Posted on: Sunday, November 28, 2004
Council gets risk analysis on expanding Waimanalo site
| • | Landfill options narrowed to three |
By Johnny Brannon
Advertiser Staff Writer
The City Council could vote Wednesday to expand the current landfill at Waimanalo Gulch, but that could expose the city to lawsuits, according to a confidential risk analysis by city attorneys.
The city could limit the risk if the decision were based on sound reasoning and for legitimate purposes, however, according to the documents obtained by The Advertiser.
If the council fails to reach a decision, the state Land Use Commission could fine the city $1,000 — and another $5,000 if the issue is not resolved in six months, according to the analysis.
The commission could revoke the city's special-use permit for the landfill, but would need a court order to enforce it.
Following are key questions asked by City Council members, and summaries of the answers they received.
Q: Can the council choose Waimanalo Gulch as the landfill site?
A: The selection of Waimanalo Gulch would be inconsistent with condition No. 1 of the state Land Use Commission order, which required the council to select a "new" site by June 1, 2004 (which was extended to Dec. 1, 2004).
Q: If the council were to select Waimanalo Gulch as the city's landfill site, what is the reality of the city being sued, as has been threatened by various individuals or groups?
A: Opponents of the expansion of the Waimanalo Gulch landfill site would be highly motivated to seek whatever legal redress is available to stop the project. Any further expansion of the Waimanalo Gulch site, either in time of use or in geographical area, would undoubtedly be met with substantial opposition and resultant lawsuits.
Q: If the city is sued on the council's selection of Waimanalo Gulch, what is the likelihood of the city prevailing in the lawsuit?
A: If the city's decision in selecting the landfill site was reasonably made based upon appropriate considerations, and rationally related to legitimate governmental interests, the likelihood of the city prevailing against any legal challenges increases.
Q: If the council selects a landfill site and the site is vetoed by the mayor, has the council satisfied its obligation under the Land Use Commission order?
A: If the council selects a new landfill site by Dec. 1, 2004, it has satisfied its obligation under condition No. 1 of the LUC order. There is no provision in the LUC order that provides for the mayor's veto.
Q: Is the Land Use Commission order approving the amendment to the special-use permit for Waimanalo Gulch (requiring the City Council to select a landfill site by Dec. 1, 2004) binding on the City Council?
A: The City Council can choose to comply with Condition 1 of the LUC order (by selecting a new landfill site by Dec. 1, 2004), or it can choose not to comply (by failing to select a new landfill site by Dec. 1, 2004). However, if the council chooses to not comply with Condition 1 as it relates to council action, the city risks losing its special-use permit to operate the Waimanalo Gulch Sanitary Landfill unless the LUC approves an amendment of its order.
Q: If the city failed to meet the LUC-imposed deadline to select a new landfill site, can the LUC direct that the Waimanalo Gulch landfill be closed? What would be the penalty the state could impose on the city for continuing to use the landfill?
A: The LUC has ordered that the special-use permit for the Waimanalo Gulch Sanitary Landfill shall immediately terminate if a new landfill site is not selected by June 1, 2004, and if the city fails to meet the requirements of the LUC order, it would be subject to fines and possible injunctive action. In order to avoid being fined or enjoined by a court, the more prudent course of action would be for the city to seek an amendment to the special-use permit order requesting, among other things, that the date for the selection of a new landfill site be deleted or extended, along with a concomitant extension or the closure date for the Waimanalo Gulch landfill.
