In the Conservation District

Boating Division, Lana`i Tour Company Ignore Conservation District Rules

Trilogy Corporation, a firm that takes visitors on day trips from Lahaina to Lana`i, is planning to build a picnic pavilion, convenience store and snack shop, all to be housed in one building to be erected on land it leases from the state at the Manele small boat harbor. In February 1995, Trilogy submitted to the state Department of Land and Natural Resources’ Division of Boating and Ocean Recreation a draft environmental assessment for construction of the two-story structure, to be built in the Limited subzone of the Conservation District.

As depicted on plans in the EA, the first floor will house a pavilion, kitchen area and restrooms; the snack shop and convenience store, for use by the general public, will be in the building’s basement. Upper and lower floors will have no interior connection. Access to the pavilion will be by a path separate from the public’s access to the snack shop and convenience store.

The EA does not say whether the public will be able to use the pavilion area and its restrooms. According to Larry Cobb of the Division of Boating and Ocean Recreation, Trilogy may yet decide not to install restrooms in the pavilion. The state is planning to install nearby a comfort station for the public’s use, Cobb said, and if that occurs, there would be no for additional facilities at Trilogy’s pavilion.

Baffling Language

In a telephone interview, Cobb also said that DOBOR probably will not seek Land Board approval for the project. Rather, DOBOR will decide on its own whether to grant Trilogy permission to build, Cobb said.

In fact, Cobb added, the Land Board had required Trilogy to build the facility, or something like it, when the board approved a long-term lease of the land to Trilogy in June 1993. In effect, he said, the board gave its authority to build at the same time it approved the lease.

The lease (No. B-93-02) does provide for improvements (Paragraph No. 8), but it by no means requires Trilogy to make them. Instead, Trilogy is forbidden to build anything “except with the prior written approval of the Board and upon those conditions the Board may impose,” the lease states.

However, in a section titled “Special Conditions,” “full utilization of the land” is anticipated. Here, in terms not customarily found in land leases, Trilogy is required to “utilize the land … in accordance with a plan of development,” to be submitted within six months of the lease commencement date. If the chairman of the Department of Land and Natural Resources does not reject the plan within 60 days of its receipt, Trilogy “may proceed with the work” without further notice.

Finally, attached to the lease as Exhibit C is a statement of the purpose of the lease — “developing a passenger rest stop and harbor services center.” The language is baffling, but the intent may have been to give Trilogy the “prior written approval” of the Land Board to make improvements that was required in Paragraph No. 8. We quote:

“The Lessee shall be authorized to provide the following:

“1. The authority to conduct all activities reasonably necessary and incidental to the operation by the Lessee of such passenger rest stop and harbor services center facility.

“2. The authority to construct certain improvements which shall be used principally for marine or marine-related activities as follows:

“a. ‘Parcel 1’ of Exhibit ‘B’ may be used to construct an open pavilion structure…

“b. ‘Parcel 2’ of Exhibit ‘B’ may be used for the following purposes:

“(1) The authority to plant, install and maintain landscaping…

“(2) The right to construct, install or otherwise provide tables, benches, trash receptacles, etc…

“(3) Such other compatible uses…

“3. The Lessee shall submit all construction and improvement plans and specifications to the Lessor for review and approval prior to any construction or improvement.”

Adding to the confusion is the fact that Parcels 1 and 2 are not marked on Exhibit B, which is a metes and bounds map of the 18,436-square-foot leased parcel.

Apart from the dubious authority bestowed (“authorized to provide … authority”), the somewhat clearer language of Paragraph 3 appears to undercut the claim that the Land Board had, in approving the lease itself, given its blessing to “any construction or improvement.” The lease identifies the lessor as the state of Hawai`i, “by its Board of Land and Natural Resources.”

When DOBOR Administrator Parsons was asked about this, he said he intended “to comply with lease terms.” Whether this would involve bringing the matter to the Land Board for approval at a public meeting would depend on whether or not the board had delegated authority to confer approval of plans to its chairperson, he said.

No CDUA?

The draft environmental assessment, prepared by Chris Hart & Partners, makes only passing mention of the fact that the site for the pavilion is in the Conservation District. “The subject property is located within the ‘Conservation’ District Limited (‘L’) Subzone classification. However, the state land at Manele Bay Small Boat Harbor was set aside ‘For construction, operation and maintenance of a Small Boat Marina and appurtenant facilities…’ by Governor’s Executive Order No. 2141 dated June 2, 1964. The use by the applicant for a portion of the harbor for a picnic/rest stop is in conformance with the purposes set forth in the E.O.”

