Kakaako road owner claims state law is full of holes

The state is using an unconstitutional tactic and “half-baked” law to stop the owner of a private road in Kakaako from charging for parking, the owner’s attorney has told the state.

Jonathan Ortiz of Honolulu law firm Ortiz &Associates sent the Hawaii Community Development Authority a letter opposing the agency’s recent effort to enforce a 9-month-old state law aimed at a company that owns several streets along which it charges for parking while allowing otherwise free public use.

Ortiz sent the letter Monday, which was a deadline HCDA had set for the road owner, Kakaako Land Co., to comply with the law.

The law requires that privately owned roads in Kakaako meet city construction and maintenance standards if the owner charges a fee for any use and the roads have been used by the public for at least six months.

In the letter, which HCDA received Thursday, Ortiz said the law known as Act 009 violates state and federal constitutions because it discriminates based on a geographic area and doesn’t apply to the owners of other private roads in Kakaako.

“Act 009 was obviously tailored to apply only to KLC,” the letter said.

Ortiz also said imposing city maintenance and construction standards on KLC streets improperly constitutes a taking of private property without compensation.

Furthermore, Ortiz claims HCDA, the state agency that regulates development and land-use rules in Kakaako, urged KLC to install paid parking stalls in 2010 to deter the homeless from camping along Queen Street. He also argued that case law has established that since the public has an easement to drive over KLC roads, it is the public that has the responsibility for maintenance.

The letter is the latest development in a nettlesome issue that has outraged some small Kakaako business owners, led some of those businesses in 2014 to sue KLC in a case that has yet to go to trial, prompted the city to work on condemning the streets and motivated state lawmakers to pass several laws in recent years that so far have proved ineffective. Some Kakaako residents also have complained that KLC road conditions are dangerous.

KLC, owned by brothers Calvert and Cedric Chun, acquired deeds to several streets in 1985 from the last remaining heir of Charles S. Desky, who had subdivided sections of Kakaako more than 100 years ago. In 2010 the company began reserving and charging for street parking that had long been free, including spaces fronting some small businesses where those businesses had reserved parking for their customers.

In December HCDA notified KLC that it would begin imposing fines of $2,500 a day starting Jan. 14 if the company didn’t comply with Act 009. The agency cited evidence of paid parking on five streets — Queen, Kawaiahao, Ilaniwai, Cummins and Clayton — and the substandard conditions of the roads. Under the law a $500 daily fine can be applied per street.

Other streets KLC claims to own in whole or part are Kamakee, Waimanu, Curtis and Dreier.

Ortiz said in his letter that KLC will defend itself vigorously, and he reiterated a previous statement made by the company that it does not oppose the city condemning KLC streets.

“Efforts towards that end are far more likely to resolve this controversy than half-baked laws,” Ortiz said in the letter.

HCDA reserved comment on the letter Friday.