Beneficiaries suffer in jurisdiction disputes over sewers, roads and building codes
POSTED: 01:30 a.m. HST, Oct 27, 2013
LAST UPDATED: 04:33 p.m. HST, Feb 12, 2014
Confusion about who has jurisdiction over Native Hawaiian homesteads throughout the state has led to inconsistencies in the delivery of county services — a problem that shortchanges mainly Oahu homesteaders.
The ambiguity has led to differing policies from island to island and even within the same county.
In many Oahu homesteads, for instance, the City and County of Honolulu will repair broken water lines leading up to residential lots but will not fix ruptured sewer lines leading away from the same lots, even though homesteaders pay water and sewer bills just like all other Oahu homeowners.
"That's not pono," said Peter Terry, 48, a lifelong resident of Papakolea, the oldest homestead on Oahu and one plagued by long-standing sewage problems. "It's discrimination. We're part of the city."
The Department of Environmental Services, which oversees the island's public waste water system, says it does not own or have licenses for sewer lines in homesteads. Spending city resources to repair a private system would be inappropriate, according to Lori Kahikina, the department director.
Yet the Board of Water Supply, a semiautonomous city agency that oversees Oahu's drinking-water system and is run by a board of directors, considers the water lines in homesteads served by city streets to be part of the municipal system.
The city could not explain late Friday why the two agencies have different policies regarding homesteads.
Homesteaders own their residences, but they lease the underlying land from the Department of Hawaiian Home Lands, a state agency, for $1 a year. Federal law prohibits DHHL from selling its trust land.
On Hawaii island and Maui, the counties say they maintain and repair all sewer lines within their systems, even if they serve DHHL homesteaders. If homestead lines need to be upgraded or replaced on Maui, though, the county lets DHHL know and that agency is responsible for making the improvements, according to the county.
No homestead communities are connected to Kauai's sewer system, but that county maintains sewer lines within public rights of way, including some that serve property owned by DHHL, according to Kauai officials.
"The county's sewer maintenance policies do not distinguish between properties owned by DHHL or any other customers," Ed Tschupp, chief of Kauai's waste water division of the Department of Public Works, said in an emailed statement.
DHHL spokesman Puni Chee said his agency is continuing to hold discussions with all four counties, striving to ensure that homesteaders are uniformly served.
"To that end, it is our intent to maintain the positive working relationships we have forged with our colleagues from the various counties as a means of ensuring the availability of critical health and safety services that will preserve our beneficiaries' quality of life," Chee said in written responses to Honolulu Star-Advertiser questions.
If the counties do not provide basic services, DHHL steps in to do so, he added. To protect public safety, for instance, it hires private contractors to respond to emergencies regarding sewer systems.
Chee noted that in fiscal 2014 the agency allocated 30 percent of its trust fund budget to maintenance and improvements in existing homesteads.
"However, DHHL asserts that our beneficiaries should be provided all city and county services that are provided to all Hawaii residents," he wrote.
The jurisdictional confusion is not just limited to sewage service.
It affects road maintenance issues, building code enforcement and other areas.
On Oahu, the Department of Planning and Permitting will not cite homesteaders for building code violations, claiming DHHL, as the landowner, has enforcement jurisdiction. But DHHL contends that responsibility rests with the city.
The confusion has meant Oahu homesteaders who maintain meticulous yards and homes can live next to severely dilapidated dwellings whose owners have not been cited for code violations.
On the Big Island and Maui, county officials enforce the building code in homesteads and can issue citations, according to county spokesmen. By contrast, Kauai does not issue violation notices for dwellings on DHHL land, though building permits are issued upon request, according to the county.
The inconsistent delivery of services to homesteaders is yet another aspect of a flawed state system meant to serve DHHL beneficiaries who are at least 50 percent Native Hawaiian. Since May, the Star-Advertiser has been reporting on those flaws.
The federal government nearly a century ago established a 200,000-acre trust for the purposes of awarding 99-year homestead leases at $1 annually to eligible Hawaiians.
Yet the trust, which is administered by DHHL and overseen by the U.S. Department of the Interior, has been plagued for years by inefficiency, mismanagement, lack of funding, lax oversight and jurisdictional ambiguities. The beneficiaries typically have suffered the consequences.
Nowhere has that been more evident than in Papakolea.
That hillside subdivision, developed nearly eight decades ago, has long endured problems with an aging sewer system, leading to backed-up toilets and waste water overflowing from street manholes.
The problems have happened frequently enough that some residents commonly use the term "doo-doo water" to refer to foul-smelling puddles along the roads.
Despite such problems, the city about eight years ago decided to discontinue providing repair and maintenance services on homestead sewer lines, including those in Papakolea. It doesn't even respond to emergency calls.
"That's not fair at all," said Richard Soo, 61, a homesteader who lives in a newer community next to Papakolea.
"This is not a homestead issue," added Blossom Feiteira, a beneficiary advocate. "It's a health and safety issue."
Chee, the DHHL spokesman, noted that the Papakolea sewer system was built by the city in the 1940s. The city serviced the lines until the mid-2000s, when it "suddenly halted all maintenance of the system," he wrote.
The Papakolea system serves DHHL lots and private properties in Makiki and Tantalus, and has reached an age when major repairs and maintenance are required, Chee said.
Kahikina, the city's environmental services director, said in an email to the Star-Advertiser that the city stopped responding to trouble calls from Oahu homesteads eight years ago because it doesn't own the lines, they have not been dedicated to the city and the city does not have licenses to work on them.
"It was essential that the city keep its focus on the maintenance and repair of city-owned sewer lines as required by various consent decrees," Kahikina wrote.
City officials said DHHL homesteaders pay sewer service charges just like other non-DHHL homeowners who are connected to a private system that, in turn, connects to the city system. They said the city doesn't do repairs on those private systems, either.
Dymian Racoma, a spokesman for the Board of Water Supply, said it repairs water lines under city streets, including those in homestead neighborhoods.
But if the streets are not the city's, the agency does not have jurisdiction and wouldn't get involved in repairs, according to Racoma.
Chee cited a 1986 state attorney general's opinion that concluded that highways or roadways on DHHL land are considered county highways, even though they aren't owned by the counties.
He also said that the Hawaiian Homes Commission, which oversees the department, designs infrastructure within planned DHHL subdivisions to meet county standards so such facilities can be integrated into the county networks.
The commission has the authority to decide whether county laws regarding zoning and subdivisions apply to DHHL property, and it has developed land-use plans to coordinate developments with various county plans, according to Chee.
In most cases, coordination between the agencies works well, but some issues may require higher-level intervention or possibly legislation to clarify responsibilities, he wrote.
Chee also noted that homesteaders pay typical fees for use of county water, sewer and road facilities and, after a seven-year exemption period, are subject to county ordinances pertaining to property taxes.
The tax amount varies by county, but it usually is a set number, substantially discounted. On Oahu, the tab is $300 annually; on Kauai, it's $25.
Chee said most homesteads on the neighbor islands are in rural areas and use septic tanks. The homesteaders are required to maintain those systems.
Chee said the current DHHL administration is taking an active role in resolving the issue of responsibility for infrastructure serving Hawaiian home lands. Earlier this year the agency supported legislation that would have clarified maintenance obligations for sewers.
Last year, the administration sought a $5 million state appropriation to make repairs to the Papakolea system, but legislators subsequently deleted the money from the budget. This year, however, $1 million in design money for the Papakolea system was appropriated, and DHHL will be seeking funding in the upcoming session to repair two major Papakolea lines and make other spot fixes, Chee said.
Papakolea residents say such work is long overdue. The problems, according to Terry, "have been there for generations."