In the last year, Environment Hawai`i has discussed controversies relating to residential construction on lots that lie within the state Conservation District and in which development is regulated by the Department of Land and Natural Resources. (The September edition was devoted to this topic. Follow-up reports appeared in the October 1990 and February 1991 issues.)
In two cases, members of the public may have been led to believe that the Board of Land and Natural Resources acted decisively to halt the projects. Indeed, the Board itself may be of this opinion. A recent review of files at the DLNR’s Office of Conservation and Environmental Affairs suggests that so far as its staff is concerned, it takes far more than the Board has done so far to lay matters to rest.
The Fazendin Case
Last August 24, the Land Board decided that David Fazendin had failed to comply with the conditions it had placed on his proposal to build a house on the face of Mount Olomana, one of the most prominent physical features on the Windward coast of O`ahu. At the time, the Board put off deciding what to do about the illegal work that Fazendin had already done (a long driveway and carport pad had been poured; land had been graded – including state land adjoining Fazendin’s property – before construction plans were approved; trees had been chopped without prior approval). Instead, the Board asked staff to conduct a 90-day review of the problems and then report back to the Board with recommendations (including possible fines and orders to Fazendin to restore the property to its preconstruction state).
On November 23, a day before the 90-day period expired, Fazendin wrote to Ed Henry; the OCEA staff planner handling this case, requesting “that you hold in abeyance any action regarding the existing driveway and pad” while Fazendin continued to discuss his legal recourse with attorneys and consultants. “I wish to build my home on the property and have not abandoned my plans,” he said. “It would not make sense to me to tear it [the driveway] down and then have to build it again.”
In January, Fazendin wrote the Department: “The purpose of this letter is to advise you of my intended actions with respect to the subject property…. I am willing to submit matters that cannot be addressed by the Board to a process of mediation mutually agreeable among all parties.” Mediation had been recommended in the report of Henry to the Board on August 24, 1990, but members of the various community associations opposed to Fazendin’s plans were unwilling to participate, taking the position that the laws and rules governing Conservation District land should determine the outcome in this case.
Since then, Fazendin has taken no further action to advance his plans to build on the site. He has not filed a new Conservation District Use Application (it would be his third for this land).
But the inaction is not his alone. That staff report, which the Board might have reasonably expected to have in hand last winter, is nowhere to be found. Henry was asked whether it had been prepared. He said he could not comment.
Ka`iwa Ridge
Last January, the Land Board declared null and void a 12-year-old permit allowing the owner of land at the summit of Ka’iwa Ridge in Lanikai (Windward O’ahu) to build a house there. State law allows parties to challenge decisions through a process known as a contested case hearing, but the request for a contested case must be made at the meeting where the Board decides the issue or at a public hearing called for the purpose of allowing testimony on the proposed use of the land. The request must be followed within 10 days by a formal, written contested-case petition.
The parcel is owned by Wacor, Inc., based in Washington state. Timothy Hurst is, in turn, owner of Wacor. His attorney in Honolulu is Dennis King. Neither King nor Hurst asked for a contested case hearing at the Board’s January 25 meeting, where the permit was voided.
But King did file a contested-case petition, which was stamped as received by the DLNR February 6, two days after expiration of the 10-day limit. (The envelope in which the petition had been mailed was lost, thereby making it impossible to know when the petition had been mailed.) On April 26, and with proper notification having been made to King, the Board discussed whether to waive its own rules and grant the petition for a contested case. No one representing Hurst appeared at that meeting. Although staff at the Office of Conservation and Environmental Affairs pleaded with the Board to grant the petition, the Board members themselves decided that if the owner or his agents thought so little of the matter as to fail to appear, Board members were under no compunction to bend the rules to fit the owners convenience. The Board voted unanimously to deny the contested case petition.
