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The Honolulu Advertiser
Posted on: Wednesday, January 13, 2010

Kauai Planning Commission denies Naue burial plea

By Michael Levine
The Garden Island

LIHUE — For the second time in as many months, the Kauai Planning Commission yesterday rejected a petition arguing North Shore landowner Joseph Brescia has not complied with permits in building his single-family residence on top of multiple known burials at Naue.

The commission voted 5-2 to approve Brescia’s motion to dismiss a request by the Native Hawaiian Legal Corporation on behalf of Jeff Chandler and Nani Rogers seeking a declaratory order that would have served as a formal acknowledgment of Brescia’s non-compliance.
Such an order could have led the commission to reconsider its Dec. 8 vote to reject a similar request from the same parties asking the commission to revoke Brescia’s permits. The commission also denied a request for a reconsideration of that decision.
Calvert Chipchase, one of the attorneys representing Brescia, told the commission that they should dismiss the request for a declaratory order because “the evidence hasn’t changed, the arguments haven’t changed” since last month.
The requested order, had it been approved, would have made clear that the commission believes Brescia has not complied with Condition No. 5 of the building location, material and design review, approved in December 2007, which states, “No building permit shall be issued until requirements of the State Historic Preservation Division and the Burial Council have been met.”
Commissioner Hartwell Blake, a former county attorney who joined with new Commission Vice Chair Herman Texeira to vote against the dismissal, asked why SHPD is considering the 15th iteration of the burial treatment plan after 14 rejections if its requirements have already been satisfied.
Blake said Brescia cannot possibly have met all of SHPD’s requirements because he does not even know what those requirements are because there is no approved burial treatment plan. Responding to his own rhetorical question whether Condition No. 5 has been met, Blake said, “The answer is no.”
The previously approved burial treatment plan was thrown into question in September 2008 when 5th Circuit Judge Kathleen Watanabe ruled Deputy State Historic Preservation Officer Nancy McMahon had violated state law by not properly consulting with the Kauai-Niihau Island Burial Council before approving a plan that called for cement jackets above known iwi under the footprint of the house.
While Watanabe ordered that the process start from scratch, she also said in her ruling that the permits issued on the strength of that burial treatment plan would not be revoked and that Brescia could continue with construction on the house at his own risk, provided that doing so caused no irreparable damage to the burials and did not prevent access to them.
Deputy County Attorney Mauna Kea Trask, representing the Planning Department and largely aligned with Brescia’s legal team yesterday, said a burial treatment plan could include fencing, landscaping or buffers for burials that are to be preserved in place, as the KNIBC has already determined will be the case for the Naue iwi.
Attorney Alan Murakami of the NHLC said such protective measures would be “incompatible” with a house just feet above the burials, which is now nearly completed, and said Brescia and the county are “playing a guessing game” as to what course SHPD and the KNIBC will take with the iwi.
Trask argued revoking the permits now or even issuing a declaratory order stating the permit conditions have not been followed would fly in the face of Watanabe’s “bifurcated” order and would expose the county to a lawsuit by Brescia claiming the action is a “taking.”
Attorneys on the other side argued Watanabe’s ruling was delivered in a case that does not count the county or its Planning Commission among its parties and said the decision is not binding on the commission.
“The issue is not whether he had a permit. That’s undeniable,” said Harold Bronstein, an intervenor in the case on behalf of the North Shore Ohana and Caren Diamond. “The issue is whether he violated the permit. And that’s undeniable.”
Camille Kalama of NHLC said the petitioners were simply asking for an acknowledgment that conditions have not been met, telling the commission that “to say anything else is impossible.”
New Planning Commission Chair Caven Raco, who was among the five votes in favor of dismissing the petition, declined a request for comment during a brief recess following the agenda item.