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Judge allows Hapa Trail development
By Paul C. Curtis - The Garden Island
LIHU‘E — A judge Wednesday afternoon denied a motion for an injunction to prevent developers from conducting construction activities within 50 feet of historic Hapa Trail.
Fifth Circuit Judge Randal Valenciano sided with the developers, the Eric A. Knudsen Trust, in a contentious case involving the historic trail that runs from St. Raphael’s Catholic Church in Koloa to Po‘ipu Road through the heart of existing and under-construction resort developments.
The church is where the paved Hapa Road ends and the unpaved trail begins.
Valenciano said David Kimo Frankel, the Native Hawaiian Legal Corporation attorney for Koloa Native Hawaiian Teddy Blake, did not make convincing enough arguments supporting the injunction.
Valenciano cited the 1978 case, Life of the Land v. Ariyoshi, that he also used in support of Blake’s appeal for a temporary restraining order issued last week prohibiting any construction or land-altering activity on or within 50 feet of Hapa Trail until Wednesday’s hearing.
The three-pronged test:
— The plaintiff is likely to prevail;
— There will be irreparable damage if the injunction is not approved; and
— Approving the injunction would benefit the public interest.
On each point, Valenciano was succinct.
“I think this is an open case,” he said of the first prong, indicating he is not sure the plaintiff would prevail.
While bulldozers preparing land for the Village at Po‘ipu Knudsen Trust development did knock down portions of the wall on one side of Hapa Trail while doing their work, developers also agreed to restore 2,000 feet of the wall, so Valenciano did not see irreparable damage, the second prong.
Finally, Valenciano could find no fault with state Department of Land and Natural Resources State Historic Preservation Division officials who brokered a deal with Knudsen representatives to approve a final historic preservation plan that allows breach of Hapa Trail for the main entrance to the subdivision while agreeing to take the developer’s offer to restore 2,000 feet of the Hapa Trail’s eastern wall.
Reconstruction of the wall is for the public’s benefit, SHPD acted in the public’s interest, the third prong, said Valenciano, adding that different people with different agendas handled the negotiations on SHPD’s end.
Troubling to Valenciano was the trust’s position they can “do stuff or take actions without repercussions,” adding that there is a segment of the Kaua‘i community who hold Hapa Trail as important historically and spiritually.
Still, granting an injunction is a “drastic remedy,” said Valenciano.
The case is Theodore K. Blake, Plaintiff, versus County of Kaua‘i Planning Commission, County of Kaua‘i Planning Department, Ian Costa in his official capacity as planning director, DLNR, Laura Thielen in her official capacity as DLNR chair, and Eric A. Knudsen Trust, Defendants.
Blake, through Frankel, argued that SHPD required the trust to establish a 50-foot buffer between construction activities and Hapa Trail, but trust attorney Michael Tom argued that the 50-foot-buffer idea was “concocted” after the fact.
Linda Chow, for DLNR, said trust developers are not abiding by terms of an interim protection plan, and do not yet have final approvals necessary to breach Hapa Trail for the purposes of the subdivision’s main entrance road.
“They don’t have a current right to breach the wall,” she said.
Ian Jung, representing the County of Kaua‘i defendants, said the county is stuck in the middle, trying to act as a facilitator to balance the rights of landowners and protection of historic places.
Who owns Hapa Trail?
Ownership of Hapa Trail, a dirt road bisecting present and planned Po‘ipu resort developments, was questioned in court Wednesday.
While most had operated under the assumption that the trail is county property, an attorney for the state Department of Land and Natural Resources said it is state property.
“Hapa is still a state road. Legal title is with the state,” said Linda Chow, state deputy attorney general representing the DLNR.
If Hapa Trail is state property, plaintiff Theodore K. “Teddy” Blake can’t prevail in seeking the injunction because it sued the wrong entity, said 5th Circuit Judge Randal Valenciano.
Blake sued the County of Kaua‘i, state DLNR and the Eric A. Knudsen Trust.
