 Welcome back to Think Tech. I'm Jay Fidel. This series is called Catching Up on Kakaako and our title today for this episode is Environmental Considerations on Kakaako Makai. Most people know about a lot of the environmental considerations. We're talking about rubbish under the top soil. We're talking about sea level rise. We're talking about extreme weather. We're talking about toxins in that soil that could affect the aquifer below. We're talking about a lot of environmental considerations, but here's a guy who knows more than most about those environmental considerations. He's part of the Democratic Environmental Caucus Democratic Party right here in Hawaii. Welcome to the show, Alan Burdick. Thank you very much. I'm glad to be here. I want to emphasize that this is not something that the caucus has formally studied or taken a position on, but I'm speaking on the basis of numerous decisions and policy positions that we've taken over the course of several years. I've been with the environmental caucus since the very beginning, back in 2012, when we created the caucus. I believe I speak generally from where the members of our caucus, who nominally number well over 5,000 people, are coming from with regard to this issue. Thank you. Environment is one of the most important issues in the state. I'll go on record by saying that. It wraps around climate change. It wraps around extreme weather. It wraps around sea level rise. These are really important stories that every citizen ought to be aware of. Good for you that you're on your co-chair of this committee, this caucus, and that you can speak with the experience you have. Let's talk about history first. Can you give us a couple of minutes of the history of the intersection between environmental issues and development of residential high-rise towers in Kakaako-Makai? Okay, thanks. I think we can start actually back a bit further than the 2012 legislative transfer of these Kakaako-Makai properties to OHA, which is what's generated the current situation. Back in 2009, it was a formal environmental hazards evaluation that was done. It went on for 50 pages of text plus, who knows, 100 pages of appendix that recounted the history of this area as landfill and as formerly manufacturing areas and so on. As you alluded to, Jay, there's been a lot of environmental toxins thrown into the ground there by various manufacturing entities over the course of decades. I had forgotten about that. I've been living in this world of it's a landfill, it's rubbish, there's all kinds of toxins emanating like a methane emanating out of the rubbish, but there's more. You're right. There were manufacturing for still auto shops, all kinds of manufacturing shops which used toxic chemicals, which are in that ground. The EPA would be very interested and concerned and any EIS would have to study all that. It's beyond the trash. Maybe we should have named the show beyond the trash. Never mind. I've got to tell you that in my past life as a recovering, I'm now a recovering lawyer, but back in my past life, we had to deal with a parcel in Makuna Puna, where a company that shall remain nameless went and bought a parcel of land that they wanted to work and then discovered, because they didn't check on it, on the history of the use of the land, that there was huge amount of toxic trash in the soil, and it cost them hundreds of thousands, if not millions of dollars and some very expensive litigation to remediate this under various federal statutes, including rickra and Clean Water Act and others. So this is not something to be played with. And one of the concerns that you make a very important point, Alan, and that is the person who takes the transfer is sometimes responsible, maybe often responsible for the cost of remediation, even when he had nothing to do with it. Exactly. Exactly. You get to stand in the shoes, pretty soggy and dirty shoes sometimes, of your predecessor in interest on the land, and you're literally legally responsible for it all. And if you can go and catch the person who sold the land to you and get some sort of compensation, you're lucky. But for example, my research on this particular legislative proposal, which turned out to be Act 15 in 2012 by the legislature conveyed these properties, I think seven or eight parcels, to OHA as is, in as is condition. That's exactly the point. So OHA takes its subject to any problems and cost of remediation. And no warranties. No warranties, huge pertinent, and no one knows how much that will cost OHA. Exactly. That is the serious problem we're looking at right now. To compress a long story into a few sentences, OHA received this property by a legislative transfer back in 2012 as compensation purportedly for the state's obligations to the Hawaiian community from 1978, which is the date of the last state constitutional convention during which OHA was created, through to some date in 2012 when the bill was enacted into law. And at the time, they sort of put a value on the properties as $200 million. I'm not sure if that's the particular parcels that they are now trying to deal with legislatively or the whole group of seven or eight parcels. Now, what's happened is basically this. Back in 2012, there were supposed to be two bills to go through the legislature. One was this transfer property bill. And the other was a deemed to be something of a companion bill to lift development restrictions on two of the parcels among these seven. So as to allow the parcels to be developed for high rise, supposedly affordable housing. And that's where the rub is right now, because the legislature did not pass that second bill. And OHA has gone back about three times now to the ledge, asking the legislature to please pass that companion bill so that OHA can go ahead