January 5, 2006
TESTIMONY ON AGENDA ITEM NO. VI- 4.
State Land Use Commission
Submitted by Carroll E. Cox,
President, EnviroWatch Inc.
1. Status of Compliance with Land Use Commission Conditions
We would like to make it clear that our testimony is not based solely
on our beliefs or our interpretation of City and other agency’s records
pertaining to the Land Use Commission’s Findings of Fact. The basis of
our conclusions, and objection to any further consideration of the Land
Use Commission’s Permit is based upon statements made by Mr. Bob Stanfield,
the Branch Chief of the Department of Planning and Permitting’s Planning
Division, that is charged with monitoring the status of permit conditions.
Because the City Council Zone Change approval was dependent upon and stemmed
from the primary approval granted by the Land Use Commission, Mr. Stanfield
monitors compliance with LUC conditions in addition to the Zone Change
(Unilateral Agreement) conditions.
In written statements made on November 28, 2005, just a little over one
Month ago, Mr. Stanfield reviewed the Ko Olina Annual Status Report for
2005 and stated that a number of conditions had not been met, including
LUC Condition 13, reclassification of marina waterways to the State
Conservation District. He also stated that a plan and deadlines for
compliance with that condition, and other conditions must be submitted,
including connection of the secondary access road to Farrington Highway,
connection of Aliinui Drive to Kapolei Parkway, a secondary roads plan,
construction and dedication of all roads within Ko Olina, and development
phasing of hotel rooms (since 50 percent of the visitor units are to be
full-service hotel units). This is a staggering number of conditions that
remain outstanding, since the original approvals were granted 20 years ago.
How much longer must the people ofHawaii wait? Another 20 years?
2. Background Information
I have written extensively about issues surrounding the closure of Ko Olina’s
public boat ramp and the wrongful redirection of fishermen and other boat users
to the ramp at The Phoenicians LLC, located in Campbell Industrial Park. After
being turned away from Ko Olina, with the permission of the City and County of
Honolulu’s Department of Planning and Permitting (DPP), the boating community
was forced to use the boat ramp operated by The Phoenicians LLC. This ramp is
virtually unusable. Not only is it unsafe and difficult to use, it is dangerous
due to its close proximity to propane gas tanks and chemicals, and to its initial
design as a boat haul-out ramp, an industrial use.
As a result of their concerns over safety and access issues, the fishermen and
other concerned citizens have asked Mayor Hannemann and Governor Lingle to
intervene. Their request is based on issues of legality of this closure. This,
in turn, is based on facts gleaned from documents recovered from the government’s
archives. No motions have been made to the LUC to allow closure of the Ko Olina
boat ramp to public use. Therefore, there was no opportunity to evaluate and
publicly discuss the concerns of citizens being denied public access. Additionally,
there was no opportunity to evaluate and discuss safety issues relating to the
boating community’s use of The Phoenicians LLC ramp (such as winter surge), the
potential of collisions with commercial vessels, restrooms and showers, and other
issues.
Public access to the ramp at the Ko Olina Marina was part of the original proposals,
agreements, and land use permits for development of the area (“West Beach Estates”),
which was designated for agricultural use. The reinterpretation of statements from
the original documents, and the overstepping of boundaries and authorities by those
involved, has led to the current situation. Therefore, it can truly be said that the
public has been illegally denied access to a coastal recreational resource that is
rightfully theirs to use.
The problems we are now facing are based on politics. I have been attempting to sort
through the mess.
On July 16, 2005, fishermen held a rally at Mililani High School to protest the
closure and discuss the issues. Both Governor Lingle and Mayor Hannemann were invited
to the meeting, but did not attend, nor did they send a representative. However,
because the meeting was covered by the media, the fishermen’s issues have gained a
much wider exposure - to the chagrin of Ko Olina’s management and the Department of
Planning and Permitting.
