settlement Agreement for completion of the road, Parker Ranch agreed to convey a permanent easement grant  at no cost to the County for additional acreage to be used for the Waimea Trails and Greenways project (and in doing so skirted a major obstacle to opening the trail -- because of where Parker Ranch had otherwise required that a fence be located).

2. The Connector Road has not yet been approved by the County as completed according "to specs" -- to dedicatable standards, but I believe that will happen very soon.

3. The remaining holdup -- is that to complete the road to be open to the public, not just the roadway must be finished, but also the associated "paper work".   Until the final dedication to the County is completed, an interim Grant of Easement and Indemnification Agreement must be agreed to and approved by the County Council.  It is too late to get this document on the agenda for the Council meetings on September 8 or 9, so it will first go to Council later in September, and then will require one or two more readings.  So you do the math..

4. Below are a couple maps/plans in case you are unclear where the Parker Ranch Connector Road is located. The portion of the road that will now be open runs from the rodeo grounds just south of Waimea on Mamalahoa Highway around the backside of the Lualai residential development and over to the Holoholo-ku condo project at the end of Pukalani Road. Pukalani Road comes out on Mamalahoa at Ace Hardware across from the entrance to the KTA shopping Center.

5. The connection on to Lindsey Road is still not in place.  However in my view, the absence of the Lindsey Road connection at this time is not a bad thing. Until the Lalamilo Connector Road is in place (will run from the area of the transfer station on Kawaihae Road to Mamalahoa at the rodeo grounds where it will link to the Parker Ranch Connector) funneling more traffic directly into the Lindsey/Kawaihae Road - Mamalahoa intersection, is probably a good thing.  

6.When the Parker Ranch Connector does open one can connect back to the Lindsey Road extension by turning left off Pukalani by Lex Brodies immediately behind the shopping center, or of course directly through the shopping center. The hospital now has a main entrance off of Pukalani -- so hospital traffic will not have to first exit on to Mamalahoa.  The recent improvements on Mamalahoa starting at Pukalani will help to prevent a further bottle neck in front of the hospital and at Kamamalu.

7. If you have yet to check out the new road, drive up Pukalani Road to the Holoholo-ku development and take a look.  Great sidewalk -- with incredible views. The new District Park will be located off of Phase 3 of the Connector Road -- so plan on having a new great place for walking and jogging and biking and playing (now we still need to convince the County to put a dog park at the District Park site.

8. And if you are one of those interested in when the final phase of the Connector Road will be completed (from Pukalani to Kamamalu above the senior housing) don't hold your breath. 

9. FOR SOME GREAT Reading -- see Richard Smart's 2020 Plan-(attached below in slide show format).  The 2020 Plan was his legacy to the Waimea Community. He was such a visionary.

So you may have heard the State Laws relating to when and what developments trigger an environmental study, allowing for public input into that decision-making, were being reviewed last legislative term and that review will continue this coming legislative session.  Accordingly one would not expect a lot of rule changes relating to these environmental studies (Environmental Assessments and Environmental Impact Study)  since the controlling laws are up for review.   BUT THAT IS EXACTLY WHAT IS OCCURRING.  And what is the likely result is a whole scale effort to exempt just about every offensive activity from the requirement of an environmental study (so that way we most likely will not have to worry so much about what the law, now or in the future, may require in the case of covered activities). I assume this critique is somewhat of an oversimplification of what is going on -- but you get the picture.

The comment period for these proposed Office of Environmental Quality rules in question started July 8th  -- so presumably we have until tomorrow Monday to respond (or perhaps rulemaking closed yesterday -- Saturday the 7th).

  The State's M.O. (modus operandi) here, as in the case of the proposed rule changes discussed in the previous blog, is, in my opinion, to cut out the opportunity for public input.  It also appears the State is closing loopholes where the public actually had something to say --- such as with regard to the poisoning of our environment, e.g. toxic poisoning mangroves around the shorelline.

I figure these rule changes will be approved regardless of public comments in  opposition. I suggest rather of spending lots of  time writing comments to the Office of Environmental Quality --- you instead make sure everyone you know votes for Neil Abercrombie for Governor --- and not for Mufi Hanneman and not for Duke Aiona.

