Sunday, April 20, 2014


It's no secret that the "sustainability movement" on Kaua`i is being squeezed.

To the west is a experimental pesticide industry with multinational chemical companies who gobble up state land leases and land-rich legacy corporations' acreage to test how well and how much genetically modified commodities can withstand poisons.

To the east farm lands have been sliced and diced into legally-questionable luxury residences that have driven up farm land prices until crop cultivation is economically unfeasible.

Whether the fast disappearing remaining "vacant" agriculturally zoned and districted land will grow organic crops or mansions for the rich and famous is up for grabs.

But depending on who is painting the picture, the lawyers or the community, the the Kahu `Aina Plantation Subdivision in Waipake could go either way.


Last Wednesday a meeting of the Planning Committee of the Kaua`i County Council once again took up what appears to be the last remaining obstacle in the way of Falko Partners' owner Larry Bowman's and his manager Shawn Smith's plans for 76 "luxury residential lots" as they were at one time advertised: the final official establishment of horizontal and lateral beach access which is guaranteed in the Hawai`i State Constitution, and whether it will include an ancient lateral trail system called "The Ala Loa" that gently meanders for miles adjacent to the coast and provides many points of easy beach access as it currently runs.

Even though the state actually has fee-simple ownership in the by-way that according to elders connects the towns of Anahola and Kilauea, the landowners have been using a series of flimflams, supposed legal loopholes, threats of lawsuits, fake maps, revolving door government regulators and the political intimidation of already bought and paid for government officials to gobble up the Ala Loa and easy beach access in an attempt to create what amounts to miles of a de facto privatized coastline... all in a state where no one can own the beaches.

They've gone as far as to get the state Department of Land and Natural Resources (DLNR) to accept maps that show the Ala Loa to be far inland from where actually is in one of the most "are you going to believe me or your lyin' eyes" boondoggles anyone has ever seen... or not seen as the case may be.

How the battle for access turns out though seems at times to be almost (but not really) secondary for Bowman, Smith and Falko to the urgency for it to actually "turn out"- finally and permanently.

And while it remains up in the air Falko seems to be changing the the image they are selling the community, doing a 180 and now claiming that each buyer will be "an active farmer engaged in farming" according to what lead attorney for Falko, Dennis Lombardi of the powerhouse Honolulu law firm of Case, Lombardi and Pettit told the council last Wednesday.

Huh? Could this really be true? Will this agricultural subdivision- the one that was supposed to be "the last" under the 2000 Kaua`i General Plan (it wasn't)- now be re-purposed for 76 farmers to till the land on the 376 acres and build the legally required "farm dwellings?"

Well, according to testimony Wednesday there is already an eight to ten acres plot (depending on who you ask and what day you're asking) planted in "organic" ginger root and, we've heard papayas and Olena (also known as turmeric).

And an ad recently appeared in the local Kaua`i newspaper announcing:

"Attention Non-GMO Organic Farmers:


Kahu `Aina Plantation is currently seeking proposals for non GMO, non pesticide Organic Farming ventures of 1 to 10 acres size on our Waipake property

Ample land and irrigation water
Organic farming experience required

Send written proposals to
Shawn Smith, Falko Partners
PO Box 588, Kapaa Hi 96746"

Can this be? The buzz in the sustainability crowd has been, well, "Wow."

Well if you believe this subdivision will be an organic paradise and not just another bunch of typical gentleman’s estates that have been built on many thousands of North Shore Ag land, we've got some, well, organic farmland to sell you.

Stick with us here- it's not as complicated as those who want you to think it's all too much for your poor little brain to comprehend would have you to believe.

Don't think for a minute that this is going to be happening on each one of those 76 "luxury residential farm dwellings" for lack of a less schizophrenic description. Actually the subdivision, depending on who you believe and what set of paperwork you're looking at, had 80 plots when you count up both the subdivided and "condominiumized" lots.

