Manele Pavilion Breaks Faith With Lanaians, Harbor Group Says
Claiming that the State’s Division of Boating and Ocean Recreation, a branch of the Depart–ment of Land and Natural Resources, has broken faith with them, members of the Manele Harbor Advisory Committee have come out in strong opposition to the proposal to build a picnic pavilion, snack shop and convenience store on Conservation District land near Manele Bay small boat harbor, on Lana’i.
Several aspects of that proposal were dis–cussed in the [url=/members_archives/archives_more.php?id=1069_0_29_0_C]April 1995 Conservation District column[/url] of this newsletter. The Advisory Com–mittee raises additional concerns in its written comments on the draft environmental assess–ment prepared for the project.
In the Dark
The environmental assessment suggests that the proposal has the committee’s blessing. Not so, its members say. “The Committee strongly objects to this implication,” they write in their letter of comment, dated March 23, 1995. “They particularly object to [the] secretive and underhanded way in which the lease was nego–tiated, approved and signed.”
The proposed pavilion is to be built by Trilogy Corp., which obtained from the DLNR a lease to use the site. “Since the Committee first became aware that lease negotiations were in progress between the Division of Boating and Ocean Recreation and Trilogy Corpora–tion, most of its members have strongly objected to the location of the lease parcel at the throat of the harbor’s land entrance.”
The Committee members state further that DOBOR consistently kept them “in the dark with regard to the status and the terms and conditions of the lease.” While several mem–bers had voiced an interest in bidding on the lease, DOBOR refused to put the lease to bid, awarding it instead directly to Trilogy.
(In November 1993, the Advisory Com–mittee asked the Attorney General for an opinion on the legality of the lease. Deputy Attorney General Dawn N.S. Chang re–sponded in April 1994 with a one-sentence finding: “We have discussed your concerns with the Department of Land and Natural Resources and have concluded that the lease was issued pursuant to section 171-59(b)(I) of the Hawai’i Revised Statutes.”
(In her letter, Chang does not quote the statutory language. Paragraph (b) of the refer–enced section provides that disposition of public lands “for airline, aircraft, agricultural processing, cattle feed production, marine, and maritime operations may be negotiated” that is, awarded without being put out for bid while subparagraphs (1), (2), and (3) set limits on when that can occur. Subparagraph (I) requires that the disposition of land by negotiation “encourage competition within the aeronautical, agricultural, and maritime industries.”)
At Cross Purposes
Attached to the comments of the Manele Harbor Advisory Committee is a copy of the Master Plan for the Manele Small Boat Har–bor, prepared in May 1993 by DOBOR and the Advisory Committee. Among other things, the plan calls for keeping the area proposed for the pavilion in open space. Commercial operations, the plan says, should be confined to “the planned, private commercial area adja–cent to the harbor” so that the limited acreage of public land could be reserved for public use. “To preserve the unique, low-key atmosphere of the Manele Small Boat Harbor, commercial signs and structures should not be permitted within the harbor area.”
Minutes of the Advisory Committee meet–ings (also attached to its comments) bear out the committee’s claim that they were not informed of DOBOR’s and Trilogy’s plans until May 27, 1993, after the Master Plan had been completed. According to the minutes of a meeting held that day, “Larry Cobb, [DOBOR] property manager, presented the need for commercial area on state property. The philosophy of [DOBOR] Property Man–agement in the boating program is to generate funds through revenue enhancement features. This is done by chandlery, convenience stores, restaurant, yacht club, vending machines, lunch truck, etc… Larry says he feels obligated to give Jim Coon [owner of Trilogy Corp.] a permanent lease at Manele.”
Cobb’s presentation drew objections from committee members. One, Joanna McIntyre Varawa, noted that “this seven-acre harbor is the only state land on the island for recreation. The rest of the island is privately owned.” Another, Derrick Arruda, burst out: “Let’s talk straight! I have come to every meeting and now, what is going on? Why does Larry come after we finished the Master Plan? We decided a long time ago to move commercial [activi–ties] to private land. Now I hear about a scuba shop, fuel dock, car rental, and privately run trailer boat storage area.”
A month after the plan was completed, and two weeks after the explosive Advisory Com–mittee meeting, DOBOR asked for and re–ceived approval from the Board of Land and Natural Resources to issue the commercial lease to Trilogy.
The Army Corps of Engineers is reviewing the provisional permit it issued last year to the state of Hawai’i covering construction of a spring diversion system at Makaleha Springs in Kaua’i.
According to Larry Hawthorne, the public affairs officer for the Honolulu office of the Army Corps, the review is being done in light of information that has come to light since issuance of the provisional permit in March 1994. Hawthorne said the new information related to the rare Newcomb’s snail, which inhabits the area to be disturbed by the con–struction project.
“We always reserve the right to change or revoke permits in response to new information or circumstances,” Hawthorne told Environ–ment Hawai`i.
