A Reprieve for Mount Olomana and a Dialogue with Paty
On August 24, the Board of Land and Natural Resources revoked the permit of David Fazendin to build a house on Mount Olomana. The action had been recommended by Susumo Ono, former director of the Department of Land and Natural Resources who was asked by William Paty, its current chairman, to look into the controversy over the permit.
Ono challenged the appropriateness of the Board’s approval of Fazendin’s Conservation District Use Application as a “non-conforming use,” a point that was raised in the September issue of Environment Hawai`i.
Had any Board member disagreed with Ono’s recommendation, the Board would have been precluded from action. That is because the resignation of Board member Herbet Arata, from the Big Island, has reduced the Board’s number to just four – which is also the number of votes the Board must have to decide an issue. While Arata’s resignation was appropriate (following disclosures of improprieties with state-owned land he had leased), it leaves the members of the Land Board down by two – a situation that invites disaster.
In fact, at the August 24 meeting, Board member Sharon Himeno’s conflicts of interest kept the Board from acting on a series of permits for commercial operators at Keahole Airport. There was no evident urgency about the permits, but the Board cannot count on being so lucky always. Governor Waihe`e has a golden opportunity to show his environmental colors in this election year by appointing two qualified and thoughtful Board members. He should do so at once.
Letter from the Chairman
William Paty has responded to some of the points raised in the last issue of Environment Hawai`i concerning the statutory basis (or lack thereof) for the Board’s award of conditional use permits when development does not qualify for nonconforming use, permitted use, or temporary variance. We reprint his letter below:
“Your interpretation of the statutes relating to forest and water reserve zones (section 183-41) is partially correct to the extent that it addresses non-conforming and permitted uses as well as uses that qualify as temporary variances.
“However, your conclusion that the statutes do not provide the Board with the authority to approve residential development in the conservation district (such as in the case of the Liem decision) is not supported by law or legislative history.
“In section 183-41 ( c ) (3) – Scope of zoning regulations specifically allows for ‘land uses permitted therein which may include, but are not limited to, farming, flower gardening, operation of nurseries or orchards, growth of commercial timber, grazing, recreational or hunting pursuits, or residential use (emphasis added). Section 183-41 ( c ) (1) – General Powers, also provides language which requires that the Board consider all available data relating to soil classification and physical use capabilities of the land, ‘to allow and encourage the highest economic use thereof consonant with requirements for the conservation and maintenance of the purity of the water supplies …’ (emphasis added).
“Your analysis also fails to include the department’s administrative rules, developed pursuant to law, which provide for conditional use within the conservation district, the category under which a large number of residential permits are granted. For your information, in 1985, the Hawai`i State Supreme Court upheld the Board’s authority to manage the conservation district under a multiple-use conservation concept and specifically upheld the Board’s right to approve and issue ‘conditional use’ permits.
“We are well aware that growing public awareness and concerns regarding environmental issues will continue to shape the State’s policies and direction in the future, and DLNR supports a comprehensive review and update of conservation district boundaries as well as applicable rules, regulations and policies that may require revision.
“In the meantime, however, I hope you understand that the Board has acted within its statutory authority in exercising its duties and responsibilities relative to residential development. I am also hopeful that your editorials will reflect that understanding.”
Environment Hawai`i Responds
Section 183-41 ( c ) (3) of Hawai’i Revised Statutes is quoted perfectly – but is evidently not so perfectly understood. The point we were raising was not that the Board lacked the authority to make residential use a permitted use (as it is authorized in this passage); rather, it was that, despite having the authority, the Board has failed to do so. Thus, residential use continues to be approved as non-conforming use (when the land qualifies) or as conditional use (all other times).
As to the second passage quoted – Section 183-41 ( c ) (1) – Environment Hawai`i would like to see the second part of the highlighted sentence receive as much emphasis as the first. The entire sentence bears quoting to show the context in which the Board is exhorted to take economic use into consideration: “In establishing permitted uses in the subzones, the department shall give full consideration to all available data as to soil classification and physical use capabilities of the land so as to allow and encourage the highest economic use thereof consonant with requirements for the conservation and maintenance of the purity of the water supplies arising in or running or percolating through the land.”
In other worlds, Section 183-41 ( c ) (1) gives guidance to the Board in establishing its subzones. That is a thing apart from the business of granting approval for development within already established subzones – and which was the specific subject raised by Environment Hawai`i.
Before leaving the discussion of Section 183-41 ( c ) (1), we would call the Department’s attention to the next sentence in the statute: “The department shall also give full consideration to the preservation of open spaces, as defined in section 201-21(7), so as to maintain, improve, protect, limit the future use of, or otherwise conserve open spaces and areas for public use and enjoyment.”
Admittedly, our analysis fails to include the department’s Administrative Rules – since our whole point was the Rules exceed statutory authority (at least on the issue of conditional use). To state that the Rules pick up where the law leaves off actually concedes our point. And while the Supreme Court decision (in the suit to halt construction of H-3) may have given a stamp of legitimacy to current Board practices, it certainly has not put an end to the controversy over those practices nor has it settled the question of whether Board practices conform to statutory intent. In fact, the Court noted that although the Board approved H-3 as a “conditional use,” it “alternatively approved the highway as a permitted use.” On the matter of “conditional use” per se, the Court said no more than that a conditional use may also be a use that “may be permitted under HRS Section 183-41 ( c ) (3).” To read into this a ringing endorsement of the practice of awarding “conditional use” permits requires a fair stretch of the imagination.
Conditional use continues to be a wild card, under which the Board may consider – and approve – any conceivable action on Conservation District land. It is a card that was not dealt the Board by the Legislature, and until some restrictions are placed on the Board’s promiscuous award of conditional use permits, Hawai`i’s Conservation District lands will continue to be in peril.
Windward Water on Hold
The Commission on Water Resource Management voted on August 22 to defer a decision on designating Windward O`ahu as a Water Management Area.
Commission staff had recommended against designation, but public sentiment at the Commission’s meeting was strongly in support of the petition to designate. The only negative view (other that staff’s) came from a spokesman for O`ahu Sugar Co.
Award for the most colorful comment of the day goes to Williamson Chang, respected scholar of Hawai`i water law. The decision to designate, he told Commissioners, is “your Roe verses Wade.”
Indeed, much hangs on the Commission’s decision. The Commission indicated it would make a decision in 60-90 days, instructing staff in the meantime to try address concerns voiced by the public.
No Ban on Nerve Gas Shipments
Federal District Judge David Ezra has denied the request of the Sierra Club Legal Defense Fund for a preliminary injunction against the shipment of chemical weapon from Germany to Johnston Atoll. An emergency motion for stay pending approval was denied.
A Cave-in to Kaua`i Boaters
At its August 24 meeting, the Board of Land and Natural Resources approved yet another one-year “temporary” permit allowing Zodiac boaters to engage in commercial operations at Tunnels Beach on Kaua`i’s North Shore. When the Board extended the permit last year, it instructed the operators that that would be the last time their temporary permit would be extended, and that henceforth they would have to file a Conservation District Use Application for commercial use (requiring a public hearing). They chose not to file the CDUA, stating that to do so would amount to admitting that they needed the Board’s permission to operate.
William Paty expressed his disgust with the situation at Tunnels, saying traffic there was “unconscionable already.” Regarding the motion before the Board to extend the permit another year, allowing more information to be gathered, Paty said: “We have as much information now as we’ll ever have. We’re copping out.” However, Paty then cast his vote in favor of the motion, which passed. (Had he dissented, the permit would have been denied.)
Volume 1, Number 4 October 1990