(For the uninitiated, to be brief, in Hawai`i we have what are called "Agricultural Condominiums," a legal fiction that was "discovered" in the 1970's to get around a "one time subdivision" law... a loophole that, one discovered, became way too lucrative for the legislature to close).

Sooo... apparently and presumably the 8-10 acres of "organic" ginger root, turmeric and papayas and the 1-10 acres of "organic farm land" (assuming it's not the same acreage) are not part of the "luxury farm lots" (or whatever they're calling them today) and will really not have anything to do with the farming that it has now been guaranteed will occur on each and every one of the 76 lots via the hands (dirty hands? farm hands?- either way. this we've gotta see) of the owners... owners who are going to be paying millions for the best and biggest of the lots.

Right now the "ginger-Olena " farm is on the edge of the property down wind and far away from where the luxury farms dwellings are being sold so there'll be no need to smell fertilizer or hear tractors.

But we say "presumably" and "apparently" and seem to be hedging our words. Well yes... that's because we can only base them on reported observation because the Kaua`i Planning Department is refusing to answer any questions or provide the latest up-to date public information information regarding the true location of these house lots, according to Moloa`a farmer Hope Kallai.

Kallai has been trying to reconcile different maps and descriptions provided by Falko, the Planning Department, the attorneys and the DLNR for years and recently asked the Planning Department to straighten it all out.

We're going to leave out all the shenanigans regarding what Kallai calls the "shuffling and reshuffling" of "kuleana" lots and Shoreline Management Area (SMA) and Conservation District boundaries (until they magically disappeared) as well as possible "additional dwelling units" that could double the 76 permitted "farm dwellings." Just be aware that there's been a lot of "now you see it now you don't" going on.

But here's a recent email exchange regarding just a few of her questions for one planner when Kallai finally got fed up with being hung up on, having calls unreturned and getting different stories every time she asked.

"From: Hope Kallai
Sent: Tuesday, April 08, 2014 12:49 PM
To: Jody Galinato
Subject: Kahu`Aina

Aloha e Jody - Can you please help with the following questions about the Kahu`Aina Subdivision Phase I and Subdivision Phase II?
1.  How many total House sites and Guest House site rights are attached to this project?
2.  Has the Parking Lot site been identified?  Size?  For how many vehicles?
3. How many house sites are planned for the SMA?  The Conservation District?
4.  Who will be responsible for the Conservation District Use Application for the public access easement - grantee or grantor?
Mahalo, Hope Kallai"

Galinato's answer?

"I cannot answer these questions and would refer to Dale or Kenny by means of the OIP form (emphasis added)  Jody"

For the uninitiated what "by means of the OIP form" means is that "we aren't giving you anything unless you file a formal request with the OIP (Office of Information Practices) under the Uniform Information Practices Act (the Hawai`i version of a freedom of information request) under which we will charge you untold amounts of money to research and segregate and if necessary redact material, possibly even having our attorney's go over it at $500 an hour.

And we can also delay the process for weeks, months or even years while we battle with OIP over what we absolutely have to release."

And all this for the current public information on the subdivision and the plans for Kahu `Aina.

So what's the big deal? Well as we said the access issue is the final barrier to approval for the project and once it's final all discretionary involvement by the county council and planning commission- and the public input and scrutinization that goes with it- is over.

And once it's all "final" the question of what exactly is going to happen on those 76 plots is up to Falko and, drum roll, the same Planning Department that won't even show the public the real maps of or give out information regarding Kahu `Aina Plantation.

And perhaps we're burying the lead here but it's no secret that the Planning Department has never- not once- actually enforced a case of a violation of one of these "farm dwelling agreements" that gentleman's estate owners must sign promising to farm their land whether on subdivided or condominiumized lots.

The history has been that, as long as you put a horse or two in the yard and plant a few fruit trees, voila!- you're a farmer.

