Eastside resorts approved

SUBHEAD: Kauai Planning Commission leaves Environmental Assessment ball in DOT court.

By Michael Levine on 28 January 2009 in The Garden Island News

Image above: A view along the coast on Kauai's eastside with a small stand of coconut trees. An ever rarer sight.

The Kauai Planning Commission on Tuesday unanimously approved amendments to three conditions for a pair of proposed Waipouli resorts — Coconut Beach Development and Coconut Plantation Holdings — complying with a December court order and likely bowing out of the process. The projects, when completed, will sit on 32 acres and house a total of 535 multi-family units, 12 hotel rooms, 964 parking stalls, thereby adding a host of travelers to what is already the busiest stretch of road on the island.

The amendments — which alter the first, second and 13th conditions of the already approved special management area use, project development use and class IV zoning permits — were met with agreement from attorneys of both developments, who said in joint testimony to the commission that they believed the language was in compliance with a court order from 5th Circuit Judge Kathleen Watanabe.

Attorney David Minkin, who advised the commission throughout the hearing, said during testimony that the changes “will not force the county to do something it’s never done before” and would prevent the developers from being treated differently than “all other projects in history.”

The permits were originally approved in January 2007 with more than a dozen conditions to be met before the Planning Department would issue building permits. Upon appeal, three of the conditions were found by Watanabe to be unconstitutional, and were sent back to the commission for adjustments. After taking one failed crack at meeting Watanabe’s order late last year, earning a second instruction by the judge to consider essential nexus and rough proportionality, the commission adopted new amendments, proposed in a Planning Department staff report.

The most critical of the amendments will require the developers to make monetary contributions to traffic mitigation projects recommended by the Department of Transportation rather than design, construct and install the measures on their own.

Attorney Greg Meyers, representing environmental group 1000 Friends of Kauai, said the subtle distinction could allow the developers to skirt an environmental assessment, normally triggered under Hawaii Revised Statutes Chapter 343. Rep. Hermina Morita, D-Hanalei-Kapaa, chair of the House Energy and Environmental Protection Committee, said in a Tuesday afternoon phone interview that simply contributing funds towards traffic mitigation rather than managing construction would not, by itself, preclude an EA, because such projects would still presumably involve public lands.

However, DOT has a long list of exemptions that protect developers from smaller potential EA triggers like installing traffic signals, one of the mitigation measures advocated in a traffic study conducted a year before the permits were first approved. Whether acceleration/deceleration lanes and road widening, other measures specified, trigger an EA remains to be seen, as does the scope of an EA triggered by DOT.

Asked if a hypothetical DOT-mandated EA would take a broad look at the full development projects, DOT Director Brennon Morioka said in a Tuesday phone interview, “We typically take a look at things from just the transportation aspect, and we would rely on other agencies to make the determination” about other potential environmental impacts. Morioka, who pointed to agencies like the Department of Land and Natural Resources and the Office of Environmental Quality Control, said the benefit of a multi-agency review is that it “acknowledges the fact that different agencies have different expertise.”

As for a broad, big-picture look at the overall impact of the project as a whole, Morioka said that burden often falls on the county planning departments. “If their process knowingly furthers the action of an applicant to do something that will require an EA in the future, then that is the point at which an EA should be required,” he said.

That ship appears to have sailed. A written statement from 1000 Friends of Kaua‘i, provided by attorney Dan Hempey following the hearing, said the group “has always contended that the environmental impacts of these projects should be studied and mitigated before the resorts are built.

The end result of today’s vote is that it will be the DOT and other agencies, but not the Planning Department, that decides whether to require an environmental assessment.” While Tuesday’s vote appears to be the commission’s final act on the two developments, it could also be one of the last major development applications for tourist accommodations to be heard by the body for some time.

On Nov. 4, voters approved a charter amendment essentially transferring the power to approve permits for tourist accommodations to the County Council upon a two-thirds affirmative vote of the council and allowing the council, if it enacts a rate-of-growth limit that is consistent with the General Plan, to delegate the approval authority to the Planning Commission. How, and when, the council assumes control remains up in the air. “There’s an urgency for us to get clarity in the legal interpretations,” said Councilman Jay Furfaro, chair of the council’s Planning Committee, adding there is a “series of interpretations” the council must make, such as whether the growth rate is tied to a unit count or, as in the General Plan, to a daily census number of visitors.

“We’re in uncharted territory,” said Councilman Tim Bynum, who said he understands the intent of the new legislation, but is unclear on “the interpretations of what the law means and how we implement that appropriately. I don’t have a good answer. I don’t know at this point. I’m not an attorney and I’m not a planner.”


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