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March 30, 2011

Letter of request from

resident Dave Moskowitz

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Aloha Council Member Kobayashi,

. . During 2010 you were the chair of the city Infrastructure Committee.  You were also a key mover and overseer, correct me if I’m wrong, in the passage of two far-reaching sidewalk laws:

These sidewalk provisions have impacts in the already congested and confused area of Waikiki, an area which appears to have a contentious history of property conveyances and surveying.  Yet even apart from that, many immediate issues arose during last year’s new sidewalk provisions that would be alarming to a young novice yet ignored or selectively applied by experienced city officials.

How is it, for instance, that you were aware of “Public Forum” (the right of the public to use the sidewalk for free speech) and you were able to integrate this Constitutional right into Bill 39 but ignored it in the design of the “Kalakaua Avenue Sidewalk Streetscape Project” which may totally and negatively impact street artists and public voices?

. . . .

Jon Van Dyke
You will remember Deputy Corporate Council Dawn Spurlin introduced Jon Van Dyke as legal council at the Public Infrastructure Committee on August 31, 2010 which you attended as Chair and he advised you about sidewalk issues in Waikiki, public rights, and specific matters about Bill 39.  He also refers to the metal strip on Kalakaua Avenue as “where the public/private line is”. But goes on to say that it is hard to see or not able to be found in places and hard to prove in certain circumstance.

. . . .

HPD Police executive
When a HPD senior Police office was called to Council Meeting, September 22, 2010 to provide truthful presentation on PUZ he said that enforcement of the new law such as warnings, citations and convictions of violators would depend on public knowledge of the boundaries and clear marking and signs.

Lori Nishimura
Mayor’s aide, Lori Nishimura, in her presentation to Waikiki Neighborhood Board, March 8, 2011, said the city had not measured the Waikiki sidewalks.  She said the city had purchased 250 sidewalk plaques to install along sidewalk to define the PUZ boundaries. Later, she told me that the city is afraid that some private property sits on public land. This is of major concern in the systematic erosion of public property and lands in Hawai`i to private holdings.


Q 1
Exactly where are the property lines in Waikiki?

Q 2
What is the true cost of the Pedestrian Use Zone project and the Kalakaua Avenue Sidewalk Streetscape project?

Q 3
What is the history, basis and implications of having a private property sidewalk easement in a commercial zone that is confused with conflicting aspects of being a public sidewalk subject to the rights of access and “Public Forum”, on one hand and that of private property rights subject to kupu and trespass on the other? 

Q 4
And with regard to the matter of public and private cost share of the sidewalk renovation project, in the case of Waikiki Shopping Plaza (the first to break dirt so far) I ask: If the taxpayer is paying for streetscape costs on the public side only, why is it that WSP is not paving up to the metal strip? If indeed the metal strip follows some legal property line, is the public expected to pay for work on the private property or any part of it?

Q 5
With regard to the same site, on the Seaside Avenue section why is WSP paving all the way to the curb and what affect does this have on public ownership and the “Public Forum”?

Q 6
As you know the joint streetscape project provides for some sidewalk sections to be laid with “specialty” tiles designed to differentiate between the general sidewalk “quartzite-look” and a grander sidewalk “foyer-look” leading into main private shop building entrances.  The specialty tile is ordered and chosen by private property owners. Further, in the case of Duty Free Galleria, Waikiki Shopping Plaza, and Waikiki Business Plaza the specialty tiles don’t stop at the metal strip, but go well beyond into the public side, in one case exceeding 17 ft wide by 40 feet long.  The questions arise: Assuming the metal strip is a legitimate boundary, is the encroachment of permanent private design on the public sidewalk legal, how would this affect others who want to do the same thing, and thirdly, at this point who is expecting to have to pay for those specialty tiling sections on the public side anyway?

Q 7
Has the physical and intellectual value of the public interest and ownership in the sidewalk been assessed and has such assessment been applied to agreements between city and private entities in the joint Kalakaua Avenue Sidewalk Project, where public benefits of the sidewalk have been eliminated, discouraged, confused, diminished or even changed because of the project while the design concurrently transferred or provided sidewalk property, benefits and value to private entities?

Q 8
Since the “Kalakaua Avenue Sidewalk Streetscape Project” is a joint venture and since the project is designed to install long curb side sections of the sidewalk with plantings which will block all public use, and these sections have been “Public Forum” used by street artists and public voices for two decades and since the planters will intrude from the curb 8 to 15 feet along the affected area of Kalakaua Avenue, AND since the Pedestrian Use Zone must comply with Americans with Disabilities Act (ADA) requiring some eight feet of sidewalk pedestrian throughway, AND the metal strip indicates a presumed private property line coming from the other direction, has sidewalk “replacement” been discussed or ensured so that ongoing  and equal Public Forum conditions apply for street artists and public voices and the project parties are not in violation of the First Amendment?   

Q 9
Were the street artists consulted in developing the Kalakaua Avenue Streetscape Project? If not, why not?

Q 10
In the case of Luxury Row, King Kalakaua Plaza, Royal Hawaiian Shopping Center, Waikiki Kuhio Beach Park, and Lewers Street (Beach Walk) and other places where private corporations have changed the sidewalk in the county, could you specifically show me the replacement sidewalk area on record and the language that protects those areas for Public Forum?  And why are those areas not marked in all places consistent with PUZ regulations?


As you know street artists suffer systemic city police, private security and property owner harassment regarding the apparent importance of this metal strip on Kalakaua Avenue.  It can result in crippling humiliation and loss: arrest, finger printing, jail time, loss of property, strip search and court appearances.  On the makai side (Royal Hawaiian Shopping Center) artists and free speech voices have for many years been threatened in such a way as to be forced off the sidewalk all together and held and detained illegally!!  This would imply that no replacement sidewalk is recognized there. The laws and hearsay rules are by no means unimportant to the welfare and benefit of the public.  Yet it seems the artists, providing lawful and visitor services are discriminated against, criminalized, harassed and dismissed as even being stakeholders in these fundamental engineering developments that impact them.

. . . .

Yours truly,

David Moskowitz

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