_____ \
HAND
DELIVERED 11/24/03
November 24, 2003
To the Chair and the Members of the Zoning Board of Appeals:
In accordance with Chapter 22, Procedure for Appeals, Carroll E. Cox, President of EnviroWatch, Inc., a 501 (C) (3) nonprofit organization, hereby files a Petition of Appeal of the Director of Planning and Permitting’s October 27, 2003 action (2003/DEC-2), pertaining to Appellants August 27, 2003 request, i.e., Petition for Declaratory Ruling (DPP Rules of Practice and Procedure, Chapter 3, Declaratory Rulings).
Appellant received the Director’s Declaratory Ruling (identified as 2003/DEC-2) on October 28, 2003. Therefore, this appeal is timely filed within 30 days as required by Section 22-2 of the Rules Relating to the Administrative Procedure of the Zoning Board of Appeals, and is in compliance with the mandates of the Revised Charter of the City and County of Honolulu 1973 (2000 edition) Section 6-15 16, Zoning Board of Appeals, and the Land Use Ordinance (LUO), Section 21-1.40.
1.
NAME. MAILING ADDRESS AND TELEPHONE
NUMBER OF APPELLANT
2. IDENTIFICATION OF SUBJECT PROPERTY
3. APPELLANTS INTEREST IN THE PROPERTY
Appellant 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. In filing a Petition for Declaratory Ruling, Appellant stated its interest in, and concern about the proposed orangutan facility at Kualoa Ranch, including the potential adverse effects of the proposal on the community and the environment. Appellant believed, and still believes, that it is mandatory for the proper building and zoning permits to be processed (including a Conditional Use Permit-Major), to ensure that the environment and the community will not be negatively impacted by the proposed facility. (Please refer to Petition for Declaratory Ruling, attached as Exhibit 1, for more detailed information on the potential impacts associated with the proposed facility, as well as the existing outdoor recreation facility, and the unauthorized exotic animal zoo at Kualoa Ranch.)
Appellant believes that processing a Conditional Use Permit-Major (CUP-M) is required, and this prompted Appellant to request a Declaratory Ruling on the applicability of the permit for the facility. To that end, Appellant petitioned the Director for a determination of the use classification for the proposed enclosure and facility for the orangutan (currently housed at the Honolulu Zoo). Appellant also requested a determination regarding the land use permits required for this use classification. Appellant believes that, because the use falls under the LUO classification of a Zoo, a CUP-M is required. And finally, because ‘Zoo” is not defined in Article 10 (LUO Section 21-10.1, Definitions), Appellant petitioned the Director for a definition of ”Zoo”. Appellant set forth justifications why the use properly meets the definition of a Zoo.
In this Petition of Appeal of the Director’s October 27, 2003 action, i.e., essentially a partial ruling, declining to issue a Declaratory Ruling on the use classification and land use permits required for the proposed facility (2003/DEC-2) because such a determination is “premature’ and “purely speculative”, Appellant seeks relief from the Director’s abuse of discretion, erroneous statements, and arbitrary and capricious response to the Petition for Declaratory Ruling.
2
------------------------------------------------------------------------------------------
Appellant will show that:
•
The Director was erroneous in stating that Petitioner is “concerned
that a proposed orangutan cage” at Kualoa Ranch “constitutes a zoo under the
LUO”. Documents will be produced and facts will show that the “cage” is
not proposed but already existing. A Notice of Violation has been issued for
construction of a 12 x 25- foot
orangutan enclosure, built without a building permit.
•
The Director was erroneous in stating that, “Currently, neither the
property owner nor the developer has submitted any proposal or plan for the
development of an orangutan facility at Kualoa Ranch”. Documents will be
produced and facts will show proposals/plans have been submitted to the DPP
and are under review.
•
The Director manifestly abused his discretion and was erroneous in
stating that, “Once a proposal for the orangutan facility is submitted, the
Department is then required to make its determination whether the proposed use
is a ‘zoo’ and what land use permits are required for the use
classification”. Documents will be produced and facts will show that a
proposal has been submitted and the Director has in fact already made a
determination on the use.
•
The Director was arbitrary and capricious, and manifestly abused his
discretion in his action pertaining to the definition of a “Zoo”, for the
“purpose of the Conditional Use Permit requirement”. Documents will be
produced and facts will show that this definition is tailored to exclude
Orangutan Foundation International’s (OFI’s) proposed facility as a
“zoo”.
