A FINAL WORD

A FINAL WORD: Kaua`i has never been much of a place for the “October surprise”. While whispering campaigns have been few and far between we can’t even remember a last minute revelation about a candidate in print.

But last week’s excoriation of Tim Bynum by our friend Joan Conrow contained not just her reasons for not voting for Tim- many of which we agreed with- but reported one tidbit about Bynum that we had been trying to find out more about for the last month or so.

Joan starts out by saying

When Tim finally did get elected, in 2006, I was hearing a lot of talk about how we — as in mainland haoles — needed to elect a haole to represent our interests on the Council and fight the “old boy” system. They saw Tim as "the great white hope."

Of course, Tim is actually a product of that very same system, seeing as how he was appointed by the late Mayor Baptiste to run the totally worthless, do-nothing county “outreach” program known as Ka Leo O Kauai — a position Tim lists as Community Response Specialist on his resume.

Though we never saw Tim as such, for just that reason- in addition to his involvement with the bike path as Joan also cites- it’s hard to see how being a crony of Baptiste’s is compatible with being “the great white hope”, as Joan says.

And more than fair criticism was the fact that Bynum extensively talks about the horrors of how our ag land has been subdivided and condominiumized (CPRs) into gentlemen’s estates but built his house on CPRed ag land.

Then of course there’s his transient vacation rental (TVR) bill which weakened the 2008 bill that banned new TVRs on residentially zoned lands and opened up ag lands to TVRs, which were banned under the original bill.

We aren’t the only ones for whom that was the tipping point on whether to give Tim our support tomorrow so no disagreement there.

But then comes the story that we’ve been chasing since Ken Taylor raised it during a council meeting a while back.

What Tim fails to mention is that he himself bought a lot in one of those pretend farm developments, built a house and let someone graze a horse in the yard to further the pretense.
What's more, he is the subject of a formal complaint alleging that he’s been operating an illegal dwelling unit within his single-family residence. However, when a county inspector went to check it out, Tim refused to give him access to the house — even though he had signed a use permit agreeing to periodic inspections. Tim also failed to respond to numerous susequent (sic) written requests for access. As a result, Tim was issued a zoning compliance notice and the county will seek a search warrant to conduct the inspection.

Wow. No wonder Tim wouldn’t answer our emails asking him for clarification. We asked Conrow if she had a copy of what should be a publicly available complaint, especially in light of one comments which said,

The rumor is that Tim was set up by a trespassing planning inspector who was probably there at the request of one of the mean three (K.A., M.R. and S.I.C) and who tried to accuse him of having an illegal kitchen for having a coffee maker plugged in a bedroom or something ridiculous like that. If that is true (I'd like to know before the election) it would seem like a political dirty trick aimed at getting an uninformed media to ruin his election chances.

We certainly would like to know the source of the complaint but haven’t as yet heard back from Joan. We certainly trust Joan’s reporting and would like to hear Bynum’s side of the story. Our question is in the timing of the report and the wisdom of publishing it in the middle of a piece with such obvious animus.

But then Joan says something that baffled us.

This sort of refusal has happened only once before, by a man who had 20 unpermitted houses on his property, and it's certainly surprising to such behavior in someone sworn to uphold the law. Normally, people want to give an inspector access to show they're in compliance. Unless, of course, they're not. Perhaps that's why Tim never replied when I asked him for a comment.

Only once before? Hasn’t Joan followed the stories about people like Jimmy Pflueger and Tom McCloskey as well as other “Friends of Maryanne” Kusaka who refused entry to Department of Public Works (DPW) and Planning inspectors until Kusaka allegedly told them to back off?

This has been a huge issue for both DPW and the Planning Department with both County Engineer Donald Fujimoto (and his predecessors) and Planning Director Ian Costa who have bitterly complained over and over on specific cases- on the record at planning and council meetings- that they have been denied entry to people’s properties and have begged for a law which allows them to gain entry administratively.

But then comes the criticism that makes us think that if Joan had watched the council in action she might have gotten a different impression.

In further supposed support for farming, Tim recently introduced three bills related to agricultural lands. But because he has failed so miserably at consensus-building (another one of his campaign pledges), the Council nixed them immediately. However, his oft-stated quest to reduce density on ag land — which would hit family farms hardest — instilled sufficient fear in some large ag land owners that they moved to lock in their density, including CPRs, while they could. As a result, speculator/developer Tom McCloskey now has 1,000 units all lined up and ready to go in Kealia.

Actually those bills were first introduced by Mayor Bryan Baptiste years ago and McCloskey has had his units “all lined up” for years.

But to blame the obstructionism of those who are letting some personal revenge factor on the target of their ire is pretty tea-partyish. And, as a matter of fact, talking to more than one other councilperson about a bill before it is introduced is highly illegal.

After justifiably criticizing the thousand dollars in campaign funds from the Transient Vacation Rental Association Conrow then says something that we can’t fathom, especially from a journalist who deals in documents and should know how important access to them as well as transparency and accountability in government is.

All in all, it's pretty hypocritical for someone who wrote, in his response to the previously mentioned questionnaire:

I believe that public participation in government is essential, and helps us make better decisions. For that reason I have tried to improve the public process, specifically by advocating for easy access to public documents, release of county attorney opinions of Law, and public broadcast of all council proceedings — including budget hearings. Frankly, I am dismayed that this has been contentious and difficult.

Perhaps it was contentious and difficult because Tim, who was later joined by Lani, never sat down with the Council Chair or sought support from other Councilmembers to work out such a change. Instead, they turned it into a self-serving and very public crusade of “us against them,” making a mockery of his campaign pledge to “strive for consensus.”

If Joan had actually viewed all the meetings on the topic rather than relying on the notoriously inept reporting in the local newspaper, she would have known that Bynum repeatedly tried to meet with Chair Kaipo Asing’s despite Asing denial- that is until Tim produced the document requesting a meeting and that it was Lani, relying on Tim who was introducing the needed changes- who didn’t meet with Asing.

While we have many reasons to withhold support for Bynum this year- and it was not an easy decision for just this reason- his fight for access to the agenda for councilmembers and the posting of public documents on-line as well as many other instances of abuse of the rules and process by Asing (as we’ve detailed over and over) was the one high points of this council term.

To blame those who fight for positive change in the face of paternalistic intransigence for “not striving for consensus” is the reason why Asing and the three D’s- Derek, Dickie and Darryl- got away with their obstructionism.

And guess what- the subject documents are still not posted on-line.

But the reason why it sticks in our craw is because it’s not just Joan who seems to take this attitude.

Way too often we hear from candidates- and from voters- that we need to “all get along” and “stop all the fighting.”

But those blaming people who fight hindrances and impediments to change thrown up by the forces of the broken status quo seem to have very little understanding of what open governance really means.

Is that what you want?.. politicians “seeking consensus” in back rooms rather than before the public at a meeting, as provided in the sunshine law?

Bynum’s and Kawahara’s crusade for accountability and transparency and access to documents should not be the subject of closed door meetings- the antithesis of the spirit- and letter- of the law.

This type of criticism assures that nothing will ever change except for assuring that, when those who challenge corruption and the old boys’ control over the process are turned out of office, the next politician won’t fail to get the “sit down and shut up” message.

And as long as politically astute progressives buy into this Kumbaya form of governance the Minotaurs and their minions will continue to control access to “our” government.

SNIPE HUNT

SNIPE HUNT: When it comes to playing the middle ground in the old “corruption vs. incompetence” game, the Kaua`i Department of Public Works (DPW) has had years of practical experience in befuddling the naturally befuddled county council.

If we had a dollar every time we had to ask of the county engineer and his underlings “are you crooked or just stupid” we’d be able to afford a new computer to replace the 2001 dinosaur on which we do our daily hunt and peck.

So it comes as no surprise that request for the scheduled executive session (ES) on the plastic bag ban ordinance that we wrote about Wednesday was a result of the usual inability of the DPW to do their job.

