Since publication of the September 1990 issue of Environment Hawai`i, there have been these developments:
In the Engelstad case, the attorney general has decided that the permit is valid. The basis for this determination is the fact that some test bores were drilled within the first year following granting of the permit. This activity constitutes construction, the attorney general decided, and thus the requirement that construction commence within a year of the permit’s granting has been met so the permit is intact.
This is a puzzling opinion — and, as we discuss below, is not an interpretation supported by Board action. While condition 15 in the standard list of rules governing conditional use permits does state that “any work or construction … shall be initiated within one year of the approval of the use,” condition 7 clearly states that “prior to the commencement of any construction… four copies each of the final location map, plans, and specifications shall be submitted to the chairperson or an authorized representative for approval.” No plans were approved before the drilling activity commenced; thus, the determination that what occurred was construction, as provided for in condition 15, flies in the face of approved construction, as provided for in condition 7.
In another case, the attorney general decided that a permit granted in 1978 to build a house atop the bunkers on Ka`iwa Ridge in Lanikai (Windward O`ahu) was not valid. The reason given was that the present owner of the land, Timothy Hurst, had himself agreed, in an attachment to the deed, that he would begin construction within a year of the recording of the deed at the Bureau of Conveyances — a period that expired in December 1989. What is peculiar about this opinion, however — and which undermines confidence in the attorney general’s overall competence in issuing Conservation District opinions — is the fact that just last May, the attorney general issued a ruling upholding the validity of this permit. Only after people in Lanikai discovered the deed attachment and brought it to the attention of William Paty was the attorney general requested to review the matter again.
On January 25, the Board revoked Hurst’s permit, citing the deed attachment and the fact that Hurst made no effort to request an extension of the one-year limit. Hurst’s lawyer, Dennis King, argued that during the year in which the permit was alive, work was done on the site (soil sampling, test bores, surveys). The Board — notwithstanding the attorney general’s permissive interpretation of what constitutes construction in the Engelstad case — decided that this did not constitute construction as provided for in its rules. (Board action in this case was consistent with its revocation of a previous Conservation District use permit granted to David Fazendin. Despite Fazendin’s having cleared the land and poured a 400-foot-long concrete driveway, the Board decided that construction had not occurred because plans had not been submitted and approved before work had been undertaken.)
All in all, the service of the attorney general’s office has been unsatisfactory, erring regularly not on the side of caution, but on the side of development. Perhaps the problem lies in the OCEA not completely disclosing the facts of each case reviewed to the attorney general. On the other hand, if the public can track down documents of critical importance, one would expect the same degree of curiosity (at least) to motivate the people in whom has been vested public trust.
New Rules
The Office of Conservation and Environmental Affairs finally has compiled and submitted to the governor’s office changes in the DLNR Conservation District rules approved last February (and the subject of public hearings in 1989). The major change is the specific protection afforded to nonconforming uses on kuleana land in the Conservation District.
Copies are available on request from the OCEA office in the Kalanimoku Building (1351 Punchbowl Street, Honolulu, 96813).
Volume 1, Number 8 February 1991
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