After submitting a decision-changing proposal to the county Planning Commission last month, the attorney for a Kilauea landowner said Tuesday that procedurally he must withdraw the offer to significantly downsize the residential project and convey 80 acres for conservation. But
After submitting a decision-changing proposal to the county Planning Commission last month, the attorney for a Kilauea landowner said Tuesday that procedurally he must withdraw the offer to significantly downsize the residential project and convey 80 acres for conservation.
But by the end of the all-day session at the Mo‘ikeha Building, a compromise application was approved with a list of conditions that essentially reinserted the recanted offer and added further restrictions.
An already complicated contested case hearing over the permits to build an estate on environmentally sensitive land has persisted for months. The quasi-judicial process pits the applicant, California resident Charles Somers, against the intervenor, Elizabeth Freeman of Kilauea.
“There was some give and take,” Commission Chair Steven Weinstein said yesterday. “Both sides came together in the end.”
The seven-member commission was tasked with weighing the testimony from both sides, factoring in the Planning Department’s recommendations, and deciding whether to approve the required use and zoning permits.
In the end, the commission signed off on just the main house, nixed the agroforestry plan, required Somers to repair and maintain Kahili Quarry Road and made an 80-acre conservation easement a prerequisite for a building permit.
Some residents who fought the upscale project said it will wreck a cherished valley view, destroy the character of a coastal environment locals have enjoyed visiting for decades and fail to meet the legal requirements for special management areas.
The application proposed an 8,700-square-foot single-story home, 2,600-square-foot barn and 1,400-square-foot caretaker’s cottage on a knoll overlooking Kilauea Stream. The project’s overall footprint would have been roughly 35,000 square feet including the lanais and landscaping, pools and ponds.
“Our community has never been in favor of this proposal at any stage,” Linda Pasadava, of the Kilauea Neighborhood Association, said. “I know of no one happy to see this pristine area built on in any way.”
But others said Somers should have the right to build his dream home for his family and the community should take advantage of an opportunity to reduce density in the area. Somers’ representatives said the zoning for the 166-acre lot allows some 30 units, but if his house was approved then he would forgo the rest.
“I’m convinced they have good intentions and respect for our island,” Aurea Laymon said. “The truth is they want to build a house on the most practical area.”
What started as a straightforward application took an unexpected twist during the closing arguments on June 24.
Max Graham, a Lihu‘e attorney representing Somers, submitted a proposal to the commission stating that the applicant was willing to convey 80 acres, roughly half his narrow Kilauea property, by way of a conservation easement. He said Somers was also willing to scrap the plans for the caretaker’s cottage and barn, retaining only the main house.
The proposal was in large part a response to the concerns voiced by North Shore community members and county planners, Somers’ representatives said.
But the announcement was a surprise to the commission and intervening team, forcing a deferral after several hours of discussion.
The commission asked both sides to use the down time to see if a compromise was possible.
When the hearing picked up again on Tuesday, Graham said the applicant and intervenor were “unable to resolve anything.”
He then said the proposal offering the conservation land and project downsizing — which Commission Chair Steven Weinstein had said would likely change the way the commission votes — must be withdrawn to avoid creating a procedural error.
Agreeing with Graham, attorney Peter Morimoto, representing Freeman, said it would be improper for the commission to consider the new proposal after the period for accepting such information had closed.
So the commission returned to square one, tasked with deciding the fate of the permits based solely on the information presented during the contested case hearing.
The minute hand made laps around the 12 on the clock as the commission heard another round of public testimony and debated the possibilities.
“Are we ready to go home yet?” Weinstein said at 6:30 p.m.
The morning session had stretched into the evening before the commission started hammering out conditions.
“It’s a little late for me to be thinking,” Weinstein said at 8:30 p.m. after hearing a motion from Commissioner Stuart Hollinger to cut the project’s overall footprint in half.
The proposed amendment failed and the commission went down the list of the Planning Department’s recommendations.
Graham said Somers was OK with forgoing the barn and caretaker’s cottage, so the commission deleted that from the application.
Somers’ representative Kevin Webb said during a break in the meeting that the landowner planned on going forward with the conservation easement regardless of the commission’s action. He said Somers has already hired an environmental attorney to start the process.
The commission, by adding conditions, essentially reinstated the key changes made in the proposal Graham submitted June 24.
But a disagreement arose over to whom the 80 acres would be conveyed.
Morimoto argued that the condition should say it must be donated to the U.S. Fish and Wildlife Service, which operates the nearby Kilauea Wildlife Refuge.
Graham said the condition should leave it open to “a qualified entity,” such as a land trust or government entity.
County planner Michael Laureta offered his two cents too, questioning the ability of FWS to do the job in light of budget cuts.
“Can they do it as good as the private sector? No,” he said. “The private sector is more committed.”
Morimoto said if Laureta would like to take the stand and be cross-examined on his claims, “Put him under oath, let’s rock.”
County attorney James Tagupa said it may be improper to identify a specific entity, but criteria could be put into the condition that establishes what the entity does with the 80 acres.
Morimoto and Graham, who worked together at a law firm in the past, produced an amendment that says the accepting entity shall manage the conservation easement under the FWS plan for such land.
And on they went in search of the elusive “win-win” as the hour hand lapped the nine on the clock.
It was almost 11 p.m. before the commission had polished off all the conditions and the two camps departed.
Although the farm dwelling unit will sit on agriculturally zoned land, the commission approved a county Planning Department recommendation to remove Somers’ agroforestry plan because of its close proximity to the estuary.
Commissioner James Nishida said he was concerned about runoff carrying herbicides and pesticides into the stream.
The Kahili Quarry Road, which generations of residents have used to travel down to the beach for fishing and recreation, will be paved with crushed coral, Weinstein said. No construction will be done on Saturdays, Sundays or holidays when the work starts.
For more information, visit www.kauai.gov
• Nathan Eagle, staff writer, can be reached at 245-3681 (ext. 224) or neagle@kauaipubco.com