Although County Attorney (CA) Al Castillo was his usual cryptic self Wednesday in requesting an ES to tell the council about some sort of imagined liability contained in the current ordinance, the council, amazingly enough- refused to go behind closed doors to discuss what most called pubic policy.

But through questioning the reason Castillo was there in the first place became obvious- despite having a year and a half to promulgate Chapter 91 administrative rules to flesh out the details of the ban, the DPW hadn’t even begun the process and were now arguing about what the “intent” of the bill was instead of just reading and implementing it.

Actually, as member of the public pointed out, the intent of the ordinance was actually written into the bill which say it’s designed to move people to use cloth bags.

The council ended up “requesting the presence” of a DPW representative at next week’s pubic works committee meeting to explain why they haven’t begun the process that usually takes a few months, considering that the ordinance takes effect next January.

Part of the problem comes from the fact that rather than banning plastic bags entirely the ordinance was designed allow “biodegradable” plastic bags specifically banning ones that contain “polymers derived from fossil fuels”.

But, in fact, as it stands today nobody makes plastic bags that don’t contain fossil fuel polymers. And there is no standard as to what a “biodegradable plastic bag” is anyway which is why the council came up with their own definition of what they were banning.

We suspect that Castillo’s “liability” problem is that while the bill allows the use of certain plastic bags it makes it impossible to obtain bags that meet the standard.

It would be like allowing the use of cell phones while driving but only if they were made on the moon. Although someday there may be some moon-manufactured cell phone it ain’t gonna happen an time soon.

We also suspect that this was precisely why the supermarkets and the Chamber of Commerce lobbied so hard- and successfully- to allow for “biodegradable plastic”, knowing that there was no such thing and that they could come back close to the deadline and threaten a lawsuit with a CA that’s always doing everything he can to influence pubic policy when someone comes up with some cockamamie legal argument.

But, as we said, the fault really lies with the DPW which has shunned promulgating “ad rules” for years... sometimes decades.

We’re still waiting for the regulations for the infamous grubbing and grading (G&G) rules to flesh out the way they handle violations of the ordinance that was passed following the extensive “Developers Gone Wild” hearings in the late 90’s and early ’00’s.

At the time it became apparent to an astonished council that there was no official process for enforcing G&G violations and decisions were being made arbitrarily and capriciously... or not at all.

One of the problems in that was that DPW officials claimed they were unable to check out complaints of violations of the ordinance that was in place at the time. That conveniently allowed them to ignore violations at the instructions of then Mayor Maryann Kusaka who has been extensively alleged to have instructed the DPW to ignore violations by the likes of “friends of Maryanne” Jimmy Pflueger and Tom McCloskey.

Of course that led to the Ka Loko dam break and the county’s multi-million dollar settlement apparently for ignoring violations that led to it.

But guess what? Although the council included many things in the G&G bill itself that would normally be done through administrative rules they couldn’t really be expected to do it all,

They got guarantees from DPW that the rules would be done in six months from passage. And the last time we checked there still aren’t any.

The DPW was actually scheduled for a management audit more than once. In fact prior to that there was an aborted attempt at a charter section 3.17 council official investigation of the massive department.

Those half-hearted efforts- done only in response to public political pressure- eventually led to the establishment of the new Office of the County Auditor where, many hoped, the first order of business would be to look into the incompetence (or is it corruption?) of the DPW.

But as yet, it doesn’t even seem to appear on the radar screen of former Deputy County clerk and now Auditor, Ernie Passion.

The problem seems to come down to this attitude on the council that once they pass a new law they not only expect but are confident that the administration will, actually enforce it.

The fact that that is rarely the case has gotta make you ask whether the council too is corrupt or just incompetent in their administrative oversight role.

Either way it’s the public that has to suffer through it.

INTO THE WAY BACK MACHINE

INTO THE WAY BACK MACHINE: Not much happens at the legislature between sessions especially things that concern little Kaua`i.

