October 26, 2006 The Honorable Mufi Hannemann Mayor, City and County of Honolulu Honolulu Hale 530 South King Street Honolulu, Hawaii 96813 Dear Mayor Hannemann, SUBJECT: City Compliance With Environmental Laws “Sunset on the Beach” EnviroWatch, Inc. is concerned about the City’s apparent lack of compliance with our environmental laws, specifically the State of Hawaii Coastal Zone Management (CZM) law (Chapter 205A, Hawaii Revised Statutes), Chapter 25, Revised Ordinances of Honolulu (ROH), and Chapter 23, ROH, and hereby lodges a complaint and request for information. We had hoped that the end of the Harris administration would bring about a change in the way our City government conducts itself in regard to environmental and other issues. However, your administration has continued to conduct “Sunset on the Beach” in Waikiki, and we have been unable to find any records showing that the City has complied with the above referenced environmental laws that would permit such events to take place. On October 23, 2006, I spoke with David Tanoue, Deputy Director of Planning and Permitting, who stated that he does not believe there was a Special Management Area (SMA) permit granted to allow these activities. EnviroWatch, Inc. also believes there is no permit, and one has not been produced in response to our request. EnviroWatch, Inc. does not believe that the City prepared and processed an EA or EIS for the “Sunset on the Beach” activity and structures, and therefore the request was not published in the OEQC’s Environmental Notice. Has the City published an Exemption for the activity with the OEQC? If so, please provide us with that information. Has the City determined that “Sunset on the Beach” has no substantial adverse environmental or ecological effect except as such adverse effect is minimized to the extent practicable, and is it clearly outweighed by public health and safety or compelling public interest? If so, how and under what laws was this determination made, and by whom? It is troubling that, by its apparent circumvention of the law, the City has denied the public the right to express concerns at a public hearing, which is required for a SMA use permit application. The public is also foreclosed from additional opportunities to voice concerns during the Council proceedings. In addition, as stated above, we do not believe that the requirement for preparation of an Environmental Assessment (EA) has been satisfied. Chapter 25, Revised Ordinances of Honolulu, Section 25-3.3 (C), Assessment Requirements for SMA Use Permits, requires that any proposed development within the SMA requiring a SMA use permit shall be subject to an assessment by the agency in accordance with the procedural steps set forth in HRS Chapter 343. Chapter 343 is triggered by “use of City or State lands or funds” in this case. By not complying with our Environmental Impact Statement law, the effects of the activity, including cumulative impacts, have not been addressed. The development is not supported by studies which describe the potential environmental effects on the SMA. It appears that the agency and entity charged with the responsibility of ensuring compliance with the provisions of our environmental laws is flagrantly violating their responsibilities and obligations. How can private citizens or developers be expected to comply with the law if the City does not itself comply? Again, to our knowledge, no EA or EIS has been prepared or processed, there has been no opportunity for public hearing (without a SMA use permit application), and the authority of the City Council has been circumvented since they are the body charged with reviewing and granting SMA use permits. The CZM program is a comprehensive statement in words, maps, and other media, created pursuant to Public Law No. 92-583, as amended, and the federal regulations adopted pursuant thereto, which describe the objectives, policies, laws, standards, and procedures to guide and regulate public and private uses in the CZM area. One objective of the CZM program, articulated in Section 205A-2 (3)(D) (CZM Program; Objectives and Policies), is to encourage those developments that are not coastal dependent to locations in inland areas. Under Section 205A-22, Definitions, “development” means any of the uses, activities, or operations on land or in or under water within a Special Management Area that are included below: (1) Placement or erection of any solid material or any gaseous, liquid, solid, or thermal waste; (2) Grading, removing, dredging, mining, or extraction of any materials; (3) Change in the density or intensity of use of land, including but not limited to the division or subdivision of land; (4) Change in the intensity of use of water, ecology related thereto, or of access thereto; and (5) Construction, reconstruction, demolition, or alteration of the size of any structure. Therefore, the activities associated with “Sunset on the Beach”, including food booths, seating for spectators, and erection of the movie screen, huge platform, and other equipment, constitutes "development" under the provisions of Chapter 205A. Under Section 205A-28, Permit Required for Development, the law states: “No development shall be allowed in any county within the Special Management Area without obtaining a permit in accordance with this part.” [Emphasis added] Clearly, the “Sunset on the Beach” activity and associated structures constitute “development” under the law, and a SMA permit is therefore required. We do not recall this proposal ever coming before the City Council, which has the authority to hear and determine the outcome of SMA use permit applications, yet the activity continues regularly on the beach in Waikiki. Ironically, under Section 205A-29, SMA Use Permit Procedure, the law states that the authority in each county shall adopt rules under Chapter 91 setting SMA use permit application procedures, conditions under which hearings must be held, and the time periods within which