and develop these properties. According to some guesstimate there, they may be making about a million dollars a year right now in ground rent, but they would expect that this would increase to the range of 14 or $15 million a year if and when they were able to get these properties developed and put high rises in. Now, it sounds like you're assuming that that additional money would be lease rent. But if they sell fee, then they take their money bags and leave. That's right. The standard approach these days is you get a higher price if you sell fee. And you get a developer in maybe even transfer the development rights to a developer. And the developer develops, sell it all out. And you as the original owner leave, you are no longer involved. You turn it all over to the board of directors of that association of owners and goodbye. And so it's one great big enormous check that that does not help affordable housing very much. Nor does it address the federal environmental protection laws because the feds can still go back after OHA and theoretically back against the state for the toxins that are in those soils. What about the owners who bought? What about the person that purchased? As well, everybody's going to be on the hook. And that is the really serious problem that is not being directly addressed by the legislation that's been introduced in the legislature. There was a pair of bills in 2014 and then another try in 2022 just a year ago, I think even 2021. And I'm expecting that there's going to be another try this year. There is another try this year. I wouldn't be surprised. So let's talk about the environmental issues surrounding that project, such as it is, intuitive project, and Kakaako Makai in general. This is not ordinary land. It is not an ordinary location. It is a special place environmentally. What makes it special? Well, part of it has to do with the fact that it's fill. Fill put into extend the land into shallow waters, near shore waters to make more land, which of course is ordinarily a good thing here in Hawaii, right? And I want to mention that as far as the environmental caucus is concerned, we believe in interpreting the concept of environmental issues rather broadly to include aspects of the human environment that are not necessarily specifically related to toxins in the soil or fish or birds or any wildlife of any sort. I mean, certainly those are incorporated in what we're concerned about, but we're also looking at the human environment and what we are creating in terms of a life for future generations. And that is indeed the area where people in Kakaako have been really furious for a long, long time about this. The vast majority of them object very vehemently to the idea of one of the specific requests of OHA is to expand the height limit to 400 feet for each of an anticipated two, I think two high rises at this point, but who knows when the architects get to it, they might decide they can squeeze in a third one, who knows. So 400 feet, 40 floors is the idea, and this gets people rather unhappy because these, as Makai properties, they're right on the shoreline, which means they're going to block somebody's ocean view and some many people's ocean view. There's also a concern that Kakaako is already facing an influx of a lot of new residents as you drive by on Alamo on a boulevard. You see all these new buildings going up and a lot of them are very expensive looking apartments. And so there's a concern that unless people are able to preserve some of this land as parkland, there's going to be a serious problem of simply excessive overbuilding and urbanization of that area. Now, how that's all going to work out in detail, I certainly don't know. But that is part of the environmental examination of Kakaako. How much green grass is left over? You know, I think it struck all of us when Kakaako first went into its high speed mode in the odd years and all these permits were being given for these big tall buildings. And although the renderings showed a tree here and a tree there and a little walkway and a Chinzano umbrella, all those happy things, factors that didn't happen. The fact is that there are no additional parks in all of Kakaako that the setbacks are minimal and the escarpments as you walk on the setback is like 40 feet high and there ain't no humanity there. I'll go on record. There ain't no humanity there. Right. Well, we're agreed, certainly agreed on that. Yeah. And in reviewing the testimony that was offered in some of these bills, you can see that the key problem is that we have a very clear line of disagreement between the people who live in Kakaako on the one hand and the Hawaiian community on the other. The Hawaiian community is more than anxious to see OHA get some work done here, possibly in terms of actually directly providing housing for Hawaiians or at least developing the property, getting a bundle of money out of it and using it elsewhere. And it's hard to tell. To divide in the Native Hawaiian community, there are many Native Hawaiians who don't support this residential high rise at all. Yeah, certainly. As I say, it's a general line of disagreement and you'll find people who presumable, you might presuppose they're going to be on one side actually being on the other, but Kakaako residents, I didn't see a single piece of testimony in my review of this situation over in these three sets of bills. Any Kakaako resident who really supported the development and very, very fierce opposition to what's going on. I think we're going to be facing another round of those kinds of arguments in this new year with this new legislative session wouldn't be surprised. Oh, so have you looked at the sea level rise and the intersection of a sea level rise and the toxins in the soil from the rubbish and