Hawai`i is a state abundant in laws intended to guarantee public rights that in other states have been eroded by private development. On the books, therefore, are statutes enshrining the public’s right to coastal access and reserving to the public the resources vital to its physical and mental well-being.
But however well intentioned they may be, laws are only as good as their enforcers make them. And, as the articles in this issue of Environment Hawai`i show, enforcement of statutes regulating development in the state’s Conservation District has been weak where, indeed, it is to be found at all. The result: precious public resources, once abundant and free, become scarce, and the very same private parties responsible for that scarcity are materially rewarded when their own corner on those newly scarce resources is used to increase the market value of their own holdings.
In other words, we’re being ripped off.
Exclusive or Inclusive?
In the past, when violators have been caught, the penalties have been laughable and the award of after-the-fact blessings on their unauthorized improvements has been generously bestowed by both county and state authorities. The upshot has been not to discourage but in fact to encourage future violations. Developers may be forgiven if they believe it will be far easier and cheaper to build something without approvals and seek them when, and if, they are called on it, than it is to go through the permitting process, which can involve public hearings and may end up with ambitious plans being compromised in an effort to mitigate environmental harm or address community concerns.
Private developers, covetous of views and envious of the seclusion of many heretofore undeveloped areas, are growing ever bolder in their designs to turn those amenities into private assets. The value of their land and holdings is enhanced the more the value to the public is diminished.
Thus, George Isaacs’ house is touted in a recent issue of Hawaiian Island Home (July-August 1991) as affording “a sense of glorious seclusion,” with “total privacy” being an oft-invoked qualifier. No mention is made of the detour that the public has to take, to exercise its “shoreline” access, in order to give the Isaacs’ that “glorious seclusion.” That same magazine, by the way, alerts readers that Isaacs’ property is on the market. Although Isaacs has denied that it is, a “comparative market analysis” prepared for his 26.7 acres of land along Puakea Bay does show his property for sale with an asking price of $25 million.
The state needs to restore the public’s confidence, and to diminish developers’ cockiness, and the most effective way to do this is to make sure that people seeking after-the-fact approvals do not end up with anything more than they would have been able to build had they followed normal permitting processes. If that means that the Land Board starts requiring developers to dismantle improvements and restore the land to its former state, so be it.
There He Goes Again
D.G. “Andy” Anderson’s proposed house on Tantalus is another case of a developer proposing to enrich himself at the public’s expense. Here, the public resource whose loss would be most keenly felt is the utility of state-owned land as a spot for rest and reflection along a trail over which the public has undiminished, if little used, legal right of access.
This is not the first time Anderson has proposed to turn a public amenity into a private asset. In 1978, at the time he was proposing to build his John Dominis Restaurant on state-owned land fronting Kewalo Basin, the state Legislature was considering turning that site into a park. Anderson was able to win approval for his restaurant more quickly than the Legislature could act. Thus, unless people can afford to dine at John Dominis, and have the connections to get a waterfront table, they have been deprived of the enjoyment of the views from that area until Anderson’s leases expire, in the year 2042.
Then, too, one should not overlook Anderson’s efforts in 1989 to trade land on Tantalus owned by his uncle and aunt, Adrian and Mae June Brash, for an adjoining lot owned by the state (with, of course, a better view of Honolulu). That got nowhere.
Anderson’s most recent effort, ostensibly on behalf of his daughter and son-in-law, requires for its success that the Board of Land and Natural Resources grant unprecedented — and alarming — approval of the establishment of a new residential lot in the Conservation District. If approval is given, it is only reasonable to expect Bishop Estate, owner of the land out of which Anderson’s house lot is to be carved, to give serious thought to ways in which it can cash in on that precedent (beyond the $300,000 it will be getting from Anderson and his daughter). Small wonder Bishop Estate has pulled out all the stops in helping Anderson’s agents in this scheme.
Slippery Slope
The proposed house of Ralph and Betty Engelstad poses still more thorny questions that may be beyond the authority of the Land Board to resolve. One can only hope that when, and if, the case reappears in circuit court, the court will defer to the Board’s authority to approve plans after the award of permits.
Over and above that, the Engelstad case points to the need for the Board, and its staff, to get clear on what is required of developers in order to fulfill the condition that “work or construction” begin within a year of the award of a Conservation District Use Permit. As things stand, the Engelstads seem to have been the beneficiary of a liberal interpretation of “work or construction,” while past permit holders (including David Fazendin and Timothy Hurst) would seem to have borne the brunt of a more restrictive interpretation. To say staff action has been inconsistent and confusing in this regard would be an understatement.
The Engelstad case raises yet another point of concern. Representing the Engelstads, in an adversarial position vis-a-vis the state, is Benjamin Matsubara. Matsubara also represents the state in proceedings of the Land Use Commission. Is it asking too much for lawyers in the hire of the state to refrain from representing clients bringing claims against the state? We think not.
Et Cetera
In our October 1990 issue, the statement was made that the Board has never granted residential permits in the Resource subzone, unless they were allowed as nonconforming uses. We stand corrected. Board practice has been to grant one house per lot, regardless of size, in the Resource and General subzones — as, unfortunately, the case of Isaacs attests.
We should note, too, that the editor of Environment Hawai`i accepted an invitation to testify on behalf of Manoa residents contesting the Grobes’ proposal during contested case proceedings in November.
Finally, careful readers of the masthead on this page may observe that Environment Hawai`i has a new publisher. This reflects the decision to restructure the corporate house, moving from a subchapter S corporation to a nonprofit corporation. Application has been made to the Internal Revenue Service for recognition as a tax-exempt organization. If approved, it will allow readers to make tax-deductible contributions (over and above the basic subscription rate) to Environment Hawai`i. While we acknowledge that this theoretically limits the amount of political speech allowed us, a review of the issues published over the last year and a half indicates we have not begun to approach those limits. If readers detect any diminishment in our editorial punch, they are invited to let us know.
Volume 2, Number 7 January 1992