Comply with preservation law

The state has earned a well-deserved slap from a state Circuit Court judge, whose ruling in a lawsuit Friday demonstrated that the Abercrombie administration has failed to grasp its obligations to protect historic resources, even with an extensive record of law and judicial decisions to inform it.

The lawsuit challenged the development of the twin high-rise residential towers dubbed 801 South Street, and was filed by the apartment owners’ association from the neighboring Royal Capitol Plaza.

Among the various issues cited was the state’s historic preservation law. Government officials should simply comply with the statute, and mandate that developers conduct the required archaeological and architectural studies early in the process. This ultimately saves time and money for all concerned.

That’s not what happened with the project’s second tower of 410 condominium units that, according to the developer, is already sold out to Hawaii residents.

Circuit Court Judge Karl Sakamoto on Friday issued a preliminary injunction halting construction, saying that "vital steps" in the historic preservation review process were skipped in violation of state law — Hawaii Revised Statutes Chapter 6E. That decision is critical, despite the fact that on Tuesday he declined to invalidate the permit.

The principal defendant in the case is the Hawaii Community Development Authority (HCDA), the agency created to manage the redevelopment of Kakaako and other zones. The authority is additionally governed by its own statute, one that specifies that historic and culturally significant sites and facilities be preserved.

HCDA on Wednesday issued a stop-work order on the second tower, enabling the contractors to conduct the required archaeological survey. The only work to go on in the coming weeks will be the sealing of the former Honolulu Advertiser office structure, the chief architectural feature of the site.

How long the holdup will last is unknown, but clearly these missteps have left the project in limbo and its buyers worried about their investment, all because of an apparent end-run around the law.

Two state agencies are bound to enforce the law: HCDA and the Department of Land and Natural Resources, through its State Historic Preservation Division. Neither of them did.

The court found that the partial demolition of the former Honolulu Advertiser press building happened without SHPD consultation, and the permit was issued without the archaeological inventory survey, a study mandated by law to minimize disturbance of Hawaiian burials.

What’s most astonishing in the sequence of events laid out in court documents is the about-face by William Aila, DLNR director. In a letter sent to the developer Oct. 9, Aila said an AIS was required. But a few days before HCDA granted the permit on Dec. 4, Aila wrote to HCDA Executive Director Anthony Ching and said SHPD agreed to HCDA’s plan to mitigate any archaeological impacts without doing the survey.

That kind of mixed signal casts doubt on the fairness and transparency of the process, further eroding public faith in two agencies that frequently come under fire.

Sakamoto cited numerous previous rulings as guidance in the 801 South Street case, including a Hawaii Supreme Court finding that the statute does establish a clear sequence of how historic-preservation reviews should be conducted. That case, Kaleikini v. Yoshioka, concerned the phasing of the Honolulu elevated-rail project, and the justices found that any archaeological survey that’s required must precede SHPD’s approval.

He also referenced one of his own earlier rulings, concerning the dispute over a project on Kawaiahao Church property. In that case and this one, he said, SHPD exercised discretion it didn’t have over the AIS requirement.

Laws protecting historic and cultural resources are in place to ensure a balance is struck between development and preservation interests in a state that values both. When officials ignore this mandate, they neither help development nor honor Hawaii’s commitment to historic preservation. The current impasse proves that point.