Eminent Domain or Imminent Domain?
Turtle Bay, Neil Abercrombie / Three years ago, Hawaii’s then-Gov. Linda Lingle proclaimed her vision of a “fundamental transformation of our economy,” which would move away from the current one based, as she claimed, “too narrowly on land development.” The first Republican governor since Bill Quinn, Lingle uttered the heresy in her 2008 State of the State address. “It is as certain as night follows day that we cannot speculate or sell ourselves into prosperity,” she told lawmakers.
Lingle repeated the formulation later in the speech when she rocked everyone by proposing that the state buy the 850-acre Turtle Bay Resort property near Kahuku. Zoned since 1986 for maximum resort development, the gorgeous but troubled five-mile stretch of coastal land had nevertheless languished, with only the single Turtle Bay hotel on it for the past 37 years. Land prices, in the wake of the popped real estate bubble, were low. It was “an opportunity,” Lingle said, “for the community to shape a vision for this part of the North Shore.”
Halfway through her second term, and right after the Superferry debacle, the Turtle Bay crusade was the governor’s brave and inspiring Hail Mary pass for a green legacy. “I have thought hard about what I am proposing,” she said, “and I believe in my heart that this is the right thing to do for those of us living today, and for those who will be born in the decades ahead.”
But the Great Recession deepened, and state funds dried up.
25 Years of Change
Then, in April of last year, the “Keep the Country Country” warriors won a key victory on their own, when the State Supreme Court unanimously ruled in their favor –against the City & County of Honolulu–agreeing that Turtle Bay’s owners must prepare a new, or Supplemental, Environmental Impact Statement (SEIS) to replace the original Environmental Impact Statement (EIS), approved 25 years earlier, if they wanted to be approved for any development permits. Environmental conditions had changed so significantly in two decades, the court said, that the timeliness of a new EIS was “obvious.” It was so obvious that the court smacked the City’s Department of Planning and Permitting, calling it “arbitrary and capricious” for not seeing it. The three environmental factors cited by the court, which had so obviously changed, were awareness of endangered monk seals, awareness of endangered green sea turtles, and traffic.
Lingle’s successor, Gov. Neil Abercrombie, was the featured panelist at the third North Shore “Talk Story” session, May 11, hosted by the Koolauloa-North Shore Alliance (KNSA) at Sunset Beach Elementary.
KNSA, formed in the hopeful aftermath of Lingle’s speech, is an island-wide network of 27 community and environmental groups who’ve signed on to support “the permanent protection of the undeveloped lands mauka and makai of the Turtle Bay Resort.” Its leaders include Tim Vanderveer and Mark Cunningham, two of the founders of the Defend O’ahu Coalition (DOC); veteran Koolauloa activists Dee Dee Letts and Cathleen Mattoon [March 2: “Keep the Country Country”]; and Gil Riviere, a longtime expert on North Shore traffic issues and now State representative for sprawling District 46 (Schofield-Waialua-Laie).
In his remarks, Abercrombie was typically flattering, feisty and all over the map. He complimented the previous panel speakers, warned the activist-filled room against using the environmental impact statement process as an anti-development weapon and made awkward comments comparing his own balding pate to moderator Dee Dee Letts’ “beautiful” hair. At one point, he made fun of KNSA’s impressive roster of organizations, “many of which have multiple members,” he noted knowingly, referring to the small, often one-man bands that characterize a number of local activist groups. He repeatedly expressed great confidence in his new Department of Land and Natural Resources (DLNR) chief, William Aila, implying that DLNR would play a big role in Turtle Bay’s future. Responding to a comment about low-wage hotel jobs, he said he would “insist that workforce housing [will be] a singular and central feature of whatever comes out of these discussions.” His emphasis was puzzling.
While acknowledging that there’s now a law on the books that specifically allows the state to purchase the lands at Turtle Bay by eminent domain, the Governor told the audience, “I do not want to give any indication that the state is going to bail anybody out. We have plenty of things we need to do.” His voice went hard and tight as he invoked 60,000 Hawaii citizens added to the state’s Medicaid rolls in the last two years. Protecting agriculture lands and wild beaches on Oahu suddenly felt shamefully frivolous, though of course it’s not.
The governor quickly resumed his light tone. “Eminent domain is not imminent,” he said, amusing himself and a few members of the audience with the wordplay, adding, “but if we do get to that point, these [appraisal] numbers in the hundreds of millions of dollars are nonsense.”
Then he threw down the gauntlet: “The City and County is not the end of this, as far as I’m concerned. Nothing’s going to happen here absent the approval of the governor. I can assure you of that.” The crowd of about 200, many of them wearing green “Keep the Country Country” t-shirts, applauded.
Among the dozen or so people who got up to speak to the panel was Eric Gill, the financial secretary and treasurer of Unite Here Local 5, who reminded everyone what was really going on. His battle-hardened hotel workers’ union has been deeply involved in Turtle Bay matters for years, and he assured the crowd he had lots of “up-close-and-personal experience” with the bank-owners of many of Hawaii’s largest hotels, fighting tooth and nail over labor contracts. He noted that panelist Drew Stotesbury of Replay Resorts, who was there to represent Turtle Bay’s current bank-owners, had told the room that that his bosses were seeking a reasonable return on their investment.
That investment, Gill said, amounted to “a giant subprime mortgage deal.”