But while the state’s eyes are focused on the senate hearings for the next Hawai`i supreme court chief justice one of our favorite senatorial rabblerousing monkey-wrenchers is holding a hearing of her own with an agenda that will certainly pop some local eyes.

Next Tuesday at 1 p.m. Chair Donna Mercado Kim’s Senate Ways and Means Committee will holding an Informational Briefing (click for testimony just before the hearing) investigating, among other things,

6. Lihue Airport –

a. Status of the employee embezzlement investigation

b. Explanation of the overpayment, reinstatement, and settlement of the employee that walked off the job

c. Status of the Mitigation of TSA (Transportation Security Administration) fines on Kauai – mitigation

d. Costs to the State, airlines, and travelers from the security breach at Lihue Airport on September 11, 2009

7. Grove Farm – status of the helipad expansion and status of information requested by the Committee in letter dated July 22, 2010, regarding enhancements to the access points for the Grove Farm land , the value and costs of the enhancements, and whether an enhancement fee was negotiated as part of the contract

Many on Kaua`i have heard about the Grove Farm (GF) fiasco where former county Director of Finance and now GF vice president Mike Tressler bamboozled the state into paying way more for a parcel of land than it was worth leading to the resignation of the state airports operations chief.

But the previously unreported incidents such as embezzlement and the other cryptic references to TSA misconduct are not any surprise to those who’ve followed the origins and evolution of the security crew at Lihu`e airport since the federalization of airport safety.

It’s no shock that there’s apparently elevated if not rampant corruption to those who remember how the TSA was originally staffed in the days after 9/11.

The administration of Mayor Maryanne Kusaka was coming to an end and there was no dearth of disgraced henchmen and women who had served the queen and worn out their welcome in county government, even with Kusaka’s handpicked successor Bryan Baptiste taking office in December of 2002.

There was even talk of mass indictments with then-new Councilperson Mel Rapozo telling the public that he had spoken to then-Prosecutor Michael Soong who was ready to prosecute Kusaka and her cronies for a plethora of alleged crimes from Kusaka’s personally-directed illegal grubbing and grading above Kuna (Donkey) Beach to her alleged instructions to Department of Public Works officials to ignore any violations of law by land-raping developers like Jimmy Pflueger and Tom McCloskey- both of whom had contributed nicely to Kusaka’s favorite charity.

It was then that Kusaka used her Republican connections to clear the way for members of the exodus to find a path to the new George W. Bush administration-created TSA offices at the airport where scandal-tainted Kusaka cronies found employment despite their misdeeds.

The Lihu`e Airport TSA has drifted in and out of the headlines for cronyism, nepotism and the resultant corruption ever since. We’ll be eager to see what Senator Kim has to say about the latest outrage but we suspect that it just might be a symptom of the Lihu`e TSA’s origins almost a decade ago.

YOU’D BETTER HURRY ‘CAUSE IT’S GOING FAST

YOU’D BETTER HURRY ‘CAUSE IT’S GOING FAST: Like the contents of Fibber Mcgee’s closet the Lepe`uli (Larsen’s) Beach Controversy spilled into its first recorded public forum at last Wednesday’s council meeting replete with hidden agendas, denials of racism, land grabs and lawyerly gaffs.

It all began suddenly when Mayor Bernard Carvalho conspired with the owner that’s been blocking access to the portion of the alaloa- a Hawaiian language word meaning “highway, main road, belt road around an island, along road” not the name of a trail itself as the newspaper reported- where it runs above the beach at Lepe`uli.

In seeking to throw a monkey wrench in owner Waioli Corporation’s lessee Bruce Laymon’s plans to cut off access to the alaloa and limit access to the beach Carvalho and Waioli Attorney Don Wilson sprung a “new access” easement agreement on the council just before the long July 4th/furlough Friday, four-day weekend and then tried to ram it though the council the following Wednesday.

The battle has finally gotten traction at the state level with a Department of Land and Natural Resources (DLNR) investigation of the whole matter including bogus claims by another Waioli attorney Lorna Nishimitsu and Laymon himself, first as to whether there is even a traditional trail portion from Anahola to Kilauea and later as to it’s location (see previous reports linked above).

