In the Conservation District

Does Botanical Garden Divert Stream? Its Stories to State, County Differ

The Hawai`i Tropical Botanical Garden, on Conservation District land north of Hilo, Hawai`i, is seeking permits on two fronts. From the County of Hawai`i Planning Department, it is asking for after-the-fact Special Management Area permits for improvements made to the private park as well as an SMA permit for a yet-to-be-built rain shelter. At the state Department of Land and Natural Resources, meanwhile, it is seeking an after-the-fact Conservation District Use Permit for the same improvements.

As a routine part of processing the Conservation District application, staff at the Department of Land and Natural Resources’ Office of Conservation and Environmental Affairs asks for comment on the application from its sister agencies within the DLNR’s administrative fold. One such agency is the Commission on Water Resource Management.

On September 21, 1994, David Higa of the CWRM staff was preparing his agency’s response to OCEA’s request for comments on the garden’s Conservation District application. Noting that a body of water called “Lily Lake” appeared on the site plan, Higa telephoned the garden’s attorney, Steven S.C. Lim, to inquire about the source of the water.

In a letter dated October 5, 1994, Lim gave Higa with answers that, Lim said, had been provided by Daniel J. Lutkenhouse, founder of the garden and owner of most of the land on which the garden has been built. “Water in the Lily Lake is primarily replenished by rain water … and by watering of plants in and around the lake,” Lim wrote. The garden did register its use of water from Onomea Stream with the Water Commission in 1990, Lim added, but that stream water was not diverted to Lily Lake; “the approved use is limited to the watering of plants and operation of two restrooms,” Lim said.

As a result of Lim’s assurances, Higa informed the OCEA on November 3, 1994, that the Water Commission had no objections to issuance of a Conservation District permit for the various improvements “because these facilities do not affect streams.”

Meanwhile, at the County

On September 21, 1994, the same day Higa was telephoning Lim, Hawai`i County Planning Director Virginia Goldstein was writing Lim, requesting as-built plans for the various improvements for which Hawai`i Tropical Botanical Garden was seeking county blessing. Included among the improvements was Lily Lake, 60 feet wide, 75 feet long, and 3 feet deep, which is filled with koi, water lillies and other aquatic plants, and a “small pond for flamingos and ducks,” approximately 15 feet wide, 30 feet long, and 8 inches deep.

By letter dated October 7, 1994, Lim responded to Goldstein. Attached to his letter were diagrams of Lily Lake and the pond for birds. Below the diagram for Lily Lake is a short description of the pond’s construction, noting that a 2-inch plastic intake pipe leads to Onomea Stream, which is the water source for the pond. “Stream Diversion is registered with DLNR,” reads the text at the bottom of the diagram.

The diagram for the bird pond shows a 1-inch water intake pipe. “Water intake same as Lily Lake,” reads the text at the bottom of the diagram. Both the bird pond and Lily Lake drain through plastic overflow pipes into a ditch that empties back into Onomea Stream just a few yards from the ocean.

On the basis of the information provided to the county — which was forwarded to the state by an interested citizen — the DLNR has now asked for further comment on the garden’s permit application from the Water Commission and Na Ala Hele, the state agency charged with developing public trails.

Flexible Standards

The county of Hawai`i Planning Department’s handling of the Hawai`i Tropical Botanical Garden has come under fire recently for another reason. On February 16, the Hawai`i Tribune-Herald’s Dave Smith reported that the county has knowingly tolerated zoning violations by the garden since at least 1992. In a front-page article headlined “One cited, another not,” Smith noted that a Republican candidate for County Council was cited by the county for a zoning violation while the garden’s founder, “a campaign supporter of Mayor Steve Yamashiro,” has been “allowed to operate in violation of zoning ordinances for years.”

For the past six years, Smith wrote, “the headquarters and gift shop of the Hawai`i Tropical Botanical Gardens has been operating in a residentially zoned area along the old Mamalahoa Highway ‘scenic road’ near Papaikou.” Unlike the zoning violation of the Republican candidate, Lorraine Shin, Lutkenhouse’s violation poses a safety threat. Smith noted that when Lutkenhouse first applied for permits from the county around 15 years ago, he said most visitors would be shuttled to the park and wouldn’t require nearby parking. “But over the past decade,” the Tribune-Herald reported, “the parking areas around the garden headquarters have continued to grow around the narrow roadway, which in many places is but one lane, and at times contain as many as 40 vehicles belonging to garden patrons. According to neighbors of the garden, the result is congestion and sometimes accidents.”

Lutkenhouse’s office used a vacant church for its first headquarters, but after that burned, it built a new headquarters and gift shop without building permits.

The Tribune-Herald reported that Lutkenhouse donated $2,000 to Mayor Yamashiro’s political campaign fund in April 1992 and $1,000 more in July 1994.

Opponents of the `Ewa Marina project have sued the state Board of Land and Natural Resources over the board’s approval of a permit to dredge an entrance channel. (For more on that permit, see the February 1995 cover story of Environment Hawai`i.)

The Save `Ewa Beach Ohana, Anna Marie Kahunahana-Castro-Howell, and Jeff Alexander joined forces in one lawsuit. The Office of Hawaiian Affairs appealed separately. The appeals were filed in late January in First Circuit Court.

Arguments in both appeals are similar. The proposed use of submerged lands as a marina entrance channel is not “a permissible use of ceded lands,” to quote from the appeal of the Ohana. In any event, the appeal says, the developer, Haseko `Ewa, Inc., “has not submitted any request for the issuance of a lease or easement of submerged lands.”

Finally, the appeals argue that procedurally, the contested case hearing held by the Land Board on Haseko’s permit request was flawed when then-Board member Libert Landgraf mistook an OHA attorney for one representing Haseko and suggested to her, long before the process had ended, that Haseko had nothing to worry about from the Land Board. As the Ohana appeal argues, “statements made by Mr. Landgraf … together with the BLNR’s subsequent actions, are reasonably capable of being interpreted as indicating that the BLNR, or at least a majority of its members, had predetermined the contested case proceeding on the CDUA in favor of Haseko,” thus depriving the opponents of “the basic due process requirement of a fair trial before a fair tribunal.”

O`ahu has one seat, with fixed term, on the Board of Land and Natural Resources. In recent years, O`ahu representatives have resigned before their terms expired, which caused the editor of this publication to be confused about when the term of the current O`ahu representative would end.
We think we have it straight now, with the help of the governor’s office. The first term of the present O`ahu board member, Michael Nekoba, will expire on June 30, 1997 — not 1995, as we reported last month.

— Patricia Tummons

Volume 5, Number 9 March 1995