And because they have somehow interpreted the law to say that their inspectors aren't really allowed inspect the lots without permission (unless it's for a rice-cooker.. you had to be there)- or don't have enough people or that they are "complaint driven" or whatever excuse they are using today- no one is ever "busted" for violating their agreement to farm their Ag land.

That's why the access issue is so important- not just for the access itself but because it's the last place for public testimony and/or council discretion.

That may just be what's behind this sudden turn-around by Smith and Falko because the very people likely to try to block the project by insisting on the type of access that Bowman doesn’t want to give, are the same North Shore folks who tend to see the advertised "non GMO, non Pesticide, Organic Farming ventures of 1 to 10 acres size on our Waipake property" and promises that every owner will be an active a farmer" as a reason to drop opposition to the finalization of the project.

The owner-farmer promise is just that- a promise that is not worth the paper it isn't written on, especially given the Planning Department's history of non-enforcement. And the 10 or even 20 some-odd acres of organic farming off to the side where it won't muck up the aesthetics of the "luxury farms" could be just enough to buy off those who do understand the land use issues and law or don't care when they hear the words "non GMO Organic Farms."

At last Wednesday's meeting you could see the desperation and exasperation of attorney Lombardi as he actually attempted to intimidate and threaten the council into accepting the lousy beach access which also seeks to locate the parking lot a mile from the beach, even claiming it was "not in the purview of this council to consider options relative to easement- absolutely not."

That raised the dander of most councilmembers who well understood that, despite the fact that Deputy CA Jung had, as he is wont to do, done his best at legal kow-towing to Lombardi, they do have the final say over this access issue.

Jung, who "negotiated" the proposed easement, has been bending over for land developers and local land use attorneys for years, readying himself, as many think, to enter the revolving door and eventually see his own name at the end of a partners list. He's best known for the "beer-gate" scandal when he tried to influence then Councilmember Dickie Chang to vote for a developer-friendly re-interpretation of the vacation rental laws through a beer-bearing home visit.*

Barely able to contain his rage, Lombardi tried to tell the council they had to accept the easements before them claiming there had already been 26 or 28 public hearings (a number that seem suspiciously imprecise and which no one seems to be able to remember) and then listing all the taxes and parks and housing fees they had paid (as they were legally required to do) as well as all the "millions" spent on local charity- the latter sounding suspiciously like a request for a quid pro quo bribe.

"We are good corporate citizens... I don't think we deserve what's going on here" he said of the community's demands for the access the government owns and the state constitution requires.

He also insisted that "there will be no debate" between the public and himself during the three site visits scheduled for April 30, May 30, June 27 - all at 10 am. The site visits are crafted to evade the sunshine law by having only two councilmembers at a time attend each visit and also so that the public can discuss the issues and everyone can see the lay of the land for themselves.

This didn't exactly endear him to councilmembers but the message was clear- the developers have more money than god and they will use it sue you and the taxpayers to get what we want. Put that in your November election and smoke it.

The matter will return to the Council's Planning Committee on July 2.

The question here isn't whether the community can strike a blow for "diversified agriculture"- much less those "non GMO, non Pesticide Organic Farms"- by stopping the chop-shop job on another vast agricultural swath of North Shore land, preventing it from becoming another playground for the rich and famous.

That boat has sailed. It's a fight that the community has been losing- or should we say "has lost"- since the end of the sugar cane era. All that's really left is to beg for the table scraps of being able to traverse the trail we own so as get to our beaches without risking life and limb in the process.

The original plans include a heliport and a clubhouse adjacent to what was going to be an essentially private beach where residents could walk the gently sloping access to the beach and the rest of us will have to walk miles before jumping off a cliff to get there.

This fight is actually over just how stupid they think we are and whether we can be bought off for a few acres of "silver" which may actually be nothing but an illusion cooked up in attorneys' offices here and in Honolulu.

*(The above has been corrected to reflect that Mauna Kea Trask did not attend the "beer-gate" visit.)
*(The above has been corrected to reflect that Mauna Kea Trask did not attend the "beer-gate" visit.)

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