What’s the difference between “grubbing” and “mowing”?
That was the question posed to the Hawai`i County Board of Appeals earlier this year, as a Kona landowner challenged the accusation he had violated the county’s prohibition on grubbing without a permit. The landowner, Richard “Rusty” Stewart, claimed that a contractor he had hired in February 2013 had merely mowed – but did not grade or grub – the bulk of some four acres of land Stewart owns lying makai of the Mamalahoa Highway and just north of houses lining the steep, well-traveled Kaiminani Drive that leads to the Kona airport.
Despite Stewart’s claim that no trees were uprooted, and hence no grubbing had occurred, the Board of Appeals upheld the correction notice that the Department of Public Works had issued. The action sets the stage for the State Historic Preservation Division (SHPD) to move forward on its own claims that Stewart’s actions caused serious damage to protected Native Hawaiian archaeological sites.
Cleared to Mow
According to Stewart’s testimony, he had called the county Department of Public Works and the state Department of Health’s Clean Water Branch in early 2013 to ask whether he would need a permit to mow the property. On being informed that none was required, he said, he contracted for the clearing to be done.
Once work began, around February 13, a neighbor was alarmed by what she saw. A 33-ton steel-tracked excavator with a flailing head – imagine a Brobdingnagian weed-eater with a 40-foot swath – was crawling over the densely vegetated property. Acting on her complaint, Robert Northrop, an inspector for the county’s Department of Public Works, visited the site. That same day, February 22, Northrop posted a formal notice of correction on one of the still-standing tree-trunks, notifying all who passed that no further work was to be done on the site.
By the time Northrop reached the property, however, the work had stopped and the operator, apparently alerted that an inspector was on his way, was already in the process of removing the excavator from the property. About 80 percent of the lot had been cleared at this point.
Only after the correction notice had been posted did the state Department of Land and Natural Resources’ state Historic Preservation Division (SHPD) become involved, according to a report prepared by Michael Vitousek, the division’s lead archaeologist for Hawai`i island. “On March 11, 2013,” he wrote, “Bob Northrop … notified SHPD that a County of Hawai`i Grubbing Permit was required for the land clearing activities” on Stewart’s parcel. On the same day, Northrop and Vitousek visited the site, where Vitousek noted eight separate violations of the state historic preservation law, Chapter 6E of Hawai`i Revised Statutes.
While the penalties for grubbing without a county permit are mild — $500 per violation – those for historic preservation violations are sterner: up to $10,000 for each violation. On top of that, if the violator has caused the loss of or damage to any historic property, an additional fine is required in an amount equal to the value of the damaged property. However, a finding that a county violation has occurred is a prerequisite of any finding of a violation of Chapter 6E.
Vitousek prepared a staff report, recommending that the state Board of Land and Natural Resources find that Stewart had violated state law by “altering historic properties without a county approved grading and grubbing permit.” The report was placed on the Land Board’s agenda for December 13, 2013. However, as the meeting began, board chair William Aila announced that the item had been withdrawn. The DLNR’s public information officer, Deborah Ward, said it was because Hawai`i County had not yet made the determination that Stewart had, indeed, violated the county’s grading and grubbing ordinance.
Now that the county’s correction notice has been upheld, the way is clear for SHPD to press forward with its case once more. Environment Hawai`i asked for comment from SHPD, but had no answer by press time. If, however, Stewart goes to court to challenge the Board of Appeals decision, as he indicated to Environment Hawai`i was a distinct possibility, the SHPD action will once again be put on hold.
Muddled Narratives
As to what occurred after the work began, narratives from the parties involved diverge. All appear to agree that Northrop visited the site on February 22 and posted the correction notice on that day.
But in his appeal of the correction notice, Stewart states that this was after SHPD had been to the property – and he goes on to claim that it was a visit from SHPD on February 20 that resulted in work on the site to cease.
From all this, Stewart concludes that “undo [sic] influence by SHPD has lead [sic] to this arbitrary decision and unwarranted exercise of discretion.”
According to Vitousek’s report, however, he did not visit the site until more than two weeks later, around March 11, 2013. On that date, his report states, he was notified that a grubbing permit was required for the land clearing activities, and it was this notification, he continues, that led to a field investigation. “Mr. Northrop escorted Mr. Vitousek onto the property, where extensive mechanical clearing activities were noted,” Vitousek wrote. “Mr. Vitousek recorded 8 violations,” including:
- A possible pre-contact habitation site that had been altered by the land-clearing activities;
- “Observable alterations include recent scarring on rocks likely caused by a steel track excavator passing over it. Additionally, stones in the face of the platform were pushed over;”
- Two large depressions were in a wall of a “large dry-stacked stone enclosure” in the northwest corner of the parcel, “where the excavator appears to have passed over the wall to enter the enclosure. The stones … have been reduced to rubble;”A dry stacked retaining wall had been damaged;
- “Partial wall collapse is probably caused by mechanical arm of the excavator;” and
- Two pre-contact agricultural mounds had been damaged. One had been run over and flattened by an excavator, while a large segment of the second one had been destroyed following an excavator running through it.
