Board Talk

Alleged Industrial Use at Waimanalo Nursery
Riles Neighboring Farmers, State Officials

Terrence Rodrigues, owner of the tree-trimming company All Tree Services, Inc., is being watched very closely by his neighbors in the back roads of Waimanalo.

In August 2004, All Tree Services won an agricultural lease for about five acres from the Board of Land and Natural Resources and, under the direction of nursery manager David Kendricks, has been growing crotons, orchids, rainbow trees, groundcover, naupaka, and other landscape plants on the AG-2 zoned property. Under its partnership with Kendricks, All Tree Services hauls the green waste it collects from its tree-trimming jobs to the Waimanalo property, where the waste is chipped and/or mulched and used as organic fertilizer for the nursery.

But according to a handful of longtime Waimanalo farmers, the large parking lot and driveway that All Tree Services has constructed, and the multitude of trucks that are being parked, washed, and driven in and out of the property, suggest that it’s being used more as a baseyard for All Tree Service (as well as All Roll-Off and Kiawe Hawai`i, also owned by Rodrigues) than a nursery.

Responding to complaints made in late 2005, the City and County of Honolulu’s Department of Planning and Permitting, on behalf of the Department of Land and Natural Resources, conducted an investigation and found that, indeed, the company was operating a baseyard at the property in violation of county zoning laws and All Tree’s lease with the state.

So on November 17, the DLNR’s Land Division issued a Notice of Default to All Tree Services for violating its lease, which requires that the property be used solely for intensive agriculture. The company had until January 22, 2006 to cure the default.

Despite assurances in January by All Tree’s attorney Kali Watson that the company had stopped using the property as a baseyard, early morning site inspections by DLNR staff in February found that trucks and machinery unrelated to the nursery continued to be stored there.

On February 24, the Land Division requested that the Land Board cancel All Tree’s lease. At Watson’s request, however, the matter was deferred until March 10 because Rodrigues was out of town.

On March 10, the Land Board revisited the issue and several farmers, including one who had been outbid for the property by All Tree, testified that the baseyard activities continued. Tom Staton, who grows turfgrass across the street from All Tree, presented photos he took in March showing that
trucks and other tree-trimming-related equipment were still being washed and kept at the farm.

Hawai`i Farm Bureau president Dean Okimoto wrote in a letter to the Land Board, “I toured the valley with Dept. of Agriculture chair Sandy Kunimoto, deputy director Duane Okamoto, Tom Staton of Quality Turfgrass… and we saw seven trucks and tree trimming equipment stored on the All Tree parcel…They have also been seen hauling debris from construction work onto this property and storing it. I also know that they have stored debris from jobs at a previous site in Waimanalo and have left it for the property owners to clean up…Companies such as these circumvent the true intent of trying to keep these lands in agricultural production. Even worse, they prevent other ‘true’ farmers from having access to these ag lands.”

Nursery supplier Fred Humphrey told the board, “What I see at All Tree’s farm is not like anything I’ve ever seen, and I’ve visited more farms than anybody here…Nobody else has their own excavator.”

To this, Kendricks explained, “It may appear to be a baseyard with trucks coming in and out, but I need a lot of mulch. No one is really doing organic agriculture using would-be waste.”

“When we started this property, I was under the impression that All Tree would be involved,” Rodrigues said, adding that he believed that because the DLNR had accepted All Tree as a qualified bidder for the property and had approved his plans to build a parking lot for his trucks that it was understood that All Tree Services was going to be based there. “I felt I was misled in this,” he told the Land Board.

In response to the complaints against him, Rodrigues said he sold his All Roll-Off companies, which haul construction and demolition debris. He also sold some of the equipment that was being stored at the site, and was in the process of leasing other properties to park his trucks. Although he still needs to keep about five trucks at the Waimanalo property, he said he plans to turn half of the parking lot into a greenhouse.

Land Board members asked Rodrigues several times how many trucks were still at the property, but were not given a clear answer. Concerned that the matter had already taken so much staff time, at-large Land Board member Tim Johns said he was inclined to terminate the lease. In the end, however, the Land Board agreed to defer voting on terminating the lease for one month to give Rodrigues time to secure other baseyard properties. Before the final vote, Johns told Rodrigues, “You’ve had a lot of chances… The people that I feel for are the people who bid against you.” He added that if the baseyard matter came before the Land Board again, he didn’t want to hear any more explanations. “Don’t waste your breath next time,” he said.

A court case may be brewing. Ten leaseholders of recreation cabins in Koke`e and Waimea state parks recently had their contested case petition rejected by the state Board of Land and Natural Resources.

Their petitions took issue with the Land Boards February 10 decision to auction Koke`e and Waimea state park cabin leases without compensating current lessees for the value of the cabins. Back in September 2005, after hearing hours of testimony from lessees about how the character of Koke`e and Waimea state parks can’t be maintained without the right lessees to take care of the area, the Land Board voted to allow current lessees to match high bids in the upcoming auction or be compensated for the assessed value of the cabins. However, the state Department of the Attorney General later found that this violated state law since language in the leases states that the cabins belong to the state upon expiration. The state could not compensate people for property they did not own, and it did not matter whether the auction was held before the leases expire.

