Posted 3/25/2024

Aloha,

In our last email, we shared that Judge Valenciano would be hearing a procedural motion last Thursday March 21, 2024. Basically, the County was complaining that they needed more time to oppose our motion for Preliminary Injunction. We filed a motion because the County has refused to require Gary Pinkston to comply with the grading ordinances 22-7.9 and 22-7.13. When Meridian Pacific and Pinkston received their grading permit March 23, 2022, the permit itself, on page 2, informs the permit holder that absent a request for extension, the permit will expire one year from the date of issue. Ordinance 22-7.13 states that all grubbing and grading permits shall expire one year from date of issue. Expired permits are addressed under 22-7.9(d) and applicant is told that they can apply for a renewal of an expired permit.

Another problem, in this case, is that when a subdivision is planned as with Meridian Pacific development on Kiahuna Plantation Drive, the developer is required to obtain tentative subdivision approval from the County before they can even get the permit. Pinkston and Meridian Pacific did get tentative subdivision approval 8/10/2021, over our objection due to endangered species, caves and burials that were likely to be adversely impacted. That permit was only good for a year, however absent a request for extension which Meridian Pacific and Pinkston failed to do. On September 12, 2023, the Planning Director told the Planning Commission that their tentative subdivision approval was void as a matter of law.

In excellent briefs filed by our attorneys (links below) supporting the request for injunction, a prolonged stop to any work at the Kiahuna Drive development site, we document that Pinkston’s subdivision approvals are still void and no new application has been filed with the County. He has been using explosives, doing mass grading, and pouring concrete without the proper permits, ignoring burial mounds and at least 5 endangered species that have been seen on his 28 acre parcel.

When we appeared before Judge Valenciano last Thursday, he declined to give the County any more time and he told us to be ready this Thursday as he intended to rule on this motion. The Judge said the questions was pretty simple: “Do they have a valid permit or not?”.

Even though the developer has never denied what they are developing is a subdivided property, the County tried to muddy the waters by saying it was just a grading permit not tied to a subdivision. That was the County Attorney’s attempt to get around the fact that the tentative subdivision approval was now void and the approval is required to obtain a valid grading permit and the date must be noted on the grading plans. That argument is not going to work. The Judge is going to have some fun. Even if it were a mass grading permit, unrelated to a subdivision development (which this is not), ordinance 22-7.13 states that all grading permits shall expire one year from the date of issue if the party does not make a request for extension much like the tentative subdivision approval ordinance. The grading ordinance also states that a grading permit shall be void one year from the date of issue.

While the developer can request an extension or “upon application” seek renewal of an expired permit, they do need to go through the steps of doing so by filing the required application, providing all the information requested in 22-7.9.

What did Pinkston and Meridian Pacific do in this case? Nothing for six months. Then they walked into the County on 9/7/2023 with a check for $15,200 six months after their grading permit had expired March 23, 2023. They are now attempting to characterize the September check as a payment for extending their permit for March 23, 2023 to March 23, 2024. Look at the crossed through dates on the payment receipt that follows. We know they did nothing for six months because the engineering staff person originally thought their permit ran from 9/7/2023 to 9/6/2024 and he made a note to that effect on the receipt. That wasn’t the case. They let their March 23, 2022 permit expire in March 2023. It’s void and even though we asked for every document Public Works has regarding the grading permit for the Kiahuna Plantation Drive development, Public Works has not been able to produce any new application or mass grading plan as required by ordinance section 22-7.9.

The public is welcome to attend this coming Thursday at 1:00 pm. It should be an interesting hearing. If you can attend we will see you there at District Court of the Fifth Circuit, 3970 Kaana Street, Suite 210, Lihue, HI 96766-1282.

Reply Brief in Response to County Public Works Opposition to FOMs Request for Injunction

Reply Brief in Response to the Developer Opposition to FOMs Request for Injunction

Mahalo nui,

Bridget Hammerquist, President
Friends of Maha`ulepu, a 501(c)(3)
Kia`i Wai o Wai`ale`ale, Co-founder
PO Box 1654
Koloa, HI 96756
Donate
friendsofmahaulepu.org
[email protected]
(808) 742-1037 home
(808) 346-1973 cell

Also

Aloha,

FYI.

