North Shore group loses legal battle over Environmental Impact Statement
November 14 2006 |
by Surfrider Foundation
By Andrew Pereira
The battle cry of "keep the country, country" suffered a defeat Monday when Circuit Court Judge Sabrina McKenna ruled Kuilima Resort Company is not required to conduct a new Environmental Impact Statement before it begins construction of five new hotels from Kawela Bay to Kahuku Point on Oahu’s North Shore.
The ruling came after months of protests, petition signings and community education by several grassroots organization like Keep the North Shore Country which filed suit against the City and County of Honolulu and KRC.
As the debate over the proposed development moved to Honolulu Circuit Court, Judge Mckenna was charged with deciding whether a supplemental environmental impact statement was needed to replace one done more than 20 years ago.
The Honolulu City Council approved the project in 1985 one year after the original EIS was completed. The proposed project, which includes condominiums and time shares, would bring the number of total units at Turtle Bay to four thousand and has no expiration date.
During the hearing McKenna often referred to the law passed in 1974 which requires an EIS for all state and county projects.
"At times you folks have gone through a supplemental process,” she quizzed Kuilima Resort attorney Terence James O’Toole, “I'm just wondering what triggers that."
Attorneys for Keep the North Shore Country argued there are several triggers -- most notably timing, changing traffic conditions, and the filing of new subdivision papers by Kuilima Resort.
"The subdivision application in itself requires some discretionary approval by the city,” argued William Hunt, an attorney for the plaintiffs. “When they get that they have to decide, 'Is there a change in this project from the last time we approved it some twenty years ago,' Duh!"
However attorneys for Kuilima Resort said that argument, like Hunt’s rhetorical “Duh” is too simplistic.
They say the scope of the project and the timing of the proposed build-out have not changed and the city's Department of Planning and Permitting has already said so.
"There has to be a burden on somebody who comes in and seeks to say there is a substantive change,” said O’Toole. “Substantive is defined as essential."
Judge McKenna agreed with the legal arguments presented by the defense and ruled in favor of Kuilima Resort, a huge defeat for those concerned about keeping the North Shore country.
"I think that Kamehameha Highway is just at its max,” said Laura Couch, an attorney for the plaintiffs. “We've got to look at how that project is going to affect traffic in the present day."
Couch said she and her fellow attorneys would sit down with their client and decide whether an appeal of the judge’s decision is “appropriate.”
O’Toole who celebrated the decision with his legal team in the court corridor said there have been a lot of misconceptions about the project.
"We'd like to see some dialogue,” he said. “Let’s put the sticks and stones down for a while and have some respectful intelligent conversation. The presumption is that the developer is big and bad and is going to rape and pillage, that is not the case."
O’Toole said the project, which includes 50 acres of parks and new beach access is “exceptionally low density” and no building will be higher than a coconut tree.