Nuuanu development battle escalates

A dispute between residents and a developer is getting unusually acrimonious

Patrick Shin, an agent for Laumaka LLC, views a parcel of property tucked against the base of the Koolaus in Nuuanu as the perfect place for a new subdivision.

Residents living near the parcel, however, view it as something entirely different: a steep site whose development would expose homes below to greater risk of floods, landslides and rockfalls.

The dispute over the Dowsett hillside might seem like a run-of-the-mill developer-neighborhood dispute, but the matter has ballooned into a full-scale war.

A key court hearing is scheduled for today.

Outside the courtroom, the sides have written battling Op-Ed pieces, attacked each others' experts and resorted to personal attacks.

The residents, for instance, point to the fact that Shin recently was sentenced to four weekends in a federal detention center after pleading guilty to violating a federal contract law.

Lawyers for Laumaka, meanwhile, are portraying the residents as a bunch of rich, well-connected lawyers and retired politicians who are using scare tactics to halt the project to protect their "exclusive enclave at Dowsett."

The residents have gotten a team from the University of Hawaii to write a searing critique of a geotechnical report that says the site is safe for houses. The developer has shot back with a lengthy rebuttal to the critique -- and by questioning whether it was appropriate for the team from UH to get involved.

The situation has gotten so acrimonious and the attacks so personal that Shin asked that his photograph not be published with this article. Although Shin has long been the person closely associated with the project, Laumaka's attorney, David Rosen, said that Shin is simply an agent for Laumaka and is "not even (its) managing member."

Rosen and Shin, however, declined to identify other members of Laumaka, or its management.

Laumaka has portrayed itself as the victim of the quintessential example of residents acting in their self-interest.

"This is simply a NIMBY issue," Rosen said, using the acronym for "not in my backyard." "They would simply prefer that there not be any more houses in the neighborhood."

But Tony Clapes, president of the Nuuanu Valley Association, said it's a matter of public safety. Residents frequently point to recent flooding as well as a rock fall that killed a woman while she slept in her home in the valley a few years ago.

"What we want to do is make sure that rocks don't fall on people and water doesn't flow down and flood the neighborhood," Clapes said.

According to Rosen, opposition to developing the hillside goes back decades, when residents first challenged the area's residential zoning status, which was ultimately upheld by the Hawaii Supreme Court. The area's R-10 zoning theoretically allows a house on every 10,000 square feet of property.

Although an earlier developer wanted to subdivide the area into 58 lots, Laumaka, which paid $6.2 million to buy the property last year, wants to sell just nine lots.

"The bottom line is: How can I be more fair than I am being?" said Shin.

With the zoning issue settled, residents have taken the battle to the city Department of Planning and Permitting, which is considering whether to grant tentative approval to the plan.

Residents are focusing part of their attack on a consultant's study commissioned by Laumaka. The 10-page report by the engineering firm of Masa Fujioka & Associates concluded that the slopes are stable enough to allow development with minimal risk of landslides or rock falls.

The residents have come down with both feet to attack the report. First, there is a critique performed by the University of Hawaii Environmental Center. The 14-page document is actually four pages longer than the main text of the Masa Fujioka report. The sentence-by-sentence UH critique alleges repeated failures to use technical terms properly, questions Masa Fujioka's basic methodologies and concludes that the report is inadequate.

Among other things, the UH team concluded that "potential hazards are incompletely and inadequately recognized."

Defending the developer's report, Rosen points out that the UH report is merely a critique of the developer's consultants; the residents have not hired their own geologists and engineers to independently analyze the property.

Rosen also questions the use of UH resources to conduct the study, which was initiated by John Harrison, a member of the Nuuanu Valley Association who is an environmental coordinator with the UH Environmental Center.

"I really believe this is an abuse of governmental resources," Rosen said.

Harrison declined to comment, citing today's court hearing.

At any rate, the Masa Fujioka firm has produced a defense of its original report, which Rosen says responds to the issues raised by the UH critique.

But the Nuuanu residents have not stopped at merely critiquing the consultant's report. They also have asked for documents showing how the Department of Planning and Permitting made its decision to accept the geotechnical report. These include earlier drafts of the report and correspondence between the developer and the agency.

The Department of Planning and Permitting has refused to turn over the information, saying the final reports are the only items that become public record and that all the drafts leading to the final report can be kept secret. The residents have sued for the information under the state's open records law. State Circuit Judge Randall Lee today is scheduled to hear arguments from both sides.

The residents also have asked the court to order the Department of Planning and Permitting to refrain from acting on Laumaka's request for at least 30 days while the residents review the documents, in the event that they obtain them.

The department has argued that such information is privileged from open-records requests based on that rationale that being required to make public such information whenever it was submitted by a developer would hinder the agency and frustrate a legitimate function of government.

That's ridiculous, says Lea Hong, an attorney for the Nuuanu Valley Association. The residents have compelling public safety reasons to know how the agency came to its decision, Hong said. Barring public access to such information prohibits the public from being able to participate in any meaningful debate.

"It's just appalling," said Hong, a lawyer with the firm ofAlston Hunt Floyd & Ing. "I just can't believe that the city is taking the position that the developer can have a secret conversation with the city concerning rock falls, sewer capacity, landslides."

Allowing such secret conversations, she said, is bad public policy.

"It doesn't exactly engender public confidence in the process," she said.

Standing at the proposed development site recently, Shin and Rosen pointed out that the land, at the parcel's makai end, was not only fairly level, but next to a steep ravine that would likely catch any rocks that fell from the hill above. A parcel at the mauka end of the project is much steeper, Rosen acknowledged, but the actual lot is lower than lots on which houses now stand.

The residents, Rosen said, have had enough time to oppose the plan. Asking the court for another month of delay is simply not right, he said.

"They're asking for 30 days," Rosen said. "They've had almost 30 years."

CORRECTION Friday, May 12, 2006 » Laumaka Associates LLC is proposing to build nine house lots on a hillside in Nuuanu. A map that ran on Page C1 in yesterday's morning edition incorrectly showed 10 house lots; the second lot from the top of the graphic was inserted by mistake. Please see the applicable Corrections Page for more information.