Fifth Circuit Judge Randal Valenciano sided with the developers, the Eric A. Knudsen Trust, in a contentious case involving the historic trail that runs from St. Raphael’s Catholic Church in Koloa to Po‘ipu Road through the heart of existing and under-construction resort developments.
The church is where the paved Hapa Road ends and the unpaved trail begins.
Valenciano said David Kimo Frankel, the Native Hawaiian Legal Corporation attorney for Koloa Native Hawaiian Teddy Blake, did not make convincing enough arguments supporting the injunction.
Valenciano cited the 1978 case, Life of the Land v. Ariyoshi, that he also used in support of Blake’s appeal for a temporary restraining order issued last week prohibiting any construction or land-altering activity on or within 50 feet of Hapa Trail until Wednesday’s hearing.
The three-pronged test:
— The plaintiff is likely to prevail;
— There will be irreparable damage if the injunction is not approved; and
— Approving the injunction would benefit the public interest.
On each point, Valenciano was succinct.
“I think this is an open case,” he said of the first prong, indicating he is not sure the plaintiff would prevail.
While bulldozers preparing land for the Village at Po‘ipu Knudsen Trust development did knock down portions of the wall on one side of Hapa Trail while doing their work, developers also agreed to restore 2,000 feet of the wall, so Valenciano did not see irreparable damage, the second prong.
Finally, Valenciano could find no fault with state Department of Land and Natural Resources State Historic Preservation Division officials who brokered a deal with Knudsen representatives to approve a final historic preservation plan that allows breach of Hapa Trail for the main entrance to the subdivision while agreeing to take the developer’s offer to restore 2,000 feet of the Hapa Trail’s eastern wall.
Reconstruction of the wall is for the public’s benefit, SHPD acted in the public’s interest, the third prong, said Valenciano, adding that different people with different agendas handled the negotiations on SHPD’s end.
Troubling to Valenciano was the trust’s position they can “do stuff or take actions without repercussions,” adding that there is a segment of the Kaua‘i community who hold Hapa Trail as important historically and spiritually.
Still, granting an injunction is a “drastic remedy,” said Valenciano.
The case is Theodore K. Blake, Plaintiff, versus County of Kaua‘i Planning Commission, County of Kaua‘i Planning Department, Ian Costa in his official capacity as planning director, DLNR, Laura Thielen in her official capacity as DLNR chair, and Eric A. Knudsen Trust, Defendants.
Blake, through Frankel, argued that SHPD required the trust to establish a 50-foot buffer between construction activities and Hapa Trail, but trust attorney Michael Tom argued that the 50-foot-buffer idea was “concocted” after the fact.
Linda Chow, for DLNR, said trust developers are not abiding by terms of an interim protection plan, and do not yet have final approvals necessary to breach Hapa Trail for the purposes of the subdivision’s main entrance road.
“They don’t have a current right to breach the wall,” she said.
Ian Jung, representing the County of Kaua‘i defendants, said the county is stuck in the middle, trying to act as a facilitator to balance the rights of landowners and protection of historic places.
Who owns Hapa Trail?
Ownership of Hapa Trail, a dirt road bisecting present and planned Po‘ipu resort developments, was questioned in court Wednesday.
While most had operated under the assumption that the trail is county property, an attorney for the state Department of Land and Natural Resources said it is state property.
“Hapa is still a state road. Legal title is with the state,” said Linda Chow, state deputy attorney general representing the DLNR.
If Hapa Trail is state property, plaintiff Theodore K. “Teddy” Blake can’t prevail in seeking the injunction because it sued the wrong entity, said 5th Circuit Judge Randal Valenciano.
Blake sued the County of Kaua‘i, state DLNR and the Eric A. Knudsen Trust.
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Related headlines
- Judge allows Hapa Trail development
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- Developers to build road across Hapa Trail
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drbwavevet wrote on Jul 17, 2009 7:50 AM: