JUST DO IT

JUST DO IT: You'd think we were too old for hope to spring eternal. And we shoulda known better with a council like this.

But when we saw that the issue of the Pono Kai seawall was slated for diccussion at last week's council meeting we idiotically looked forward to a few of the fireworks that went off the last time the issue came before them.

It never ceases to amaze us how short memories are, especially when it comes to the people who are trying to ensure we forget. So when we awoke Thursday morning- before we'd had a chance to see the council's grilling of the county's always incompetent Public Works department- and took a gander at the local newspaper's coverage we wern't surprised to see that the "old concerns" referred to in the kicker to the headline was the placement of the bike path just a few feet from the decrepit crumbling ocean-blocking structure.

Apparently the project to "fix" the seawall is a go despite the fact that seawalls are generally frowned upon these days, as UH experts told the council in testimony in 2008. But the fact is that this didn't even come up wasn't even the coverup.

We strongly suspect the reason was because, as we described in detail at the time, it was discovered that the Pono Kai seawall was illegally constructed, without any permits, right after Hurricane `Iniki, despite warnings from the Army Corps of Engineers to the county- in writing- essentially saying "don't you freakin' dare."

But the county, thinking that in the post-hurricane confusion and shuffle it could get away with building the seawall without permits, decided to do just that, as pre and post hurricane aerial pictures presented in 2008 showed.

Although the laws regarding seawalls allow for maintenance and even sometimes a major fix to those legally constructed- or those "grandfathered in"- it does not allow repairs of illegal ones to go forward unless they're treated a new project.

What we did learn last week was that the current go-ahead still lacks state and, more to the point, federal permits which means that the administration is apparently going to try to bluff their way through the ACofE review and hope no one remembers what happened back when they were emphatically told not to build it in the first place.

It's even more bizarre that this issue didn't even come up last Wednesday since four current councilmembers- Tim Bynum, JoAnn Yukimura, Mel Rapozo and current and then-acting Chair Jay Furfaro were on the council at the time and at the meeting and so were- and are- very aware of the issue.

Ordinarily we'd excerpt a snippet of our prior coverage but the story of then-Councilmember Shaylene Iseri-Carvalho's prosecutorial treatment of county administrative personnel was so outrageous we're going to re-post it in full today.

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Wednesday, August 27, 2008

DOGGED PERSISTENCE: In an absurdist little drama last Wednesday the Kaua`i County Council finally got County Engineer Donald Fujimoto to admit what everyone has known for a long time- the Pono Kai seawall was illegally constructed and there never have been any permits or exemptions for it.

And he came close to acknowledging his Department of Public Works (DPW) attempts to cover it up by refusing to answer questions about it and asking any investigation be done in secret executive session (ES).

Fujimoto wouldn’t even admit it all until grilled for 15 minutes in a prosecutorial manner by prosecutor-to-be Shaylene Iseri-Carvalho who finally broke him down and forced the admissions.

The revelation of the illegal construction goes back a couple of years to a council session discussing shoreline certifications for the bike path during which experts told the council of the problems with the seawall and during subsequent meetings where the lack of any permits was revealed.

The seawall was constructed after the Hurricane `Iniki which itself took the council weeks to ascertain due to stonewalling and sketchy answers from Fujimoto and other DPW personal who conveniently couldn’t remember how long it had been there.

Finally pre and post hurricane pictures were shown to the council on a slide projector to clear up the 1993 construction date.

Apparently the story is that DPW engineers decided that in all the post hurricane confusion and “emergency permitting” they could construct a seawall to “protect” Pono Kai with no approval whatsoever.

This was done, according to testimony a couple of years ago, despite a 1993 letter from the Army Corps of engineers warning them that it was highly illegal to build the wall.

Fujimoto was not the county engineer at the time of the construction and did not come to that position until the Baptiste administration.

Yet Fujimoto clung to the story saying that it “may have been intentional or unintentional- I’d like to think it was unintentional”, although how the county engineer who routinely processes permits could have unintentionally constructed an illegal sea wall wasn’t clear.

What is clear is that Pono Kai resort had always been worried about it’s proximity to the ocean and wanted the wall, going back years before the hurricane when it tried and failed to build one but especially so after the hurricane battered the place and severely eroded the shoreline.

Fujimoto’s attempt to put the genie back in the bottle continued with him trying to cover-up the information even as the meeting began.

He started by refusing to talk about it at all in open session- after his request last month for an ES was turned down by Public Works Committee Chair Mel Rapozo- by saying he want to “wait for the EA (environmental assessment) to discuss it”.

An EA is currently being conducted by DPW to determine what the environmental impacts of any action on the sea wall would be

Previously Fujimoto tried to blow smoke and cast the usual fog machine the PWD has been famous for since well before his tenure.

He has claimed that the wall was legal under various erroneous propositions and obfuscations, first saying there were permits then when asked to produce them saying he had an exemption due to the governor’s emergency declaration after the hurricane, neither of which was true.

After badgering he finally admitted that at some point he spoke to Sam Lemmo at the State DLNR who told him it was possible someone had thought there might have been an exemption at the time.

