____
August 27, 2003
HAND
DELIVERED 8/27/03
Dear Mr. Crispin:
SUBJECT: Petition for Declaratory Ruling Classification of Use Under the Land Use Ordinance, and Land Use Permits Required Proposed Orangutan Enclosure, Kualoa Ranch Tax Map Key No. 4-9-4: 2
This Petition for Declaratory Ruling is filed pursuant to the Department of Planning and Permitting (DPP) Rules of Practice and Procedure under Chapter 3, Declaratory Rulings, and is submitted for a ruling as to the applicability of certain provisions of the Land Use Ordinance (LUO; ROH Chapter 21) as they pertain to the above-referenced site and project.
Petitioner:
Introduction:
Concerns first surfaced in the community when DPP Building
Inspectors received a complaint regarding unauthorized construction at
Kualoa Ranch of an enclosure for the orangutan Rusti (currently housed at
the Honolulu Zoo). Subsequently, an inspector (Calvert Hung) issued a
Notice of Violation (NOV) for construction without a building permit. At
the bottom of that violation notice, the inspector stated that a Conditional
Use
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Permit was required. Petitioner believes this
determination is absolutely correct. [Note: Petitioner believes that the
existing so-called ‘exotic animal zoo” is not allowed, since the use
was never authorized under a Conditional Use Permit or a State Special Use
Permit]
Since the issuance of the NOY, letters have been written to the Director, and meetings have taken place, in regard to the proposed orangutan enclosure/facility at Kualoa Ranch. Several persons (referred to as “major stakeholders” by the Director), have presented concerns about the facility, and have inquired as to the applicability of certain provisions of the Land Use Ordinance, more specifically the requirement for land use permits. To date, Petitioner is unaware of any formal written response to the inquiries. Petitioner is concerned about the apparent lack of responsiveness to these issues. Therefore, Petitioner requests a Declaratory Ruling.
Petitioner’s Standing and
Statement of Interest:
Petitioner has standing as an interested person in this Petition for Declaratory Ruling, as to the applicability of any statute or ordinance relating to the department or of any rule or order of the department. Petitioner is President of EnviroWatch, Inc., a nonprofit organization whose mission is to put an end to environmental injustice by way of investigating and exposing environmental degradation, poaching, clear cuffing, pollution, animal cruelty, and government waste and abuse. Petitioner is interested in and concerned about the proposed orangutan enclosure/facility at Kualoa Ranch on Windward Oahu for a number of reasons, including the potential adverse effects of the proposal on the community and the environment. Petitioner believes that without the necessary zoning and other required permits, the public will not be afforded the opportunity to learn the full scope of the proposed use and its potential impacts. Additionally, the proposal will not be presented before the Neighborhood Boards without the zoning permit processing. The public will not be afforded an opportunity to express their concerns about potential adverse impacts to the environment, issues of public health and safety, and impacts on public facilities, area residents, and the community at large.
Designation of Specific Provision, Rule, or Order in Question:
• Land Use Ordinance (LUO) Section 21-3.50-4. and Table 21-3 (Master Use Table\ pertaining to permitted and conditional uses within the AG-2 General Agricultural District. Petitioner requests a Declaratory Ruling for determination of the use classification of a proposed enclosure/facility for an orangutan (one male initially, with more orangutans to follow) at Kualoa Ranch. Petitioner believes that the use falls under the LUO classification of a Zoo.
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•
LUO Sections 2 1-2.90 and 2.90-2. and Section
21-5.710. pertaining to general purpose and intent of the
Conditional Use Permit provisions, and special provisions for Zoos.
Petitioner requests a determination regarding the land use permits
required for this use classification. Petitioner maintains that, because
the use falls under the LUO classification of a Zoo, a Conditional Use
Permit —
Major (CUP-Major) is required under the provisions of the LUO.
• LUO Section 21-10.1. Definitions. The Zoo use classification is not defined in Article 10. Petitioner requests a ruling regarding a definition, as it applies to this case. Petitioner will set forth justifications why the use properly meets the definition of a Zoo.
• Other Related Permits/Approvals. Petitioner requests confirmation that, prior to an application for a CUP-Major, an Environmental Assessment (EA) and a State Special Use Permit (SUP) are required. The subject property is listed on the National Register of Historic Places, which is a trigger for an EA, and is also of historical and cultural significance to Native Hawaiians. The property is also within the State Land Use Agricultural District, and a State Special Use Permit is required. (Petitioner understands that the Director is not the decision-making authority for a SUP, but further understands that SUP’s are processed by DPP, and a recommendation is made by the Director via a report to the City Planning Commission. If the request for confirmation regarding the EA and the SUP cannot be made under this Petition, Petitioner requests clarification in the form of a letter from the Director.)
Statement of Facts. Petitioner’s Position. and
Justification and Legal Arguments Supporting Petitioner’s Position:
Kualoa Ranch operates an “Outdoor Recreational Facility” under Conditional Use Permit 85/CUP-IS, and State Special Use Permit 85/SUP-2, on property zoned AG-2 General Agricultural District and designated as State Agricultural District land. On numerous occasions, as evidenced by records on file with the DPP, Kualoa Ranch has exceeded the parameters of the CUP and SUP permits, resulting in adverse impacts to the community. Most recently, an orangutan enclosure was constructed at Kualoa Ranch, without required zoning or building permits, and a citation was issued for the illegal building. At the bottom of Notice of Violation No. 2003/NOV-03-l 12, the City Building Inspector wrote that the enclosure requires a Conditional Use Permit. Petitioner believes that this is a clear and accurate determination.
An orangutan enclosure/facility at Kualoa Ranch has the potential to adversely impact area residents, the environment, and the community at large. In a February II, 2003 Press Release, Orangutan Foundation International (OFI), who is the owner of the orangutan, stated that a “spacious open-air sanctuary” will
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house Rusti and other orangutans, and the facility will be used for “education” outreach for over 16,000 schoolchildren and thousands of tourists each year. OFI was quoted in the June 15, 2001 Star-Bulletin as saying there would eventually be 20 orangutans. (Attachments la and 1b) Petitioner believes that the stated magnitude of the use involving the exotic animals has obvious implications for traffic, sewerage, drainage, refuse, and utilities, and the potential for adverse impacts on the environment and area residents, who have already experienced adverse impacts from the Outdoor Recreational Facility. However, Petitioner believes that even one orangutan, which is a large, powerful and potentially dangerous member of the great ape family, has the potential to produce adverse impacts, including serious implications for public health and safety. Therefore, Petitioner believes that full disclosure and public input are mandatory prior to any commencement of the use, and this can be achieved through the processing of a CUP-Major.
Petitioner further believes that an exotic animal zoo cannot be considered an “accessory” to the Outdoor Recreational Facility or to the agricultural components of the Ranch. It is a separate and distinct use which requires diligent review by all affected governmental agencies regarding impacts on their services, under the processing of the Conditional Use Permit-Major. In addition, under a CUP-Major, presentations must be made to the Koolauloa and Kahaluu Neighborhood Boards, and a public hearing will be required. Petitioner believes that this opportunity for public input, afforded by the processing of the required zoning permit, is indispensable for the proposed facility.
Petitioner has learned that several individuals have already brought to the Director’s attention a number of the public health and safety concerns associated with the proposed orangutan facility. In addition, according to two USDA Veterinarians who met with the Director, representatives of OFI and Kualoa Ranch, and several “animal advocates” on June 19, 2003, security issues are primary. If the 275-lb. orangutan is not properly housed and maintained, he could escape and cause serious injury or death to Ranch visitors, staff, or himself. He could also escape from the Ranch premises, and pose a serious threat to area residents and/or others visiting the area. Health issues have also been raised involving the spread of zoonotic diseases from the orangutan to humans and vice-versa, the need for an in-depth training program on dealing with great apes, training for escape and/or other serious problems, an on-site veterinarian and staff skilled in the use of tranquilizer darts, and the list goes on.
Essentially, the design of the enclosure, as reviewed under a building permit, is only a part of the overall situation which must be addressed and analyzed. The processing and review of a building permit by itself cannot ensure adequate public safety, and address other important concerns. Additional requirements, conditions, and safeguards will be required for the protection of the public interest. Therefore, it is proper, and imperative, that the use be recognized as a
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Zoo, so that a CUP-Major will
be required. According to the USDA Veterinarians, the unauthorized
enclosure (cited by a NOV) would have been inadequate to contain the
powerful orangutan. Petitioner suggests that the unauthorized construction
of this inadequate enclosure may indicate a disregard for the welfare of
the community, and for the animal himself; and, it appears to demonstrate
a lack of understanding of public health and safety issues, and of our
building and zoning laws. Petitioner believes that this is precisely the
type of situation which requires the level of governmental and public
scrutiny which would be afforded during the processing of a Conditional
Use Permit—Major.
Within the AG-2 District, the
LUO Master Use Table (Table 21-3) lists 7 uses under the category of
“Animals”. Four of the uses pertain to livestock, and one pertains to
commercial kennels. The other 2 uses are “game preserves” and
“zoos”. Game preserves are a permitted use, and zoos are permitted
only as conditional uses under a CUP-Major. Neither “game preserves”
nor “zoos” are defined in the LUO. The LUO provides that, where a
proposed use is not specifically listed or included in a definition in
Section 21-10.1, the Director will review the proposed use and, based on
the characteristics of the use, determine which listed and/or defined use
is equivalent to that proposed. In addition, Petitioner has been informed
by DPP staff that the department also has relied on commonly accepted
definitions in dictionaries. Webster’s New Collegiate Dictionary [4 a
(1)] defines game as “animals under pursuit or taken in hunting;
esp:wild animals hunted for sport or food.” “Preserve” is defined as
“an area used primarily for regulated hunting or fishing”. Clearly,
orangutans are not hunted for sport or food as are, for example, deer and
elk. The orangutan does not meet the definition of ”game”, and the
enclosure cannot be deemed a “preserve”. Even if a larger enclosure
were proposed in the future, it would not meet the definition of a
preserve. In addition, HRS Section l83D-51 defines “game mammals”, and
orangutans are not included. Orangutans are not designated for hunting.
OFI has stated that the facility is a “sanctuary”. This is not listed as a use in the LUO Master Use Table. They appear to argue, however, that a “sanctuary” is not like a zoo. However, Petitioner believes the proposed enclosure/facility falls within the Zoo classification. A “zoo” is defined in Webster as a zoological garden or collection of living animals usually for public display; and a “zoological garden” is defined as a garden or park where wild animals are kept for exhibition. OFI/Kualoa Ranch have stated that visitors (over 1 6,000 schoolchildren and thousands of tourists) will see the primate(s). Records show that Kualoa has an exhibitor’s license (#95-C-021) under USDA Animal Plant and Health Inspection Service (APHIS). And, during the February 20, 2003 meeting of the Board of Agriculture, John Morgan of Kualoa Ranch acknowledged that a fee would be charged to those seeing the orangutan. Therefore, it has been described as a commercial operation. The OFI facility,
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whether “connected” (in a business sense) or not to the Kualoa exotic zoo, will be on Ranch property, and has the potential to adversely affect residents, the environment, the Historic Site, and the community at large. A “game preserve” or “sanctuary” classification would be inconsistent with the Policies and Procedures of the American Sanctuary Association, which state that there shall be no use of animals for any commercial activity that is exploitive in nature, such as allowing free roaming public access to the animals or the sanctuary, or using sanctuary animals for exhibition. And, Petitioner has ascertained that neither Kualoa Ranch nor OFI is accredited by the American Sanctuary Association.
Moreover, a “game preserve” or “sanctuary” classification would be inconsistent with the American Zoological Association (AZA) Task Force definition of a “roadside zoo”. The AZA created a Roadside Zoo Task Force beginning in 1999, to work on drafting legislation. The Task Force is exploring ways to tighten initial licensing standards, to reduce the number of new substandard, non-accredited zoos. According to the Task Force, a “roadside zoo” generally has the following characteristics: open to the public; permanent facilities; exhibits non-domestic animals; not AZA accredited; within a broad spectrum from “lost causes” to “diamonds in the rough”; may or may not have AZA animal care level; little or no education programs. (Attachment 2.) The proposed orangutan facility clearly has many, if not all, of the characteristics identified by the Task Force. It is a “roadside zoo”, not a “game preserve”. Petitioner also notes that neither Kualoa Ranch nor OFI is accredited by the AZA.
The Hawaii State Department of Agriculture produced an 8-page document for the Board of Agriculture, dated February 14, 2003, regarding a request to revise the Document of Transfer which approved the transfer of the orangutan from the Honolulu Zoo to an OFI planned facility at Hilo-Panaewa. The requested document revision was to allow the orangutan to be transferred to Kualoa Ranch instead. (Attachment 3.) The document states that the Board approved the “future import of other orangutans needing placement at OFI’s planned orangutan sanctuary”. It states that “Kualoa Ranch operates an ecotourism program that includes hiking, horseback riding, and an “exotic” zoo park comprised of ostriches, baboons, eland and other animals in enclosures”. (Petitioner understands that the baboons are no longer there; some died and others were removed.) The document identifies the “Category” as: “The orangutan (Pongo pygmaeus) is currently listed on the List of Restricted Animals (Part B), which allows for the import and possession under permit for commercial and private use, including research or zoological parks”. (Emphasis added.) Under “Purpose” it states, in part, “Kualoa Ranch has other exotic animals and wants the orangutan on the Ranch’s property ‘to share with the children of Hawaii”. This official document of a State agency explains the intent: the Ranch already has “other exotic animals” and now they want another
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one. Under “Method of Disposition”, the Document of Transfer states that Rusti “will be caged the entire time” until he passes (death by natural means)”. Therefore, the official Transfer Document states that the orangutan will be caged (as in a zoo) and the Ranch wants the orangutan on their property (which has “other exotic animals”). Petitioner believes that the document reveals the intent and nature of the facility, and that it meets the definition of a “Zoo”.
