Updated July 10, 2008
Pao'o
Updated July 10th:
The BLNR denied the joint request by interveners to issue a formal decision regarding the Pao'o CDUA. Kako'o and Maika'i Kamakani 'O Kohala claimed that it is unfair to allow the developer to prolong the contested case for a year and a half and then withdraw the application just days before the conclusion when it looks like the finding will not be in their favor. To allow them to do so is to subvert justice and to waste taxpayer and community groups time and money. Kako'o attorneys pointed out that in a court of law, one party's premature withdrawal normally results in a default judgment against them. The BLNR did not agree and the case has been closed with no decision and no finding.
Update June 12th:
Attorneys for the developer file formal notice with the DLNR that they are withdrawing their CDUA to build at Pao'o but claim to reserve the right to file again later. Read a copy of the letter here.
Background:
For over thirty years the people of North Kohala have struggled to keep the coastline between Hawi and Kawaihae free of development. Nothing is easy in this struggle. To the county government in Hilo and the state government in Honolulu, developing this open area into luxury residential complexes and golf courses seems like the most natural thing in the world. For this reason the local communities must be constantly vigilant and protect their land, their history, and their natural resources. Everyone knows how development works - once it happens it stays... and it spreads.
In March the Kapa’au courthouse saw the community in action once again in a week-long contested case hearing over the future of Pao’o, a piece of coastal land right in the middle of the North Kohala coast. Pao’o is one of a handful of private parcels strewn along the coast surrounded by mostly state-owned land. It is a favorite surf spot for locals and one of the only places to get in and out of the ocean between Mahukona and Kawaihae when the surf is up. It has been used for countless generations by the people of Kohala for every conceivable purpose. This can be seen in the incredibly dense ancient ruins and burials in the area and the degree of respect local people have for the place, keeping the area free of trash and leaving the archaeology alone and intact.
Kohala’s defense of this land in recent history began in the 90’s when a man calling himself Reardon bought the land and tried to build a house there. He obtained permits from the state to build within the conservation district which was not a difficult task back then. He proceeded to illegally bulldoze several archaeological sites right next to the surf site and built an un-permitted shed. Many locals remember Reardon and the shed from him calling the police when they“trespassed” across his land to get to the ocean, or when he put up locked gates on the state roads people use to get there. Once the police stopped responding to his calls he just shouted threats, even at children and families. The community organized themselves and through the community environmental group Hui Lihikai they petitioned the state to nullify the permits they had already granted. Eventually they did, for the first time in the history of the state of Hawaii.
The land has changed hands a few times since then. Locals enjoyed a time of peace and continued to use the land as they always had. Surfers began to use the bulldozed area for parking. Eventually the land was bought by Jonathan Cohen, an investment banker living in Maschatutses and originally from South Africa. Mr. Choen plans to build a house several times larger than anything Reardon ever proposed, with three pools (one of them a hot tub) and six separate structures. It would be surrounded by a wall as high as eleven feet in some areas that would weave closer than ten feet to the nearby archaeology sites and burials. The walls alone would enclose over 17,000 square feet of land.
Mr. Cohen employed several consultants to prepare an application to the state, whose rules regarding the conservation district had become much stricter since Reardon’s permit. They submitted an application in 2006 without notifying any community groups in North Kohala. Mr. Cohen’s attorney at that time had also represented Reardon in his struggle against the community and presumably hoped to get the application through the state agencies without anyone noticing. It didn’t work and several community members voiced grave concerns to the state before the Board of Land and Natural Resources met to consider the application. The board’s staff prepared a report recommending that the board deny the application and Mr. Choen’s attorneys filed for a contested case hearing before the board had a chance to decide. To ensure the communities voice was heard throughout the process both Kako’o and Maika’i Kamakani ‘O Kohala also filed to participate in the hearing and were both granted standing.
Maika’i Kamakani ‘O Kohala successfully requested assistance from the Native Hawaiian Legal Corporation and Kako’o received volunteer assistance from three attorneys from the community. The actual hearing took place over a year and a half later in March of 2008 at the Kapa’au courthouse and spanned an entire week.
Mr. Cohen and his consultants testified that building the massive house would actually help preserve the area because those plans didn’t include developing any other part of the parcel except bulldozing a new parking area further away from the beach. They also testified that having a house there, although it would only be used occasionally for vacations, would prevent desecration of the archaeological sites by discouraging active use of the area. The house would also discourage campers who, they claimed, polluted the area by occasionally going toilet around the trees or in the ocean.
Both community groups were represented by numerous community members and specialists who volunteered to testify against the idea of building anything there at all. Native Hawaiians spoke of the sacred nature of the place. Local community members testified to the value of the place to them and their families. Surfers and fishermen described what they have seen in other areas the have been developed and urged for preservation. Marine biologists and hydrologists described the danger of putting a desalination plant and septic system so close to the ocean. Archaeologists pointed out numerous misrepresentations and under-assessments in the application, including the mis-identification of a prominent burial as a “fishing shrine”. Planners spoke about the value of preserving open space and encouraging development to occur in areas where people already live and have emergency services like firemen and police. Community testimony occupied three of the five days of the hearing.
One local kupuna presented a petition with over 370 signatures asking Mr. Cohen specifically not to develop Pao’o. A copy of a 1998 petition with over 7,000 signatures demanding that the Kohala Coast be kept free of development had already been submitted. Why had she collected even more signatures? Because Mr. Cohen’s attorneys insisted that those petitions did not apply to Pao’o specifically.
For every high-paid expert an even more qualified expert stepped up to counter them. For every plea to let the Cohen family build a house for their vacations, an even more passionate plea came from the people of Kohala keep their coastline free. Free to use and to pass on to their children as their ancestors had passed it on to them. Free for them to reconnect with their past, with nature, to feed their families and to find themselves within the life of this land which is perpetuated only by their own righteousness.