“They came in here thinking that this property would be worth X number of hundred million dollars, and they put their money up, and they got [nothing] cuz they didn’t look closely enough at that loan,” Gill said. “They’re now trying to recover, and Drew [Stotesbury], I heard you say ‘reasonable return on investment.’ I can only infer that that might mean something in excess of the $400 million note that’s out there. You would obviously need many many new rooms, both hotel and condo, to come up with that kind of cash…so…we have a collision of interests, where the banks that own this place have put up a lot of money without looking closely at these permits.
“Well, we did.” Gill continued. “Frankly, if Credit Suisse had called me up I would have told them the defects in the EIS, cuz we’d been studying it, but they didn’t. Now they’re in it up to their necks.”
Lastly, Gill testified to what he characterized as Replay’s “aggressive refusal” to agree to existing union contract standards when and if new hotels are built at Turtle Bay. He warned that if Replay’s future hotel employees aren’t Local 5 members, they won’t have as many protective work rules or protection if a hotel is sold.
Abercrombie answered him stirringly: “As far as this administration is concerned, everyone is worthy of their labor, and prevailing wages and benefits and everything else will be standard.” Applause.
In October of last year, the City’s Department of Planning and Permitting (DPP) issued its controversial draft of the Koolau Loa’s Sustainable Communities Plan (KSCP), which endorses both the Turtle Bay expansion plans and the nearby “Envision Laie” proposal that would nearly double the size of Laie town northward into 900 acres of pristine, ag-zoned ranchland in the neighboring ahupuaa of Malaekahana.
What about Kamehameha Highway, one might ask, that 41-mile, two-lane, scenic ribbon tying together Kahaluu, Hakipuu, Kualoa, Kaa‘awa, Kahana, Punaluu, Hauula, Laie, Malaekahana, Kahuku, Kawela, Paumalu, Waimea, Kawailoa and Haleiwa, affectionately known as “Kam Highway,” aka State Highway 83, already near capacity and horrendously jammed on big-surf days and weekends?
Approached after a public meeting at City Hall last October, DPP Director David Tanoue was asked about the highway and traffic if both the Envision Laie project and the Turtle Bay expansion are approved and executed. According to meeting attendees, he answered that if the highway has to be widened, it’ll be widened.
In a phone interview, State Rep. Gil Riviere scoffs at the idea of widening Kamehameha Highway. “It’s impossible!” he says. “You’ve got the beach and water right there on one side, by Kaa‘awa, and million-dollar homes everywhere else. How can it be done?”
Before his election to the legislature, Riviere was a mortgage broker and surfing activist who also rode herd on local traffic headaches, including the on-going mauka realignment project for the congested beachfront stretch of highway at Laniakea, for which the traffic alternative study alone cost $1.7 million, he says.
Riviere has been a vocal critic of Turtle Bay’s traffic studies over the years, including a 2005 Traffic Impact Analysis Report from the resort claiming that even with a full build-out of five hotels, Kam Highway won’t reach capacity until 2028. He called that report “unbelievable” in an op-ed piece he wrote for the Honolulu Advertiser at the time.
“It regularly exceeds capacity now,” he says, “so any large-scale development along the highway is going to have a big impact.”
Riviere says he believes that traffic was the key factor in the Supreme Court’s decision requiring an SEIS update for the Turtle Bay expansion. “It was the most obvious of the environmental impacts they looked at, and the most undeniable one,” he says.
He talks about four-lane Farrington Highway in Waianae: “It’s like a freeway zooming along the coast there, it’s dangerous. I don’t see how the North Shore community would ever support a four-lane highway.”
The state Department of Transportation (DOT) is circumspect. “Nothing has happened yet,” DOT spokesman Dan Meisenzahl stresses. “It hasn’t really hit the stage where we get involved. All there’s been is a lot of talk. Before anybody can get permits or do anything, we’d have to figure out the traffic situation. We don’t have any actual numbers about the impacts of four more hotels on that highway. The [Turtle Bay] EIS is 20 years old. Now they’re doing a new one. We’ll have to take a look at it.”
Asked about DOT projects that would be comparable to a hypothetical widening of Kam Highway, Meisenzahl mentions the seven miles of Kalanianaole Highway in east Honolulu, widened from four lanes to six twenty years ago. That project took three years and cost, he says, $120 million with land condemnation costs of $25 million. “Things were cheaper back then,” he cautions.
One option for highways where widening is unthinkable, the spokesman says, is bypass roads. For example, the Haleiwa bypass or the Kapaa bypass on Kauai. “But,” he says, “I’m not sure that a bypass road would work in Kam Highway’s case, particularly as you head down the Windward side with its narrow coastal plain.
“But I’m not an engineer,” he avers. “Nothing is impossible. Depending on what the EISs say and what developers are willing to do, you never know what can happen.”
I ask him if a hypothetical widening of Kam Highway would have to be done to maximum standards of curbing, drainage, lighting and all the other appurtenances that a boulevard like Kalanianaole Highway got 20 years ago.
“Well, you have to have your shoulders, and you’d have to look at every street that empties out onto Kam Highway, how those streets in those communities are going to be impacted. There might be places where you can just turn onto Kam Highway right now where there are no lights, and other places where you might have to start putting in lights, and also, have far do you space the lights out? And there all sorts of private driveways you have to deal with…all of these things have to be looked at, everything.
“But once again, it’s not our kuleana just yet,” he says cautiously. “ It’s all just conjecture…but…”
I express alarm, thinking about little Punalu’u or Sunset Beach with a giant thoroughfare in the front yard. I ask him if he’s sure he wants to be quoted.
“I don’t think this is going to be a shock to anybody,” Meisenzahl says. “It will obviously be a fairly significant job if it ever gets to that point.”