The county Planning Commission on Tuesday entertained a motion that would have sent “a signal” to Wainiha landowner Joseph Brescia regarding the home he has started building on a small coastal lot known to contain at least 30 ancient Hawaiian burials.
Commissioners James Nishida and Herman Texeira backed a motion to have the county Planning Department send a letter to the California businessman asking him to consider giving community members more time to come up with money to purchase his property in exchange for an extension on his building permit.
Although the motion was ultimately defeated in a 5-2 vote, it allowed a group of residents advocating for greater protection of Native Hawaiian rights and “respect for our iwi” to publicly renew their concerns over the project.
“Isn’t there something you can do to condemn that land because it is a cemetery?” Kapa‘a resident Puanani Rogers told the commission. “It is a land use issue … an issue that is your responsibility.”
Chair Steven Weinstein said the commission’s hands are tied.
“If they’re following the conditions, that’s all we can ask them to do,” he said, pointing at a recent Planning Department status report confirming that Brescia has met the conditions of his permit approval.
“It’s not a designated cemetery,” he said, noting the landowner was unaware of any burials on the property when he bought it.
Rogers disputed the claim that the remains are being preserved in place as the Kaua‘i Burial Council directed.
“It’s not being preserved if you’re building around them and in between them,” she said. “The bones have a spiritual essence. It extends throughout … up, down, sideways. We need people who understand our cultural practices to be making decisions on this.”
The burial council is a seven-member appointed arm of the state Historic Preservation Division whose authority is mostly limited to deciding whether remains should be preserved in place or reinterred.
When Brescia learned the house foundation would affect seven of the 30 marked burials, he asked the burial council to have them be relocated, according to his attorney, Walton Hong.
The council in a split vote in April decided the remains should be left in place.
“Mr. Brescia did not want to do this,” Hong said, so the burial treatment plan was revised and house redesigned so the footings would not be on top of the burials.
James Huff, a long-time builder, told the commission Aug. 12 that his independent GPS research shows the burials identified in the burial treatment plan fail to align on the ground with the burials marked in the building plans, in some cases falling directly under the footings.
The Planning Department, directed by the commission to investigate the claim, reported its findings on Tuesday.
Planner Dale Cua said the department, under the guidance of a state archaeologist, concluded with its equipment, which has a tolerance level of four to five meters, that the plans were accurate.
“Understand it’s not an exact science,” he said. “It’s going to be within the general vicinity.”
Brescia has been trying to build a home on his 18,000-square-foot North Shore property for the past seven years, but has been delayed mostly due to legal challenges, including a shoreline setback case environmentalists won in 2005 at the state Supreme Court.
The remains, or iwi, were discovered during excavation work last year.
After the commission approved Brescia’s permits on Dec. 12, there have been protests at the site and a group of residents camped on the beach at Ha‘ena Point adjacent to the property for months.
Brescia in a June 24 news release announced his openness to selling the lot at a fair price, but community members said they needed more time to find the funding. Since then, the footings to the home have been poured and some critics say the damage has already been done.
The Kaua‘i Police Department halted construction in June, but two weeks later Police Chief Darryl Perry said, after seeking clarification from the county attorney and state attorney general, that Brescia had not violated any law.
Fifth Circuit Judge Kathleen Watanabe on Aug. 14 affirmed that construction may continue at the homesite while attorneys for the property owner, state and protesters named in a related lawsuit debate a preliminary injunction.
State archaeologist Nancy McMahon testified then that the 30 burials do not constitute a cemetery.
Hong said construction must continue because permit conditions require it to be built within a certain time frame and because of the amount of money the landowner has already had to absorb.
“We can’t wait around one, two years hoping this offer is going to come,” he said, referring to the community’s effort to purchase the property.
“I’d like to buy some more time,” Texeira said, adding later that the letter from the Planning Department would “send a signal” to Brescia that the commission is concerned about what is happening at the site.
But a majority of commissioners, while noting their sympathy for the concerned residents, disagreed.
“I think as planning commissioners … that’s not a hat that we wear,” Commissioner Cavin Raco said. “It’s Mr. Brescia’s legal right to make that decision (on whether to delay construction while the community searches for funding to buy it) … I’m not here for that.”
Commissioner Kurt Akamine said that although he agreed with the premise, it would be premature.
“It’s really painful to have a house being built on a cemetery,” North Shore resident Caren Diamond said. “I feel very sick and sad.”