New & Noteworthy

Kaua`i Springs to Get High Court Hearing: The Hawai`i Supreme Court will hear the appeal of a Kaua`i water bottler from an Intermediate Court of Appeals decision last spring.

The lower court had ruled on April 30 that the Kaua`i County Planning Commission was within its rights when the commission found in 2006 that the operations of Kaua`i Springs in the state Agriculture District violated zoning laws.

The 5th Circuit Court found in favor of the bottling operation, owned by James Satterfield and family members. The ICA reversed that ruling and remanded the matter to the Planning Commission.

In late July, Kaua`i Springs appealed to the state Supreme Court, which on September 4, agreed to hear the case. Arguments before the high court are scheduled for November 21 at 11:15 a.m.

For more background to this case, see the cover article in the June 2013 edition of Environment Hawai`i.

A Setback on Setback Dispute: Hawai`i island developer Scott Watson, whose several projects along the Hamakua Coast have been the subject of articles in Environment Hawai`i over the last year, sued the county planning director and Planning Commission in May, challenging the setback that was imposed on a lot in Pepe`ekeo where he is building a large house.

The Special Management Area permit governing the subdivision that includes his lot established a building setback of 40 feet from the top of the sea cliff, or pali, that runs along the seaward edge of the subdivision. Steve Strauss, the lawyer for Watson and his co-owner, Hilo Project LLC, argued that state law forbade the counties from establishing setbacks greater than the 40-foot distance called out in the state’s Coastal Zone Management Act (Chapter 205A of Hawai`i Revised Statutes).

In August, Judge Glenn S. Hara of the 3rd Circuit Court rejected Strauss’ argument. “At the hearing on July 19, 2013,” Hara found, “both parties acknowledged that the SMA permit conditions became restrictive covenants burdening the subject property” at the time the permit was issued, in 2004.

“The approval letter [covering the permit] clearly states that if the conditions contained in the permit are not complied with, the permit may be revoked, and that successors and assigns of the subject property, including Plaintiffs, are bound by those conditions,” Hara wrote.

As to the argument that the setback of 40 feet from the top of the cliff imposed by the county violates the CZM Act, Hara wasn’t buying any of it: “It is apparent from a reading of the applicable statutes that a setback of greater than 40 feet from the ‘shoreline’ could be set during the subdivision application approval process. For example, HRS §205A-45(a) expressly grants counties the authority to alter the setback distance, stating that, ‘[t]he several counties through rules adopted pursuant to Chapter 91 or ordinance may require that shoreline setback lines be established at distances greater than that established in this part’ (emphasis added).”

Additional background to this case appears in an article published in the June 2013 issue of Environment Hawai`i.

In a separate but related development, Strauss executed an agreement with the Planning Department to resolve other problems that the department had noted in relation to work at the Pepe`ekeo site. Those included the construction of a swimming pool where plans had called for a tennis court, failure to install a silt fence at the construction site, and not having a final approved historic sites plan. Without admitting culpability, Watson paid a $500 fine to resolve all the disputes.

For more on problems at the site, see the articles in the December 2012 Environment Hawai`i.

Leave a Reply