But it became obvious that Waioli was trying to “donate” an easement via a trail that isn’t the official but overgrown county owned access at the south end of the beach but is right next to it, in order to convince the DLNR that there is access to the beach so it’s ok to block that portion of the alaloa, which has been in use “since time immemorial” according to everyone not associated with either Waioli or Laymon and his ranching operation.

The fear that the DLNR will soon find that the alaloa is a “prescriptive use” access has apparently struck so much fear in Waioli that they replaced Nishimitsu with Wilson, whose stammering, often contradictory and occasionally high pitched testimony before the council only served to make matters worse for Waioli

Wilson tried at times to deny the existence of the alaloa and later to perpetuate the confusion as to where it was before admitting under questioning by Councilpersons Tim Bynum and Lani Kawahara that yes, the alaloa did exist but echoing Laymon’s desire to stop access due to what’s been characterized as “nude campers leaving trash” at the beach- a characterization that has been taken by many to mean “haoles” especially after a slew of reports of rants by Laymon using that term pejoratively .

This is not the first attack on the alaloa. In the 90’s developer of Kealia Kai Tom McCloskey, whose Moloa`a Bay Ranch encompasses another portion of the trail just north of Moloa`a lost his battle to relocate the trail to the rocks below and the alaloa became a candidate for preservation by the state Na Ala Hele Commission before the state withdrew support and funding for the group and it fell apart.

At first Wilson tried to give the impression that the offer might go away if it wasn’t accepted by the council last Wednesday although later, after a break, he admitted that wasn’t the case.

Coincidentally the last time we remember anyone trying to rush through a Trojan Horse gift like this- one with a one day “take it now or lose it” rider- was McCloskey’s gift of the area above the area of the bike path north of Kealia which would have become a private beach with limited access had the deed been accepted "as is" the day it was introduced and set for fast tracking by then Mayor Maryanne Kusaka and then Councilperson Bryan Baptiste.

Then, as on Wednesday, the matter was deferred after some on the council smelled a rat.

Those records left by Na Ala Hele were apparently a taking off point Bynum and Kawahara used to show where the trail runs and the prior attempts to preserve it.

But what stood out was this bizarre argument by Laymon and Wilson along with one of Laymon’s employees that the gently sloping alaloa with it’s many easy side trials to the beach would somehow encourage the “trash” in the area, presumably left by these so-called naked campers even though much of the trash Laymon cleaned up in a beach clean up recently had been there for many decades.

The thinly veiled race card hung over the room as did Laymon’s apparent homophobic rage over clothing optional nature of the secluded beach- where his employees have been accused by witnesses of using binoculars to ogle naked women- as he ranted in code about maintaining access for “local people” while keeping others out, intimating that somehow local people including kupuna could and would navigate the steep new access while others would not.

But, as revered kupuna Richard and Linda Sproat’s daughter, attorney and UH Professor of Hawaiian Studies Kapua Sproat told the council the alaloa is legally protected under state laws as a prescriptive access for all that’s been in continual use as long as anyone can remember.

The DLNR investigation was initiated after the Office of Hawaiian Affairs responded to citizen’s complaints over Laymon’s Conservation District Area Use permit, especially complaints by the Kaua`i Group of the Sierra Club which has been trying to protect the alaloa segment for more than a decade as we’ve detailed during the past year.

What Waioli is doing backing Laymon in this is the one of the more baffling things about the whole matter. You would think they’d take advantage of the terroristic threatening he’s been accused of along with his historic utter disregard for grubbing and grading laws to try to revoke his lease and give it to someone sensitive to the community’s concerns.

Laymon still doesn’t get it. He tried to tell a story complaining that recently he was ready to just illegally bulldoze the old overgrown county owned access without a permit in a sensitive special management area and conservation district but was “threatened” with being reported to the authorities by those trying to preserve the area to somehow say he is being prevented from “helping”.

