For years, developers and homeowners have been saddled with exorbitant costs – associated with any development that disturbed the earth – that Guam’s State Historic Preservation Office (SHPO) would demand from construction sites of really any size and scope.
The state archeologist is part of the SHPO, and often the SHPO’s clearance is needed on permits for construction or renovation on both public and private properties. If archeological work is needed in order for the SHPO’s clearance to be granted, the SHPO has demanded the private owner pay those costs.
More than two years ago, former Governor Carl Gutierrez wrote a column in The Guam Daily Post titled, “Dear SHPO: You ordered it, you pay for it.” The title encompasses his point.
Two years later, in the midst of typhoon recovery and preparation for Tumon’s welcome of tourists to Guam, Mr. Gutierrez, the head of Guam Visitors Bureau, ordered the cleanup of Tumon and repair to small facilities, including GVB’s main office above Governor Joseph Flores Memorial Park. That project led to a confrontation with the SHPO that has ended with a notice from the attorney general of Guam to SHPO’s mother agency, the Guam Department of Parks and Recreation for SHPO to stop certain of its practices that have historically held back development.
The buried electrical lines under GVB’s berm that set off chain reaction
In June, Mr. Gutierrez received clearance from the Guam Department of Public Works – the island’s development permitting agency – for contractors to disable electrical lines buried under a manmade berm, where GVB sits. The lines needed to be disabled because of the damage the typhoon caused to fixtures on the GVB property, which was built over a ponding basin three decades ago.
On July 19, while construction was ongoing, state archeologist John Joseph appeared personally at the site, and ordered the contractor to stop working under threat of fine and penalties.
“He did not cite any laws and demanded we stop our project for removing debris and land grading so the surrounding property can be safe for our residents and visitors,” Mr. Gutierrez wrote in a July 20 complaint to Attorney General Douglas Moylan.
“This unnecessary harassment and no due process cited, especially during an emergency situation, has delayed our efforts to complete our ongoing efforts,” Mr. Gutierrez wrote, adding that SHPO should have written procedures for its work; procedures it can cite and it can provide to the public.
Due process rights and threat of prosecution
The attorney general agreed with Mr. Gutierrez, and five days later, his civil division chief penned a letter to acting parks and recreation director Warren Pelletier that not only confirms GVB’s work should not have been interrupted, but also threatens prosecution of public officials who use the color of their authority to paint outside the limits of their duties at the expense of others.
Regarding the cease work order Mr. Joseph issued when he appeared on site, Deputy Attorney General D. Graham Botha wrote to Mr. Pelletier, “The law embodies due process protections and requires an application for judicial intervention. The [Guam] Code also addresses the rights of landowners and requires that your agency join with the Department of Land Management to affect any condemnation action.”
Mr. Botha also confirmed GVB’s work did not require a permit, as DPW has the sole authority to make such a determination. “The action of the Territorial Archaeologist does not have the approval of the Office of the Attorney General, is without legal foundation, lacks factual merit and goes beyond the statutory mandate in 21 GCA §76113,” Mr. Botha wrote.
The Office of the Attorney General pushed the issue even further in its letter to the DPR chief, expressing concern Mr. Joseph is using his office to stop development without having clear authority to do so.
“As the Chief Legal Officer of the Government of Guam, we are charged with not only ensuring Guam’s laws are followed, but that officials follow lawful process,” Mr. Botha wrote. “If Mr. Joseph commits any actions that arise to the level of a crime, i.e. harassment, this Office may be forced to exercise its responsibility as the public prosecutor since such actions fall outside the scope of a government official’s authority.”
“Part of a larger issue” attorney general looking into
On the same morning Mr. Gutierrez wrote to Mr. Moylan, the attorney general emailed his receipt of the complaint and added, “This is part of a larger issue our office is looking into.”
The island’s chief law enforcer did not elaborate further, however, several companies and homeowners over the years have complained about arbitrary enforcement of so-called rules never cited by the SHPO. That enforcement has cost developers thousands of dollars a piece per project, and sometimes more.
The irony of it all can be read in the July 1, 2021 column Mr. Gutierrez wrote in The Guam Daily Post, the one titled “Dear SHPO: You ordered it, you pay for it!”
“I hate to be so blunt, but it needs to be said,” Mr. Gutierrez began in that article he wrote more than two years before his run in with the SHPO. “If the Guam State Historic Preservation Office wants to know whatever ancient artifacts could be buried under residentsʼ private property, then the SHPO should shoulder the high cost of archaeological digs — not homebuilders!”
The former governor blamed the cost of the digs, as well as other permitting costs, as factors for driving up the rising costs of homeownership.
“Exorbitant home construction costs are pricing the middle class out of the homeownersʼ market,” Mr. Gutierrez wrote in 2021. In that piece, he pointed out the “over-stringent interpretation of regulations in an effort to err on the side of caution.” He argued that – after reviewing the permit application process at SHPO – there were “conflicting interpretations of existing statutes and frustrated developers.”
And, for now, whenever SHPO interprets something to mean you need to mitigate an archeological concern on your pending development, SHPO tells you to pay for it.
2 Comments
Thomas Hertslet
07/29/2023 at 3:39 PM
I must say that Mr. Gutierrez is very much correct. Over many decades historical finds have very much established the way of life of the original inhabitants of Guam. What true value is established when some human bones are found or some pottery pieces? We, the living, should be more concerned about our present situation than about some old bones or pottery pieces.
Still Here
08/01/2023 at 10:43 PM
Ya Whatever you say Thomas hertslet! Desecrate our ancestors and we should do the same to yours! Forget development! We never asked for development! So say again who cares about old bones? I do! You may not bc it ain’t your ancestors! But it’s stupid people like you who don’t even deserve to be on this island! Let alone breathe the same air as our ancestors who’s island you probably call home! Get lost MF!