Ka Wai Ola - Office of Hawaiian Affairs, Volume 27, Number 2, 1 February 2010 — Planning commission OKs construction on iwi grounds [ARTICLE]

Planning commission OKs construction on iwi grounds

The Kaua'i Planning Commission dismissed a petition filed by island residents seeking a formal acknowledgement that a North Shore landowner's home construction project atop known iwi grounds in Wainiha violates state permitting conditions. For the second time in two months, the commission agreed with property owner Joseph Brescia's motion to reject a request filed by the Native Hawaiian Legal Corp. on behalf of Jeff Chandler and Nani Rogers. The request sought a declaratory order that could have revoked Brescia's permits, ehallenging Brescia to prove eomplianee with requirements of the State Historic Preservation Division and the Kaua'i-Ni'ihau Island Burial Council. SHPD is considering the 15th version of a burial treatment plan for the Wainiha property, where Brescia's single-family home is close to eomplehon. The last burial plan was thrown into question after 5th Circuit Judge Kathleen Watanabe ruled in September 2008 that SHPD had failed to properly consult with the burial eouneil in approving the placement of cement jackets above an estimated 30 sets of iwi kūpuna discovered on the property in 2007. Watanabe ruled that SHPD's failure had violated state law, but she also said that building permits issued to Brescia would not be revoked, provided that he cause no irreparable damage to the burials and continued to allow access to the gravesites. Brescia's legal team argued before the planning commission that Watanabe's ruling means Brescia has obtained a permit that allows him to finish his home. Opposing attorneys reiterated concerns that the issue was Brescia's noneomplianee with permitting conditions that rest on having an approved burial plan. Native Hawaiian groups and supporters, including the plaintiffs seeking the declaratory order, have characterized as unlawful Brescia's burial protection measures, including the construction of the cement jackets and recently announced plans to plaee landscaping and other buffer structures close to the Native Hawaiian gravesites, believed to be more than five centuries old. The burial eouneil supports the idea to preserve the burials in plaee. In 2008, protestors twice shut

down construction on the Brescia property. Brescia's attorneys have said that revoking Brescia's building permit would amount to an illegal taking of land by the county and would expose the county to liability.