After the rally, Mr. David Tanoue, Deputy Director of the City and County of
Honolulu’s Department of Planning and Permitting (DPP) issued a statement entitled
“CITY RESPONDS TO KO OLINA BOAT RAMP PROTEST”. Mr. Tanoue issued his statement in
response to “criticism from some boaters regarding the closing of the Ko Olina boat
ramp to the general public.”
EnviroWatch Inc. has sent numerous letters to the Mayor seeking his intervention
in this matter. To date, we have not received a single written response, just a lot
of diversions. Therefore, it should be pointed out that the “written” response
Mr. Tanoue gave the media is suspect. We believe it was written in an attempt to
dilute the impact of the media’s coverage of the rally. If this were a boxing match,
this would be a low blow. As such, it is a sad commentary on the Mayor’s
administration.
Assuming Mr. Tanoue’s statements to the media are based on facts, and they were
available at the time we first wrote the Mayor, Mr. Tanoue should have had the
courtesy to provide the same facts to us when we started examining the issues.
Because the information was not provided, it now appears that Mr. Tanoue’s news
release was nothing more than a veiled attempt by the Hannemann administration
to conceal back door dealings and favoritism provided to special interest groups
and their friends.
We were informed that someone in the Hannemann administration claimed they
did not know about the rally scheduled for July 16 at Mililani High School.
However, we personally invited both the Mayor and Governor Lingle to the meeting.
Upon receipt of our email and fax regarding the meeting, the Mayor’s office stated
that the Mayor could not attend because he would be out of town. They also told me
that Trudy Saito, the City Deputy Managing Director, would call to arrange a meeting
with myself, David Tanoue and Mayor Hannemann regarding the marina issue.
In Tanoue’s haste to conceal the DPP’s treatment of the Ko Olina boat ramp he only
stated half the facts. Specifically, he said that “All necessary approvals have
been granted for the substitute boat ramp”. That is not true. All necessary
approvals have not been received. As we have said, no motions have been made to
the LUC. Also, The Phoenicians LLC ramp had not been approved by the DLNR’s Board
of Land and Natural Resources at the time of his writing and we are still awaiting
this matter to be scheduled by BLNR, Chairman Peter Young to address many of the
issues we have raised. The Department of Transportation only approved it after we
exposed the fact that The Phoenician LLC does not have a lease and is not paying
rent for the use of that portion of the ramp situated on State land. Yet, they are
charging the public to use the ramp. Here, in part, is Mr. Tanoue’s statement:
“The developers of Ko Olina initially obtained zoning and special
management area use permits for the project 20 years ago, when the
project was known as West Beach. In addition, a conditional use permit
for marina accessory facilities and uses was granted in 1996, which required
the developer to submit a Public Access Master Plan with an operational plan
for the boat ramp [submitted in 2000]. It included the following condition:
At such time that the substitute launch ramp is constructed and opened to the
public, Ko Olina Companies shall have the right to permanently close its boat
ramp or limit its use to resort guests. We have received assurances from the
State Harbors Division that all of the necessary approvals have been granted
for the substitute boat ramp, the Phoenicians ramp at Barbers Point nearby,
and it is open and fully operational for public uses. It is private property,
and the City would have to condemn it in order to make it available for public
use. That could require millions of dollars to acquire it and more to maintain it.”
In fact, public monies have already been spent. Public money was used to dredge
the channel that connects the Ko Olina Marina to the Deep Draft Harbor. What is
the public benefit gained in return for this use of taxpayer money? The public
benefit was the construction and up-keep of the boat launch ramp for use by the
public as required by the LUC. Indeed, if Mr. Tanoue wants to raise the issue of
expenditure of public monies, he should not forget that Governor Lingle gave
Ko Olina $75 million of taxpayer money for construction of an aquarium. No aquarium
has been built, and no construction plans or building permit applications have been
submitted to the City. Is this a prudent use of public monies? We do not believe it
is.