More than a month before, however, King, the attorney for Wacor, had filed an appeal of the Board’s January action in state circuit court. On March 18, King asked the court to order the Board to grant the contested case hearing, “and/or” to reverse the Board’s decision voiding Wacor’s permit. On April 29, 1991, Judge Robert Klein threw out the appeal as premature.
One might think that would be the end of it. Hurst and King seem to have forfeited any possibility of a contested case hearing by their failure even to appear at the Board meeting where this was decided. Courts have in the past taken a dim view of appellants who have not pursued vigorously all administrative remedies prior to taking their cases to court.
But when Ed Henry at the OCEA was asked about the status of the Hurst permit, he indicated that Wacor’s agents were once more seeking a contested case hearing.
The public is notable to see recent correspondence or other documents relating to the Wacor file at the OCEA, where staff has decided that such information is too sensitive. Much of it is available for inspection at the court building, however.
The record there indicates that Ed Henry, of the OCEA staff, and Edwin Watson, deputy attorney general, put together the arguments against Wacor’s appeal. Although the state prevailed, in doing so, the official account of events relating to the handling of this permit seems to have become skewed.
For example, the state’s motion to dismiss Wacor’s appeal indicates that “Appellant Wacor, Inc., timely submitted… its Petition Requesting Contested Case Hearing,” even though the February 6 date of submittal referred to in the motion is two days beyond the 10-day period for filing such requests. The statement that this constituted a “timely” submittal is one that the Board itself had trouble accepting (and ultimately did not accept) at its April 26 meeting.
In a sworn affidavit, Ed Henry further told the court that “the Office of Conservation and Environmental Affairs is presently attempting to schedule a contested case hearing,” a statement that suggests it is just a matter of when, not if, a contested case hearing will occur. But the Board alone has the power to grant contested case petitions. At the time of Henry’s affidavit, the Board had not decided that matter. If indeed the OCEA was “attempting to schedule” any hearing, it was doing so outside of its authority.
The legislature earmarked $500,000 for state acquisition of Wacor’s property. Given that Wacor purchased it in 1988 for around $100,000, that should be sufficient compensation. On the other hand, in court filings, Wacor contended that state action to void the permit will mean that an agreement to sell the (developed) property for $3.9 million cannot be consummated.
First and Goal for Engelstad
At the January decision on the Wacor permit, the Board of Land and Natural Resources seemed to have accepted (implicitly, in any case) that construction entails something more serious than soil samples, test borings, surveys and the like. Timothy Hurst had done all these things, but, the Board decided, he had still failed to comply with the condition that he commence construction within one year of his acquisition of the property.
But when it comes to the (court-awarded) permit of Ralph Engelstad to build his monstrous house just a stone’s throw from Wacor’s property, OCEA staff seems to have adopted a more lenient approach.
Engelstad’s permit is controversial on many counts. For a fuller discussion, readers are advised to turn to the September 1990 and February 1991 editions of Environment Hawai`i. The Lanikai Association has steadfastly opposed construction on this property; which is in the limited subzone of the Conservation District. In an eight-page letter to Board Chairman Paty last May 16, the association asked Paty, among other things, to explain why the same standards applied to Wacor (and Fazendin) with regard to construction were not also applied to Engelstad.
Don Horiuchi, the OCEA planner managing the Engelstad permit, said that no response had been drafted yet to the Lanikai Association’s letter. Asked when one would be written, he said that that was up to Board Chairman Paty.
Meanwhile, Engelstad has submitted plans for his “Lanikai Hale.” Technically, it may fit the Board’s criteria for a single-family dwelling (it has but one kitchen, and the entire house sits under one large roof). But it is a house like few others. It has six water closets, five wet bars, four bedrooms (each with private bath), three dining rooms, two pools, a recreation area (including sauna, steam room and lockers), a conference room, studio and den. For chill winter nights, there are two fireplaces.
The length of the house is nearly 300 feet; it is about 100 feet wide – making its “footprint” about the size of a football field. (A football field does not have a second story, however.)
Volume 2, Number 2 August 1991
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