For the record Laymon denied being “a racist”

The area at Lepe`uli contains not just documented burials but documented evidence of a “ancient” Hawaiian village which have been disturbed by his ranching and fencing operations without a cultural study of the area.

Wilson wondered aloud why the alaloa is even part of the discussion complaining that this is “going on and on and on” for Waioli. But didn’t seem to notice the irony that it’s been their actions in allowing Laymon to garner community enmity by blocking access and perpetuating the race-baiting conflicts that has made put the issue before the council.

Waioli Corp used to have a good name in the community through it’s historic preservation mission and actions. Now that has seemingly gone out the window due to the blind spot they have for Laymon and Lepe`uli and the disregard for the historic and cultural nature of the alaloa and Lepe`uli in general.

If they had decided to say “ok- we’ll move our fence back and the pubic can have the alaloa and beach access- it would have cost them less in blood and treasure than this fight which now may not end for the community until the whole area becomes an historic and cultural preserve.

The question remains for Laymon and Waioli Corp– are “illegal activities” at Larson’s beach such as littering enough to block access? Even if so is the answer blocking access or enforcing the law? And if so, should we block access to all beaches where litter is found?

The public awaits answers to those questions and more as the council awaits the DLNR report and will take up the matter again on August 23.

RABID REPROBATE

RABID REPROBATE: As November approaches it gets harder and harder to stomach Governor Linda Lingle and her corrupt, incompetent, self serving, government-by-sound-bite administration.

It’s guaranteed that the closer the end of her slash and burn reign of terror, the more bizarre it will get.

Now she’s claiming that State Auditor supreme Marion Higa is the one who is incompetent and does "shoddy," "unprofessional" and "politically motivated." work for detailing the way the state, seemingly illegally- put taxpayer money into hair-brained investments that ended up essentially frozen when they got taken by some slick wall street firms, selling supposedly liquid investments that have suddenly become all but worthless if we need the money right now... which apparently we do.

The report is only a draft and apparently unavailable in full but media accounts show how, as usual, Lingle answers charges never made and uses personal attacks to substitute for facts, just like she did the last time Higa uncovered corruption/incompetence (take your pick) in Ted Liu’s Department of Business, Economic Development and Tourism when Higa said Liu “should be relieved of his duties due to a ‘troubling pattern on nondisclosure’ of financial details surrounding an overseas trade mission and federal grant program” according to today’s press account.

Higa is know nationally as one of the best at what she does and Lingle’s known as one of the worst- except among the delusional Rush-Rove-Chaney crowd- so it’s pretty obvious why Lingle is left with nothing to do but to attack Higa personally when she “outs” Lingle’s Department of Budget and Finance team as the boobs they have shown themselves to be in this and most other fiscal and financial management blunders.

We’re lucky to have Higa statewide but when it comes to our own newly appointed auditor we’ve yet to see anything out of former Deputy County Clerk Ernie Pasion’s County Auditor’s office except that he’s searching for one.. an office that is.

But even once he sets up shop we don’t expect much from affable, good old boy Ernie whose former job consisted of serving the council in the role of boat-rocking attendant.

The appointment of Pasion was one of the biggest slaps-in-the-face of good governance advocates who waited years through the “hold me back boys” antics of some of the beaten down, former council reformers who, due to pubic outrage almost 10 years ago over illegal land rape by the likes of Jimmy Pflueger and Tom McCloskey, first threatened and funded an investigation under charter provision- 3.17 which allows the council to perform administration investigations.

But there was so much screwed up stuff in the Department of Public Works under Mayor Maryanne Kusaka’s administration that they couldn’t decide on what to investigate and then called the matter too expensive anyway.

Next they set up and funded an auditor position by ordinance and then never appointed anyone. That was followed by the last and latest stall tactic of placing a charter amendment to create the new County Auditor position before the people. which passed last fall.

While the promise was to set up a “Marion Higa-style-auditor” the search for a tough, competent, experienced and independent auditor started and ended in the council chambers with the appointment of someone who could be counted on to continue his anti-boat rocking activities when wave-making is exactly what is called for in a management auditor.

