CHOKIN’ ON THOSE BONES: Today’s follow-up on a for-the-most-part erroneous January 15 article in the local newspaper that has left the community- with the exception of our and Joan Conrow’s readers- thinking that Mayor Bernard Carvalho had acquiesced and removed the bike path from Wailua Beach does one thing.
It answers affirmatively the question of whether Carvalho and his administration has heard the old joke about ascertaining that their lips are moving in order to tell if they are lying.
They seemingly live by the motto “if you don’t speak no one can accuse you of deceit”.
Though the matter has gone from clear as mud to clear as muddy water it’s not as though it wasn’t a valiant effort on the part of ace reporter Mike Levine who seemingly couldn’t get anyone to give him a straight answer and couldn’t even get the protesters to admit they were duped by hizzonah.
Once again the headline is somewhat unclear in saying New path route to straddle shoulder, sand because, as we wrote the Monday following the original article, the definition of the “shoulder” is in question- it the shoulder the paved part or is there a shoulder” that’s on the sand? And what does straddle mean in that context? And what exactly does “straddle” mean in this context?
The lead seems to make it clear at least that:
A concrete multi-use path will still sit on the sand dunes in Wailua even after last month’s compromise moved the proposed route from the county park to the state highway right-of-way, officials recently confirmed.
But the next paragraph is again somewhat baffling:
“Based upon the preliminary plans for the path, the maximum distance from the edge of the current pavement out to the outer edge of the new path will be between four and five feet,” state Department of Transportation spokeswoman Tammy Mori said via e-mail after consulting with Kaua`i District Engineer Ray McCormick.
It would seem to say that part of the path is going to be where the paved shoulder currently sits and go to up to five feet onto the beach. But what the rest of the article says indicates is that no one but Mori would talk to Levine and she might not be too sure of her facts.
That’s followed by a roundabout quote from Building Division Chief Doug Haigh- one that had to be obtained through an email from the county’s public information officer Mary Daubert rather than through a conversation with Haigh himself.
And no wonder- it’s so confused and uninformative, it begs a few follow-up questions, ones which Haigh was of course unavailable to answer.
First he says:
“Along the middle of Wailua Beach, the path will essentially straddle the location of the existing rock wall (to be removed),”
The “middle” of Wailua Beach? The middle of what? And it does not say whether it will be fully on the beach since the rock wall is on the beach, not the paved shoulder.
Another key of the original deception was the use of the word “shoulder” without referring to the paved part so that when they said it was on the shoulder it was actually on the beach sands. When combined with the term “right of way” it seemed to indicate the paved shoulder.
But Haigh’s next statement confirms our suspicion that the use of the term “right of way” was being used by Carvalho and his mouthpiece Beth Tokioka to confuse people.
“The Kuhio Highway right-of-way is approximately four to five feet makai of the rock wall. Some vegetation may be removed and some earth shoulder may need grading.”
That confirms that the right of way extends onto the beach so that statement itself can’t be right either since the “right of way” includes all of the highway. To say the “right-of-way IS approximately four to five feet makai of the rock wall” can’t be true- only that it “extends” to that point.
We pick this apart to show the obvious attempt by county officials to try to cover for Carvalho’s and Tokioka’s attempted bamboozle by using confusing terms and seemingly contradictory statements.
Also note that Mori made her statement “via email after consulting with Kaua`i District Engineer Ray McCormick”. That means McCormick- who when cornered was quoted by participants at the mayors meeting with dissidents on Thursday Jan. 14 as saying the bike path would start where the pavement ends- also apparently wouldn’t take calls or answer Levine’s questions, pushing the question “upstairs” to Mori
What exactly did he tell Mori? And why was it different than what he told people at the meeting? Did Mori get it right? Did she even ask the question Levine wanted answered?
Who knows- we’ve danced this reporter’s dance before and can recognize it when it gets into print. Obviously Levine was stymied at every turn in attempting to get to the truth, as evidenced by the fact that it took him almost a month to get this much.
The mere fact that neither Haigh or McCormick- nor apparently Carvalho- would speak to him directly tells you that all is not as it appears and someone is fudging something.
And to make the whole thing even more confusing there was another paragraph with more of Mori’s statement.
(T)he state Department of Transportation is still planning to widen the road to four lanes. The widening project will add one 11-foot-wide lane to the Lihu`e-bound side of the road and a turn lane for Kuamo`o Road, and all the widening will take place on the mauka side, Mori said. The maximum distance from the existing edge of the pavement to the furthest point of new pavement will be approximately 15 feet. (emphasis added)
The question is of course does that refer to the “existing edge of the pavement” on the mauka side or makai side? To say “all the widening will take place on the mauka side” obviously isn’t true since she already admitted that it will be widened onto the beach.
Don’t forget- Mori is just a spokesperson, not an engineer and apparently has a very loose grasp on what is actually happening.
Well at least the wider community now knows that the bike path was not removed from the beach. But it’s still unclear how much of the beach it will take. Is it four or five feet?... is it 11 feet?.. is it more?
Don’t expect the truth from Carvalho’s lips. When they move they apparently speak only the words of his spinmeister Tokioka , warbling “Together We Can... Hoodwink Them All”.
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We’ll be taking a long weekend- unless something sets our hair on fire we’ll see ya Monday.
Thursday, February 11, 2010
Wednesday, February 10, 2010
HAHAHAHAHA
HAHAHAHAHA: Shadenfreude was never as sweet as with the news that the owners of one of the gaudy obnoxious gated homes in Tom and Bonnie McCloskey’s and Justin and Michelle Hughes’ land-raping “Kealia Kai” ag subdivision are apparently being forced to auction it off for a pittance.