The review process would probably be completed by mid-May, Hawthorne said.
In March 1994, the Board of Land and Natural Resources approved issuance of a Conserva–tion District permit to Fred Levy, allowing him to build a house and to operate, as a hobby, a horse ranch on land he was in the process of buying at Kaliae, Maui (near Ke’anae). One condition of the permit was that Levy obtain final plan approval and begin construction within one year of the permit’s issuance.
The one-year deadline passed on March 23, 1995, with no action at all from Levy. A straightforward reading of the permit conditions would suggest that this means his Con–servation District Use Permit is now void. However, according to one planner at the DLNR’s Office of Conservation and Environmental Affairs, Levy could still ask for a time extension and the OCEA would consider it.
Newly adopted Conservation District rules clearly state that all requests for time extensions must be made prior to the deadline from which relief is sought: “All time exten–sions shall be submitted to the department thirty days before the expiration deadline. If a request is received less than thirty days before the due date the request for time extension shall be forwarded to the board for review” (§13-5-43(c)).
However, in the section immediately pre–ceding this one (§13-5-42(c)), the Land Board is allowed to permit deviations from any permit condition when all four listed criteria are satisfied. Those criteria are that the deviation is necessary “because of a lack of practical alternatives;” it will not result in “any substan–tial adverse impacts to natural resources;” it “does not conflict with the objective of the [Conservation District] subzone;” and it “is not inconsistent with public health, safety, or welfare.”
In any case, the request for deviation is to be made before the deviation occurs. “Failure to secure board approval for a deviation before such a deviation occurs constitutes cause for permit revocation,” the rules state.
By law, all government agencies in Hawai’i must make available minutes within 30 days of their meetings. In the past, the Land Board has observed this requirement in the breach, with minutes of meetings frequently published months late. The tradition continues. As of mid-April, the minutes most recently approved by the board were those of its meeting on December 16, 1994. No minutes for meetings in January, February, or March had been prepared.
New Conservation District rules provide for administrative review and approval of permit applications that, in the past, had been subject to board discussion and decision-making at meetings open to the public. One of the drawbacks of this approach, noted during the rule-making period, was the fact the new system would not give the public notice of or opportunity to comment on the pending Conservation District applications.
In an effort to mitigate this concern, the new rules provide for publication in the Office of Environmental Quality Control’s semi-monthly Bulletin of permit applications being processed by the Office of Conservation and Environmental Affairs. The first such notice appeared in the April 8 Bulletin. (The permit sought is for renovation to an existing house, construction of a new garage, and other im–provements to a house lot on Tantalus.)
DLNR Agencies Slow to Comply With Records Disclosure Law
Chapter 92F,the Uniform Information Practices Act, requires government agencies to disclose almost all their records to anyone who asks. The few exceptions deal with areas where personal privacy rights would be violated or where disclosure would frustrate a legitimate government activity (such as investigation of possible criminal actions).
Documents relating to the use of government-owned property are not among the class of records whose disclosure is restricted. Environment Hawai`i has reported in the past on the slow learning curve of the DLNR’s Division of Land Management. Yet the Division of Land Management is not alone in its failings. The DLNR’s Division of Boating and Ocean Recreation erected numer–ous barriers to keep Environment Hawai’i from reviewing financial records relating to the lease and revocable permit held by Ke’ehi Marine, Inc.
On March 24, 1995 – more than a week after Land Board Chairman Michael Wilson had promised an investigation into the DLM’s activities – Larry Cobb, property manager of the Division of Boating and Ocean Recreation, continued to withhold a print–out of the Ke’ehi Marine balance sheet from Environment Hawai`i. The balance sheet was presented to the Land Board in open session; for that reason alone, it was subject to public disclosure under the Open Meetings law (Chapter 91, HRS). Yet Cobb told the Land Board, “We can’t distinguish a line between public information and private information… We are talking about our tenants’ private financial matters.”
Environment Hawai`i sought the assistance of the Office of Information Practices, an agency of the Department of Attorney General. Officials at the DLNR consulted their own deputy attor–ney general, Jordan Wagner. In the end, Hugh Jones of the OIP instructed Wagner to inform his clients – that is, the DLNR- that the requested records were, indeed, public.
The Uniform Information Practices Act requires all govern–ment agencies to prepare lists of records routinely kept that are available to the public for review and copying. The deadline for agencies to submit their records’ list to the Office of Information Practices was December 31, 1994.
As of mid-March, the OIP’s computer showed that the DLNR had listed exactly one record: the form used by staff of the Commission on Water Resource Management to request annual leave.
The Uniform Information Practices Act provides for disclosure of public records to anyone requesting them – not just journalists, researchers, or scientists. The law, which is only a few pages long, is written in clear, straightforward language. It is available for review (and copying) in the Hawai’i Revised Statutes, shelved in the reference section of every public library in the state.
— Patricia Tummons
Volume 5, Number 11 May 1995
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