• The Director arbitrarily and without reason withheld important public documents, requested by the Appellant, which resulted in a denial of Appellant’s due process and negatively affected Appellant’s compilation of information for the Petition for Declaratory Ruling.
3
---------------------------------------------------------------------------------------
4. HOW APPELLANT IS ADVERSELY AFFECTED BY THE ACTION APPEALED
A
Formal Applkation Has Been Filed with the
DPP.
Contrary to the Director’s claim and
ruling that Appellant’s Petition was “premature and purely speculative”
because “neither the property owner nor the developer has submitted any proposal
or plan for the development of an orangutan facility at
Kualoa Ranch” (page 2, 2003/DEC-2; emphasis added), Appellant will show that
on April 29, 2003, the owncr/developer submitted application No. A2003-04-t3t4 to the DPP
and the proposal/plans are being processed by DPP’s plan checker Willard
Nishigata under the provisions of Chapter 18 of the Revised
Ordinances of Honolulu (ROH. (Exhibit 2.)
Chapter
18, ROH, specifies the application requirements for building permits, types of
construction requiring a building permit, and regulations governing the issuance
of building permits. Under Article 4, Permit Application, the law states that to
obtain a permit, the applicant shall: (a) file an application identifying and
describing the work to be covered by the permit, (b) include a description
of the land on which the work is to be done, (c) submit 3 sets of
plans, specifications. calculations. construction inspection requirements and
other data.
Section
18-4.3 further specifies that plans and specifications shall be drawn to
scale and shall be of sufficient clarity
to indicate the nature and extent of the work
proposed, and show in detail that it will conform to the provisions of this
code and all relevant laws. ordinances, rules and regulations. Appellant
believes that the existence of this application (No. A2003-04-t3t4) demonstrates
that the Director’s claim in this case, i.e., that there has been no formal
application/filing, is clearly erroneous and false.
Appellant will provide documents, obtained through UIPA requests from other governmental agencies and other sources, which prove that the Petition for Declaratory Ruling was not “premature”. Appellant will also provide other documents which show that the Director’s actions and ruling have frustrated the Appellant’s efforts to ensure that government abuse does not stand in the way of processing all necessary building and zoning permits. Appellant believes, and will provide documents that demonstrate, that the Director has been untruthful, has withheld documents, has manifestly abused his discretion, and has acted in an arbitrary and capricious manner.
4
-----------------------------------------------------------------------------------
A Proposal for the Development of the
Facility Was Submitted.
In his October 27, 2003 action, the Director states that a Declaratory Ruling on whether an orangutan facility at Kualoa Ranch falls under the use classification of a ‘zoo’ cannot be made “since a proposal which clearly describes the facility, including the intent, scale, and location, has not been submitted”. (Refer to page 2, 2003/DEC-2; Exhibit 3). Appellant is under the understanding that on several occasions the DPP communicated with Kualoa Ranch representatives, advising them that DPP “was still reviewing the information submitted by Orangutan Foundation International”. Appellant will show that in April of 2003, four months prior to Appellant’s submittal of the Petition for Declaratory Ruling, OFI provided specific information pertaining to the operation of the proposed orangutan facility. Appellant believes that this further refutes the Director’s statement that no proposal or plan has been submitted, and shows that the Director’s assertion is clearly erroneous and false, since a proposal was submitted by the applicant/owner.
During the ZBA contested case hearing, Appellant will subpoena (among others) various DPP employees and will question them in regard to documents that the Appellant was successful in obtaining from other sources, despite the Director’s failure to abide by the disclosure requirements of the Uniform Information Practices Act. Appellant will show that the intent, scale, and details of the operation of the proposed orangutan facility have in fact been submitted to the DPP, in direct opposition to the Director’s statement that no such proposal has been submitted. Appellant will produce documents which show that Orangutan Foundation International (OFI; the “owner” of the orangutan ‘Rusti’) provided plans that were originally to be used in the construction of its orangutan facility on the island of Hawaii. Moreover, Appellant will produce documents that show that the Director’s definition of a “Zoo” was crafted with the proposed OFI operation at Kualoa Ranch in mind, which again shows a manifest abuse of discretion on the part of the Director. Take for example the statement in OFI’s April 23, 2003 letter to the DPP where OFI states they want to “stress that this facility will be a Zoo in any way, shape or form”. (See Exhibit 4.)