also from the manufacturing you mentioned? Because when you put them together and then you drop them down to the level of the water, the water source, the aquifer down there, you get a kind of a red hill effect? That's right. And one point to make to the audience who may not be aware of it, Oahu has one aquifer. The red hill aquifer is the Kakaako aquifer and even the windward side water sources are part of the same aquifer. They all intersect and you can't say, well, that's the other guy's water source problem. No, it's the entire island. It may take a little while for toxins in Kakaako to get over to the windward side, for example, or out into the IAEA Pearl City and the General Pearl Harbor area, but they travel. And as you point out, sea level rise is the way to put more of those toxins into circulation that may be sitting and may have been sitting for a few decades, relatively undisturbed at the present time. But with sea level rise, we can expect that there will be some migration. And we've got a lot of heavy metals, and all these other bluro this and bluro that, that we learn about when we hear about what's going on over a red hill with the fire suppressant materials. All of those kinds of horrible chemical combinations seem to exist over in the Kakaako area. And one of the things that I found rather dismaying in reviewing the testimony, and I went through a couple hundred pieces of testimony in the last few days reviewing this, is that there's hardly a peak in the testimony, even in the opposition, that raises issues about the environmental toxins and the dangers, the physical dangers of these toxins. And nobody's saying, hey, bring the feds in and tell Oha they can't do this. Well, that's very interesting because we talked about the EPA. This would be a field day for the EPA. I mean, such as that case you mentioned in Mapuna Puna, it's there and the EPA is interested in that sort of thing. But the other element is this, the Hawaii Environmental Protection Act triggers an EIS when you have state land or a state agency. And you have in this case both of them, you have the state land, then you have Oha, which is unquestionably a state agency. That's what it is. Sometimes they say they're not, but depending on who the particular trustee might be. But yeah, that's right. And actually, there's a sort of an odd ball thing that only attorneys get crazy about is there's an argument by the attorney general that legislation to raise the height limits, for example, or otherwise, make it easier for Oha to develop these properties would violate a particular provision in the state constitution that doesn't allow for special legislation. In other words, legislation that the state enacts is supposed to be a general application. And I'm not 100% sure I agree with the attorney general's opinion on it, but I'm not the attorney general. Well, let me let me offer this thought that if this legislation named Oha per se, then clearly it would be a special legislation for the benefit of a single party or an identifiable party, and it would be a violation of the state constitution. Could very, very well be. There is law that allows the extension of that notion sort of in the nature of innuendo. If you take all the facts and circumstances, and you see there's only one party asking for this legislation, one party seeking, you know, a 400 foot limit, and it's all panoply through the press and through the public conversation. I don't think there's really any issue, but that by virtue of that innuendo is special legislation. In fact, you know, there may be issues around the way that the attorney general framed the opinion back when, but there's a substantial issue of a violation of the constitution. That's right. This criticism was raised, I think, as far back as 2012. But you know, Oha went forward with it. You know, I, particularly as we're getting close to our time limit here, I wanted to say that there is language in a number of the testimonies. And it's certainly my view that we need to bail Oha out of this if they're willing to do it. And I think that this is where we have to focus. How can we fix this problem? I'm hopeful that Oha is not too invested financially, psychologically, politically, or however, in pursuing the approach that they've been doing for the last literally 10 years. And that is to try to build these monstrous high rises on to or possibly more of the parcels they've got and recognize that it's not at all popular with the neighborhood. And the state needs to recognize that Oha didn't get quite the deal it should have gotten. Some people blame Oha and say they didn't do due diligence. On the other hand, I think it could be said that Oha was relying on that companion bill being approved in a timely manner when it's never been approved. And therefore they feel that they didn't get the package that they thought they were going to get and that they really should be able to rescind this deal and find another deal that's better. There are other areas in urban Honolulu where they might be able to get some land or maybe the state can transfer cash and Oha might be able to find some areas perhaps in Kalihi area. I'm not sure where and I'm not trying to point my finger. I like to offer some thoughts about all of that. Number one is recently in the paper there is news of a permit being issued on a very tall 30-story 30-plus-story high-rise condo in Moeli-Eli which has needed the development for a long time. It's an old neighborhood and it could happen there. Number two is that people, a lot of people, planners, architects, engineers have seen Kalihi as the successor to Kakaako Makai, a Malka. They've seen it as a successor to Kakaako Malka, which means that it needs development. It's ripe for development. It's the next logical