Lawsuit raises stakes in pollution dispute between boat owners and Kakaako developer
A group of commercial boat operators located in Kewalo Basin Harbor sued Howard Hughes Corp. for allegedly violating state and federal laws by dumping construction debris laden with tiny metal particles from the developer’s massive condo construction sites in Kakaako.
The lawsuit, filed in the U.S. District Court in Honolulu, claims Howard Hughes’ projects – specifically the Waiea, Aalii and Koula condo towers – demonstrated the company enabled the discharge of ‘fleeting dust’ which damaged the plaintiffs’ boats and created risks to public health and the marine environment.
Lawyers for both sides are due to meet on Tuesday for a settlement conference that could determine whether the dispute escalates. Howard Hughes has yet to file a response to the lawsuit, filed in March with little fanfare, according to court records.
“The defendants were alerted to the noxious fugitive dust but failed to take appropriate or effective action to prevent the release of this fugitive dust,” the complaint states. “The defendants will continue to dump noxious fugitive dust into Kewalo unless they are permanently ordered to continue construction without taking appropriate and effective measures to prevent such fugitive dust.”
The lawsuit is part of a dispute that has been simmering for more than a year between the boat owners and Howard Hughes, the Texas-based developer who owns the Kakaako area known as neighborhood village. Howard Hughes also has a contract for manage the port of the Kewalo basin on behalf of the Hawaii Community Development Authority, a state entity that oversees development in Kakaako.
The plaintiffs include nearly a dozen boat owners, mostly small independent operators of sailing and fishing vessels – many of which cater to tourists as a sleeker alternative to classic sunset “booze cruises” – with names such as Nahoku II, Manu Kai, Aloha Kai and Sashimis II. Their main complaint is that the metal particles in Howard Hughes’ construction dust are causing severe rust and corrosion on their ships.
Applicants want howard hughes adopt practices that will prevent dust from its construction sites from escaping into the air, the ocean and their boats.
Through a spokeswoman, Ward Village released a statement saying it was already taking reasonable steps to prevent the release of fugitive dust.
“Ward Village is a good, dedicated neighbor and requires its contractors to take every reasonable precaution to minimize the amount of dust and debris surrounding construction projects,” the company said. “Ward Village works directly with the general contractors on each project to ensure best practices and preventative measures are employed.”
Nevertheless, the company said it has reached an agreement with many boat owners.
“Despite these efforts, owners of some vessels believe dust and debris from the projects caused damage during the COVID-19 pandemic, while most of these vessels remained moored in port,” the company said. . “Ward Village and its affiliates maintain insurance for these situations and, with the help of the carrier, have already resolved numerous disputes with owners that may support their claims.”
In recent years, Howard Hughes has transformed the beachfront neighborhood with new retail space and the development of five condo towers containing more than 2,100 units – mostly luxury properties often purchased as investments. The company has two other buildings, 565-unit Koula and 349-unit Victoria Place, under construction and two more in pre-development.
But for years, while construction is underway, boat owners have been complaining that dust from condo construction is creating a nuisance and damaging their property. The latest round of complaints began around July 2020, when boat owners complained about rust in Hawaii News Now. Boat owners continued to raise concerns through 2021, while Howard Hughes denied knowing anything about the problem.
Howard Hughes’ attorney, David Minkin of McCorriston Miller Mukai MacKinnon, did not return a call for comment. Francine Murray, spokeswoman for the Hawaii Community Development Authority, declined to comment. Andrew Porter, who represents the plaintiffs, declined to comment but highlighted the complaint.
Rusty sails, seat cushions
According to the document, Howard Hughes’ dust problems date back to 2016, when the company paid compensation to some shipowners in the port of Kewalo Basin during construction of the Waiea condo tower. The ongoing lawsuit focuses on projects that started with the Aalii Tower in 2020.
The dust that appeared on the boats linked to Aalii was different from normal dust in quantity, consistency and color, the complaint states. He alleges the dust caused rust to form on a wide variety of non-metallic items, including sails and seat cushions. The plaintiffs allege that they complained to the harbor master and Howard Hughes, to no avail.
At the heart of the complaint are allegations that dust from Howard Hughes not only damages the plaintiffs’ boats, but also causes “negative effects on their health by breathing in fugitive dust containing metal particles and other harmful substances. that now permeate the air in the Kaka’ako. neighborhood, Kewalo and nearby beach parks due to the construction activities of the defendants. »
Concerns have also been raised about negative environmental impacts.
“Fugitive dust containing metal particles and other harmful substances that falls on ships also falls into Kewalo waters and likely contaminates waters off nearby beach parks, causing damage to Hawaii’s fragile coral reefs. and the ecosystems and species that depend on them. them,” the suit says. “Many protected and endangered species are likely to be affected, including whales, monk seals and turtles, as well as valuable species of corals, fish, dolphins, etc.”
Additionally, the lawsuit highlights an aspect of the dispute that plaintiffs say has made it difficult for more boat owners to come forward. While Howard Hughes’ role as port manager imposes a legal duty to protect boat owners who are tenants, boat owners fear Howard Hughes will punish them for speaking out, the complaint says.
“Due to the dual authority of Howard Hughes Corporation as the parent company in the construction of Ward Village and managing Kewalo Port, many slip tenants in Kewalo Port feared to speak out and take action against the Howard Hughes Corporation lest they lose their slip leases in retaliation – a move that would shut down completely plaintiffs’ businesses,” the complaint says.
The lawsuit goes beyond standard nuisance and trespassing allegations involving the dumping of material on private property. The complaint alleges that Howard Hughes also violated the federal Clean Air Act, which includes a special “citizen suit” provision that allows private citizens to step into the role of the Environmental Protection Agency. environment and law enforcement.
To boat owners like Richie Maddaloni, partner of the Royal Hawaiian Catamaran company, a civil party to the trial, the stakes go beyond its narrow commercial interests. He says he and his partners spent a lot of time and money restoring the vintage 52ft catamaran designed in 1968 by Rudy Choy. They also survived the worst of the coronavirus pandemic.
Now, he said, the partners face the added burden and loss of business that comes with having to repaint the vessel to mitigate the rust damage.
Maddaloni wonders how many of his residential neighbors, who often pay top dollar to live in Tony Kakaako, know what Howard Hughes puts in the air and in the water.
“They get industrial air quality at a premium price,” he said.
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