Still Fujimoto refused at first to admit the sea wall was illegally constructed in hopes that it would be able to be repaired.

Under the federal law, as well as a “zero tolerance” for un-permitted construction by the state and county, the sea wall would have to be removed although there could be an exemption federally if the damage of removing it would be greater than leaving it in place.

The sea wall is currently a public nuisance and in horribly dilapidated condition and according to what UH experts Dolan Ebersole and Chip Fletcher told the council is making a mess of the whole Kapa`a shoreline.

Both told the council and Fujimoto two years ago that reconstructing an illegal sea wall was not legal under any circumstances. Yet Fujimoto continues to conduct an EA to fix the wall.

Whether the best scientific path is to remove it, rebuild it or leave it alone is a question no one so far has been able to determine.

Fujimoto adamantly maintained that the EA would answer all the legal questions even though everyone knew it was illegal, at first saying “I can’t say if it was legal or illegal”

But despite repeats of this lies Iseri persisted and finally got the truth out of Fujimoto.

She reviewed Fujimoto’s actions and words in claiming there was a permit and then that they didn’t need one and then that they were going to get an “after the fact” one, before she finally asked “You have no evidence to show this wall is legal?”

Fujimoto finally said “That’s correct.” though still maintaining the EA will address that.

Then Iseri focused in on the EA-legalities claim asking “So the EA will look into all the illegalities?”

Fujimoto said “Yes- it will address the impacts”.

After a lot of back and forth finally, after maintaining more than a half a dozen times in direct answers to direct questions that the EA would look a legal questions Fujimoto admitted it wouldn’t and that the County Attorney will address those.

“I stand corrected” he finally said.

What was astonishing was that a couple of months or so ago when being questioned on the sea wall Fujimoto refused to answer the questions in open session asking the council to place the matter on the their executive session agenda.

“Speaking to the County Engineer about DPW’s illegal actions” is not on the list of Sunshine Law exemptions to the open meeting requirements.

This was despite the fact that about two years ago it was widely discussed by the council and they learned in public session of not just the illegal nature of the wall but of the warning letters from the Army Corps of Engineers saying basically “don’t you dare”.

Councilman Ron Kochi was somewhat bemused by Fujimoto shaking his head and saying “you can’t unring the bell” and headscratchingly pondering what Fujimoto thought he was trying to do.

Finally Chair Rapozo summed it up -somewhat haltingly- by saying “It’s no secret that the wall is illegal. I shouldn’t say illegal- it’s un-permitted”, drawing derisive laughter from those gathered.

Believe it or not the council committee concluded it’s session by making plans to take the public knowledge of the illegal wall into executive session to figure out if Kaua`i County will have to repay the state and possibly the feds who financed the project on Kaua`i County’s assurance that they had the permits or an exemption.

Iseri repeated several times that we needed to “come clean” and maybe they’d let us off the financial hook.

No plans were made to investigate the Public Works Department to uncover what most suspect was collusion by Pono Kai and some in the DPW to pull a fast one after the hurricane by building an illegal sea wall.

It only took 15 years to figure out what happened. We’ll be lucky if after 15 years more we catch the culprits because, as has happened dozes of times before- most notably after the Pflueger-McCloskey “Developers Gone Wild” sessions- the Council refuses to investigate the DPW, arguably the most corrupt county department in the state.

GLAD WE DIDN’T STEP IN IT

GLAD WE DIDN’T STEP IN IT: Abso-freakin’-lutely bizarre.

What else can you possibly say about the county’s decision that, after all these years of putting everyone through convoluted conniptions so they could run the “coastal” bike path across the busiest highway intersection on the island and through the Safeway and Foodland parking lots, they’ve decided to start from scratch and do what they said was impossible- run the path along a makai route where it belonged in the first place.

Or, maybe not so bizarre.

The brief announcement from the county was pretty vague- and buried to boot. After a comparatively long and final “screw you” to those who want the path entirely off Wailua Beach, way at the end it says:

The mayor also noted that due to the cost and safety reasons, phase three of the multi-use path, from Lydgate to Lihi Park, will be aligned makai to avoid crossing Kūhi`ō Hwy. and the mauka leg will be postponed until a later date.

This change will require several additional steps including: land acquisition; a supplemental Environmental Assessment, a special management permit; and design work.

Even reporter Mike Levine of the local newspaper- who presumably hasn’t been around long enough to know a tenth of the background of the various scams that caused the mauka route to be chosen- wasn’t buying county’s obfuscation and wrote his own lede stressing the “new alignment”.

After apparently obtaining a county map he writes:

The new leg would head makai from Papaloa Road where it meets Coconut Marketplace, between the Kaua`i Sands Hotel and the Aston Islander on the Beach, before turning north and staying behind the Kaua`i Coast Resort at the Beachboy and the Aston Kaua`i Beach at Makaiwa, a county map shows.

