Language of bills stokes overreach concerns

Four measures designed to address illegal dumping and stockpiling have advanced out of the City Council Zoning and Planning Committee despite questions about the potential for unintended consequences negatively affecting the public.

Introduced by West Oahu Councilwoman Kymberly Pine, Bills 35, 36 and 37 increase maximum penalties and establish new penalties for recurring violations, explicitly bar the stockpiling of harmful substances on agricultural lands and prohibit an owner or developer with a willful violation from obtaining a grading permit after the fact.

The committee chose to make one of the bills even tougher on violators, changing the language so that fines could be doubled in cases of recurring violations taking place within a five-year period — significantly longer than the 12-month period proposed in the original bill.

Pine said Waianae Coast residents have "experienced decades of illegal dumping, especially on ag land that can no longer be used for farming." In an apparent attempt to avoid paying to use the landfill, materials containing chemicals, debris and construction waste have been illegally dumped in the area.

Pine acknowledged the concerns about potential unintended effects but said that "the consequences for our community is that our land has been dumped on and destroyed for far too long, and we’ve had enough."

City Planning Director George Atta said the administration generally favors the intent of Pine’s bill but that the definitions of "contaminants" and "deleterious material" may be overly broad.

"That’s something that may have to be worked out," Atta said.

Determining what is a "willful" violation may also be difficult, Deputy Planning Director Art Challacombe said. He suggested that stronger penalties for recurring violations would address the issue, since a repeat offender cannot feign innocence.

Challacombe also raised concerns about taking away the ability for DPP and the landowner to reach an agreement allowing a stockpiling or grading permit after the fact, noting that it sometimes causes more harm to try to restore a property to its previous state.

Several people, mostly from the Wai­anae Coast, testified in favor of the bills.

But David Arakawa, executive director of the developers advocacy group Land Use Research Foundation of Hawaii, said the bills might pose unintended consequences to landowners. He asked that the bills be deferred to allow time for stakeholders to meet with Council members to discuss their concerns.

"Some of the issues covered in the bills are already covered in other laws, and there are already procedures in place to address grading and stockpiling," he said.

The measure raising the most objections was Bill 34, introduced by Zoning Chairman Ikaika Anderson, which would ban stockpiling more than 50 cubic yards on any one site designated part of a soil or water conservation district.

Farmers from different parts of Oahu testified that they worry the bill would bar them from moving large amounts of soil on their own property without a permit.

Atta agreed. "The way you have it written, any time you have movement of 50 yards, a permit is required," he said. "That is problematic for us."

Waimanalo resident Tom Grande said he supports the bill because it would address a loophole that allows landowners exemptions from city grading, grubbing and stockpiling permits if they obtain a cooperator agreement with one of the island’s soil and conservation districts.

Grande is in litigation with the city, state and a neighbor over such a situation. Grande said he believes DPP should require the neighbor, whose property is mauka of Grande’s and sits below a reservoir, to remove some 6,000 cubic yards of soil that was placed there more than a decade ago.