The stated intent of the AG-2 District is to conserve and protect agricultural activities. The LUO requires that certain uses within zoning districts be permitted ONLY as conditional uses, with an approved CUP. In 1985, the DLU approved a CUP (85/CUP-l 5), for an Outdoor Recreational Facility at the property, subject to conditions. The permit approved activities such as a gun-shooting range, helicopter rides, all-terrain vehicle rentals, paintball wars, horse-drawn wagon rides, scuba diving, wind surfing, jet skiing, and sailing tours. One music concert per year was permitted, with limited attendance (100 initially, later increased to 300 people). An “exotic animal zoo” was not part of the approval.
LUO Section 21-2.90-2 states that the Director may allow a conditional use on a finding that the proposed use satisfies the following criteria:
The proposed use is permitted as a conditional use in the underlying zoning district and conforms to LUO requirements for conditional uses;
The site is suitable for the proposed use considering size, shape, location, topography, infrastructure and natural features;
The proposed use will not alter the character of the surrounding area in a manner substantially limiting, impairing, or precluding the use of surrounding properties for the principal uses permitted in the underlying zoning district; and
The use at its proposed location will provide a service or facility which will contribute to the general welfare of the community at large or surrounding neighborhood.
The LUO further provides that the Director will, where applicable, consider traffic flow and control; access to and circulation within the property; off-street parking and loading; sewerage; drainage and flooding; refuse and service areas; utilities; screening and buffering; signs; setbacks; yards and other open spaces; lot dimensions; height, bulk and location of structures; location of all proposed uses; hours and manner of operation; and noise, lights, dust, odor, and fumes. Petitioner believes that the above is applicable in this case. DPP public records
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reveal that traffic and inappropriate land use have already been an issue, and have resulted in public complaints. The following are examples:
The Kahaluu Neighborhood Board Minutes dated November 13, 2002 regarding the granting of a liquor permit for a large concert event show that former Deputy Director Lorrie Chee said the event took place without proper permits and Kualoa would be cited. Lt. Brown of the Honolulu Police Department (HPD) stated that the Friday before the event, HPD requested no permits be issued. (Attachment 4.1
Letter of complaint to Councilman Holmes from Ruth S. Lucas, and 3 separate complaints from Bill Cox, an anonymous female, and John Kilby.
(Attachments 5a. 5k Sc. and
Sd.)
The Koolauloa Neighborhood Board No. 28 Minutes for June 12, 199 indicate the Board warned John Morgan of negative impacts includingalcohol consumption, drunk driving, and traffic. (Attachment 6.1_
According to March 6, 2003 Advertiser article, more than 150 people attended a meeting on March 5th at Windward Community College about jungle training exercises at Kualoa Ranch. Kahaluu Neighborhood member Robin Makapagal said Kualoa land is sacred to the Hawaiian people and stated “Kualoa and jungle war training do not go in the same sentence”. Morgan had offered Kualoa to the Marines for battlefield training exercises. (Attachment 7.1
The Kualoa Ranch website advertises, “Let us take you on a tour through our petting and exotic animals zoos” where there are exotic animals in enclosures, for exhibition and public display. It also advertises unauthorized activities like huge group activities for 10.000 to 20.000 people, and large concerts (many more than 300 people) with amplified music. It also advertises the use of the Ranch as a movie set, where large buildings are erected (like a church and an African village), for a multitude of movies shot there such as Mighty Joe Young, Hostile Rescue, Helldorado, Tears of the Sun, Windtalkers, and an “un-named movie with Jennifer Aniston”. It appears that some of the movies include battlefield scenes with explosions and other noises. (Attachment 8.1
Based on the documents which Petitioner has obtained, the facts suggest that there have been numerous violations which have resulted in adverse impacts. Petitioner suggests that this history heightens the possibility of additional adverse impacts with the orangutan facility, and ftirther increases the need for, and importance of, a CUPMajor. Petitioner also believes that the proposal requires a State Special Use Permit (SUP) because the property is within the State-designated Agricultural District. The
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use, a Zoo, is not agricultural. And, the need for an EA is triggered because the site is listed on the National Register of Historic Places.
For all of the above reasons
and justifications, Petitioner believes the proposed orangutan
facility/enclosure is properly classified as a “Zoo” under the LUO,
and this use is permitted only as a conditional use under an approved
CUP-Major in the AG-2 District. Petitioner believes that a building permit
for an enclosure and/or other structures for the proposed facility cannot
be issued, until and unless a CUP -Major is approved by the DPP.
Very truly yours,
Carroll E. Cox, President
Enviro Watch, Inc.