The Director Has Already Made a Determination on
the Use Classification.
Appellant has obtained documents showing that the Director was actually working behind the scenes, apparently in concert with Kualoa Ranch and OFI, to facilitate relocation of the orangutan from the Honolulu Zoo to
Kualoa Ranch, without processing the necessary Conditional Use Permit Major (CUP-M). For example, in a July 30, 2003 e-mail from OFI to DPP
5
--------------------------------------------------------------------------------------------
(see Exhibit 5), OFI asked, “Can we use the Hilo plans or the Florida plans... .this is crucial and depends on land choice and other needed info. Should we forego the temp cage entirely? and will they [Note: reference is to State Veterinarians] veto use of ‘the bunker’ as part of the indoor enclosure?” OFI appears to be asking the DPP for planning advice. Also in this e-mail, OFI tells DPP, “On Monday Aug. 4 we see all land options available at Kualoa with John Morgan.. .then he flies out on Aug. 5”. And the e-mail continues, “How long can we hold out under the onslaught of certain other parties... we are deeply indebted to all who have truly helped Rusti and of course, we want what is best for him as do all of you.”
Appellant has obtained documents that show that the Director was in fact instructing DPP staff to review the proposal not as a “zoo”, but only as a “game preserve”. [Note: If the use is classified as a “zoo”, then a CUP-M is required; however, if it is classified as a “game preserve”, no CUP-M is required. In that case, only a building permit is required.] Appellant will produce documents that show that the Director was working behind closed doors with OFI, Kualoa Ranch, the Honolulu Zoo, and the Department of Enterprise Services in an apparent effort to expedite permit processing for the orangutan enclosure/facility at Kualoa, because the City has an interest in seeing that the orangutan is removed from the Zoo as soon as possible (to make way for a new lorikeet exhibit, and to quell the public’s concerns about housing the orangutan for the past 6 years in an inadequate, 1950’s-style cage, as well as other concerns about the use or misuse of taxpayer money and City staff in keeping the orangutan at the Honolulu Zoo when the animal does not even belong to the Zoo, but is privately owned).
If the use is classified as a “zoo”, a CUP-M is required. The owner/developer would be required to prepare an application, and the CUP-M processing would provide the opportunity for intense public scrutiny due to the required public hearing, as well as the presentations to the two area Neighborhood Boards, where community input would be solicited. Under the provisions of the Land Use Ordinance, a CUP-M can be approved only if it can be found that the proposed use will not alter the character of the area, the property is suitable for the proposed use, and the use will provide a service or facility which will contribute to the general welfare of the community at large or surrounding area.
5. ACTION OF THE DIRECTOR AND DATE ACTION WAS TAKEN.
The Director issued a Declaratory Ruling (2003/DEC-2) on October 27, 2003. In this action, the Director declined to rule on the use classification and permits required for the facility. The Director provided a ruling on the definition of a “Zoo”, but declined to evaluate this definition as it pertains
-------------------------------------------------------------------------------------------------------
to the orangutan facility as requested in the Petition. Appellant will provide documents that show that the Director’s actions and decisions in response to the Appellant’s Petition for Declaratory Ruling were improper and irresponsible. Appellant is informed with sufficient information to believe that the Director participated in several meetings with his staff where the use was discussed, and that the Director actually instructed staff that the project description “shall not include the word ‘zoo”, and that the project be designated as a “game preserve” for “zoning purposes”.
6. DESIGNATION OF THE SPECIFIC APPLICABLE PROVISIONS OF THE LUO.
• 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.
• 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.
• LUO Section 21-10.1, Definitions.
AND ARGUMENTS SUPPORTING APPELLANT’S POSITION THAT
THE
DIRECTOR’S ACTION WAS BASED ON AN ERRONEOUS
FINDING
OF MATERIAL FACT, AND/OR THE DIRECTOR ACTED IN
AN
ARBITRARY OR CAPRICIOUS MANNER, OR MANIFESTLY
ABUSED
HIS DISCRETION
BACKGROUND.
7
----------------------------------------------------------------------------------------
Intranet Access (POSSE), Appellant found a March 17, 2003 entry indicating the DPP had drafted an NOV regarding the construction of a concrete enclosure to house a primate (orangutan). (NOV No. 2003/NOV-03-l 12; Exhibit 6.)