The full extent of damage to historic sites “is unknown due to the thick layer of wood chips and organic debris that covered the project area,” Vitousek wrote in his field report of March 25, 2013.
’What About the Stewart Matter?’
Stewart insists that neither he nor his contractor did anything that approached the definition of grubbing or grading in the county’s ordinance. Even if the steel tracks of the excavator disturbed the ground, he notes, up to an acre of ground – or a fourth of his land in Kona – could be cleared under county law without need of a permit of any kind.
Further, he says he was completely blindsided by the SHPD report submitted to the Land Board in December 2013. After the county inspector posted the correction notice on his property, all work ceased – and Stewart says he thought that was the end of it.
After the vegetation was cut, Stewart hired an archaeologist to survey the site, a needed step before the property could be subdivided, as Stewart intended to do. He told Environment Hawai`i that vegetation on the property was so thick that no survey could be done, which was one of the reasons he contracted to have the “mowing” done.
By this time, Stewart says, he had been in touch with the Reverend Norman Keanaaina, whose family had once owned the property. Keanaaina informed him that there were no historic sites on the land – that his family had farmed there and had built sheds and corrals, and that his mother had even allowed contractors for the houses along Kaiminani Drive to remove rocks from the property for walls and fill. Keanaaina’s letter, says Stewart, undercuts Vitousek’s claims that numerous Hawaiian sites were damaged or destroyed. After getting the Keanaaina letter, he said, “I thought there’s nothing there.”
“So months go by,” Stewart said. “The archaeologist completes his report. I called up my lawyer, ask him what’s going on. I find out my archaeologist, Alan Haun, had been talking to Pua [SHPD administrator Pua Aiu], and she asks him, ‘What about the Stewart matter?’ She says, ‘We’ve got him up for hearing this Friday.’”
Stewart says that this was the first he knew of the pending Land Board action against him, with a proposed fine of $10,000, scheduled for December 13, 2013. His attorney managed to get the item continued, while Stewart tried to get the county Department of Public Works to rescind the correction notice.
After Warren Lee, head of the DPW, stood by his inspector’s decision to issue the notice, Stewart filed his appeal with the county Board of Appeals.
Due Process
The Board of Appeals hearing was continued on several occasions, but finally, on October 10, Stewart was given the chance to defend his actions. One of the key points he raised in his appeal was the vagueness of the county’s grading and grubbing ordinance. No matter that the excavator on his property weighed 33 tons and had a flail that spanned a 40-foot diameter circle, Stewart said, it did not grade or grub. It did not have a blade, and it did not uproot vegetation. It only chipped from the top of the plants down to the ground, leaving in its wake a thick carpet of chips that, when the property was eventually developed, could be plowed into the ground to enrich the soil, he argued.
“The reading of the statute [sic] will clearly show that technically I was not grubbing; therefore no permit was necessary,” he testified. “We didn’t remove the brush, we didn’t denude the property… That is not grubbing according to the current law…. Listen, it should be re-written so that people like me don’t make any potential mistakes in the future. But … to make me the poster child, the first one out, is, I think, wrong.”
Stewart argued also that the DPW was acting at the behest of someone in SHPD in its refusal to rescind the correction notice. “Mr. Lee even admitted that there has only been a handful of times the state has contacted him about a correction notice, and this was one of them,” Stewart testified. “And although [Lee] states that that didn’t influence his decision to maintain this correction notice, I think it’s quite obvious that it had to, and that therefore it was basically [an] abuse of discretion and arbitrary and capricious.”
The Board of Appeals didn’t buy into his arguments, voting unanimously to uphold Lee’s refusal to rescind the correction notice.
“What this is is deprivation of due process under the U.S. Constitution, an unlawful taking of property,” Stewart told Environment Hawai`i. “Somebody has got it in for me. I don’t know who, but I do know why: They don’t want me to develop my property.”
The county corporation counsel was instructed to write up a proposed findings of fact, conclusions of law, and decision and order within 30 days of the Appeals Board decision. According to Stewart, the corporation counsel has asked for – and Stewart granted – a two-week extension, which gave the county until the end of November to complete the report.
Volume 25, Number 6 December 2014