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Tuesday, October 21, 2008
Hokuli`a Settlement Exposed
By Andrew Walden @ 11:55 PM :: 17428 Views :: Development, Greenmail

Read text of Settlement HERE >>>  HokuliaSettlement06-Addendum_to_Settlement_Agreement.pdf

Read text of plaintiffs' earlier multi-million dollar cash demands HERE>>>PKO/NHLC Settlement demands (confidential)

Is the County of Hawai`i subject to secret agreements which direct the passage of future legislation? Is the Legislature? A copy of the March 14, 2006 Hokuli`a Settlement and an “Addendum to the Settlement Agreement” given to Hawai`i Free Press seem to indicate this is the case.

The Hokuli`a Settlement, approved by Judge Ronald Ibarra, brought to an end a long legal battle between Oceanside 1250, developer of the Hokuli`a luxury ‘agricultural’ subdivision whose development had been approved by the County of Hawai`i and the Hokuli`a plaintiffs backed by the Native Hawaiian Legal Corp which is funded by the Office of Hawaiian Affairs. Portrayed as an agreement between two private parties—the developer and the plaintiffs—the agreement was sealed by Judge Ronald Ibarra and has not been published.

But the copy leaked to HFP shows the agreement was signed on behalf of the County of Hawai`i by Mayor Harry Kim and approved by Hawai`i County Corporation Counsel on March 2, 2006. Other signers include Peter Young, then Chair of the State Department of Land and Natural Resources (DLNR) and Laurence K Lau, the State Department of Health Deputy Director for Environmental Health. Each State signature was co-signed by a deputy attorney general.

The text of the Hokuli`a agreement (p 22-23) mandates the County accept and the State impose a DLNR veto over any grubbing or grading activities approved by the County of Hawai`i. The agreement also directs the County Administration to “work with plaintiffs to draft, introduce and support before the County Council legislation that would amend Chapter 10 of the Hawai`i County Code….” Another paragraph requires the county to require landowners, farmers, and builders to get “recommendations from the DLNR before the County Administration would accept a grading or grubbing permit application…..”

Several attempts have been made by members of the County Council to amend Chapter 10 since the agreement was signed. A Big Island civil engineer who spoke to Hawai`i Free Press for this story indicates that these agreements in the Hokuli`a Settlement were behind the bizarre and unsuccessful year-long effort by South Kona Councilmember Brenda Ford to amend the County’s rules on flooding – contained in Chapter 27, not Chapter 10. Ford was an ally of the Hokuli`a plaintiffs. She took office in 2006 with key backing from Angel Pilago and figures tied to the use of “PASH rights” for the purpose of obtaining massive “settlements” in exchange for allowing developers to proceed with construction.

County ordinances contained in Chapter 10 refer to the ways that quality or cleanliness of water runoff is altered by grubbing or grading activities. Chapter 27 refers to flood control—the volume of water, not its cleanliness. Chapter 27 is not referenced in the Hokuli`a Settlement Agreement. The “mission creep” exposed by Ford’s flood control efforts—which she attempted to re-start at a council committee meeting in early October—were seen by some as an act of bad faith from the plaintiffs’ side. This indicates a possibility that the secret terms of the Hokuli`a settlement may underlie the factionalism on the Council.

The Settlement Agreement also requires the County to work with the plaintiffs and the developer to “draft, introduce, and support legislation in the State Legislature” adding new “protection for documented and undocumented cultural, historical, and burial sites together with appropriate funding to implement the new requirements.” Unlike the requirements imposed on the County, the Agreement stipulates: “Nothing in this Agreement shall require the DLNR to endorse such legislation or prevent the DLNR from expressing its independent view as to any such proposed legislation.” If the Legislature fails to act by 2008, the County Administration is directed to enact similar legislation including establishment of a “County Historic Preservation Commission established under the Certified Local Government program of the National Park Service….”

