19 April 2013
Hope Kallai
Malama Moloa`a
POB 655
Kilauea, HI 96754-0655
[email protected]
Mr. Jan Kimura, Chairperson
Kauai Planning Commission
4444 Rice Street, Suite 140
Lihue, HI 96766
Re: Charles Somers and West Sunset 32 Phase 1, LLC
SMA (U)-2008-5, Use Permit U-2008-4,Class IV Zoning Permit Z-IV-2008-6
Aloha e Chairperson Kimura and Honorable Planning Commission:
1. Please reject this permit to expand the building envelope of this project; it is
incompatible with the Comprehensive Zoning Ordinance, the Coastal Zone Management Act
and is detrimental to the community of Kilauea.
2. Please ensure conditions of SMA (U)-2008-5, Use Permit U-2008-4 are satisfied.
Conditon 12 of SMA(U)-2008-5 states: “applicant shall provide roadway improvements to the
entire length of Kahili Quarry Road”. This condition has not been met. Kahili Quarry Road,
(also known as the Alaloa, the Old Government Road, Boat Ramp Road, Quarry Road) has
been an important component to the social network of Kilauea for thousands of years. It is a
pre-1892 Public Highway and according to the permit conditions “Applicant shall maintain this
road right-of-way”. This Boat Ramp at the end of Kahili Quarry Road is the only recreational
ramp and fishing area available to the children of Kilauea. Our community was promised
maintenance of this road by this project 5 years ago, yet it remains a rutted mess past the
Somer’s driveway.
When will his obligations and promises to the community be a priority? Why should this
developer be allowed to develop in excess of 30,000 square feet if he has not met the original
conditions?
Five years is too long to wait. Try tell a kid, “No, you have to wait another 5 years to go fishing,
because we, the community of Kilauea aren’t important enough to Charles Somers for him to
fix our boat ramp access, like he promised!” Why is it that a part time resident needs his theater
before our kids need go to the river? Why did he permit a theater before a before a barn?
The Fourth Annual Status Report on the Somer’s project, submitted to Planning Director
September 4, 2012, states:
Status. The Applicant continues to maintain Kahili Quarry Road. The Applicant will be installing an all
weather surface, underground utilities and drainage improvements within the next 6-12 months. An
Application for Grading Permit for such work has been submitted to the Department of Public Works.
This road is in bad shape. It is only accessible by 4 wheel drive vehicles, only when it is dry.
What is the status of that road work permit for Kahili Quarry Road? What is the propsed
timeline? Please prioritize this maintenance.
2. Please implement conditions to SMA (U)-2008-5, Use Permit U-2008-4, Z-IV-2008-6
detailing mauka/makai public access in the Kilauea River corridor. The Planning
Commission has the authority to impose additional conditions and/or modify the existing
conditions, should unforeseen circumstances occur.
Unforeseen, negative impacts by this project to traditional, cultural, historic and recreational
access to the Kilauea River have occurred already. The elimination of community access to the
Kilauea River Corridor and Kilauea Falls area must be considered.
17. Condition 17. Customary and traditional rights and practices including without limimtation those
excercised for subsistenance, culture, religious, access or gathering purposes, as provided for in the
Hawai`i Constitution or Hawaii Revised Statutes, shall be permitted.
Status. To date, the Applicant has received no special requests from native Hawaiian individuals or
groups regarding the use of or access to the Subject property.
There has been no public notice that the traditional, cultural, historic access to Kilauea Falls and
the Kilauea River corridor has been eliminated. There has been no opportunity to testify. There
has been no request for comments from cultural practitioners or the community. The property
owner merely hired a Security Force, and put them on quads.
Restricting public access to a traditional and cultural honored site is not legal or pono. Any
restriction of access should be considered through the preparation of a Cultural Impact
Analysis, not by an attorney determining there is no cultural or traditional use.
The Kahana Ohana has posted on the internet about restriction of fishing access to Kilauea
River, Kilauea Falls and Slippery Slide at http://www.youtube.com/user/kahanaohana
About Hawaii Adventures
Kahana Ohana on Kilauea River
As Hawaii gets more and more developed a lot of the places we used
to go just 10-15 years ago are becoming off limits. So I decided one
day to start filming and documenting some of these places because
who knows, my kids may not be able to see some of these spots.
“I'm all for development, but keep the access open.”
“It sucks, some of the hoops I had to jump through to get to a
simple swim hole or waterfall and it shouldn't be that way.”