For all those who think good governance lies in passing laws and charter amendments- like the one to peg tourism development to growth figures in the general plan, which has apparently died a death by disregard- it’s time to recognize that until we say “enough” on election day we’ll never escape the management-by-incompetence and corruption typified by our current gang of self-serving incumbents whether at the county council/mayor or the state representative/senator/governor level.

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We’re losing our editor for the next few weeks to a mainland jaunt so our incomprehensibly long sentences will probably be even more unwieldy and the typos and spell-checker caused glitches will most likely proliferate until then. We’re also going to be a little more intermittent in posting over that period, what with so much college basketball and so little time. Go ‘Cuse.

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.

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.

ELEPHANT IN THE DOGHOUSE

ELEPHANT IN THE DOGHOUSE: Kaua`i usually gets the shortest of shrifts when it comes to the two Honolulu dailies.

But when the big guns air lift in such as they did yesterday to bring Jimmy Pflueger to justice for murdering seven people (ok “allegedly”- there ya happy now) not only does the Advertiser fetch Diana Leone out of mothballs but the Star Bulletin adds insult to injury by asking downsized Tom Finnegan to file a “special to” report.

And as they and the local paper’s Michael Levine reported, Mike Dyer wasn’t the only one to warn Pflueger about filling in a spillway. The grand jury heard from Tom Hitch- who operated the irrigation system. He did the same and was also told to get lost.

The problem is that the picture that the Honolulu-bound get is one that Pflueger’s lead attorney attempts to paint- that somehow Pflueger isn’t to blame because the state and county didn’t stop him... kind of like saying a bank robber isn’t guilty because no one stopped him until after he robbed it.

And so a comment typical of many appeared below Leone’s piece today saying

Don't comment on this story until you have read the Kaloko dam report for yourselves. After reading that you can see that it wasn't one man all alone at that dam working all the construction himself to create that hazard. Do you know how OLD that man is? There was plenty of contributors to this tragedy, the STATE, and people like THE MAYOR, have some blood on their hands too, even if they dont (sic) want to admit it with such an accessable (sic) scape goat (sic) right there.

The incomplete, quickly-assembled “report” notwithstanding, no one is saying that the state and county weren’t lax, perhaps intentionally and corruptly on the part of the county and former Mayor Maryanne Kusaka who Pflueger says took a bribe from him to make sure the county looked the other way, if Malia Zimmerman’s report is to be believed.

How that somehow exonerates Pflueger is hard to fathom.

The fact that few outsiders know is that Ka Loko wasn’t the first time Pflueger made headlines on Kaua`i.

Two prior incidents- the infamous Pflueger “berm” and the Pila`a mudslide that presaged Ka Loko- should have raised red flags with county administration officials and did with the county council, especially then Councilperson Gary Hooser, when outraged local resident successfully demanded stricter grubbing and grading regulations.

During the “Developers Gone Wild” series of county council meetings over almost a year long period Hooser demanded that the matter be kept on the agenda every week as citizens presented weekly videos of the damage that Pflueger did, along with that caused by developer Tom McCloskey who also enjoyed a “special relationship” with Kusaka. McCloskey donated huge sums to a favorite charity foundation Kusaka controlled and allegedly promised her a luxury oceanside home in his Kealia Kai development.

The first time people on Kaua`i heard the name Pflueger- other than in ads for his Honolulu car dealership- was in the early 90’s when a “berm” appeared along the highway- a 40 foot high embankment that Pflueger illegally constructed on his property’s border without permits and with Pflueger at times seen personally driving the heavy equipment.

The Pflueger Berm, as it became known, blocked ocean view planes and after much protest he was made to take it down.

According to residents- many of whom told their stories before the county council- Pflueger has always had his scofflaw attitude, one that he had learned from McCloskey.

Historically on Kaua`i all that was ever done when illegal construction was done - especially so-called “grubbing and grading” which often included the flattening of hills and mountains- the only punishment the county had ever imposed had been to fine the developer a small amount of money and then usually allow them to file for “after the fact” permits which allowed construction that would have never been allowed in the first place to remain, sometimes with minor and usually useless “mitigations”.