Those who have followed the long and winding corridor’s saga will remember that it became obvious through testimony before the county council by Department of Public Works Building Division Chief Doug Haigh- going back to the Maryanne Kusaka administration and continuing through Bryan Baptiste’s reign- that the mauka alignment was chosen after a convoluted deal was struck with Safeway and Foodland to give the county land for the path in exchange for concessions from the county over the infamous “Safeway Bridge”.

For those that don’t remember, in 1979 when the Foodland and Safeway shopping centers were granted their commercial zoning one of the requirements in the ordinance was that they build a pedestrian bridge connecting the two stores so as to divert at least some traffic from the highway.

Citizens demanded a vehicular bridge but those were the days when corruption was even more rampant than today and public input meant diddly-squat when countered by developer’s demands.

But even the “compromise” condition was never satisfied and in the late 90’s the two owners tried to get the council to throw out the conditions because it was holding up a lot consolidation the Safeway owners needed to sell the shopping center.

It was supposed to be a done deal until a member of the public, Tracy Murakami, came forward at the public hearing on the bill and objected saying she wanted the bridge so she didn’t have to drive every time she wanted to shop at both stores.

That started a groundswell of support for the bridge especially from council regulars and set off the Battle of the Safeway Bridge.

People were outraged that the condition was ignored for 20 years and both sides started coming before the council over a period of months, the public with evidence of cover-ups and lies by the two corporate owners and the owners, with the backing of the state DOT, trying first to say the narrow, four-foot walkway on the highway bridge- with no guard rail and traffic whizzing by inches away- was good enough (even for a stroller with her newborn baby in it when Murakami brought it up), then saying there was nowhere to put the bridge- which Murakami and others pictorially showed just wasn’t true.

But after Kaipo Asing- then still a champion of the people- went out, tape measure in hand, and did his own investigative work and one of his famous “Kaipo Explains It All” presentations, the council refused to remove the requirement and even passed an ordinance saying “build it now... or else”.

But the “or else” wasn’t really specified. So cut to almost a decade later when Councilpersons Mel Rapozo and Shaylene Iseri-Carvalho got wind of the lack of enforcement.

The council then went through the whole thing again- and again said build it “or else... and we mean it this time”.

Then cometh the bike path and Haigh, the county’s chief cook and bottlewasher on the project, came up with a plan that would both fund his bike path and settle the bridge controversy.

The main appropriation for the bike path- the original $40 million in “transportation, not recreation” federal funds needed matching funds from the county. The Kusaka administration had worked a deal to use the “gift” of the Kealia Kai mauka region land to offset a good chunk of it.

But they still needed more.

The deal was that in exchange for rights to a strip of land for the bike path to run through their valuable commercially-zoned land, Safeway and Foodland would only have to pay a nominal amount for the actual bridge itself and the county would maintain it as part of the “coastal” bike path which would now cross the highway and wend its way through the busy parking lots.

Haigh told the council that it would be impossible to get all the land for the path to go through the Coconut Marketplace and all the hotels in the makai area and detailed other physical barriers. There was no choice but to go west.

But as everyone knew the county couldn’t just decide not to build that portion because “the path must go on” to make sure that it would be “continuous” from Kealia to Lihu`e- a requirement since a “transportation” path couldn’t very well have breaks in it.

So why the change? Or more to the point why the change now after buckets of money and time have been invested in the mauka alignment and other plans are already in place along the canal- having been piggy-backed onto the bike path- for things like the Pouli Road connectors to ease vehicular traffic?

For one possible explanation you might look at the agenda for the February 17 council meeting under “Legal Documents”. There you’ll find this:

C 2010-46 Communication (01/15/2010) from the Director of Parks & Recreation, requesting Council approval to secure a shared-use path easement at the Kaua`i Shopping Village (TMK 4-4-3-08:14) in exchange for a parking and pedestrian access easement at Waipouli Drainage Canal.

This is apparently the land deal that finalizes all the previous contortions and now that all is in place the county has it’s “value” to be able to reap more of the matching funds required for the federal grant.

Of course the actual time and money the county has put into this now apparently defunct portion of the bike path is probably quite staggering although the real accounting is still in limbo.

The actual figure for cost to date was one of those “29 questions” that the council asked and which the administration has yet to answer regarding the bike path. The questions were left unanswered when Rapozo and Iseri left the council and no one else - especially original bike path zealot Tim Bynum who now chairs the Parks/Public Works Committee and has no interest in the questions, having said they were “all answered” as far as he was concerned- seems concerned about where the money went and where it’s going in the future.

Of course the county says the mauka portion is being “postponed” but when in the heck do we need an unconnected-to-anything bike path through a parking lot for now. In Kaua`i government parlance postponed usually means when hell freezes over. And of course they have to say that or it would make all efforts to secure the mauka route the farce it really was... apparently all along.

If that isn’t the answer what exactly changed so dramatically in the couple of weeks since the council approved the land deal? Either way they go some ‘splainin’ to do although no one is holding their breath.

Egad- we feel like Paul Harvey.

Correction: Tim Bynum is the Chair of Public Works and Elderly Affairs Committee, not Public Works and Parks. Lani Kawahara is the Chair of Parks and Transportation.