The Concierge Auctions’ Kaua`i Luxury Auctions web site says the auction for the home at 4380D Paliku Place- which was previously offered for $9,995,000- has a “reserve” of $2,000,000 and gives a pre-sale estimate of $3,000,000-$7,000,000 although there is no minimum bid..
In this market it could well go for a song.
The development became a symbol for everything Kaua`i people hated in the 90’s when the Colorado developer came here and bought the entire Kealia Ahupua`a for a ridiculously low $17 million- or less since that was only the asking price- while the community and even county and state government was considering how to purchase and preserve it as a park.
Although the land had long been thought to be Hawaiian “crown” land- or stolen land as it is known in kanaka circles- that had merely been leased to Makee Plantation by King Kalakaua in the 1880’s, no one ever challenged the sale or deed.
McCloskey tried to turn the entire makai-of-the-highway portion from Kealia to Anahola into a private beach community and block all public access.
The Sierra Club and a group called “Friends of Kealia” threatened a lawsuit and McCloskey agreed to move the homes back from the edge of the bluff to a place inland enough so that they could not be seen from the beach areas.
But he did that in exchange for a promise from the Sierra Club and the group that they would go away d not try to stop him from doing anything else he wanted to in Kealia, a decision many decried since the only ones with deep enough legal pockets to challenge him was the Sierra Club Legal Defense Fund, as EarthJustice was called at the time.
The project went forward due to the greasing of the wheels by friend of the McCloskeys, then-Mayor Maryanne Kusaka who had been rumored to have been given a plot and home in the subdivision although no evidence could ever be found of any corrupt transaction.
Could this be the house that was built for her but had to be withdrawn not just because of the scrutiny but due to Kusaka’s losses in the ill-fated renovation of Coca Palms, as PNN has exclusively reported?
Maybe, maybe not- we’ll probably never know for sure. The current listed owners are Patricia Dzubera and Richard E Nelson of 2115 S Ocean Blvd Apt 16 Delray Beach Fl 33483-6487.
According to many who have seen the area in mauka Kealia McCloskey has developed it into a series of luxury lots and homes raping the land there and getting out from under the grubbing and grading ordinance under the guise of an Agricultural Conservation Plan that was approved by the East Side Soil and Water Conservation Board which gives votes to its members like McCloskey based on the acreage each members owns.
Traditional access to the mauka area in Kealia- including access to the Waipahe’e Slippery Slide via the “landing strip” past the Spaulding Monument- has been eliminated by McCloskey after the planning department under Kusaka failed to require any in exchange for the subdivision.
The web site for the auction- replete with pictures and descriptions of the house and views- advertises:
Premier Estate Residence on nearly Six Oceanfront Acres, & Adjacent Five Acre Homesite
Selling at auction to the highest bidder on March 8th and located in the secluded subdivision of Kealia Kai, this exclusive property and premier homesite are pure tropical luxury living at its finest, offering residents unsurpassed privacy, extraordinary panoramic views and convenient beach access. From the breaking waves on white sand beaches to the deep blue ocean and vast skyline, Kealia Kai, nestled between the Aliomanu Mountains and the Pacific Ocean, is the gateway to the North Shore, one of the most popular and pristine areas of Kauai.
Nestled between the Aliomanu Mountains and the Pacific Ocean, this private, premier property in Kealia Kai is perched atop Paliku Point (Paliku means “vertical cliffs”), offering stunning panoramic views. From the breaking waves on white sand beaches to the deep blue ocean and vast skyline, Kealia Kai is the gateway to the North Shore, one of the most popular and pristine areas of Kauai. Pure tropical luxury living at its finest, this secluded subdivision offers residents unsurpassed privacy, extraordinary views and convenient beach access. Follow Kauai Path, winding along the shoreline, south through Kealia and to Kapa`a, and north to Donkey Beach.
Recognized as one of Hawaii’s finest architects, Alwyn Trigg-Smith blends contemporary design with a hint of tropical style in this luxurious property, resting on nearly six oceanfront acres. Offering three en suite bedrooms, two flex rooms, two half baths and a detached guest house with full bathroom, kitchen and garage, the layout is both expansive and functional.
You can click here to view the area on google maps.
The Concierge Auctions’ Kaua`i Luxury Auctions web site says the auction for the home at 4380D Paliku Place- which was previously offered for $9,995,000- has a “reserve” of $2,000,000 and gives a pre-sale estimate of $3,000,000-$7,000,000 although there is no minimum bid..
In this market it could well go for a song.
The development became a symbol for everything Kaua`i people hated in the 90’s when the Colorado developer came here and bought the entire Kealia Ahupua`a for a ridiculously low $17 million- or less since that was only the asking price- while the community and even county and state government was considering how to purchase and preserve it as a park.
Although the land had long been thought to be Hawaiian “crown” land- or stolen land as it is known in kanaka circles- that had merely been leased to Makee Plantation by King Kalakaua in the 1880’s, no one ever challenged the sale or deed.
McCloskey tried to turn the entire makai-of-the-highway portion from Kealia to Anahola into a private beach community and block all public access.
The Sierra Club and a group called “Friends of Kealia” threatened a lawsuit and McCloskey agreed to move the homes back from the edge of the bluff to a place inland enough so that they could not be seen from the beach areas.
But he did that in exchange for a promise from the Sierra Club and the group that they would go away d not try to stop him from doing anything else he wanted to in Kealia, a decision many decried since the only ones with deep enough legal pockets to challenge him was the Sierra Club Legal Defense Fund, as EarthJustice was called at the time.
