Gated housing
ban called illegal

The Kauai mayor's goal won't
hold up, a legal expert says

LIHUE » Kauai Mayor Bryan J. Baptiste's goal to outlaw gated communities on the Garden Island appeared to hit a snag yesterday, moments after he testified before the Kauai Planning Commission.

Baptiste's proposal, on which the planning commission held a public hearing, is blatantly unconstitutional, testified David L. Callies, a professor at the University of Hawaii William S. Richardson School of Law.

Callies, who appeared on behalf of the Land Use Research Foundation, said that excluding the public from private land is a fundamental right under the Fifth Amendment to the U.S. Constitution, and has been upheld often by the U.S. Supreme Court.

"It's about as clear as you can get," Callies said.

Baptiste, who said that the Kauai county attorney had a different opinion, testified that gated communities go against the "E Komo Mai" (welcome) spirit of Hawaii.

"The reality is (for) people who want to develop subdivisions, it is a privilege," the mayor said. "We need to set parameters on what we want our future to look like."

But Callies testified that restricting access to private land is a right of land ownership and cannot be done without compensation.

The planning commission will wait for the county attorney's written opinion before making a decision within 60 days. The bill would then have to be passed by the Kauai County Council before becoming law.

There are two gated communities on Kauai, one overlooking Nawiliwili harbor in Lihue and one in Kilauea.