Legal challenges by two different groups of Ka‘u residents against a planned resort development in Punalu‘u will go forward after a long, tempestuous Windward Planning Commission meeting on Monday.
Monday’s meeting was the continuation of a March commission hearing about the proposed Punalu‘u Village project, which would develop a resort community of roughly 225 units on a 147-acre parcel in Punalu‘u. Developer Black Sand Beach LLC had requested from the commission a special management area use permit to allow construction to go ahead.
That March hearing was inconclusive, yet decisive in its own way: so many residents appeared to testify in opposition to the project that there was no time to actually make a decision on the project itself. Monday’s meeting picked up where the previous one left off, with dozens of testifiers again voicing their strong opposition to the project.
Once again, no decision was made on the issue itself on Monday, although for a different reason. Three community groups had filed petitions seeking a contested case against the development, and by the meeting’s end — after about six more hours of resounding public opposition — the commission had granted standing to two of those petitions.
The two successful petitions were filed by the nonprofit Center for Biological Diversity and a hui of Ka‘u residents called ‘Iewe Hanau o Ka ‘Aina. Both petitions made similar arguments against the project for similar reasons — David Frankel, an attorney who represented ‘Iewe Hanau o Ka ‘Aina at Monday’s meeting, said the groups’ membership didn’t necessarily overlap, but “work well together.”
The third petition, submitted on behalf of the board of Colony One, a condominium development directly adjacent to the project site, was rejected. Board Vice President Jeff Silva said the board may yet decide to appeal that decision.
Maxx Phillips, Hawaii Director for the CBD, argued that its members have a vested interest in the survival and recovery of endangered native species in the area — most pertinently, sea turtle populations who nest at the nearby Punalu‘u Black Sand Beach and could be negatively impacted by the project.
Furthermore, Phillips cited strong cultural and familial ties that several members have to the land, and added that at least one CBD member, Elsa Dedman, owns land adjacent to the project site and would therefore be directly impacted by it.
Meanwhile, Frankel argued for standing on the grounds that ‘Iewe Hanau o Ka ‘Aina members conduct cultural and recreational activities along the nearby shoreline such as swimming and gathering limu. Because the area’s existing wastewater system is already decrepit and in need of renovation — and because Black Sand Beach LLC made no mention of any planned improvements to the system in its permit application — the group concluded that such activities would be negatively impacted by increased wastewater from the project reducing the area’s water quality.
Lincoln Ashida, an attorney representing Black Sand Beach LLC, argued that neither group had standing to seek a contested case. In the case of CBD, Ashida argued that the group’s members had not demonstrated individually that they were seeking special interest in the matter, an argument that Phillips called “frivolous,” given that several residents, Dedman included, had testified against the project earlier in the day.
“I think (Ashida) maybe needs to go back to law school,” Phillips later told the Tribune-Herald.
Ashida also challenged ‘Iewe Hanau o Ka ‘Aina’s petition on grounds that their members’ interests did not sufficiently differ from those of the general public, and was met with a sharp rebuke by Frankel.
“If Mr. Ashida’s claiming that you cannot be a party (to a contested case) unless your interests are clearly distinguishable from the general public … then you are going to be slapped down in court so quickly, because that has not been the law for decades,” Frankel said.
After several pregnant pauses, the commission voted unanimously to grant standing to ‘Iewe Hanau o Ka ‘Aina, and voted 4-1 to do the same for CBD, with commissioner Lauren Balog voting against it.
The audience reacted to those decisions with cheers and applause, after holding court for hours about their distaste for the project.
“Development was not progress for us,” Dedman said, describing how wells in the area dried up and cattle ranching ended after previous attempts to build a resort in the area. “It was not development, but destruction of our indigenous life.”
Several attendees expressed deep mistrust of Black Sand Beach and its owner Eva Liu, who, many argued, have been insincere in their discussions with the community, lax in their due diligence for their permit application and negligent in their stewardship of the land.
“If any of you have gone down there and seen Punalu‘u, I think so many of you would be horrified by the way that this developer has cared for this land,” said Kona and Naalehu Rep. Jeanne Kapela. “She’s been a terrible steward … There are dilapidated structures, asbestos from past construction, improperly disposed-of building materials, the place is overgrown, the water and fire hydrants — only eight out of 14 of them actually work, so much of them are rusted over so you can’t work or use them.”
Kapela added that she will work with the state to partner with the county and develop a conservation trust for the Punalu‘u area.
Other residents argued that the developers’ desire for a resort in Punalu‘u is a deep misunderstanding of what makes the land special or desirable — if area residents wanted to live in a resort community, there are already plenty of options on the island, the argument went.
Punalu‘u resident Julie Enriques, who manages several units within Colony One, said that those condos only are rented about 50% of the year.
“The demand for a business down there is not there,” Enriques said. “Now, I’ve heard the argument ‘If you build it, they will come.’ And that may be true. But I also hear our community saying ‘If you don’t build it, they won’t.’”
“Take the time to … go to Punalu‘u beach on any given day and see how many people are there already,” said Ka‘u resident Antje Dietrich. “And then keep driving, towards Naalehu … and stop at the lookout. And just look at the coastline … and just imagine if all those projects in the past had happened, how different it would be. And for the next generations, how wonderful it would be, if in 50 years, someone stops at that lookout and looks at that coastline, they would still have the possibility to see what we see today.”
Testimony in favor of the project was vanishingly rare, and largely focused on the already deteriorating quality of the area. Candice Fragas — who is Black Sand Beach LLC’s property manager — said that tourists have desecrated the beach and abused the sea turtles for decades and received no similar outcry.
But between the strong applause for nearly every testifier in opposition, the frequent chants, the signs and shirts bearing slogans like “keep Ka‘u country,” and the more than 500 letters submitted to the commission since March, public opinion on the project has been abundantly clear.
“How much do you need to hear?” asked resident and former County Councilman Guy Enriques, who said he intends to find a way to purchase the land back from the developers. “How much do you need to hear before you see the divide in this community is lopsided?”
In any event, the project is temporarily stalled, with the commission unable to make any decision on Black Sand Beach LLC’s permit until the contested cases are concluded. The cases — which were consolidated into a single case for convenience’s sake — will go to a mandatory mediation session, and, if that is unsuccessful, proceed to further contested case proceedings.
While Phillips previously predicted that such a process could take up to a year, she was more optimistic Monday.
“The mediation could go quickly if they decide to pack it in and call it pau,” Phillips said. “If they do that, this could be over before the summer.”
Email Michael Brestovansky at mbrestovansky@hawaiitribune-herald.com.