The project went forward due to the greasing of the wheels by friend of the McCloskeys, then-Mayor Maryanne Kusaka who had been rumored to have been given a plot and home in the subdivision although no evidence could ever be found of any corrupt transaction.
Could this be the house that was built for her but had to be withdrawn not just because of the scrutiny but due to Kusaka’s losses in the ill-fated renovation of Coca Palms, as PNN has exclusively reported?
Maybe, maybe not- we’ll probably never know for sure. The current listed owners are Patricia Dzubera and Richard E Nelson of 2115 S Ocean Blvd Apt 16 Delray Beach Fl 33483-6487.
According to many who have seen the area in mauka Kealia McCloskey has developed it into a series of luxury lots and homes raping the land there and getting out from under the grubbing and grading ordinance under the guise of an Agricultural Conservation Plan that was approved by the East Side Soil and Water Conservation Board which gives votes to its members like McCloskey based on the acreage each members owns.
Traditional access to the mauka area in Kealia- including access to the Waipahe’e Slippery Slide via the “landing strip” past the Spaulding Monument- has been eliminated by McCloskey after the planning department under Kusaka failed to require any in exchange for the subdivision.
The web site for the auction- replete with pictures and descriptions of the house and views- advertises:
Premier Estate Residence on nearly Six Oceanfront Acres, & Adjacent Five Acre Homesite
Selling at auction to the highest bidder on March 8th and located in the secluded subdivision of Kealia Kai, this exclusive property and premier homesite are pure tropical luxury living at its finest, offering residents unsurpassed privacy, extraordinary panoramic views and convenient beach access. From the breaking waves on white sand beaches to the deep blue ocean and vast skyline, Kealia Kai, nestled between the Aliomanu Mountains and the Pacific Ocean, is the gateway to the North Shore, one of the most popular and pristine areas of Kauai.
Nestled between the Aliomanu Mountains and the Pacific Ocean, this private, premier property in Kealia Kai is perched atop Paliku Point (Paliku means “vertical cliffs”), offering stunning panoramic views. From the breaking waves on white sand beaches to the deep blue ocean and vast skyline, Kealia Kai is the gateway to the North Shore, one of the most popular and pristine areas of Kauai. Pure tropical luxury living at its finest, this secluded subdivision offers residents unsurpassed privacy, extraordinary views and convenient beach access. Follow Kauai Path, winding along the shoreline, south through Kealia and to Kapa`a, and north to Donkey Beach.
Recognized as one of Hawaii’s finest architects, Alwyn Trigg-Smith blends contemporary design with a hint of tropical style in this luxurious property, resting on nearly six oceanfront acres. Offering three en suite bedrooms, two flex rooms, two half baths and a detached guest house with full bathroom, kitchen and garage, the layout is both expansive and functional.
You can click here to view the area on google maps.
Tuesday, February 9, 2010
THE BITE IN THE BARK
THE BITE IN THE BARK: About 10-plus years ago when the various electric companies started a state-backed program offering low or even zero-percent interst loans to install solar hot water heaters we started asking around at every opportunity with state legislators what the possibility was of doing the same for the then-nescient photovoltaic systems.
Just like the hot water systems the loans would be designed to pay for themselves in electricity savings over the life of the systems and eventually produce “free” power.
Every year it was a no-go mostly we found, after a few years of persistence, due to the seemingly counterintuitive opposition of the solar installation companies that reasoned that the small number of existing companies already had cornered the market and that an influx of state money would spur endless new competition.
This past fall though we heard the scuttlebutt that a plan for a $50 million program would be introduced in this year’s legislature.
So the article in today’s local newspaper noting the program came as little surprise.
But not so those almost absurdly devilish details.
Rather than channel the loans through the various eclectic companies- KIUC here and HELCO in the other counties- like the proven solar hot water heater program, the scheme will try to force the counties to insure the state will get their money back by tacking the repayment onto participants’ property tax bills.
Though the bill- the one that survives at this point- doesn’t say so in so many words it’s obvious who will get stuck holding the bag should repayment not be forthcoming- the counties, who are solely given the right to tax property in Hawai`i.
We presume the state is selling this as a way to insure that the loans are more likely to get repaid since people are subject to losing their property if they don’t pay their property tax and individuals would have to be taken to court to collect loans. But of course the state, through the electric companies- could also loan to individual homeowners with a provision that the property serve as collateral and a lien could then be placed with non-payment.
What the counties are being asked to do though is take on the responsibility for repayment when and if an owner who has taken out one of these loans falls into arrears on their property tax, even if it’s for unrelated reasons.
The state is assuming that the counties are a collectively a bunch of idiots here, especially when being asked to do a favor for a legislature that is threatening to take way 10% of their budgets with proposed stealing of the counties’ share of the transient accommodations tax (TAT). which is supposed to pay for the impact of tourism on our state-mandated and county-paid infrastructure including police, fire and many other services.
While the program- which will include other alternative non-fossil fueled energy systems like wind as well as energy efficient home improvements- is a long ignored no-brainer whose time came years ago, the way the state is going about it is a dishonest attempt to screw whomever they can for their shortsightedness over the years now that the sh-t has hit the fan.
We’ll see how stupid and subservient our county leaders are here. Will county governments be the ones left holding the bag when defaults comes? Or will they be able to leverage not only a guarantee from the state that they won’t be responsible should the owner fail to pay but maybe in addition that the state will guarantee our share of the TAT for the foreseeable future?
Can anyone here play this game? We’ll soon find out. The bill’s status is that it was up for decision-making in committee this morning but further action will depend on whether the game the county plays is hardball.
Just like the hot water systems the loans would be designed to pay for themselves in electricity savings over the life of the systems and eventually produce “free” power.