The view that an executive order can be used to exclude land in the Conservation District from normal permitting requirements is shared by the Division of Boating and Ocean Recreation. In a memorandum from its administrator, David E. Parsons, to then-DLNR Deputy Director Jack Keppeler dated September 22, 1993 (two months before the Trilogy lease was signed), Parsons states that a Conservation District Use Application “should not be required as this project is consistent with the E.O. uses as an ‘appurtenant facility.'”

Conservation District rules recently adopted by the Land Board do not make any exception for lands under executive order. Were this project to be made subject to Conservation District rules, a public hearing would be required as well as decision-making by the Land Board at a public meeting.

Had the project been made subject to CDUA rules and processing, it probably would have received scrutiny by the DLNR’s Division of Aquatic Resources. DAR is responsible for managing state Marine Life Conservation Districts, one of which encompasses the waters of Manele and Hulopo`e Bays off Lana`i. The draft EA mentions the “exceptional quality of marine communities” in the nearshore waters, just a few feet from the pavilion site, yet it is silent with respect to methods to be employed during construction to control run-off into Manele Bay and the Manele-Hulopo`e Marine Life Conservation District.

History

Trilogy has used state land at Manele with DLNR permission since 1981. From 1981 to 1993, it had a month-to-month revocable permit to use 720 square feet of land as a passenger rest stop. From 1981 to 1988, Trilogy paid the state $10 a month for the use of the land; that rent was doubled in 1988.

The lease awarded to Trilogy for the 18,000-square-foot area was not sold at public auction. DOBOR Administrator Parsons explained the reasons a direct lease was issued in a memo to Maui Land Board member William Kennison on September 30, 1993. “Direct issuance by negotiation was considered justified,” Parsons wrote, as (1) it was a conversion of a revocable permit for the same type of use in the same area that has been used for that purpose since 1981; (2) it will stimulate competition by small business on Lana`i that could have been precluded by public auction, as Trilogy Corp. did not have sufficient assets to outbid Castle and Cooke; and (3) it is consistent with the draft Lana`i Community Plan goals…”

Terms of Trilogy’s lease with the state provide that it is to pay the state $5,640 a year for the first five years ($470 a month, in other words), or 5 percent of annual gross receipts, whichever is greater. DOBOR’s Cobb expects the state will receive only the minimum rent, since there is so little traffic at Manele harbor.

Although the lease is unclear on the point of what receipts will count in figuring the rental, DOBOR Administrator Parsons says only receipts from the concession will be considered. Already the Boating Special Fund collects 2 percent of the gross fees on Trilogy’s tours, he said. A call to Trilogy said the cost of a day’s tour for Hawai`i residents was $126.55 (including tax); non-residents would pay $158.19.

The plan to use Makaleha Springs as a drinking water source for Kaua`i County, described in detail in the [url=/members_archives/archives1995.php]March issue[/url] of Environment Hawai`i, (Scroll down to the March issue article listing) has received further support from Kaua`i County.

After the state Commission on Water Resource Management deferred action on the plan in February, commission chairman Michael Wilson wrote to the county of Kaua`i, asking whether the county would be willing, if necessary, to pay for treating the water should the springs be determined a surface water source.

Georgia Lomosad, chairperson of the Kaua`i Board of Water Supply, responded on March 3, 1995:

“We, the Board of Water Supply, County of Kaua`i, first want to reassure you and the Commissioners that we and the manager and chief engineer of the Department of Water, Murl T. Nielsen, are in total support of the subject project; the same holds true for our Mayor and the Kaua`i County Council…

“The Board [of Water Supply] has authorized $620,000 for the project in joint funding with the state. There are no term limits to this funding and the Board is willing to support additional funding, should it be required.

“Considering the urgent need and significant benefits, the Board will do everything in its power to comply with the Environmental Protection Agency’s Surface Water Treatment Rules and the Department of Health’s regulations in treating the water.”

In December 1989, the Board of Land and Natural Resources gave Adrian and Mae June Brash permission to consolidate and subdivide land they own in the Conservation District on Tantalus, in Honolulu, into five new lots, and to build houses on those lots. That permit was a variant on a prior permit, issued in 1981, that lapsed without action by the Brashes in 1988. The 1981 permit, in turn, was a variant on a still earlier permit, this one issued in 1971, that allowed the Brashes to consolidate and resubdivide the same property.

The 1989 permit appeared to be destined to the same fate. As reported by Environment Hawai`i ([url=/members_archives/archives_more.php?id=870_0_32_0_C]July 1992 Island Watch and May 1993 Island Watch)[/url], the Brashes repeatedly failed to meet deadlines imposed as conditions of the permit. The board issued two time extensions for completion of the work, with time running out on December 15, 1994.