Ka Wai Ola - Office of Hawaiian Affairs, Volume 1, Number 4, 1 May 1984 — Burgess Ohana Halts Land Taking [ARTICLE+ILLUSTRATION]

Burgess Ohana Halts Land Taking

In a well-planned course of action, the Burgesses, a kamaaina family, resisted and succeeded in stopping the attempt of the County of Hawaii to build a flood control drainage ehannel through their ancestral homeland in Keopu, approximately two miles above Kailua-Kona, Hawaii. Their main eoneem was the possible desecration of the graves of ancestors buried near the proposed ehannel route. The Burgesses posted signs along their property boundary warning the County and its construction crew to "Keep Out" and stood behind the signs to meet and challenge anyone who tried to enter. Through this and subsequent court action and testimony before the Hawaii County Council, the Burgesses succeeded in eonvincing the County to change its plan to enter their land. ln 1973 Hawaii County approved the construction of the Keopu Heights Subdivision whieh consisted of three acres and one acre "gentleman" farm type lots. The subdivision would be built in a known flood plain area. In the original subdivision plans, a flood control ehannel was planned to run along the main thoroughfare, Hiona St. However, at the time of the major flood in Feb. 1982, no flood control measures of any kind had been taken by either the County or the subdivision developer. Therefore when the flood waters hit the subdivision in Feb. 1982, it rushed down Hiona St. digging up the utility lines, destroyed the road and carried mud and debris into Kailua town. After reviewing the damage, the County's engineers recommended digging a drainage ehannel along Hiona St. and within the County's right-of-way because it was the most "prudent" route. Upon presentation of the County's plan, the Keopu Heights Subdivision Homeowners Association members protested vigorously. They argued that the drainage ehannel, whieh would run in front of their properties, would be ugly and would therefore lower their property value. They also argued that the ehannel posed a danger to theirchildren who might play in the ehannel or to motorists whose cars might fall into the ehannel. Bending to the association's pressure, the County agreed to run the ehannel in back of these subdi\ision homeowners' properties and into part of the Burgess" property whieh runs adjacent to the subdivision. Only after this agreement was made and complete plans drawn up and approved on the County level were the Burgesses notified of the County's intent to take some of their land for the ehannel. The Burgesses refused to allow the County to take the land and made it clear that it was not the amount of money being offered for the land that was their eoneem. No amount of money would have made them agree to allow the County to enter their !and. The County, certain that further negotiations would not be effective, proceeded to exercise its powers of eminent domain. First, the Hawaii County Counci! adopted a resolution authorizing the taking of the Burgess' land. Next, the County's attorney sued the Burgesses in Circuit Court to take their land and asked the court for imme-

diate possession of that land. But before the Burgesses could have their day in court, the judge approved the County's motion and gave it immediate possession. The Burgess family's responses were quick and decisive. Seven family members stood at the stone-walled boundary waiting for County officials to attempt to enter. One morning, two County engineers approached the wall. They were stopped. The Burgesses warned they would take any necessary action to protect the integrity of the family graves on the Iand. The County officials retaliated and the County's lawyer immediately asked the court to issue an injuction against the Burgesses. The next morning, Attorney Hayden Burgess, one of the seven Burgesses blocking County entry, appeared in court to oppose the injunction. He asked presiding Judge Paul DeSilva: "Why, when we ask for an

immediate trial, we are told to wait over a month to be heard; when the County asks for immediate action, they get heard the next day!" He continued: "What right does this government have to take lands before we even get a day in court?" The reply by Judge DeSilva was decisive. He ordered an immediate trial and a stop to any construction work on the Burgess' land until after the trial. Trial began Mar. 6, 1984. At the trial, the County argued Burgess' land was necessary and for puhlie use. Burgess responded: "The taking of our property is simply to protect investor's land values, to transfer the dangers of the ehannel to us rather than keeping it themselves. It is an attempt to benefit the subdivision Iands, but burden the Burgess' lands. This is formalized theft." The trial was suspended after one day to allow the parties to appear before the

County Council. At the Council meeting on Mar. 7, Hayden Burgess addressed the Council pointing out the existence of ancient family graves and other historical sites on their land whieh was threatened by the ehannel while the only threat to the subdivision was one owner's cesspool. Tothe County's elaim that it was cheaper to eondemn Burgess' land rather than the expensive subdivision land, Burgess countered: "How ean you plaee a money value on my ancestors' graves." The first breakthrough eame when upon addressing the Council, several Council members said they wanted to consider the matter over again. At its regular Council Meeting Apr. 1 8, the Council reversed its prior decision to condemn Burgess' property. A new route will now have to be established. The court case will soon be dismissed, and a Hawaiian family has succeeded in stopping the taking of their lands.

Signs tell the story as C"ounty vehicle is stopped at gate with these direct message in plain view. The first sign to the left is easily discernihle and the one in the center is partially obscured by the car's front end. lt reads: "C'hannel Endangers Graves. No Come In. "Kapu." The sign to the right has the word "Easement" partially blocked off.

Burgess ohana members plan further strategy and discuss situation while awaiting "intruders." Two members of this kamaaina family are Hayden Burgess, attorney , and Rodney Burgess who are not in this photo. Both are OH A trustees. I'hotos courtesy Bob Fewell/West Hawaii Today.