On August 1, 2003, Appellant filed a formal written Uniform Information Practices Act (UIPA) request with the DPP for any and all documents in the DPP files relating to the placement and housing of the orangutan at Kualoa Ranch from January 1, 2002 to the present. The UIPA request stated, “In particular we would like to request copies of permits, memorandum of agreements, letters, a copy of Notice of Violation No. 2003/NOV-03-1 12, and letters or other written communications relating to NOV No. 2003/NOV-03-l 12. Also include any and all documents relating to land use classification generated by the City and County of Honolulu’s Department of Planning and Permitting, Director’s review of land use classification, from January 1, 2002 to present.” (Refer to UIPA request; Exhibit 7.) Pursuant to the UIPA (Section 92-F, Hawaii Revised Statutes), an agency (DPP) must produce the documents in a timely manner upon receipt of the request. To date, nearly 4 months later, the DPP has failed to produce all of the requested documents.
Moreover, the DPP has concealed documents, and hindered Appellant from obtaining critical information for preparation of the Petition for Declaratory Ruling. While the failure to comply with the UIPA is an egregious abuse of discretion, there have been other incidents. For example, on August 29, 2003, Appellant wrote to the Director outlining the information provided above, asking again for the documents and reminding the Director about the need for disclosure. (Refer to Exhibit 8.) And again on September 2, 2003, Appellant sent a letter to the Director, stating that Appellant is aware of the Director’s efforts to conceal the existence of several letters, e-mails, communications and documents, and offered a small, but representative, sample of documents known by Appellant to be concealed/unlawfully withheld. (Refer to Exhibit 9.) Appellant also sent FAXes to the Director, and made numerous telephone calls in further attempts to obtain information requested under UIPA, and re-iterate the need for disclosure. (See Exhibits 9a, 9b, 9c, 9d, and 9e).
Appellant recognizes that the Zoning Board of Appeals is not
responsible for enforcement of the UIPA law. However, Appellant believes the ZBA
has the full authority to consider the Director’s actions in denying Appellant
due process and impeding Appellant’s ability to give adequate response to the
Director’s ruling, and the Director’s lack of appropriate response to the
Petition for Declaratory Ruling. These actions are arbitrary and capricious, and
show a manifest abuse of power by the Director. Documents will show that
representatives of Kualoa Ranch
8
-----------------------------------------------------------------------------------------
and OFI were not hindered,
and in fact were given full access to the Director and his staff, as well as
information and the expertise of DPP personnel to facilitate the placement and
housing of the orangutan at Kualoa Ranch. For example, Appellant will produce an
e-mail dated July 20, 2003, written by the Director himself advising OFI that he
would meet with them to be sure DPP and OFI were using the same standards for
review and that he would “ask Sharon Nishiura” (DPP staff to give them
“any other information she has from her meeting notes”. (See Exhibit
10.)
2. REASONS FOR APPEAL.
In the Director’s action (2003/DEC-2),
the Director acknowledges that a Notice of Violation (No. 2003/NOV-03-1 12) was
issued to Kualo/OFI for constructing an enclosure for the orangutan without a
building permit. The Director then states that, “subsequently, OFI and Kualoa
Ranch informed the Department that the enclosure (...)
will not be used for Rusti”. Unfortunately, the Director fails to
reveal the date of this action by Kualoa/OFI, or by what means this information
was conveyed to the DPP.
This omission is important for two reasons. First, Violation Notice No. 2003/NOV-03-1 12, issued March 20, 2003 by Building Inspector Calvert Hung, contained a written statement at the bottom of the notice under “Special Instructions” which clearly states that the orangutan enclosure requires a Conditional Use Permit. (Refer to Exhibit 6.) As Appellant stated in our Petition for Declaratory Ruling, this is a clear and accurate statement by the DPP inspector, made in his official capacity. Appellant has obtained information which shows that the Inspector who issued the NOV, and who made the written determination that the use required a CUP, did so only after consultation with DPP zoning personnel. Therefore, in late March of this year, there seemed to be no confusion at DPP about the use classification. There was no need for “a comprehensive final program” for an evaluation to be made, as ruled by the Director in his 2003/DEC-2 action. The orangutan enclosure was deemed a Zoo.*
Secondly, and just as troubling, is the fact that the Director withheld public documents that Appellant would have relied upon in preparation of the Petition for Declaratory Ruling. In 2003/DEC-2, the Director states that “subsequent” to the NOV, OFI and Kualoa Ranch informed the Department that the unauthorized enclosure “will not be used for Rusti”. At the time the Petition for Declaratory Ruling was filed, Appellant did not have knowledge of certain documents. This is further basis for sustaining the appeal, in that the Director now falsely claims no documents have been submitted. Moreover, the Director knowingly,
9
---------------------------------------------------------------------------------
intentionally, and unlawfully withheld public documents that would have proven pertinent to Appellant’s Petition.
