A state judge has ordered Kawaiaha’o Church to refrain from any more construction on a multipurpose building until it obtains certification that the project site formerly used as a cemetery is clear of graves.
The ruling, issued by Circuit Judge Edwin Nacino on Friday, is another setback for the controversial project, which endured a nearly two-year delay after initial discoveries of human remains were made in early 2009.
Leaders of Hawaii’s oldest church thought they had the go-ahead to resume construction earlier this year after obtaining a permit to disinter graves.
But Paulette Kaleikini, who is related to three people who were buried at the project site, filed a lawsuit last month contending that the church was violating the permit by advancing construction before burials were removed.
Judge Nacino issued a temporary restraining order against construction Nov. 18 until he could hear arguments from both sides. Now the church cannot do any construction work until all burials are removed and the state Department of Commerce and Consumer Affairs decertifies the site as a cemetery.
The church said it intended to remove all burials but argued that it could obtain cemetery decertification after the building was complete. The project does not encroach on Kawaiaha’o’s marked cemetery, and the unmarked burials date back about 100 years.
David Kimo Frankel, an attorney with the Native Hawaiian Legal Corp. representing Kaleikini, criticized the church for the way it has handled the $17.5 million project intended to help the 159-year-old Honolulu church broaden its mission and membership.
"Long before Kawaiaha’o Church began the multipurpose project, it knew that dozens of burials lay in its path," he said. "The church nevertheless plowed forward, looking for loopholes in the law and overlooking the wishes of descendants."
Officials of the church referred to as "the Westminster Abbey of Hawaii" say they have tried to work with descendants to reach an acceptable solution that allows construction, and that they believed they were properly proceeding.
After Nacino’s ruling, Kawaiaha’o Kahu Curt Kekuna said, "We will comply with the court’s decision and continue to work with the appropriate state agencies."
The church had no estimate as to how much of a delay the new process will cause.
Decertifying a cemetery involves clearing all human remains from the site, then advertising and holding a public hearing. The church is required to excavate at least four feet in search of remains.
Contractors on the project suspect there are five burials on the site next to the church’s main building, but there could be more.
Two years ago 69 burials were unearthed when the church began digging utility line trenches for the building.
After the discovery was made public, two lawsuits were filed against the church.
In one case, Hawaiian cultural specialist Dana Naone Hall alleged that a state law protecting Native Hawaiian burials was being violated, but a judge said the law didn’t apply because of an exemption for cemeteries, given that the Kawaiaha’o burials were of a Christian nature as evidenced by coffins.
The other lawsuit was filed by Abigail Kawananakoa, a relative of Queen Kapiolani, who alleged that trenching work encroached on the family burial plot. That case was settled under undisclosed terms.