Attached below are Syd Singer's comments about these proposed rule changes:

To review this amazingly extensive list of proposed rule changes affecting every  DLNR Division lists of exemptions from environmental studies and public input, see the July 8, 2010 Department of Health Environmental list:  Go to links following the Environmental Quality Council HRS 343- 6 Item on the attached NOTICE "2010-07-08" attachment.

The Department of Land and Natural Resources is busy gutting many substantive and procedural provisions of the Conservation District Regulations: Hawaii Administrative Rules Chapter 13.5.   Reckon there is a rush to get this passed before the bend-over-for-special-interest developers/anti-public-participation Lingle Administration departs. Presumably if Mufi  is elected the current powers-that-be will not be harmed much less deposed.... but there is always the possibility that Abercrombie will be elected.  Horrors to be – since Abercrombie is supportive of local input and public participation in government decision-making. Hence this and other environmentally damaging rulemaking is now in progress.

 So back to the Conservation District rules that the elite establishment want changed before the elections:

 Public hearings here in County of Hawaii from 6 to 8 pm:

 August 9th Hearing in Kona

Mayor’s Conference Room 75-5706 Kuakini Highway Room 103

 August 10th hearing in  Hilo

State Office Building 75 Aupuni Street Conference Room C

IF YOU CAN NOT ATTEND ONE OF THESE HEARINGS, YOU CAN SUBMIT COMMENTS BY MAIL TO:

DEPARTMENT OF LAND AND NATURAL RESOURCES

KALANIMOKU BUILDING

1151 PUNCHBOWL STREET RM 131

HONOLULU HAWAII 96813.

OR BY EMAIL to:  dlnr.occl@hawaii.gov

Written comments  must be submitted by September 7, 2010.

HERE is the rough draft of my testimony:

XXXXXXXXXXXX

To: State of Hawaii Department of Land and Natural Resources

Fr:  Margaret Wille, Attorney at Law, Waimea, Hawaii 96743

Re: Comments on Proposed Amendments to Administrative Rules Chapter 5 of Title 13  “Conservation District”.

Date: August 9, 2010 [To be submitted at the Kona  public hearing]

 General Position:  OPPOSITION TO THE PROPOSED RULE CHANGES

1. These are complicated rules and the reasons for many of the proposed changes are not obvious. Before these changes are voted on – they should be made available to the public listed individually with the corresponding rationale for each and every change.

2. Here is an example of one proposed rule change that is designed simply and solely, in my opinion to keep public input and participation from being considered.  The Conservation District is critical to all of our well-being on this island ecosystem, and “standing” should be broadly permitted and not unduly restricted – as is being proposed in Rule 13-5-31(g).  This one rule change alone violates the intent of Hawaii Constitution’s Public Trust Doctrine (Section XI, subsection 1) – because it prevents the public from protecting what is an essential part of our public trust natural resources – the land and waters of our Conservation District). This proposed rule change also undermines basic principles of state and federal due process. 

To be specific:   DLNR Conservation District Rule #13-5-31(g) now provides that “any person” may appeal the chairperson’s decision relating to a proposed development activity on land in the Conservation District.  

DLNR now proposes to change this rule in order to limit those who can challenge an agency permit decision in general to the developer-applicant  and if perchance there is a neighbor to these immediate landowners, in other words the folks who more than likely are those supporting, not opposing,  the proposed development). 

The proposed rule is as follows: 

13-5-31(g) Any person The permit applicant or any person who has some property interest in the land, who lawfully resides on the land, or who otherwise can demonstrate that they will be so directly affected by the use that their interest is so clearly distinguishable from that of the general public may appeal the chairperson’s decision by filing a written appeal to the department no later than fourteen days after the date of the department’s determination of the departmental permit.  (on page 5-38 of the proposed rules)

 We are all impacted by what happens in the conservation district. It is the watershed for everyone --which watershed requires preservation of the forest and undergrowth and is where the most endangered species are to be found. It is our most vulnerable ecosystem.  Therefore harm to the conservation district ecosystem adversely affects everyone.Yet this rule change will undermine the public’s ability to seek administrative and judicial review of activities that should not be approved. 

