It’s Ground Hog Day, as the Coco Palms Resort development is yet again on the Kauai Planning Commission agenda.

It’s been 30 years and the parade of various owners and developers continue to tell us to trust them, everything is on track, and they will soon be restoring the property to its former glory.

How long will we be fooled?

Allowing a major resort development to proceed based on its original 1952 footprint, utilizing an emergency ordinance passed following a disaster in 1992 that was illegally amended in 2013 to benefit one particular developer/owner, AND does not provide the required HRS 343 environmental review – is wrong, illegal, and without question not in the best interests of the people of Kauai.

As a resident of Wailua Homesteads, I am impacted directly by the proposed development. In reality, every one of us on Kauai is directly impacted.

The significant and immediate impact this project will have on the adjacent shoreline is of special concern. The broader impacts involving historical and cultural preservation, visitor industry carrying capacity, water usage, waste disposal, adjacent wetlands, and affordable housing are also critically important areas of concern. Needless to say, traffic congestion and access to this area is already at or exceeding capacity.

None of these impacts have been evaluated via an environmental assessment or an environmental impact statement – as is required by state law, HRS 343.

As a former Kauai Councilmember and State Senator representing Kauai and Niihau, and as the former statewide Director of the Office of Environmental Control (OEQC), I have worked closely in both the formulation and the implementation of Hawaii’s environmental laws – specifically HRS 343 pertaining to Environmental Impact Statements (EIS).

The County does not have the legal authority to exempt the developer from provisions contained within HRS 343.

It’s clear and unambiguous that the proposed development “triggers Chapter 343” in at least 3 ways.

HRS 343 states in part: An Environmental Assessment shall be required for actions which: Propose the use of state or county lands, propose any use within the shoreline area, propose any use within any historic site as designated in the National Register or Hawaii Register.

In the case of the Coco Palms Resort development all 3 triggers apply.

Appropriate permit conditions needed to mitigate inevitable environmental impacts cannot be put into place until the appropriate environmental reviews have been conducted as is required by State law. Chapter 343 review must come first prior to the issuance of other permits. This legal requirement has not been met and no legal exemption to the law has been put forth.

In addition, the very basis upon which these permits have been granted, the so-called “Iniki Ordinance” which was extended by Kauai County specifically to benefit the Coco Palms Hui, LLC – is fundamentally flawed.

The passage of a “special law” to benefit only a single entity is unconstitutional.

The Hawaii State Constitution states in Section 5. “The legislative power over the lands owned by or under the control of the State and its political subdivisions shall be exercised only by general laws.”

The Hawaii Supreme Court ruled in a unanimous decision on March 16, 2009 that a measure effectively exempting the Hawaii Super Ferry from HRS 343 was unconstitutional because laws may not be written to only benefit specific businesses and must be “general laws”.

I was in the room as a State Senator representing Kauai and Niihau when the law exempting the Superferry was passed, and I voted no. I was also in the Kauai Council Chambers as a Councilmember when the final amendments to the Iniki Ordinance were passed, and I voted no on this as well.

In both cases, both laws were without question written in a manner to specifically benefit a single specific business – which is unconstitutional.

The original Iniki Ordinance was never intended to support real estate speculators, but rather to benefit only Kauai landowners who needed to quickly rebuild their properties.

In summary: The permits now held by the developer/owner are legally flawed and due to the lack of progress on the project, have lapsed. The new owner/developer must be required to reapply, start the process over, and comply with all existing laws, rules, and requirements.

Full disclosure: I am Board President of the Hawaii Alliance for Progressive Action (HAPA), part of a coalition of environmental and social justice organizations in support of a petition before the Planning Commission stating that due to the lack of progress, the developers SMA permit has lapsed. In addition, I am actively working with various members of the community on ideas and actions that might advance an alternative vision for this unique property – one that seeks to preserve, protect, and perpetuate its historical and cultural significance AND does not include a resort component.

Rent-Seeking “The practice of manipulating public policy or economic conditions as a strategy for increasing profits.”

Gary Hooser