Every year it was a no-go mostly we found, after a few years of persistence, due to the seemingly counterintuitive opposition of the solar installation companies that reasoned that the small number of existing companies already had cornered the market and that an influx of state money would spur endless new competition.
This past fall though we heard the scuttlebutt that a plan for a $50 million program would be introduced in this year’s legislature.
So the article in today’s local newspaper noting the program came as little surprise.
But not so those almost absurdly devilish details.
Rather than channel the loans through the various eclectic companies- KIUC here and HELCO in the other counties- like the proven solar hot water heater program, the scheme will try to force the counties to insure the state will get their money back by tacking the repayment onto participants’ property tax bills.
Though the bill- the one that survives at this point- doesn’t say so in so many words it’s obvious who will get stuck holding the bag should repayment not be forthcoming- the counties, who are solely given the right to tax property in Hawai`i.
We presume the state is selling this as a way to insure that the loans are more likely to get repaid since people are subject to losing their property if they don’t pay their property tax and individuals would have to be taken to court to collect loans. But of course the state, through the electric companies- could also loan to individual homeowners with a provision that the property serve as collateral and a lien could then be placed with non-payment.
What the counties are being asked to do though is take on the responsibility for repayment when and if an owner who has taken out one of these loans falls into arrears on their property tax, even if it’s for unrelated reasons.
The state is assuming that the counties are a collectively a bunch of idiots here, especially when being asked to do a favor for a legislature that is threatening to take way 10% of their budgets with proposed stealing of the counties’ share of the transient accommodations tax (TAT). which is supposed to pay for the impact of tourism on our state-mandated and county-paid infrastructure including police, fire and many other services.
While the program- which will include other alternative non-fossil fueled energy systems like wind as well as energy efficient home improvements- is a long ignored no-brainer whose time came years ago, the way the state is going about it is a dishonest attempt to screw whomever they can for their shortsightedness over the years now that the sh-t has hit the fan.
We’ll see how stupid and subservient our county leaders are here. Will county governments be the ones left holding the bag when defaults comes? Or will they be able to leverage not only a guarantee from the state that they won’t be responsible should the owner fail to pay but maybe in addition that the state will guarantee our share of the TAT for the foreseeable future?
Can anyone here play this game? We’ll soon find out. The bill’s status is that it was up for decision-making in committee this morning but further action will depend on whether the game the county plays is hardball.
Monday, February 8, 2010
FIND THE PEA
FIND THE PEA: A slew of emails over the past two days have come in from activists on Maui, the Big Island and Kaua`i with a subject line of “Bad Bill Alert” regarding a hearing for HB2433, scheduled for tomorrow at 9 a.m..
Simply put, according to it’s purpose the bill, if passed, “(e)xempts from county approval state department of transportation development and construction of highways and airports”.
But while some of the emails were partially accurate, overall they were confusing and incomplete.
According to the bill itself:
Notwithstanding any law to the contrary, all structures and improvements to land to be used for state or county highway purposes:
(1) May be planned, designed, and constructed by the appropriate state or county department without the approval of county agencies;
(2) Shall be exempt from any county permitting requirements; and
(3) Shall be exempt from any county agencies' special management area permitting requirements.
It also similarly exempts airports.
Let’s start with some debunking. First of all the bill would not, as some said, exempt the Harbors Division because harbors are the one area that is already exempted from county permitting That includes exemption from the Shoreline Management Area (SMA) permits for which the counties are responsible, as PNN exclusively and extensively reported in the fall of 2007 during the Hawai`i Superferry (HSf) debacle.
This bill- which is similar to ones that have been introduced every session of the legislature in recent years- would grant the same exemption to airports and this year adds on state highways, something that Kaua`i Representative Mina Morita told PNN at the time she opposed but feared would someday pass.
At the time we tried to find out why there was no SMA permit for the Superferry and our queries wound their way from the unreturned phone calls to the Kaua`i Planning Department all the way up to Mike Formby the head of the Harbors Division of the Department of Land and Natural Resources (DLNR) who informed us of and cited the exemption.
But the problem is that the state has no right to trump the federal Coastal Zone Management Act (CZMA) which requires the states to protect the shorelines.
As we wrote in a November of 2007 investigative report:
Formby has repeatedly refused, in writing, to answer repeated requests for required documentation of compliance with the federal Coastal Zone Management Act (CZMA). Rather, has refused to answer or discuss any issues of federal law.
When asked for the documentation of state compliance with various processes required by federal law, Formby, an attorney, has refused to provide documentation for compliance. He also refused to discuss and legal issues relating to any federal regulations
He has cited a state law exempting harbors from compliance all county permits, including Shoreline Management Area (SMA) permitting which though federal law is issued at the local level- in Hawai`i at the county level.
The state is in effect playing a shell game in which they have given the responsibility for enforcing the CZMA- imposed upon it by the federal government and which they can’t legislate their way out of- to the counties under one shell and under another they have exempted harbors from county permitting which they can legislate.
Neat trick, eh?
So with all the legal actions at the time why didn’t anyone file suit in federal court based on the lack of enforcement of the CZMA in order to stop the HSf until the counties issued SMA permits?
That became PNN’s $64,000 question at the time. Turns out it would have cost even more than $64,000- and another set of attorneys- to open another suit, especially in federal court where Maui attorneys who were fighting the infamous HSf “EIS” case had already lost an earlier unrelated round.
Although a small group of concerned Kaua`i citizens contacted a prominent CZMA attorney in San Francisco and tried to secure funding for a federal challenge to the exemption, the lion’s share of the legal fund contributions for fighting the HSf were being directed toward the EIS case on Maui and the federal suit was never filed.
