Appeals Court Hears Turtle Bay Case

KHON2 - Hawaii's Morning News

By Andrew Pereira

April 9, 2008

Hawaii’s Intermediate Court of Appeals heard arguments Wednesday on whether Turtle Bay Resort should be required to prepare a supplemental environmental impact statement before moving forward with plans to build five new hotels on Oahu’s North Shore. The proposed expansion would add 3,500 hotel and condominium units to pristine shorelines that stretch from Kahuku Point to Kawela Bay.

Rory Wicks, the attorney for Keep the North Country and the Sierra Club argued before the three judge panel, saying conditions on the North Shore have changed dramatically since the original EIS was completed in 1985. He asked that a lower court's decision to not require a supplemental environmental review be overturned.

“There is this new environment on the North Shore,” said Wicks. “There is this traffic gridlock that was never predicted at the time.”

Wicks told justices the Hawaii Environmental Policy Act, or HEPA, demands public involvement wherever land use is concerned. He said after the passage of 23 years the North Shore community has been denied the opportunity to provide testimony about the resort’s proposed expansion.

Wicks also criticized the city’s Department of Planning and Permitting for refusing to take a “hard look” at the changing conditions on the North Shore. In addition to traffic congestion, he pointed to an increase in the number of threatened green sea turtles in the area and a resurgence of the endangered Hawaiian monk seal.

“The City and County of Honolulu's Department of Permit and Planning took the position that any change in circumstance is irrelevant,” said Wicks. “They put their head in the sand. They put the blinders on. Adding five giant hotels…will increase these conditions of traffic gridlock (and) there will be interaction with these protected species,” he argued.

A city attorney shot back saying DPP always takes current environmental conditions into account when considering a new subdivision. Turtle Bay won preliminary approval of its subdivision application in October of 2006. “A hard look is inherent in the approval process for the subdivision,” argued Don Kitaoka. “The subdivision process will make sure that adequate infrastructure is provided for this project.”

Sharon Lovejoy, the attorney for Kuilima Resort Co. said while DPP has the discretion to impose conditions on developers to mitigate potential problems such as traffic, the agency cannot deny a subdivision application on the basis that conditions in a community have changed.

“The (original) EIS predicted terrible traffic,” she said. “It said that traffic will be okay, but still bad if there is an improved two lane road (Kamehameha Highway) along the shore." The Kuilima attorney also argued the North Shore had undergone less change than any other community on Oahu since the original EIS was completed 23 years ago.

Gil Riviere, the president of Keep the North Shore Country, bristled at Lovejoy’s assertion that the North Shore had not undergone significant changes, especially where traffic is concerned. While speaking to reporters he pointed to court testimony that noted the latest traffic study being considered by DPP is at least eight years old.

“Traffic grew dramatically about two or three years ago,” said Riviere. “51 percent of visitors to Oahu go to the North Shore on a day trip and that just did not happen (before).”

Justices Daniel Foley, Craig Nakamura, and Corinne Watanabe challenged both sides of the case during the nearly two hours of testimony, but much of the questioning centered on whether changing conditions on the North Shore should be a factor in determining the need for a supplemental EIS.

“Why does it matter if those different environmental impacts result from a change in the project versus a change in the surrounding circumstances,” Nakamura asked Lovejoy.

“We think that this case provides an important opportunity for the public to be heard,” said Marco Gonzalez, another of the plaintiffs’ attorneys who addressed reporters after the conclusion of oral arguments. “At the end of the day that's really what this case is about and we think the judges latched onto that.”

The appeals court accepted the case after First Circuit Court Judge Sabrina McKenna ruled in November of 2006 that an additional environmental review was not required for Turtle Bay’s expansion to proceed.

Both sides say regardless of how the three judge panel rules, the case will likely end up before the Hawaii Supreme Court.

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