Waikele gulch explosion: land use violations cited by City

The recent explosion and death of five workers in the Waikele tunnels involved activities that violated City zoning laws.

On his recent radio program Carroll Cox discussed a Notice of Violation of preservation land issued by the City and County of Honolulu against Ford Island Ventures:

The second hour Carroll talks about Waikele Caves with Pam Davis, a retired planner with the city Department of Planning and Permitting. She had involvement in the issue when the DPP issued a Notice of Violation at Waikele Caves. She was shocked when the Notice of Violation was withdrawn by the city after a letter from the Navy, to Corporation Counsel, claimed federal land cannot be regulated by local governments and the city had no jurisdiction on anything on federal land. The Navy argued ” it did not intend to waive sovereign immunity since it [the lease] was entered into for the express purpose of furthing a federal interest”. However, the withdrawal was strictly political. Since the Navy is not directly using the area, it is no longer under federal jurisdiction. The NOV was issued because the area was converted to commercial use for storage and manufacturing. Now it is not subject to any city or state regulations. The Waikele Caves are lawless, and five people have died.

LISTEN TO THE CARROLL COX SHOW EPISODE.

Here is more background information about the Waikele storage area and the violations of City zoning ordinances.

The City and County of Honolulu Department of Planning and Permitting issued a Notice of Violation October 4, 2010 to Ford Island Ventures. The Notice stated:

I have inspected the above-described premises and have found the following violations of City and County of Honolulu’s laws and regulations governing same:

Specific Address of Violation: 94-990 Pakela Street

Preservation District–Purpose and intent
The above-referenced property is being used for open storage, self storage, construction base yards and manufacturing facilities which are not permitted uses on this P-2 General Preservation regulated lot.

REMEDIAL ACTION NECESSARY
Please discontinue the above-mentioned uses.

You are hereby ordered to obtain permit(s) and/or correct violation by November 3, 2010.

Restore the area immediately and complete all work within 30 days from the date of this notice.

Please call the undersigned after the corrections have been made.

You are reminded that if no action is taken within the specified time:

1. A Notice of Order will be issued by the Department of Planning and Permitting imposing CIVIL FINES for the specified violations; and/or

2. This matter may be referred to the Prosecuting Attorney and/or Corporation Counsel for appropriate action.

On November 8, 2010, the Navy issued a Letter to City and County of Honolulu Corporate Counsel claiming that as the ‘owner’ of the land, the Navy has sovereignty immunity from City and County laws and regulations. The letter states in part:

Congress enacted special legislation for the specific purpose of enabling the development of Ford Island. 10. U.S.C. 2814, “Special authority for the development of Ford Island, Hawaii” provided,

“…(T)he Secretary of the Navy may exercise any authority or combination of authorities in this section for the purpose of developing or facilitating the development of Ford Island, Hawaii, to the extent that the Secretary determines the development is compatible with the mission of the Navy.” (Emphasis added.)

The statute gave the Secretary broad power to use Navy real property anywhere in Hawaii as part of the plan for such development, including the express authority to convey or lease such property “…to any public or private person or entity any real property or personal property under the jurisdiction of the Secretary in the State of Hawaii that the Secretary determines

“(A) is not needed for current operations of the Navy and all of the other armed forces; and

“(B) will promote the purpose of this section.”

You have a copy of the relevant provisions of the Interim Ground Lease dated June 30, 2003 (as amended), by which the land was leased to Flour Hawaii, LLC, FIV’s predecessor in interest. Since the lease of the Waikele Gulch property was entered into pursuant to the plan of development set forth in the Ford Island Master Development Agreement, in furtherance of the above statutory authority, there can be no question that the property is not subject to land use regulation  by local government, and the NOV is of no force or effect and should be withdrawn.

In a letter dated December 3, 2010, the City withdrew its Notice of Violation, stating:

The City has taken the position that a private lessee of federal property is subject to zoning ordinances where the use of the land is purely propietary. However, in view of the Navy’s clear statement that the FIV’s lease of the subject property is “for the express purpose of furthering a federal interest” and is specifically authorized u nder U.S.C. 2814, DPP is willing to withdraw the NOV under these specific circumstances.

I have been authorized by Director Tanoue to withdraw the above referenced NOV, and the same is hereby withdrawn, without prejudice. The withdrawal of this NOV shall not constitute a waiver by the City of its zoning jurisdiction over lands or land uses by operation of law. The City expressly reserves any and all rights and remedies available to the City in the proper exercise of i ts zoning jurisdiction.

So the land is under Navy jurisdiction, but leased to a private developer who is using the land to make money.  But the land is in violation of City zoning laws and regulations, except that the City cannot enforce its laws because the Navy is blocking it.  So who is liable for the explosion and death of five workers in one of these tunnels? Who is regulating the activities in these tunnels?  Was it only fireworks in the tunnels? Or were there other explosives?

The “special legislation” allowing the Navy to engage in real estate transactions in order to develop Ford Island has created a number of cases where the privatization and government purposes are being confused.  Was this latest tragedy a result of the legal gray area created by these private ventures on public lands? Stay tuned.