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The Honolulu Advertiser
Posted on: Thursday, May 4, 2006

Subdivision opposition using scare tactics

By Julia K. Kane

I'm writing in reply to Sally Hall's April 24 commentary, "Disaster is waiting to happen in Nu'uanu." I write as a concerned Honolulu resident and a real estate lawyer for Laumaka Estates, the landowner.

"Not in my backyard," or NIMBY, is a phenomenon as old as self-interest. It can be a powerful force where community members have important contacts and influence, money and education. The Nu'uanu Valley Association, seeking to stop development in its neighborhood, presents us with a perfect case study of NIMBY.

The association was organized with one mission: to stop development on the remaining undeveloped land in Dowsett, an exclusive neighborhood in Nu'uanu. It has unfurled an intense, well-orchestrated, media-savvy campaign against further development in the Dowsett neighborhood.

The proposed development here should not come as a surprise to anyone. The original planning called for construction of Dowsett in phases. The land in dispute is the last phase that has not yet been developed. The developer is not pursuing irresponsible or desperate development of unsuitable land. Development of this land had been planned all along. Neighbors purchased or inherited their homes, subject to easements for connecting roads, providing full notice of future development of the land.

In fact, the very land in dispute was previously proposed for a 58-lot subdivision. Twenty-five years ago, the Nu'uanu Neighborhood Association challenged the residential zoning of the development all the way up to the Supreme Court. The association lost when the court confirmed the residential use of the land.

Laumaka Estates is requesting city approval to subdivide the land into nine lots. In opposition, the association has been very busy meeting, organizing, circulating petitions, lobbying for passage of questionable legislation, pressuring local politicians and city officials and getting one-sided media coverage.

As a last-ditch effort, the association hired a prominent law firm to sue the city, attempting to insert itself in the orderly process of city review. This step was taken without even a telephone call to Laumaka.

The association also has used the recent heavy rains as part of its scare tactics painting a foreboding picture of mudslides, flooding and rockfalls causing death and damage. But the facts present a very different picture.

On March 31, Laumaka sent licensed engineers to observe actual conditions, taking advantage of the unique opportunity presented by weeks of near-record rainfall and flooding in the area. On that day of the last and most intense rainstorm, Kahala Mall, downtown and other locations experienced extensive flooding. But on that day, the engineer found that not a single home in the surrounding area had been flooded. Not a single loose boulder was found. No damage, no destruction. Not even in those storm conditions.

Interestingly, the engineer noted that many of the neighboring homes were built on sites with slopes much steeper than the undeveloped land. So the proposed development poses less danger than many of the homes already there.

In its campaign against the development, the association reminds us of a tragic death and another near-miss caused by falling rocks in the larger Nu'uanu area. But these events are just part of the scare tactics, irrelevant to the development of the land in question. Those events involved houses at the base of high, steep cliffs with no buffer, unlike Dowsett. The slopes above the Dowsett land in question are buffered by gently sloping gullies and well-defined ravines.

Dangers of rockfalls and erosion are site-specific, to be evaluated on a project-by-project inspection by licensed engineers trained to determine suitability for construction. Dangers do not exist just because the association says so.

Property rights are fundamental rights, on par with the rights of life and liberty. If the city were to side with the association and rezone the land from residential to conservation, Laumaka would be left with no use of the land. The Fifth Amendment of the United States Constitution prohibits the taking of property for public use without just compensation. If there is downzoning to prevent development, the city would be required to pay Laumaka fair value for the property taken.

So who would pay Laumaka for the privilege of preserving the exclusive enclave at Dowsett? No, not just the association members who complain. We all pay.

In addition to a threatened drain of city funds, we pay by the squandering of our city resources. The city is facing federal demands to repair our failed sewage systems, homelessness with the closing of Ala Moana, and development of mass transit to relieve our clogged freeways, to name just a few challenges. How has this modest nine-lot subdivision in Nu'uanu commandeered the time and attention of our mayor, our City Council, the city's already stretched permitting and planning resources, our city corporation counsel and our busy courts to address unsubstantiated claims of the Nu'uanu Valley Association? Do I dare to suggest important contacts and influence, money and education?

We all pay for NIMBY one way or the other.

Julia K. Kane, a Honolulu resident, is an attorney for Laumaka Estates. She wrote this commentary for The Advertiser.