Kauai Planning Commission refuses to revisit burials issue

KAUAʻI—Efforts to stop construction of Joe Brescia’s house atop burials at Naue hit a major roadblock on Tuesday when the Kauaʻi Planning Commission refused to revisit its approval of the structure.

The Native Hawaiian Legal Corp. had asked the panel to order Brescia to show good cause as to why one condition of his permit still has not yet been met, even though his house is nearly finished. In its petition, the NHLC sought to have the commission either revoke its earlier approval of the house or amend it to specify that Brescia could not build atop iwi kūpuna (burials) without the express approval of the Kauaʻi-Niʻihau Island Burial Council.

But the panel instead followed Planning Director Ian Costa’s recommendation to deny the petition. The commission’s action means that building will continue, even though no treatment plan has been approved for some 30 burials on the North Shore Kauaʻi property, including seven under the house.

Deputy County Attorney Mauna Kea Trask told the commissioners that if they revoked or modified Brescia’s permit, “he will sue you. It will amount to a taking and there will be considerable damages involved, and that’s a matter of fact.”

Trask also told commissioners they were bound by an Oct. 2, 2008 court order in a lawsuit brought by NHLC against the State Historic Preservation Division. But opposing attorneys said the county was not bound by the order because it was never a party to the lawsuit.

In that order, Circuit Court Judge Kathleen Watanabe found that Brescia had obtained all his required permits. But she also invalidated the Burial Treatment Plan (BTP) that satisfied one condition of the planning commission’s approval, saying that state archaeologist Nancy McMahon had failed to properly consult with the Burial Council and other interested parties.

The judge ordered McMahon to conduct a proper consultation, but some 13 months later, the Burial Council still has not approved a new BTP for the property.

Because of that, Brescia fell out of compliance with a design review condition that stated, “No building permit shall be issued until requirements of the State Historic Preservation Division and the Burial Council have been met,” said NHLC attorney Camille Kalama.

The intent of Judge Watanabe’s order was not to foreclose any burial treatment options and to allow the process to go forward in a meaningful way, Kalama told the commissioners. “If you’re going to say it’s all over and there’s nothing more to be done, it completely undermines the judge’s order and cuts the Burial Council out of the role that they’ve been given by the Legislature and the law,” Kalama said.

But Trask urged the commission to deny the petition, and instead force NHLC to appeal the judge’s 2008 order. “This commission cannot override a judge’s order, and the planning director feels you’ll be in violation if you do that,” Trask said. “I believe at this point it’s out of your hands. It belongs in appellate court and that’s where it will end up and that’s where it should be.”

Harold Bronstein, attorney for North Shore ʻOhana, disagreed. “You are not bound by that order,” Bronstein said. “Whether he has the permits and whether he has breached those permits and is not in compliance with them is your job to decide.”

Cal Chipchase, Brescia’s attorney, said that when his client began building the house in July 2008, “he was in full compliance with his permits. His rights were already vested long before the court issued its October order. Mr. Brescia vested his rights a long time ago and it’s way too late to take those rights away now.”

Costa, in his report to the commission, said that it could only amend or revoke its approval if the applicant had failed to meet the conditions, and in this case, the failure was due to actions of the SHPD.

Bronstein, however, said that Chipchase’s claim was “relying on initial compliance, which the judge totally discredited.”

Trask repeatedly pressed the issue of Brescia’s vested rights.

“The house is up,” Trask said. “It’s painted green with white trim. The windows are in. If you’re gonna revoke this permit you gotta be prepared to buy that house for however many millions that will take because it will be a taking. Let the courts decide this.”

NHLC attorney Alan Murakami urged the panel to focus on the issue of permit compliance, rather than vested rights. “There is no court order saying he can build and this [October] order does not apply to the planning commission,” Murakami said. “The first step in an administrative process is to see if the person getting the permit is listening to you. That power is inherent in this body and it’s been confirmed by numerous [state] Supreme Court decisions. Approvals are not unconditional, and neither are vested rights. If you don’t follow the conditions, you don’t have vested rights.”

Trask again urged the commission to pass on the request. “There’s been a pulling of the heart strings in regard to this because it’s a Hawaiian issue,” he said.

During its deliberations, Planning Commission Chairman Jimmy Nishida said, “I don’t think anybody likes the idea of this house being built there.” He then told commissioners, “You’ve gotta vote your conscience, but get all these issues of private property. Sometimes you sit on a commission and you make decisions you just don’t want to do.”

Commissioner Herman Texeira, referring to reports that it was known some 20 years ago that the area contained burials, said, “It seems the developer knew what the situation was. He went into this with his eyes wide open and then seemed to deliberately circumvent what was on the land.”

In the end, Texeira was the only commissioner to vote against the planning director’s recommendation to deny the request for an order to show cause. Commissioner Hartwell Blake was absent.

After the meeting, Kalama said that Trask’s suggestion about appealing the court order was not so simple as he made it sound. It would be very hard to ask the court to find that Brescia had violated the conditions of his permit when the planning commission had already refused to review the matter, she said.