What\u2019s the difference between \u201cgrubbing\u201d and \u201cmowing\u201d?<\/p>\n
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\u2019s prohibition on grubbing without a permit. The landowner, Richard \u201cRusty\u201d Stewart, claimed that a contractor he had hired in February 2013 had merely mowed \u2013 but did not grade or grub \u2013 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.<\/p>\n
Despite Stewart\u2019s 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\u2019s actions caused serious damage to protected Native Hawaiian archaeological sites.<\/p>\n
Cleared to Mow<\/i><\/b>
\nAccording to Stewart\u2019s testimony, he had called the county Department of Public Works and the state Department of Health\u2019s 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.<\/p>\n
Once work began, around February 13, a neighbor was alarmed by what she saw. A 33-ton steel-tracked excavator with a flailing head \u2013 imagine a Brobdingnagian weed-eater with a 40-foot swath \u2013 was crawling over the densely vegetated property. Acting on her complaint, Robert Northrop, an inspector for the county\u2019s 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.<\/p>\n
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.<\/p>\n
Only after the correction notice had been posted did the state Department of Land and Natural Resources\u2019 state Historic Preservation Division (SHPD) become involved, according to a report prepared by Michael Vitousek, the division\u2019s lead archaeologist for Hawai`i island. \u201cOn March 11, 2013,\u201d he wrote, \u201cBob Northrop \u2026 notified SHPD that a County of Hawai`i Grubbing Permit was required for the land clearing activities\u201d on Stewart\u2019s 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.<\/p>\n
While the penalties for grubbing without a county permit are mild — $500 per violation \u2013 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.<\/p>\n
Vitousek prepared a staff report, recommending that the state Board of Land and Natural Resources find that Stewart had violated state law by \u201caltering historic properties without a county approved grading and grubbing permit.\u201d The report was placed on the Land Board\u2019s agenda for December 13, 2013. However, as the meeting began, board chair William Aila announced that the item had been withdrawn. The DLNR\u2019s 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\u2019s grading and grubbing ordinance.<\/p>\n
Now that the county\u2019s correction notice has been upheld, the way is clear for SHPD to press forward with its case once more. Environment Hawai`i<\/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<\/i> was a distinct possibility, the SHPD action will once again be put on hold.<\/p>\n
Muddled Narratives<\/i><\/b>
\nAs 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.<\/p>\n
But in his appeal of the correction notice, Stewart states that this was after<\/i> SHPD had been to the property \u2013 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.<\/p>\n
From all this, Stewart concludes that \u201cundo [sic] influence by SHPD has lead [sic] to this arbitrary decision and unwarranted exercise of discretion.\u201d<\/p>\n
According to Vitousek\u2019s 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. \u201cMr. Northrop escorted Mr. Vitousek onto the property, where extensive mechanical clearing activities were noted,\u201d Vitousek wrote. \u201cMr. Vitousek recorded 8 violations,\u201d including:<\/p>\n
<\/p>\n
The full extent of damage to historic sites \u201cis unknown due to the thick layer of wood chips and organic debris that covered the project area,\u201d Vitousek wrote in his field report of March 25, 2013.<\/p>\n
\u2019What About the Stewart Matter?\u2019<\/i><\/b>
\nStewart insists that neither he nor his contractor did anything that approached the definition of grubbing or grading in the county\u2019s ordinance. Even if the steel tracks of the excavator disturbed the ground, he notes, up to an acre of ground \u2013 or a fourth of his land in Kona \u2013 could be cleared under county law without need of a permit of any kind.<\/p>\n
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 \u2013 and Stewart says he thought that was the end of it.<\/p>\n
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<\/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 \u201cmowing\u201d done.<\/p>\n
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 \u2013 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\u2019s letter, says Stewart, undercuts Vitousek\u2019s claims that numerous Hawaiian sites were damaged or destroyed. After getting the Keanaaina letter, he said, \u201cI thought there\u2019s nothing there.\u201d<\/p>\n
\u201cSo months go by,\u201d Stewart said. \u201cThe archaeologist completes his report. I called up my lawyer, ask him what\u2019s going on. I find out my archaeologist, Alan Haun, had been talking to Pua [SHPD administrator Pua Aiu], and she asks him, \u2018What about the Stewart matter?\u2019 She says, \u2018We\u2019ve got him up for hearing this Friday.\u2019\u201d<\/p>\n
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.<\/p>\n
After Warren Lee, head of the DPW, stood by his inspector\u2019s decision to issue the notice, Stewart filed his appeal with the county Board of Appeals.<\/p>\n
Due Process<\/i><\/b>
\nThe 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\u2019s 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.<\/p>\n
\u201cThe reading of the statute [sic] will clearly show that technically I was not grubbing; therefore no permit was necessary,\u201d he testified. \u201cWe didn\u2019t remove the brush, we didn\u2019t denude the property\u2026 That is not grubbing according to the current law\u2026. Listen, it should be re-written so that people like me don\u2019t make any potential mistakes in the future. But \u2026 to make me the poster child, the first one out, is, I think, wrong.\u201d<\/p>\n
Stewart argued also that the DPW was acting at the behest of someone in SHPD in its refusal to rescind the correction notice. \u201cMr. 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,\u201d Stewart testified. \u201cAnd although [Lee] states that that didn\u2019t influence his decision to maintain this correction notice, I think it\u2019s quite obvious that it had to, and that therefore it was basically [an] abuse of discretion and arbitrary and capricious.\u201d<\/p>\n
The Board of Appeals didn\u2019t buy into his arguments, voting unanimously to uphold Lee\u2019s refusal to rescind the correction notice.<\/p>\n
\u201cWhat this is is deprivation of due process under the U.S. Constitution, an unlawful taking of property,\u201d Stewart told Environment Hawai`i.<\/i> \u201cSomebody has got it in for me. I don\u2019t know who, but I do know why: They don\u2019t want me to develop my property.\u201d<\/p>\n
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 \u2013 and Stewart granted \u2013 a two-week extension, which gave the county until the end of November to complete the report.<\/p>\n
Volume 25, Number 6 December 2014<\/p>\n","protected":false},"excerpt":{"rendered":"
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. … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[322],"tags":[7],"class_list":["post-6105","post","type-post","status-publish","format-standard","hentry","category-december-2014","tag-patricia-tummons"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/6105","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=6105"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/6105\/revisions"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=6105"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=6105"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=6105"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}