We’re pretty sure the legislature is counting on the fact that they’ve been exempting harbors from the SMA for years without a challenge to say they can also exempt airports and now highway projects given their Superferry-proven penchant for the Minotaur behavior of “doing what’s wrong as long as they can”.
While the Bad Bill Alert alerted us to the upcoming hearing in Morita’s EEP Committee tomorrow they failed to report the current status of the bill which has already been heard and passed unanimously out of the Joe Souki’s TRN Committee and in fact has passed second reading in the house with the referral to EEP.
Testimony for tomorrow’s EEP hearing can be entered directly at the email testimony web site. When you get there, type in HB2433 in the box and click button that says "get latest hearing" and it will auto fill-in the info for you. Then type your name, email and address and enter your testimony. Click and submit.
Simply put, according to it’s purpose the bill, if passed, “(e)xempts from county approval state department of transportation development and construction of highways and airports”.
But while some of the emails were partially accurate, overall they were confusing and incomplete.
According to the bill itself:
Notwithstanding any law to the contrary, all structures and improvements to land to be used for state or county highway purposes:
(1) May be planned, designed, and constructed by the appropriate state or county department without the approval of county agencies;
(2) Shall be exempt from any county permitting requirements; and
(3) Shall be exempt from any county agencies' special management area permitting requirements.
It also similarly exempts airports.
Let’s start with some debunking. First of all the bill would not, as some said, exempt the Harbors Division because harbors are the one area that is already exempted from county permitting That includes exemption from the Shoreline Management Area (SMA) permits for which the counties are responsible, as PNN exclusively and extensively reported in the fall of 2007 during the Hawai`i Superferry (HSf) debacle.
This bill- which is similar to ones that have been introduced every session of the legislature in recent years- would grant the same exemption to airports and this year adds on state highways, something that Kaua`i Representative Mina Morita told PNN at the time she opposed but feared would someday pass.
At the time we tried to find out why there was no SMA permit for the Superferry and our queries wound their way from the unreturned phone calls to the Kaua`i Planning Department all the way up to Mike Formby the head of the Harbors Division of the Department of Land and Natural Resources (DLNR) who informed us of and cited the exemption.
But the problem is that the state has no right to trump the federal Coastal Zone Management Act (CZMA) which requires the states to protect the shorelines.
As we wrote in a November of 2007 investigative report:
Formby has repeatedly refused, in writing, to answer repeated requests for required documentation of compliance with the federal Coastal Zone Management Act (CZMA). Rather, has refused to answer or discuss any issues of federal law.
When asked for the documentation of state compliance with various processes required by federal law, Formby, an attorney, has refused to provide documentation for compliance. He also refused to discuss and legal issues relating to any federal regulations
He has cited a state law exempting harbors from compliance all county permits, including Shoreline Management Area (SMA) permitting which though federal law is issued at the local level- in Hawai`i at the county level.
The state is in effect playing a shell game in which they have given the responsibility for enforcing the CZMA- imposed upon it by the federal government and which they can’t legislate their way out of- to the counties under one shell and under another they have exempted harbors from county permitting which they can legislate.
Neat trick, eh?
So with all the legal actions at the time why didn’t anyone file suit in federal court based on the lack of enforcement of the CZMA in order to stop the HSf until the counties issued SMA permits?
That became PNN’s $64,000 question at the time. Turns out it would have cost even more than $64,000- and another set of attorneys- to open another suit, especially in federal court where Maui attorneys who were fighting the infamous HSf “EIS” case had already lost an earlier unrelated round.
Although a small group of concerned Kaua`i citizens contacted a prominent CZMA attorney in San Francisco and tried to secure funding for a federal challenge to the exemption, the lion’s share of the legal fund contributions for fighting the HSf were being directed toward the EIS case on Maui and the federal suit was never filed.
We’re pretty sure the legislature is counting on the fact that they’ve been exempting harbors from the SMA for years without a challenge to say they can also exempt airports and now highway projects given their Superferry-proven penchant for the Minotaur behavior of “doing what’s wrong as long as they can”.
While the Bad Bill Alert alerted us to the upcoming hearing in Morita’s EEP Committee tomorrow they failed to report the current status of the bill which has already been heard and passed unanimously out of the Joe Souki’s TRN Committee and in fact has passed second reading in the house with the referral to EEP.
Testimony for tomorrow’s EEP hearing can be entered directly at the email testimony web site. When you get there, type in HB2433 in the box and click button that says "get latest hearing" and it will auto fill-in the info for you. Then type your name, email and address and enter your testimony. Click and submit.
Friday, February 5, 2010
LYIN’ DOG AND SLEEPIN’ BABY
LYIN’ DOG AND SLEEPIN’ BABY: Our Monday ridicule of the county’s explanation for why they paid $7.5 million in the Ka Loko Dam tragedy lawsuit while the state only paid $1.5 million elicited two quite opposite responses from readers.
While one close to the story said we pretty much got it right another challenged our interpretation asking for specific references.
In attempting to debunk County Attorney Al Castillo’s contention that “the difference between the state’s portion of the settlement and the county’s had little to do with culpability, and instead reflected financial realities and state law regarding immunity” and show it had everything in the world to do with culpability we noted that there had to be some kind of gross misconduct or even malfeasance on the part of the state to override any general immunity.
So we turned to the Hawaii Dam and Reservoir Safety Act (DRSA [§179D]) and found yes, the state has a pretty much blanket immunity regarding dams and reservoirs in that “no action or failure to act under this chapter shall be construed to create any liability in the State” [§179D-4] .