 Examples of substantive proposals that allow for abuse:

 1. (Allowing for) Selective Removal of individual trees for non-commercial purposes provided that each tree is replaced on a one-to-one-basis with trees that are appropriate to the site location with preference to trees that are endemic or indigenous to Hawaii. [ Pg 5-24 at P-11 “Tree Removal”  B-1]

2. (Allowing for) New Telecommunications facility.  Pg 5-25  at P-14: D-1 ]

3.  And check out the new all encompassing definition of a “public purpose” project:

Public Purpose Uses  (D-1) [Land uses undertaken by the State of Hawaii or the counties to fulfill a mandated governmental function, activity, or service for public] (Allowing for) Land uses undertaken in support of a public service by an agency of the county, state, or federal government, or by an independent non-governmental entity. Examples of public purpose uses include but are not limited to public roads, marinas, harbors, airports, trails, public water works and other utilities, energy generation from renewable sources, communication systems, watershed and conservation projects, flood or erosion control projects, recreational facilities, and community centers intended to benefit [and] the public in accordance with public policy and the purpose of the conservation district. [Such land uses may include transportation systems, water systems, communications systems, and recreational facilities.  Pg 5-20 §13-5-22 P-6 “Public Purpose Uses”

 

Recently the  2009-2010 Hawaii County Charter [revision] Commission finalized the proposed Charter Amendments to be placed on the ballot this November for consideration by the voting public .

 

The County’s Charter is its “Constitution” – allocating power among the executive and legislative branches and defining the kuleana (scope of power and responsibilities, and key qualifications) of the various officers and departments, and sets forth the key procedural mandates for these positions of power.  It also includes some important obligations to the public – such as relating to requirements for public notice. The Commission only meets once every 10 years. 

 

The Commission is now embarking on its “educational” phase – so that folks have the opportunity to learn about these proposed amendments before they enter the voting booth in November and have no idea why these amendments are being proposed.  

 

The most controversial amendment being proposed was the Open Space-Public Access land fund amendment – which proposed amendment will set a minimum for annual deposits to this fund (1% of property taxes). The Kenoi administration opposed mentioned of the fund in the Charter – so those in office (those in power) would have more control over whether and to what extent the Land fund would be funded.  There was a lot of public testimony in support of memorializing this fund in the Charter, many requesting that the minimum be set at 2% (consistent with the referendum passed ordinance fixing the annual deposit at 2% of property taxes). However because that percentage is contained in an ordinance  (think County statute), the County was able to eliminate those deposits by way of a County Council passed subsequent ordinance.  If the land fund minimum is in the Charter, the County Council will be able to modify the percentage – BUT will no longer be able to cut deposits below that 1% percentage.   As you may surmise, inclusion of the land fund at this 1% figure was a compromise. I believe it was an admirable compromise – balancing all of the concerns and balancing the political pressures from all sides. The Commission vote was unanimous in favor of this compromise. 

 

I suggested quite a number of amendments – only a few of which survived in one form or another: for example – providing for internet notifications to the public (notices which up to now are only required to be in the newspapers), and also memorializing the Hawaii Constitution’s public trust doctrine (which in 2006 the Hawaii Supreme Court concluded applies to the Counties and is not just the responsibility of the State). Rather than my paraphrasing these amendments – read them for yourself CA 23 (Relating to Publication of Notices via Electronic Medium) CA-9 (Electronic Notice of Special Meetings); CA-26 Preservation of Natural and Cultural Resources. This CA-26 encourages thinking about future generations, not just our own well-being; being stewards, and not just users, of our island resources. The Court's generally refer to the corresponding Hawaii Constitutional provision as "the Public Trust Doctrine".

 

See Minutes of the Commission's 7/23/10 Meeting BELOW ”0723-10-4” (including my testimony in the Statements of the Public) Note that I mention CA-9 about Electronic Notice to the Public -- that reference should have included both CA 9 and CA 23. 

 

Link to the Commission’s website HERE (including the agenda for the next Commission meeting scheduled for August 13, 2010  in Hilo in the Council Chambers )

And to go directly to the list of proposed Charter Amendments see attachment BELOW “COMM258-6”