WILL IT GO ROUND IN CIRCLES

WILL IT GO ROUND IN CIRCLES: It wouldn’t be the first time the state took a cue from one of the more outrageous abuses of process originating on Kaua`i- and it certainly won’t be the last.

But let’s back up a bit.

An article in last Thursday’s Honolulu Star-Advertiser announced

Changes proposed to state land rules
The first revisions in 16 years involve shoreline boundaries and permits

It reports that:

The first update of conservation land use rules in 16 years would change the shoreline setback, eliminate required permits for activities like weeding and increase fees.

The proposed changes, outlined in a 71-page document by the state Department of Land and Natural Resources, are being reviewed through public meetings. Today's will be in Honolulu.

The revisions have some environmental organizations concerned.

Among the more significant changes would specify shoreline setback, a line past which no structures or coastal alterations are allowed. Numerous lawsuits have been filed over designations of public and private access along the shorelines.

Some of the changes will include those required by the Supreme Court of Hawai`i (SCOHI) decision in the case brought by Kaua`i North Shore resident Caren Diamond that redefined the shoreline determination process.

But a side bar to the article lists some of the changes the new rules will try to bring about including one that goes unmentioned in the piece:

Rules would specify that only people with property interest, residency on the land or anyone directly affected by a permit can appeal. Rules now state that "any person" can appeal to the department.

Now maybe they missed it but that rule would apparently fly in the face of a more recent SCOHI case, County of Hawaii v. Ala Loop Homeowners, which essentially held that any land use effects the environment and that triggers Article XI, Section 9 of the Hawai`i State Construction which reads:

Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law

That would seem to preempt any restriction on who can sue when it comes to “land use rules” of the DLNR.

So what does this have to do with Kaua`i?

The use of administrative rules to try to define-out-of-existence provisions of the county charter- the county’s equivalent of a constitution- was the central issue of the two year Kaua`i Board of Ethics (BOE) brouhaha when county attorneys used both a county ordinance and the BOE’s rules to narrow the plain reading of Section 20.02(D) of the charter which bans county employees and board and commission members from “appear(ing) on behalf of private interests” before other boards and commission.

Apparently the DLNR may be paying attention to our local shenanigans and are attempting to slip through a rule that could at least temporarily bog down what land use attorneys across the state have called a “newly created right”- that of private citizens to sue over land use decisions.

It’s enough to make a local good old boy’s chest swell with pride to think little Kaua`i could come up with a process corrupt enough to be used by the masters at DLNR.