And yes that can be overridden by “willful acts or negligence by the board or its agents” [§179D-6] in certain situations- the precise situation that occurred between the state and the county in failing to “enter upon such private property of the dam or reservoir”.
In other words it’s even worse than we suspected in terms of culpability of the county because it seems it was indeed the county’s willful inactions that precipitated the state’s liability in the case.
Those that sat through the marathon year-and-a-half “Developers Gone Wild” Kaua`i County Council grubbing and grading investigations will remember that a good deal of it dealt with asking then-Acting County Engineer Ian Costa and Chief of Engineering Division Wally Kudo why the heck they didn’t just go onto Jimmy Pflueger’s (and Tom McCloskey’s) properties and inspect them.
Though they had the legal right to do so they claimed it was a lot more difficult for them to do it than the state, needing assistance from the county attorney’s office and the courts.
At that point members of the council got them to say they would try to work with the Department of and Natural Resources (DLNR) which oversees the DRSA and is specifically “authorized to enter upon such private property of the dam or reservoir as may be necessary in making, at the owner's expense, any investigation or inspection required or authorized by this chapter”.
Presuming that, under pressure from the council- and despite the interference of then Mayor Maryanne Kusaka who according to an internal memo from one of Kudo’s underlings squelched any action against landowner Jimmy Pflueger- Kudo and Costa contacted DLNR to have them assist them, and again presuming that the DLNR failed to assist them- as evidenced by the fact that it eventually took the federal EPA to come in and enter the property- it would seem that the state’s liability consisted entirely of a small ancillary amount of grossly negligent culpability in the county’s malfeasance and misconduct.
That, if anything, makes Castillo’s contention that
While the County believed it had viable defenses, joint and several liability applied in this case. Had the County lost at trial with the other defendants, we could have ended up having to pay almost everything, not just the percentage the jury assigned to us
even more absurd because it would seem that if anything it was the state that gambled that, by virtue of having even “deeper pockets” than the county, paying their relatively small share was better than trying to show it was entirely the county’s fault in that any “negligence” was primarily purely driven by the county’s actions and inactions.
The responsibility for the whole debacle- and therefore the deaths of the seven people who died primarily due their concerted effort to obstruct justice- seems to sit squarely in the laps of Kusaka, Coast and Kudo.
According to the DRSA [§179D-8b]:
Any person who negligently or after written notice to comply, violates this chapter or any rule, order, or condition adopted, issued, or required under this chapter, or knowingly obstructs, hinders, or prevents the department's agents or employees from performing duties under this chapter, shall be guilty of a class C felony.
Why the trio are not facing criminal charges along with Pflueger is a question that must be addressed by Kusaka’s fellow Republican Linda Lingle’s Attorney General Mark Bennett who is selectively and personally prosecuting Pflueger in a trial scheduled for this summer.
But the question one person who knew the seven who died rhetorically asked us recently- “how does Kusaka sleep at night”- is one only she can answer.
Only a true sociopath could.
While one close to the story said we pretty much got it right another challenged our interpretation asking for specific references.
In attempting to debunk County Attorney Al Castillo’s contention that “the difference between the state’s portion of the settlement and the county’s had little to do with culpability, and instead reflected financial realities and state law regarding immunity” and show it had everything in the world to do with culpability we noted that there had to be some kind of gross misconduct or even malfeasance on the part of the state to override any general immunity.
So we turned to the Hawaii Dam and Reservoir Safety Act (DRSA [§179D]) and found yes, the state has a pretty much blanket immunity regarding dams and reservoirs in that “no action or failure to act under this chapter shall be construed to create any liability in the State” [§179D-4] .
And yes that can be overridden by “willful acts or negligence by the board or its agents” [§179D-6] in certain situations- the precise situation that occurred between the state and the county in failing to “enter upon such private property of the dam or reservoir”.
In other words it’s even worse than we suspected in terms of culpability of the county because it seems it was indeed the county’s willful inactions that precipitated the state’s liability in the case.
Those that sat through the marathon year-and-a-half “Developers Gone Wild” Kaua`i County Council grubbing and grading investigations will remember that a good deal of it dealt with asking then-Acting County Engineer Ian Costa and Chief of Engineering Division Wally Kudo why the heck they didn’t just go onto Jimmy Pflueger’s (and Tom McCloskey’s) properties and inspect them.
Though they had the legal right to do so they claimed it was a lot more difficult for them to do it than the state, needing assistance from the county attorney’s office and the courts.
At that point members of the council got them to say they would try to work with the Department of and Natural Resources (DLNR) which oversees the DRSA and is specifically “authorized to enter upon such private property of the dam or reservoir as may be necessary in making, at the owner's expense, any investigation or inspection required or authorized by this chapter”.
Presuming that, under pressure from the council- and despite the interference of then Mayor Maryanne Kusaka who according to an internal memo from one of Kudo’s underlings squelched any action against landowner Jimmy Pflueger- Kudo and Costa contacted DLNR to have them assist them, and again presuming that the DLNR failed to assist them- as evidenced by the fact that it eventually took the federal EPA to come in and enter the property- it would seem that the state’s liability consisted entirely of a small ancillary amount of grossly negligent culpability in the county’s malfeasance and misconduct.
That, if anything, makes Castillo’s contention that
While the County believed it had viable defenses, joint and several liability applied in this case. Had the County lost at trial with the other defendants, we could have ended up having to pay almost everything, not just the percentage the jury assigned to us
even more absurd because it would seem that if anything it was the state that gambled that, by virtue of having even “deeper pockets” than the county, paying their relatively small share was better than trying to show it was entirely the county’s fault in that any “negligence” was primarily purely driven by the county’s actions and inactions.