“I used to bass fish every weekend but they've closed off so many
spots and made it so hard to get to some, you just give up.”
Kahana Ohana at Kilauea Falls
Kahana Ohana at Slippery Slide
On page 41, the 2013 permit application states:
SECTION 12. SMA CONSDIERATIONS
12.1 Recreational Resources. The subject property is located adjacent to Kahili Quarry Road,
which is used by the public to gain acces to Kahii Beach and the Kilauea Stream. Kahili Beach is used for
recreational purposes, including surfing, swimming, fishing, camping and other beach activities. The Kilauea
Stream is used for fishing, swimming, kayaking, and other recreational activities. Portions of the Kilauea
Stream are located on or adjacent to the Subject Property. There is a public pedestrian trail (“Trail”) which
runs from Kahili Quarry Road to the west bank of the Kilauea Stream (near the Kilauea Stream rivermouth)
then in a mauka direction for approximately 2,500 feet along the west bank of the Kilauea Stream. The Trail
is shown colored in red on the Lot 2 Site Plan attached as Exhibit “C-13”. The Development will not affect
the ability of the public to use Kahili Quarry Road. The Development will not have any negative impact on
the public’s right to use the Trail, or to exercise public rights in the navigable portions of the Kilauea Stream.
The Development will not have any negative impact on any public recreational opportunities located on or
near the Subject Property. The Development will not overburden the use of, nor restrict access to, the
shoreline in the vicinity of the Subject Property. The Development, although not located in the vicinity of a
State or County Park, is located near the Kilauea National Wildlife Refuge.
Attached is Exhibit “C-13”, a map dated December 16, 2008, prepared by Anthony D. Crook of
`Ailana Surveying. It has no “Trail shown colored in red on the Lot 2 Site Plan”. Exhibit C-13
has no Trail, red or otherwise, mapped. This serious oversight needs correction. The Trail
must be mapped and public access ensured.
The Development has failed to maintain Kahili Quarry Road. This restricts public recreational
opportunities and public access. The Development is controlling access to the Kilauea River
corridor, which has an impact on public recreational opportunities.
The 2008 permit further states:
18. Condition 18 Access to the waterfall shall be permitted at the Applicant’s disgression.
Access to the waterfall is allowed via the Kilauea Stream and by permission.
Access to the waterfall in Kilauea River corridor (Kilauea Stream) is not being allowed. It is
being prohibited by the Somer’s security force. This closure has great impact on our
community.
Many people have come forward telling of how they have been acosted by the Somers security
force. People have not been allowed to continue fishing upstream. Cameras have been
confiscated. There are stories of kids being shot with rock salt and chased with dogs for going
fishing. This is not right. You cannot just close off a traditional access without discussion.
The community needs to map where our legal mauka/makai access is in the Kilauea River
corridor, from the beach to Kolo Road. How was the Planning Commission given the kuleana to
regulate public access to the Kilauea Falls? Under what authority? What cultural and
traditional impacts were considered? What cultural practitioners were contacted?
The community deserves to be treated with respect and aloha afforded by THE ALOHA
SPIRIT LAW [HRS §5-7.5]. Mr. Somer’s Security Force needs Aloha Spirit training. We
deserve to be able to discuss this as a community, in circle, not confronted by security.
4. Please include the Kilauea community in annual status reviews of this project.
In the Feb. 4, 2013 permit application for the additional residence (that the community so
vociferously fought in 2008), Somer’s attorney Max Graham stated that he had intentions of
presenting the application to KNA. The very next day was our February monthly KNA
meeting, yet Mr. Graham did not present the expansion for community consideration. He didn’t
present it at the March meeting either. The filing date for intervenor status would have passed
before the next KNA meeting in April. If it hadn’t been for akamai community members, KNA
would have been left out again. KNA’s 2008 petition for intervenor status was rejected because
it was filed on the old forms. Not that we weren’t granted status. We filed on the wrong papers.
We were given obsolete forms.
It is very frustrating for people who have worked on this effort for so many decades to be left
out of consideration, like Gary Smith and the Blaich’s.
It is very frustrating to only have the Applicant’s mana`o be put forward (no cultural or
traditional use, no visual impact, no impact to recreation, etc,).
It was so frustrating in 2008, that a former Planning Commissioner, Sandi Kato-Klutke stated:
“I just cry for Kaua‘i and I cry for us. This is going to have a tremendous effect on
that area for years to come.”