The current leases, all 102 of them, expire at the end of this year. The DLNR’s State Parks Division expects to hold an auction for new leases in September. Under the current leases, the state reserves ownership of all improvements, “excluding any recreational cabin, building or structure existing on the premises prior to the commencement date of this lease,” and “improvements constructed during the term of this lease.” But upon termination of the leases, all improvements revert to the state.

So on February 10, the Land Board decided to hold a traditional auction for the leases, giving no special treatment to the current lessees. Eleven days later, Don and Gale Carswell submitted a contested case hearing petition, arguing that their property rights were being violated. The Carswell petition was followed by others from Glen Hontz and Virginia Dumas, Wayne Jacintho, Frank Hay, Erik Coopersmith, William and Elizabeth Dunford, Paul and Arline Matsunaga, Robert and Sherill Miller, Roy Yempuku for Camp Koke`e Corp., and Anthony and Barbara Locricchio.

Many of these lessees have spoken against the lease’s reversion clause, saying it was mistakenly inserted into the leases they signed in 1985. Some of those same lessees have threatened to remove their cabins before the leases expire if the state doesn’t compensate them or allow them to continue leasing the properties.

On March 10, the Land Board approved a request by parks staff to waive the 10-day deadline to file petitions. But based on a letter from deputy attorney general Bill Wynhoff, which stated that a contested case on this matter is not necessary, the Land Board voted to deny the petitions.

Wynhoff’s March 1 letter states, “The lease is clear that the lessees own the cabins during the term of the lease. No board action has affected that right. At the end of the lease, each lease requires the lessee to ‘peaceably deliver’ possession of the demised premises to the state…During public meetings…Mr. Donn Carswell…acknowledged his understanding of the reversion clause: ‘When we got the lease at public auction, we objected to the surrender clause and was [sic] told to sign or else.’….We believe the appropriate forum for lessees’ claim (should they choose to pursue it), is a court.” Wynhoff also noted that the 20-year term of the lease was intended to allow lessees to amortize the cost of the improvements.

At the Land Board’s March 10 meeting, Barbara Loccrichio suggested that the leases might not have been fairly written. Board chair Peter Young responded that her protest against the lease is coming 20 years after it was signed.

When the auction is held in September, Wynhoff says that should some of the current lessees choose to remove their cabins before December 31, the winning bidder will have a chance to back

Despite the threats made by several lessees, Wynhoff says he doesn’t think anybody is going to spend the $40,000 it would probably cost to relocate a cabin.

The Board of Land and Natural Resources has approved the establishment of the Hawai`i Experimental Tropical Forest on state lands at Laupahoehoe and Pu`u Wa`awa`a on the island of Hawai`i. The board also approved recommendations to the governor and the U.S. Secretary of Agriculture, and authorized board chair Peter Young to develop a Memorandum of Agreement with the U.S. Forest Service for the administration of the forest sites.

At the Land Board’s February 24 meeting, Maui Land Board member Ted Yamamura asked if this federal-state partnership would help the state manage Pu`u Wa`awa`a, which is one the last native dry forests in the state. Division of Forestry and Wildlife administrator Paul Conry said that the partnership would allow the U.S. Forest Service to help pay for research crucial to managing the area.

The Memorandum of Understanding will address who will be doing what in the experimental forest. A DOFAW report to the Land Board states that the Forest Service will administer research activities and the research/education infrastructure, while the state will continue its land management and resource protection activities.

The Hawai`i Forest Industry Association testified in support of the experimental forest.

The City and County of Honolulu, the state Department of Land and Natural Resources, the Office of Hawaiian Affairs, the U.S. Army, and the National Audubon Society have together agreed to pay Attractions Hawai`i $14 million for Waimea Valley on O`ahu’s north shore. On February 24, the Land Board endorsed chair Peter Young’s commitment to contribute $1.6 million to the purchase by authorizing the expenditure of an emergency appropriation (if approved by the Legislature). The Land Board also authorized the chair to negotiate terms of the MOA and the easement.

A conservation/public access easement is expected to be granted to the DLNR, and Young is negotiating an MOA which will be brought to the board for approval.
Closing for the acquisition of Waimea Valley was scheduled for March 16.

On March 10, the Land Board recommended that governor remove 3,000 square feet from the Honolulu Watershed Forest Reserve to facilitate the subdivision and lease of the area for telecommunication purposes, specifically the construction of a radio transmission tower for Hawai`i Public Radio.

HPR approached the Land Board last year with a proposal to erect a new transmission facility near Tantalus to allow more people to receive its news station, KIPO, which with its current tower in windward O`ahu can be heard only in certain parts of the island.

During a January public hearing on the proposed withdrawal, all of the testimony was in support of HPR relocating its tower.
At its March 10 meeting, the Land Board also recommended that the governor issue executive orders for the addition of 910 acres to the `Ewa Forest Reserve, which were purchased from Manana Valley Farm, LLC last year with $900,000 in U.S. Fish and Wildlife Service Recovery Land Acquisitions Grant Program funds.

About 2.5 acres in Waimanalo, acquired through condemnation in July 1998, will also be added to the Waimanalo Forest Reserve and for the Mount Olomana State Monument.

— Teresa Dawson

Volume 16, Number 10 April 2006