Cinder mining operations will likely be expanded in Hawaiian Ocean View Estates without the county being forced to regulate assessments on private roads there, if the Windward Planning Commission follows through on planning director recommendations following a protracted contested case hearing that wrapped up Thursday.
“The fact is, the county has no legal role to …. referee or define or come to a decision where enforcement or compliance of private covenants is involved,” Planning Director Duane Kanuha said.
Kanuha’s recommendation to a Planning Commission panel is that the special permits be approved, with certain other conditions.
HOVE Road Maintenance Corp. is charged with collecting assessments from property owners and maintaining 157 miles of private roads in the subdivision. It can also assess heavy trucks annually to traverse the roadways.
But the road company has been unable to strike an agreement on increased activities with mining companies Arrow of Oregon and David and Laura Rodrigues, which are mining in two separate areas, primarily along Lurline Lane, Kailua Boulevard and Liliana Lane. Mining has gone on in the area since the late 1950s.
Arrow is trying to expand its permit by an additional 8 acres, bringing the total mined to 13 acres. The Rodrigues company is seeking a special use permit to mine 5 acres, after it was shut down last October for operating without a zoning permit.
The RMC tried to take advantage of the special use permit applications to get language inserted to make sure the mining companies pay their road assessments. At the same time, RMC has hiked an assessment on Arrow from $3,900 to $259,000, the company’s attorney said.
RMC has maintained that the mining trucks are not following the rules and are damaging the roads.
“We’re not looking to punish anyone,” said Laura Foster, chief operating officer of the RMC. “We’re trying to educate people about the roads and how to use them. … We’re asking for the county’s help to help us enforce what’s right for our road system.”
RMC also wants copies of any required monitoring reports the companies send to the county.
That irked the companies, but Foster held tight to her stance during back-and-forths that at times grew heated.
Attorney Randy Vitousek, representing Arrow, repeatedly asked Foster under cross-examination whether she believed RMC had the power to monitor businesses and require them to comply with conditions of county permits. He asked whether RMC’s own quarry holdings put it in “economic competition” with the two private companies seeking special permits, noting that the RMC had the power to put liens on those who don’t pay their assessments and even foreclose on them.
“We’re not monitoring their business. We’re monitoring our road system,” Foster responded.
And he hammered the witness to admit that the RMC intervened in the special permit application process in order to require Arrow to pay a special assessment to the RMC of $259,000 as a condition of the permit.
“It’s not to force Arrow to pay anything,” Foster responded. “He’s either going to pay or he’s not going to pay.”
David Rodrigues, who represented himself without an attorney, also resisted being monitored by the road corporation. He also asked why there are so many requirements for his company as a condition of getting back in business.
“Why are we being made to pave these roads when we’re not the only ones who use them?” asked Rodrigues.
The four-member Planning Commission panel will make a recommendation to the full six-member commission, which will then vote on the recommendation.