the hearing and action for SMA use permits shall occur; and further states: “No agency authorized to issue permits pertaining to any development within the SMA shall authorize any development unless approval is first received in accordance with the procedures adopted pursuant to this part.” If the City and County of Honolulu did not obtain a SMA use permit, then it is in violation of the provisions of Chapter 205A. With no evidence to the contrary, we can only deduce that the city is a “Violator” as defined under Chapter 11 of the DLU Rules Relating to Shoreline Setbacks and the SMA. Article 3, Section 25-3.2 specifies that proposed development will not have any substantial adverse environmental or ecological effect except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health and safety or compelling public interest. Does the “Sunset on the Beach” meet this criteria? Is it necessary for public health and safety? Is it needed because of a compelling public interest? Apparently, we do not know because the City has not complied with the laws that are in place to determine the answers to these and other questions. Chapter 25 states that such adverse effect shall include, but not be limited to, the potential cumulative impact of individual developments, each one of which taken in itself might not have a substantial adverse effect, and the elimination of planning options. This “Sunset on the Beach” activity and associated structures has taken place many, many times. What is the cumulative impact? What other planning options have been eliminated? Why can’t the activity (i.e., showing movies and having food, etc.) take place somewhere else, not within the SMA or shoreline? In addition to violating Chapter 205A and Chapter 25, it appears that the City may also be violating the provisions of Chapter 23, ROH, Shoreline Setbacks. EnviroWatch Inc. understands that there is a 100-foot shoreline setback in Waikiki. Under Section 23-1.2, the law states that the purpose of the regulations is to carry out the policies and comply with the mandate stated in HRS Chapter 205A to establish standards and to authorize the department of land utilization (now known as the Department of Planning and Permitting, DLU) to adopt rules pursuant to HRS Chapter 91, which generally prohibit within the shoreline area any construction or activity which may adversely affect beach processes, public access along the shoreline, or shoreline open space. We have not seen a certified shoreline survey map with the structures and activities superimposed upon it, but we believe that the structures and activities associated with “Sunset on the Beach” may be encroaching into the 100-foot shoreline setback area as well. In order to allow this, a shoreline setback variance is required. Has the City obtained a shoreline setback variance? Again, a public hearing would be required, and the public is foreclosed from the opportunity to provide comments. DLU Rules Relating to Shoreline Setbacks and the SMA, Subpart 1, General Provisions, Chapter 11, Section 11-1, Definitions, says that “Practicable Alternative” means an alternative to the proposed project which is available and capable of being done, taking into consideration existing technology and logistics, and which would accomplish the basic purpose of the project while avoiding or having less adverse impact on the shoreline area. We believe that there are practicable alternatives to holding the activity on the beach, within the SMA and shoreline setback area. If your position is that the activity can only be held at the beach, then the required assessments and permits should have been obtained to authorize it. Chapter 11 defines “Violator” as any individual, organization, partnership, firm, association, trust, estate, public or private corporation, or any other legal entity that has an interest in the property on which the violation occurs. “Violation” is the use of any structure or land, or the location or construction of any structure without a SMA permit or shoreline setback variance; and failure to comply, in whole or in part, with the term or conditions of any permit or authorization issued pursuant to Chapter 23 or Chapter 25, ROH. Again, EnviroWatch, Inc. must wonder how the City can expect ordinary citizens to respect and follow the law when these laws appear to be violated by our own City government. Deputy Director Tanoue used the word “temporary use” during our October 23, 2006 telephone conversation. We are unaware of any provision in the law which exempts “temporary” uses and activities. “Temporary” is arbitrary, and there is no exemption for that. To maintain that the activity is “temporary” would be ludicrous, since it is repeated over and over in the same location, which subjects the environment to possible cumulative impacts. In addition, by ignoring the rules and holding these events without the proper permits, the City runs the risk of setting a precedent. How could the City deny any other party the same benefit that it enjoys, that is, holding a so-called “temporary” activity in the SMA (and likely within the shoreline setback area), over and over again. We note that activities which are in violation of our environmental laws are subject to penalties under Section 205A-32. We request that the City immediately cease the “Sunset on the Beach” until an EA has been processed and a SMA permit has been issued. Or, if you contend that the City is not in violation, we ask that you immediately respond to our complaint by explaining how “Sunset on the Beach” is in compliance with the regulations cited above. This is an example of a “carry-over” of bad policies and practices that were begun under the previous administration. We believe it is inconsistent with the law. This is an opportunity for your administration to eliminate unauthorized activity that does not adhere to City and State laws. Sincerely Yours, Carroll E. Cox President, EnviroWatch, Inc. cc: City Council Zoning Committee
|
||