The fight over a planned cell tower in Hawaiian Ocean View Estates has ended before it ever began.
In December, a proposal by Renegade Towers LLC to build a 150-foot cell tower on a parcel near Kahuku Park in HOVE was challenged by residents displeased with the potential impacts the facility could have on their neighborhood.
At the December meeting of the Windward Planning Commission, Ocean View resident Colleen Conifer petitioned for a contested case against the construction of the tower, which would be located within 500 feet of her property and would directly obscure part of her view of the sea.
Conifer argued the presence of the tower would have negative impacts on property values, and that Renegade Towers had not properly communicated with residents about its plan. Along with her petition for a contested case, she submitted a letter against the tower signed by dozens of other community members.
With her petition granted by the commission, Conifer and Renegade Towers were to participate in a mediation session, which, if unsuccessful, would be followed by a contested case hearing.
But earlier this month, Conifer learned that not only was her contested case rejected, the tower was automatically approved by the commission in late December.
“I’m just sitting here waiting for the bulldozers to pull up,” Conifer said Friday.
According to a letter delivered to Conifer on Jan. 4 by commission Chair Dennis Lin, it was discovered that the commission’s rules contradicted state law regarding telecommunication permit applications, and because state law supersedes the county’s zoning code and the commission’s rules, the results of December’s meeting were void.
County Planning Program Manager Maija Jackson explained that Hawaii Revised Statutes, 46-89, requires that all broadband-related permits be approved or disapproved within 60 days of submission, and that if no action is taken, the permit is de facto approved on the 61st day, which was determined in this case to be Dec. 21.
The same law, Jackson said, also bars any action against a county’s decision regarding telecommunication permit applications, meaning Conifer couldn’t have had standing for a contested case — and no contested case was actually ever possible.
Jackson said the commission was only made aware of the contradiction after a Renegade Towers representative inquired about the possible effects of a contested case on the 60-day time limit. In response to that question, county Corporation Counsel Elizabeth Strance reviewed state statutes and concluded that the commission’s decision was in error.
Conifer said the revelation was galling for herself and other HOVE residents who are frustrated they never truly had any way to challenge the tower.
“Everyone’s very upset,” Conifer said. “It doesn’t feel like we were ever on any kind of even playing field.”
Conifer said she is considering the possibility of pursuing legal action against the county, but Jackson said she isn’t sure whether residents have any ability to challenge telecommunications facilities under HRS 46-89.
Jackson said that language allowing for a contested case will be removed from future telecommunications permit requests.
She also acknowledged the contradiction between the commission’s rules and state statute will necessitate a rewrite of both the rules and parts of the County Code to conform with the state law. That process, she said, is expected to begin soon and will itself require hearings at both the Windward and Leeward Planning commissions.
Email Michael Brestovansky at mbrestovansky@hawaiitribune-herald.com.