The responsibility for the whole debacle- and therefore the deaths of the seven people who died primarily due their concerted effort to obstruct justice- seems to sit squarely in the laps of Kusaka, Coast and Kudo.
According to the DRSA [§179D-8b]:
Any person who negligently or after written notice to comply, violates this chapter or any rule, order, or condition adopted, issued, or required under this chapter, or knowingly obstructs, hinders, or prevents the department's agents or employees from performing duties under this chapter, shall be guilty of a class C felony.
Why the trio are not facing criminal charges along with Pflueger is a question that must be addressed by Kusaka’s fellow Republican Linda Lingle’s Attorney General Mark Bennett who is selectively and personally prosecuting Pflueger in a trial scheduled for this summer.
But the question one person who knew the seven who died rhetorically asked us recently- “how does Kusaka sleep at night”- is one only she can answer.
Only a true sociopath could.
Thursday, February 4, 2010
POND SCUM VS. TOXIC SLIME
POND SCUM VS. TOXIC SLIME: The state house’s disgraceful action in denying civil unions was made more unpalatable by the repugnant voice vote that tried to hide their positions.
But while most just accepted the bamboozle of many of the assorted scumbags, one reporter, Adrienne LaFrance of Honolulu Weekly (thanks to Larry Geller for the heads-up) took it upon herself to find out who voted which way by a simple method – she asked them.
Of course North Shore Representative Mina Morita had the strongest statement of all as to why she opposed the vote to indefinitely postpone action saying:
“I voiced my ‘no’ to the motion… To say that I am disappointed and ashamed on what happened on the House floor would be an understatement.”
That was obviously a truncated version a post on her new blog which said:
The vote on House Bill 444 has been postponed indefinitely. To say that I am disappointed and ashamed on what happened on the House floor would be an understatement. I believe the public, whether one was for or against civil union, deserved a definitive closure on this issue. I have been clear where I stand on this issue. I support civil unions. The posturing on this bill, by not correcting a defective date and all the procedural maneuvering, has been shameful. We were not leaders today.
As to the other two Kaua`i reps, well known bigoted racist Jimmy “Can’t keep his pants on” Tokioka was at least straightforward in his assholedom saying simply
“I voted yes.”
But of course we knew he would based on his opposition last year.
For the worst in mealy mouth bullsh-t responses we’ve gotta give the prize to West Side Rep. Roland Sagum. After voting against the original bill last year he had the nerve to say:
“People in the gallery wanted a roll call but it went down as a voice vote. It wasn’t because we are trying to hide anything… I don’t want to tell you, though. I’m trying to honor the process.”
Can we please do something about ditching these two embarrassments next November? Somebody... please... if you live in one of those two districts run for the state house. These guys have had a free pass long enough.
But while most just accepted the bamboozle of many of the assorted scumbags, one reporter, Adrienne LaFrance of Honolulu Weekly (thanks to Larry Geller for the heads-up) took it upon herself to find out who voted which way by a simple method – she asked them.
Of course North Shore Representative Mina Morita had the strongest statement of all as to why she opposed the vote to indefinitely postpone action saying:
“I voiced my ‘no’ to the motion… To say that I am disappointed and ashamed on what happened on the House floor would be an understatement.”
That was obviously a truncated version a post on her new blog which said:
The vote on House Bill 444 has been postponed indefinitely. To say that I am disappointed and ashamed on what happened on the House floor would be an understatement. I believe the public, whether one was for or against civil union, deserved a definitive closure on this issue. I have been clear where I stand on this issue. I support civil unions. The posturing on this bill, by not correcting a defective date and all the procedural maneuvering, has been shameful. We were not leaders today.
As to the other two Kaua`i reps, well known bigoted racist Jimmy “Can’t keep his pants on” Tokioka was at least straightforward in his assholedom saying simply
“I voted yes.”
But of course we knew he would based on his opposition last year.
For the worst in mealy mouth bullsh-t responses we’ve gotta give the prize to West Side Rep. Roland Sagum. After voting against the original bill last year he had the nerve to say:
“People in the gallery wanted a roll call but it went down as a voice vote. It wasn’t because we are trying to hide anything… I don’t want to tell you, though. I’m trying to honor the process.”
Can we please do something about ditching these two embarrassments next November? Somebody... please... if you live in one of those two districts run for the state house. These guys have had a free pass long enough.
Wednesday, February 3, 2010
ON MONKEYS AND WEASELS
ON MONKEYS AND WEASELS: The music is playing and to no one’s surprise one of the oldest if not the goodest of boys Ron Kouchi has publicly announced he is circling the state senate seat being vacated by Gary Hooser, who is running for lieutenant governor.
Despite what many might think long time Councilmember and sometimes Chair Kouchi is anything but a shoo-in after his recent identity crisis blew up in his face when he lost his first council election after one term that followed a hiatus when he lost his first race ever to Bryan Baptiste in 2002 when the “developer’s best friend” suddenly attempted a chameleon-like rebirth as a slow growth, environmental champion- in an unsuccessful attempt to end the Republican reign of Maryanne Kusaka.
Kouchi lost the mayor’s race because, despite the utter disgust with Baptiste among much of the populace his attempt to corral the “JoAnn Yukimura vote”- while she was absent from the political scene following her mayoral loss in 1994- was greeted with more than cynicism and derision when many kept their promises to themselves to never vote for Kouchi, who was the main thorn in the side of Yukimura during her six year administration.
The result is that Kouchi’s mostly local base of support now sees him of something of a traitor and opportunist who abandoned them for the “haole vote” while the controlled-growth crowd had their suspicions of his intent confirmed when he went to work for the developers of whatever-the-heck they’re calling the Westin these days after his mayoral race loss.