It was way cheaper and more productive to just go ahead and do the dirty work and pay the fines and wind up with what they wanted than to go through the county permitting system and risk being denied.

One complicating factor- one that still has not been “fixed”- is that there were then and still are not now any administrative rules on the books for grubbing and grading fines on Kaua`i even though they were promised by Costa “within six months” after the new grubbing and grading ordinance was passed. The only way for the county to proceed is and was through judicial proceedings with a penalty of only up to $1000 and six months in jail.

But even after the berm episode the only lesson Pflueger apparently learned was that if he were going to do these things without permits, don’t do them along side the highway and block view planes.

His next move was to construct a road- with no plans or permits, using a bulldozer he rode himself- leading down the cliff side of his Pila`a property just above the kuleana of Rick and Amy Marvin.

And when the next heavy rains came a short time later the mountainside fell on top of the Marvin’s tiny house and the beach next to it, killing the reef by burying it under a few feet of mud.

This time Pflueger was fined by the federal government in what was the biggest fine of it’s type ever levied at the time. He still faces- and has managed to stall for many years- a civil damages lawsuit filed by the Marvins.

Then came Ka Loko.

Today Levine for the first time in the mainstream media reports part of what PNN has reported many times in the past:

Bennett also told Valenciano that the Grand Jury had heard testimony that Pflueger had filled in the spillway himself because the permitting process “took too long.” Bennett said illegal grading had been done on the North Shore property in the late 1990s to make room for a private home and a 49-unit condominium project that would have increased the land’s appraised value from $19 million to $68 million.
And Finnegan ends his piece by saying:

Bennett also provided evidence that, while doing the grading work in 1997-98 that allegedly caused the spillway to fill, Pflueger was making home sites so that he could subdivide his land and the land around the reservoir owned by the Mary Lucas Trust, of which he was a trustee and beneficiary.

Now we’re getting somewhere. As we have reported before, according to two sources- FOJ’s or Friends of Jimmy as many called them- this was the whole motive for filling in the spillway- to provide a “lake” as Pflueger called it and provide the “best water skiing on the island” as he told his FOJ's and even promoted in his plans for the development.

To say the county was at best negligent and more likely and apparently complicitous is not a new charge here on Kaua`i. And although the state was technically responsible under a then little known law requiring them to inspect reservoirs in practice the state depended on the county for enforcing grubbing and grading violations without which the dam probably wouldn’t have had any problems.

The county did it’s level best to look the other way, at times even falsely claiming to the council that it was impossible get access to the property unless Pflueger allowed them in until the council appropriated money to at least take an aerial look. As PNN reported at the time the Public Works Department hadn’t even asked the county attorney regarding entry and Kusaka had blocked them from doing so.

Then, after all that, after all the red flags, after all the uproar, after Pflueger was even fined again, this time for grubbing and grading just above the reservoir, the dam broke and killed seven people.

And despite that the current county council is still intent on spending millions defending the county rather than cooperating in the investigation and seeking to settle.

Yes, the county quite obviously is responsible too. And if criminal charges are pursued against Pflueger, to let Kusaka or County Engineer (CE) Cesar Portugal and Deputy and once-acting CE Ian Costa (who is now Planning Director)- both of whom knowingly did the bidding of Kusaka in obstructing any investigations- off the hook is certainly an abuse of prosecutorial discretion on the part of Attorney General Mark Bennett.

So of course Pflueger’s lawyers aren’t going to push the county’s guilt since it would be tantamount to admitting Pflueger’s guilt too. Instead they are concentrating on attacking the state, even though the state’s complicity is actually just negligence due to their dependence on a corrupt county as opposed to the active complicity of county.

How, given the bribery and persistent illegal activity for financial gain in the face of prior citations and outraged community, all this makes Pflueger a sympathetic figure and somehow immune from prosecution is something only the underinformed readers of the Honolulu papers could cogitate.