step of developing a what I call a residential bedroom community around downtown. So this has got to be some state land in there, but as you say, it doesn't have to be state land. You can provide the funds and Oha can spend the money and get into a property that doesn't have all these tremendous considerations. So if you were addressing Oha on this and I realized that they're advertising this project right now. I was listening to an ad on KHPR the other day and I was amazed to find that they do not have the legal right to do this. There is substantial opposition to this project and yet they are advertising the sales of units incredible and not even talking about the problems. I find that really extraordinary, but I'm only saying this because you said that they may or may not be invested. I think they're invested in the public eye. They are publicizing this even when they can't do it. But the point I make though is that assuming they were rational and not invested to the point where they're shooting themselves in the foot, what would you say to them? What advice would you give them as to the path now to follow? I would say that what they ought to do is avoid a blame game and sit down with the governor and legislative leaders and see if there is a mutually satisfactory way for everybody to get out from under this. It's not just the Hawaiian community that loses if Oha is unable to do anything with this property and by doing anything I include the idea of giving it back to the state in exchange for money that they can use elsewhere. It hurts everybody, not just Hawaiians. We need to give Oha the support in that sense to say, look, we're not blaming you and let's just fix a problem that's there and move on and try to create an alternative that will be beneficial to the Hawaiian community and to the people of Oahu and Honolulu in general as well and put this past them. I think this was a mistake and I think anybody objectively looking at it will say it's a mistake. I know the people who kaka kaka well, but we need, we shouldn't just punish Oha. We need to do something that supports Oha in this respect as well, but they got to be willing to recognize that and be willing to back out of that ditch that they're in right now with this property and look for a different alternative and we certainly would support that. Well, as though there's a lot of wisdom and and heart and I don't know what you say. I really appreciate the thoughtfulness of your position on that but let me ask you one last question. Sure. So there you are in front of a committee whether this gets to a committee hearing or not remains to be seen on this legislation that has been introduced and it begins this way. My name is Alan Burdick. May it please the committee? I would like to offer some advice to this committee as to whether or not they should pass this legislation. I would put it in terms of suggestion rather than advice choice of words there but I certainly would urge the committee to assist Oha and everybody back out of what's turned out to be a dead end and or one that if not a dead end is going to bruise and hurt a whole lot of people and the Kakaako community if they push forward with this as they seem to be doing right now. I think it's got to find another solution and the sooner that everybody can agree that it needs to be done the relatively easier it's going to be. It's going to be a big nut to crack in any event because we're looking at a couple of hundred million dollars at least and trying to help Oha figure out where to put that money which of course will be their considered judgment. I hope that you know there'll be fewer misunderstandings in any future transaction. With the due regard that the law requires an EIS which hasn't actually happened and which would be a very complex EIS because of all of the huge environmental risks and considerations involved. When the question comes between you and the committee and somebody says to you Mr. Burtick thank you very much. However the question before this house is house literally perhaps the question before the house is should we pass this bill out or not? What's your answer? Well it depends on the bill but if it were a bill to basically give everybody a mulligan here and say okay we'll take back the land or some parcels out of the seven and then refund with a dollar amount that people can agree on I would certainly support it. Supposer was a bill to repeal the restriction on residential development in Kakaako Makai and to raise the debt ceiling and to raise the height limit to 400 feet. Supposer was that bill. Oh absolutely. If we were to get involved in it I'm rather sure that we would oppose such a bill because of the strong community opposition and from an environmental strictly environmental perspective it would create too many environmental problems that people down the line many of whom wouldn't know what's going on would wind up suffering from and I'm rather sure not be happy with a 400 foot limit in Kakaako and I think the FAA may have a problem with that as well because of the airport. Yes you're right it's not far from from the reef runway is it? That's right. I hadn't thought of that. Alan Burdick the co-chair of the Environmental Caucus of the Democratic Party of Hawaii and who has been thinking about this involved in this for many years thank you very much for your thoughts on Kakaako Makai and the development for a residential high-rise. Thank you so much. Thank you for the opportunity to offer my thoughts. Thank you. Thank you so much for watching Think Tech Hawaii. If you like what we do please like us and click the subscribe button on YouTube and the follow button on Vimeo. You can also follow us on Facebook, Instagram and LinkedIn and donate to us at thinktechawaii.com. Mahalo.