* Appellant notes that the LUO Master Use Table (Table 21-3), under the use “Animals”, shows that a CUP is required for Commercial Kennels, Livestock Production-Major, and Zoos. As we believe the ZBA will see, the orangutan enclosure is obviously not a kennel, and does not involve livestock; thus, the unauthorized enclosure was properly determined to be a Zoo (i.e., as stated in the Violation Notice).
3.
CONCLUSION.
The above information, presented to the ZBA in this Petition of Appeal, represents only the “tip of the iceberg” in terms of the documentation Appellant will provide in his Position Statement, and will use later at the ZBA contested case hearing, including numerous exhibits showing a pattern of misuse and abuse of governmental power on the part of the Director. Appellant will provide documentation showing that the Director engaged in arbitrary and capricious actions, including his action in response to Appellant’s Petition for Declaratory Ruling.
Appellant will provide evidence (in the form of letters, e-mails, notes, and other documents) which show that the Director’s actions have influenced his ability to render a fair and unbiased decision. For example, in an August 15, 2003 e-mail to Barry Fukunaga (Director of the Department of Enterprise Services, of which the Honolulu Zoo is a part) and to the DPP Director from Steve Karbank (of OFI), Karbank states, “Like you, we would like to build the Kualoa facility and move Rusti there as soon as possible.” (See Exhibit tt.) This is consistent with other e-mails where certain City management personnel have expressed the desire to move the orangutan to Kualoa because the existing orangutan cage at the Honolulu Zoo is impeding the construction of a new aviary for lorikeets. The City is also aware of public concerns about the inadequate 1950’s-style cage being used to house the orangutan for the past 6 years, and also concerns about the use of taxpayer money for personnel, equipment, and services for a non-government, private entity such as OFI, especially in light of the City’s current period of budgetary crisis. [Appellant notes that a complaint was filed on September 1, 2003 with Budget Committee Chair Ann Kobayashi, in regard to Appellant’s investigation of the unnecessary and burdensome depletion of the Zoo’s limited and valuable resources, for expenses involved in housing and caring for a privately-owned orangutan. The first 2 pages of the complaint, along with a synopsis of the 26 attachments, are incorporated as Exhibit t2. Appellant will submit the 26 attachments later in his Position Statement.
10
----------------------------------------------------------------------------------------
Appellant is also in possession of e-mail dated July 21, 2003 (see Exhibit t3) from Barry Fukunaga to Eric Crispin, where he states, “At this point I don’t think we need Birute, rather we want to address those design issues that need to be met in order to facilitate the approval process from DOA and DPP.” [Note: Reference is to Birute Galdikas, head of OFI.] Appellant will provide additional e-mails showing that certain City agencies, with full participation by the DPP Director, are committed to facilitating the approval of the Kualoa facility at all costs, and as quickly as possible.
For all of the foregoing reasons, Appellant respectfully asks that the ZBA find that the Director has been arbitrary and capricious, erroneous, and flagrantly abusing his discretion in this matter. Appellant respectfully asks that the ZBA overturn the Director’s Declaratory Ruling, and find in favor of the Appellant in his Petition for Declaratory Ruling. Appellant also pleads that the ZBA order the Director to take no action on any and all activity pertaining to housing and placement of the orangutan at Kualoa Ranch, until this appeal has been decided by the ZBA. And finally, Appellant respectfully asks the ZBA to render a decision which prevents the Director from taking any further action, including all decision-making on permits, discretionary (such as the CUP-M) or otherwise, which affect the outcome of the proposed orangutan facility at Kualoa Ranch, because Appellant believes the evidence will show that the Director’s actions have irretrievably tainted his ability to render a fair and unbiased decision in this matter.
Sincerely,
Carroll
E. Cox
Appellant
Enclosures
11