Kaua‘i County Council member Mel Rapozo said yesterday he will not accept a deputy county attorney’s opinion that work on six unpermitted rest areas along the county’s bicycle and pathway project is legal.
During a meeting of the council’s Public Works Committee at the historic County Building, Rapozo said he could not accept the opinion, which was not made public, because it lacks a legal basis.
“This is a grave concern of mine,” Rapozo said. “The opinion doesn’t show legal statutory support, and it shows only the opinion of an attorney.” That situation exists because there are no court cases on it at this time, councilwoman JoAnn Yukimura said.
In the opinion, Deputy County Attorney James Tagupa confirmed a letter from the planning director, Ian Costa, that the work is legal.
Rapozo also said he wanted to hear whether the county administration will resume work that was suspended last fall due to concerns about the legality of six unpermitted rest areas and whether a proper certified shoreline was used in a timely manner in placing the structures between Lihi Point in Kapa‘a town and Ahihi Point.
Rapozo said he hoped to have the matter resolved in two weeks — a timetable, or sooner, that could be met, County Engineer Donald Fujimoto said.
The work could continue, pending the outcome of an acceptable legal opinion. Fujimoto said the matter will be forwarded to Mayor Bryan Baptiste for review.
The work has taken place within a 4.3-mile leg that is part of a proposed 17-mile bicycle and pedestrian path from Ahukini to Anahola.
Although the federal government has approved $30 million for the entire project, the county may have to kick in funds for the work delays.
The only work that has been done is a roadway connecting Kuhio Highway with Kealia Beach.
Related to the legality of the work, Rapozo said he would ask a new county attorney, whom the council could confirm next week, to render an unbiased opinion.
Rapozo said that decision is needed because two deputy county attorneys — Itamura and Tagupa n have offered conflicting opinions.
Referring to a Hawai‘i Supreme Court ruling citing the need for a valid shoreline certification, Itamura said the county put up the six rest areas with an outdated shoreline certification.
The shoreline certification for the rest areas was done in November 2002, but was only valid, by law, for one year, Itamura said.
In his opinion, Tagupa said the work is legal, relieving county officials of personal liability.
Councilwoman Shaylene Iseri-Carvalho, a former county prosecutor, voiced surprise that Tagupa’s opinion confirming the legality of the work was not signed off by his superior. Fujimoto said he recalled seeing only Tagupa’s signature on the opinion.
Iseri-Carvalho questioned Tagupa’s authority in the matter. “I talked with James Tagupa, and who decided Tagupa would be the word for the county attorneys’ office,” she said.
At issue is whether a shoreline certification was in place when the work began, and whether placing roofs on the six rest areas was legal.
Following the certification of the shoreline in November 2002, the county Planning Commission approved in January 2004, a request for a Special Management Area Use permit for nine picnic pavilions by Kealia Beach, three comfort stations at Kealia, Lihi Park and Kealia Kai Park and rest areas, whose numbers and locations would be determined during a design process.
Ultimately, Jas Glover, the contractor, decided to build six rest areas and where to place them.
Fujimoto said the structures became controversial because the original SMA plans called for putting shade trees around the structures. Instead, the contractor attached roofs to provide optimum benefits for users, Fujimoto said.
Rapozo and Iseri-Carvalho have led the charge against the illegal work, demanding to know how the contractor, with county approval, could put the rest areas in place last year when the shoreline was last certified in November 2002.
The legislators argued the shoreline certification, by law, is good for only one year, and that the county should have had an updated certification for the rest area structures.
Fujimoto has said, however, the certification was done six months before the county applied to the county Planning Commission for a Special Management Area Use permit in February 2003, as required by the planning process. The county also made no secret of its wishes for the rest areas, as they were explained during three public meetings in the past, Fujimoto said.
Iseri-Carvalho said the studies show a foot of shoreline erodes on average each year in Hawai‘i, and if that were the case, not only would the rest areas have been improperly placed, but conceivably the entire bicycle and pedestrian path.
Glover requested a building permit in January 2006, and was issued one two months later. Work began in May 2006.
Iseri-Carvalho also said the county has violated conditions of a state Conservation District Use Application permit from the state Department of Land and Natural Resources by not moving ahead with the work in a timely manner.
“The county received the CDUA in March 2004, and work was to start in one year from that time and be completed by March 2007,” she said. The county, however, will not make that deadline with the halting of the work, she said, making the state permit a moot point.
Fujimoto said during a break in the meeting that only two of the rest areas are within the CDUA area and that his agency will seek a time extension.
Iseri-Carvalho also wanted to know the specific day when the county administration plans to file a request to the planning department to amend its SMA permits for the six rest areas. Fujimoto said he would get right on it.
• Lester Chang, staff writer, can be reached at 245-3681 (ext. 225) or email@example.com.