The Addendum to the Settlement Agreement directs the County Administration to “support legislation before the County Council that would (1) allow for the designation of the scenic corridors in the County, and (2) specifically designate the bypass Highway as a scenic corridor, except that portion of the bypass right-of-way passing through Hokuli`a.” This would negatively affect the development potential of other property owners whose lands are bisected by the Bypass which might alter the values implied in the “Fair Share Agreement” which requires landowners benefiting from improved access to pay for part of the cost of the bypass if and when they develop their properties. Interestingly the agreement states, “Oceanside has not requested the County take the actions described in this Section and does not waive any rights it may have with respect to such actions.” These were key issues in the Coupe family lawsuit. Now under appeal, the suit had blocked construction of the Hokuli`a Bypass.

Money was a key focus of debate between plaintiffs and defendants in early 2006. Negotiation demands for millions of dollars in settlement payments to individual plaintiffs had for a time been posted on the Hokuli`a website. Plaintiffs objected strenuously to the exposure of their secret demands, but never challenged the accuracy of the materials posted. The Legislature was bearing down on the plaintiffs with a bill authored by Rep Bob Herkes (D-Ka`u) which would have grandfathered all existing agricultural subdivisions—thereby removing the basis of the plaintiffs’ suit.

Shortly after the settlement was approved by Judge Ibarra, Hawai`i Free Press published the sworn testimony of 76-year-old Pansy Medeiros, the mother of PKO President Jim Medeiros. Taking out a Temporary Restraining Order against her son, PKO President Jim Medeiros, Pansy described her son’s angry outburst at a March 13 family mediation meeting: "Jim took control of the meeting and didn’t let anybody speak including (mediator) Aaron Nagata. The all hell broke out …(Jim said), ‘I see you in the next world since you ready to die anyway….You already half dead…. `I `oki (divorce) from you Ma, I don’t need you f***ing b*****s anymore. I’m into the money now you f***ers." Pansy accused her son of cleaning out her savings and transferring the title of her home into his name.

Did the plaintiffs get money? The Addendum to the Settlement Agreement emphasizes that “None of the funds…will be used to benefit the Plaintiffs….” (p 2) But it establishes three “Directed Accounts” of $400,000 each funded by Oceanside 1250. Contained under the umbrella of the Hokuli`a Foundation, expenditures from the three accounts are respectively under the sole direction of Hokuli`a Plaintiffs Chuck Flaherty, Patrick Cunningham and Michelle C Wilkins with the requirement that they be directed to “qualified non-profit organizations”.

Plaintiff Attorney Robert DS Kim received $1,002,435.01 in attorney fees. The Native Hawaiian Legal Corp received $2,037,732,74. (p 24)

Funds for the broader Hokuli`a Foundation come from 1.75% of gross lot sales and 0.25% of gross lot re-sales. This guarantees ‘donations’ (aka revenue) to the Foundation in perpetuity. (p12) “Fair Share” reimbursements related to construction of the Hokuli`a Bypass are also designated to be transferred to the Hokuli`a Foundation.

All five of the plaintiffs are guaranteed lifetime seats on the Hokuli`a Foundation board, ensuring they will be able to influence the direction of Hokuli`a money to the “non-profits” of their choice. Many “non-profits” are very profitable indeed to their officers and to businesses which provide contract services. Perhaps this explains why Medeiros allegedly shouted “I’m into the money now you f***ers.”

The Plaintiffs agree not to take any action “adverse to Oceanside or the Hokuli`a Project” whether in the form of publicity, litigation, administrative hearings, or lobbying for legislative changes which “would undermine or materially impair…the Hokuli`a Project….” The agreement also blocks plaintiffs from taking action on any “unknown claims.”

Related Articles:

Kona Residents Rip Anti-Hokuli`a Lawsuit, County Bankruptcy Danger

Beyond Greenmail: Extortion Becomes Expropriation

Greenmail System Saved by Hokuli`a Settlement


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