——– Forwarded Message ——–

Date: Thu, 21 Mar 2024 18:29:53 -1000
To: Michael Moule <[email protected]>
From: Bridget Hammerquist <[email protected]>
Subject: Request for Contested Case


Aloha Michael,

Please accept this email on behalf of the members of Friends of Maha`ulepu and the membership of Save Koloa which number more than 1,000 individuals keenly interested in the preservation of a clean and healthful environment of the south shore of Kauai. These Declarations (Silva, Kaohelaulii, Okinaka and Hammerquist) detail and confirm the traditional and cultural practices and interests affected by the development of TMK 4-2-8-14-32. Based on the interests of our members and constitutional rights to a clean and healthful environment which is being abridged with the development of a portion, Lot 1 of this TMK, we request a Contested Case Hearing before any grading or grubbing permit is reissued for the subject property.On March 22, 2022, Bryan Wienand, Public Works Civil Engineer V issued the grading permit, and the developer was charged a permit fee of $1,520,000. According to the permit, the developer paid 1% and covered a bond that insured the payment of his grading permit fee obligation. Under the provisions of the County’s Grading Ordinance, the grading permit expired and was void as of March 23, 2023. The public has continued to complain about the illegal grading of this site. Their complaints have been made to the Planning Commission and you have been in attendance at Planning Commission meetings where abundant public testimony was offered objecting to the use of explosives, disturbance of subsurface artesian springs and the habitat otherwise suitable for the blind cave spider and the blind amphipod who were identified and mapped on a property immediately adjacent with similar features: soil depth of less than 12 inches, primarily rocky soil, confirmed by Geolabs to have likely voids and mesocaverns (per their report filed with your office 2021) with at least 5 endangered species of endemic birds (Pueo, Koloa Duck, Nene as well multiple sea birds) on the subject parcel per US Fish and Wildlife Services. There are also burial mounds that were identified on the parcel by Cultural Surveys Hawaii with at least one of the Declarations (Silva, Kaohelaulii, Okinaka and Hammerquist) attesting to their relative buried on the site.

 
County Ordinance Section 22-7.13 Expiration of Permits specifically states that a grading permit “shall expire and become void one (1) year after the date of issuance”.

“(a) Every grading or grubbing permit shall expire and become void one (1) year after the date of issuance.

(b) Every grading or grubbing permit shall expire and become void unless the work permitted therein is started within six (6) months after the date of issuance, or if the work is suspended or abandoned at any time after the work is commenced for a period of ninety (90) days. Before the work can be recommenced, a new permit shall first be obtained to do so and the fee therefor shall be the fee as specified in Section 22-7.12. Permit fees for an expired permit shall not be refunded, even if no work has commenced.”


The expiration ordinance clearly states that if the one year is allowed to lapse without an extension, the permit is void and a new application must be filed with the payment of a new fee. The ordinance further provides that there will be no refund on the fee, if the permit lapses before the work is completed.
 
In July 2023, the Planning Department referred a similar lapse in the tentative subdivision approval granted August 10, 2021 that lapsed August 10, 2022 without an application for an extension. On September 12, 2023, the Planning Commission received the County Attorney’s Opinion that the tentative subdivision approval for this parcel had lapsed one year from the date of its issue because there was no application for extension prior to that permit becoming void. The same finding was made for this same developers Kukuiula tentative subdivision approval which expired one year from its date of issue in early 2022. Thereafter, Meridian Pacific and Gary Pinkston applied for a new tentative subdivision approval for the Kukuiula development. No renewal has been made for the Kiahuna subdivision at 5425 Pau A Laka Street and Kiahuna Plantation Drive. It is our position that no grading permit exists and none can be issued without a new application as specifically required in Section 22-7.13b. Once a new application is filed, the public works engineer can issue a new permit, renewing their grading permit for one year from the date of re-issuance.
 
We recently received the County Attorney’s Opposition to our Motion for Preliminary Injunction. In that Motion, they included a “Renewal” of the grading permit supposedly approved in September 2023, the same month as the County Attorney’s Opinion on the meaning of “Void” in the tentative subdivision approval permit ordinance. That September renewal is illegal because the applicant’s permit lapsed one year from the March 23, 2022 date of issue without any application for an extension of that permit period. Once  void, the applicant has to comply with subsection B and file a new permit application, paying the associated fees, before they can seek renewal under subsection D. Gary Pinkston/Meridian Pacific and each of the owner/applicants are legally required, either directly or through an agent, to reapply for the grading permit and pay a new fee for same, which is called for when the applicant allows the one year period from issuance to expire. If and when Public Works does receive an application for the issuance of a new/renewed grading permit for TMK 4-2-8-14-32 (Lot 1, 23.78 acres, a subdivision of the full  lot), please accept this email as our request for a Contested Case before any legal permit is issued by Public Works.Pertinent Provisions from the March 23, 2022 grading permit: 



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