There his crowning achievement was bamboozling the council into giving up massive development rights to the area above Nawiliwili in exchange for the donation of a “park” along the coastline, giving up only an area that was a tax liability that could never have been built upon and yielding a county run- and taxpayer maintained- amenity for the patrons of the development.
Kouchi learned this ploy during the Trojan horse “gift” of the Kealia to Kuna Bay (donkey beach) area by Kealia Kai developer Tom McCloskey.
Because areas by the beach are generally in the state conservation district they are a two sided sword for developers these days. Though they are desirable areas for those patronizing an ocean front property they are not only undevelopable without a severe setback- out of the conservation district- but the property taxes on conservation land are the highest of all.
That plus “recent” (over the past 20 years) legislation requiring pubic access – including lateral access- leads to a great expense for a developer- a virtual public park on their private property which they must not only pay to build but pay to maintain.
McCloskey came up with the idea of the gift horse of the ocean front land to the county- along with restrictions that would have turned it into a county owned and run private beach with severely restricted access- and it was only the mouth examination of then councilperson Gary Hooser (over the objections of then councilperson Bryan Baptiste) that put a stop to a quick, first blanch approval making sure access would be maintained.
That was the time when, as public outrage over the restrictions grew so did the idea of “the bike path”. Kusaka- whose support of McCloskey was similar to that of Jimmy Pflueger in terms of the “hands off” directive to Public Works Department personnel- came up with the plan and convinced the none too swift Baptiste to accept the land to serve as “matching funds” for federal transportation bike path money sitting untouched in the state highways division coffers.
Few really understood the true motivation behind McCloskey’s gift at the time but it was not lost on Kouchi who used the same gift ploy to earn his big bucks for the Nawiliwili developer in obtaining massive, previously-denied development rights in a win-win for the developer and a lose-lose for the county which would have had a virtual public park with no development rights if they would have refused the “gift”.
Kouchi’s public announcement comes at a time when his notorious “war chest” is down to $725.01 according to his recent Supplemental (July 1 - December 31, 2009) filing for the 2008-2010 period which shows he somehow spent $3,552.54 since the last election.
His early announcement is quite obviously designed to scare off competition, depending on his reputation as a prodigious cash producer in the past.
And his actions over the past eight years portend well for his continuing to lead the money race for the Senate seat.
Despite what many might think long time Councilmember and sometimes Chair Kouchi is anything but a shoo-in after his recent identity crisis blew up in his face when he lost his first council election after one term that followed a hiatus when he lost his first race ever to Bryan Baptiste in 2002 when the “developer’s best friend” suddenly attempted a chameleon-like rebirth as a slow growth, environmental champion- in an unsuccessful attempt to end the Republican reign of Maryanne Kusaka.
Kouchi lost the mayor’s race because, despite the utter disgust with Baptiste among much of the populace his attempt to corral the “JoAnn Yukimura vote”- while she was absent from the political scene following her mayoral loss in 1994- was greeted with more than cynicism and derision when many kept their promises to themselves to never vote for Kouchi, who was the main thorn in the side of Yukimura during her six year administration.
The result is that Kouchi’s mostly local base of support now sees him of something of a traitor and opportunist who abandoned them for the “haole vote” while the controlled-growth crowd had their suspicions of his intent confirmed when he went to work for the developers of whatever-the-heck they’re calling the Westin these days after his mayoral race loss.
There his crowning achievement was bamboozling the council into giving up massive development rights to the area above Nawiliwili in exchange for the donation of a “park” along the coastline, giving up only an area that was a tax liability that could never have been built upon and yielding a county run- and taxpayer maintained- amenity for the patrons of the development.
Kouchi learned this ploy during the Trojan horse “gift” of the Kealia to Kuna Bay (donkey beach) area by Kealia Kai developer Tom McCloskey.
Because areas by the beach are generally in the state conservation district they are a two sided sword for developers these days. Though they are desirable areas for those patronizing an ocean front property they are not only undevelopable without a severe setback- out of the conservation district- but the property taxes on conservation land are the highest of all.
That plus “recent” (over the past 20 years) legislation requiring pubic access – including lateral access- leads to a great expense for a developer- a virtual public park on their private property which they must not only pay to build but pay to maintain.
McCloskey came up with the idea of the gift horse of the ocean front land to the county- along with restrictions that would have turned it into a county owned and run private beach with severely restricted access- and it was only the mouth examination of then councilperson Gary Hooser (over the objections of then councilperson Bryan Baptiste) that put a stop to a quick, first blanch approval making sure access would be maintained.
That was the time when, as public outrage over the restrictions grew so did the idea of “the bike path”. Kusaka- whose support of McCloskey was similar to that of Jimmy Pflueger in terms of the “hands off” directive to Public Works Department personnel- came up with the plan and convinced the none too swift Baptiste to accept the land to serve as “matching funds” for federal transportation bike path money sitting untouched in the state highways division coffers.
Few really understood the true motivation behind McCloskey’s gift at the time but it was not lost on Kouchi who used the same gift ploy to earn his big bucks for the Nawiliwili developer in obtaining massive, previously-denied development rights in a win-win for the developer and a lose-lose for the county which would have had a virtual public park with no development rights if they would have refused the “gift”.
Kouchi’s public announcement comes at a time when his notorious “war chest” is down to $725.01 according to his recent Supplemental (July 1 - December 31, 2009) filing for the 2008-2010 period which shows he somehow spent $3,552.54 since the last election.
His early announcement is quite obviously designed to scare off competition, depending on his reputation as a prodigious cash producer in the past.
And his actions over the past eight years portend well for his continuing to lead the money race for the Senate seat.
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