David Tanoue is the Deputy Director of the DPP. Prior to that he was the Deputy
Corporation Counsel assigned to the DPP. With Mr. Tanoue’s knowledge and expertise,
he of all people should know that the City and County of Honolulu’s Department of
Planning and Permitting or the State Department of Transportation Harbors Division
cannot approve the closure of the Ko Olina boat ramp because they do not have the
authority to do so. The State Land Use Commission (LUC) which is housed in the State
Department of Business, Economic Development and Tourism has authority over the
Ko Olina Marina.
That authority is documented in LUC Docket No. A83-562 “WEST BEACH ESTATES”, dated
July 23, 1985. The Findings of Fact memorialize the petition by West Beach Estates
to amend the State Agricultural Land Use District Boundary to the Urban Land Use
District, for approximately 642 acres at Honouliuli, Ewa. In the Findings of Fact,
the following is recorded:
DEVELOPMENT PROPOSAL
# 33. “Petitioner proposes to develop a 36 acre recreational and commercial
marina with a public boat launch ramp, and to develop pump out facilities, a
fueling and dry dock facility, other public conveniences and parking adjacent
to the Deep Draft Harbor. Commercial use of the marina facilities will include
sightseeing, charter fishing, dinner cruises and other excursions”.
# 41. Petitioner intends to complete the following within five years within
the date of the Commission’s approval of this petition: (d). Construction of
all recreational amenities, including the lagoons, marina, parks, beach and
yacht club and golf course.
# 87. Petitioner will also open to the public use parks and open areas,
including the 18-hole golf course and sandy beaches, and recreational support
facilities not presently on the property such as comfort stations, shower and
150 parking spaces. Petitioner will provide boating and other marina-related
recreational facilities and beach rights-of-way in coordination with the County
Department of Parks and Recreation requirements.
CONFORMANCE WITH THE HAWAII STATE PLAN
# 125. In part “Petitioner proposes to satisfy Sections 8(b)(5) by providing
parks, marina, and lagoons on the southern ends of the Property in compliance
with the recommendation of the Barbers Point Harbor Safety Buffer Zone Committee”.
Based on the above, it is evident that Ko Olina must provide a public boat launch
ramp. Furthermore, the LUC granted Petitioner’s Motion to Amend the Findings of
Fact dated September 12, 1985, subject to certain new conditions: “Petitioner shall
develop the Property in substantial compliance with the representations made to the
Commission. Failure to develop the Property may result in reversion of the Property
to its former classification, or change to a more appropriate classification.”
Clearly, the City DPP’s amendment to the public access master plan, allowing
Ko Olina to close it’s boat ramp to the public, contraverts representations made to
the Land Use Commission.
We have requested that the Mayor intervene and file a Motion to Show Cause before
the LUC. However, it is the City that is allowing noncompliance by allowing closure
of the boat ramp, and by failing to enforce the conditions of the permit approvals
within any reasonable timeframe. We do not believe that 20 years is a reasonable
timeframe, especially since there is still no end in sight and the DPP is still
asking for a plan and deadlines to be provided by Ko Olina itself. Has Ko Olina
now risen to the level of self-monitoring? This amounts to a betrayal of the public
trust.
Not only did Ko Olina close the ramp, they demolished it. We have found no evidence
that DPP notified the LUC of this action. Why did the City not disclose their actions
to the LUC?
It is obvious that the City has acted the way it has because it is
attempting to cover its tracks. That may be why the Mayor has refused to respond
to our formal request to file a Motion to Show Cause before the LUC. This is a
serious matter, which goes to the heart of our land use regulations.
We ask that no further consideration be given to this permit and further, that it
be revoked and that the public’s use of the Ko Olina Marina be restored immediately. The time has come to act. There is no more time for games and promises, and noncompliance with major development permits, especially in light of this wrongful cessation of the public’s right to coastal resources.
Thank you for this opportunity to provide testimony on this important issue.
You can contact me at EnviroWatch Inc., via e-mail at:
envirowatch@envirowatch.org or by phone/fax at (808) 625-2175.
Carroll E. Cox
808-782-6627