She said after hearing testimony from the Somers project’s building designer, Gary Tobey. This
shows a major negative impact of this project, expected by a Commissioner Kato-Klutke, who
was voting on it.
The Kilauea community has shown interest in maintaining access in the Kilauea River corridor
and to the Kilauea Falls and Slippery Slide for over 30 years. River Park acquisition and refuge
expansion has been a priority of our community (see 2006 Kilauea Town Plan, Open Space
Preservation Fund Reports 2005, 2006, 2007, 2009, 2010, 2011). Condition 2 of the 2008
permit states:
Annual status reports should be presented to the Kilauea Neighborhood Association for review,
before being presented to the Planning Commission. KNA’s comments should be submitted to
planning annually with the annual status report. A one-sided status review does not offer the
community’s perspective. We should be given the chance to be heard.
5. Any expansion of this Project requires preparation of an Environmental Impact
Assessment. This project has caused major negative enviromental and socio-economic impacts
to our community already. The impacts of this project are way beyond the purview and ability
of this commission to decide with the available information presented. It should have been
considered by an environmental impact assessment, including considering cultural impacts.
Any further permit requests should trigger the preparation of an EA.
This property has considerable archaeological features, including many rock walls. Rock walls
and horses are not compatible. Rock walls and agroforestry are not compatible. Preservation of
the archaeological features and unique landforms (waterfalls) should be included in the EA.
Timber plantings should not be designed for archaeologically sensitive areas. Only 74 acres of
this property have been surveyed. You cannot extrapolate the cultural patterns of an ahupua`a
by fragmenting archaeological survey in this manner.
This property is regulated by the Hawaii Coastal Zone Management Act, HRS 205A-1,
requiring consistency before any development within the SMA can go forward, the zoning must
be consistent with the Community Plan. The CZMA exempts a single-family residence from
the definition of development for which a SMA permit is needed, unless the home will have a
“cumulative impact, or significant environmental or ecological impact” on the SMA (HRS
205A-22). The cumulative impact of the expansion project must be considered in an EA.
This project has significant negative impacts on the social welfare of the community of Kilauea.
It restricts public access to our namesake waterfall, and villinizes our fisherfolk. It prohibits
recreation to a significant portion of our local population – those who do not drive or cannot
cross the highway.
The Kilauea River is a navigable waterway. The river valley, including the river corridor and
waterfalls, has been an important component of our area for thousands of years. Kilauea
waterfalls are a treasured component of our river system. They are a unique cultural resource
and cannot be replaced. The waterfalls are unusual in that they are located close to the town
center, not way mauka. Access to the falls remained open throughout the Kilauea Sugar
Plantation century.
Access to Public Trust waterways is guaranteed in the Hawai`i State Constitution. Kilauea
River is a navigable, public trust waterway. Fishing practices have always been important in
the Kilauea River:
 Traditional Hawaiian o`opu fishery and other native fish
 Commercial mullet fishery
 Subsistence fishery (native fish and introduced fish)
 Recreational fishery (mostly introduced)
6. Please consider implementation of visual buffers to the viewplane intrustion of this
project.Visual impacts are significant. Landscape plan is an not effective buffering of this
project.
In 2008, the Kauai Planning Commission found the level of development to be FOREIGN and
OBSCENE and recommended that the second house and barn be eliminated and stated
1. Level of Development to be Considered. “An absentee landlord’s palatial
residential structure in this location, remaining uninhabited a majority of the
time, is not an acceptable proposition.”
This new project is still not an acceptable proposition. Nothing has changed. This is a Single
Family Farm Dwelling on agricultural land, without an Ag Plan, designed for Absentee
Landlords. The scale of it is still foreign and obscene. It is the largest development in Kilauea,
on the most sensitive estuary.
Visual impacts have not been softened by the installation of 30’ tall coco palms. The earth tone
colors are not shielding this project from view. LED lighting is good, but it is not a tradeoff for
the presence of this huge structure in our estuary. Maybe Mr. Somers had better go back to the
paint store. The chosen earth tones are not hiding his house. This project is very obtrusive and
you can see it from all over the coast there. The proposed landscaping (a few cocos and Tonga
Taboo) will not shield the proposed Caretaker Residence.
The closure of the Kilauea River corridor represents a “taking” of public and recreational
access. The closure of access to the Kilauea Falls represents a “cultural taking”. The disturbance
of our view plane constitutes a “taking of our open space resource”. We, as a community,
deserve the opportunity to talk about this taking, before considering any expansion of this
project.
Mahalo for your time and consideration,
Hope Kallai