Caren Diamond halts her trek along the shore and peers through dense thickets of naupaka and heliotrope to a man working in his backyard. She warns that if he sees us walk past, he might say some nasty things about her.
Sure enough, he sees us, and he does.
“I hope you don’t believe everything she tells you,” Gary Fischer bellows as he marches toward us. He goes on to describe Diamond as a madwoman whom he’s caught yanking up plants from the beach fronting his house.
For decades, Diamond, a longtime resident of Kaua`i’s North Shore, together with attorney Harold Bronstein, have been the most stalwart protectors of public access along the beaches at Wainiha and Ha`ena, where owners of multimillion-dollar houses have planted and artificially enhanced and maintained salt-tolerant vegetation below the shoreline to extend their lots and keep the public away. The result has been that houses have been built too close to the ocean, and during high tides or high surf the public cannot safely walk along the shore. Even when the tide is low, the countless “Kapu” and “Keep Out” signs posted in and around the plantings make members of the public feel like interlopers on their own beach.
Over the past several years, Diamond and Bronstein have together successfully fought the shoreline certifications of a number of these lots and are currently awaiting a decision by the Hawai`i Supreme Court in another. (More about that appears elsewhere in this issue.) They’ve garnered a lot of resentment, as well as fans, for their efforts.
Diamond says she rarely walks the beach now — it’s too depressing and she doesn’t want to deal with the hostility from some of her more rabid foes. But last month, Diamond took <i>Environment Hawai`i</i> on a tour of the beach in front of some of those lots, including Fischer’s.
While Fischer admits he did plant a hedge at his lot’s edge, he points out that the county told him to do it. Diamond confirms that the county used to advise such plantings, but says it doesn’t anymore.
As for the naupaka and heliotrope sprouts scattered across the beach in front of his hedge, Fischer suggests those germinated with no help from him. Going from one inch-high sprout to another, he asks incredulously, “Did I plant this? Did I plant this?”
On a different part of the same shoreline, Diamond shows how, planted or not, heliotrope trees have been cut so that they sprawl seaward, gobbling up the beach. When left alone, the trees normally grow straight up and then branch out.
“They’ve got it down to a science,” she says of the handful of landscapers who are responsible for many of the naupaka-heliotrope hedges in Wainiha and Ha`ena, which are often dozens of feet thick and several feet high.
But that may be a problem of the past. On June 18, Gov. Neil Abercrombie signed Act 120, which forces the state Department of Land and Natural Resources to require property owners to “ensure that beach transit corridors abutting their lands shall be kept passable and free from the landowner’s human-induced, enhanced or unmaintained vegetation that interferes or encroaches in the beach transit corridors.”
Act 120 makes Act 160 of the 2010 Legislature permanent.
Act 160, introduced by former Rep. Mina Morita of Kaua`i, not only established a beach transit corridor that must be kept clear of artificially induced or enhanced vegetation, it also allowed the DLNR to pursue criminal charges and fines against landowners who failed to remove encroaching vegetation within 21 days of a department notice to do so.
Years before, the DLNR’s Office of Conservation and Coastal Land asked about a dozen beachfront property owners in Kahala, O`ahu — which has the same problem that Wainiha and Ha`ena have — to voluntarily remove vegetation that was impeding public access. Only two did.
“The purpose of this measure is to make it explicit that the public has a right to transit along the shoreline and that the Department of Land and Natural Resources shall maintain access within the beach transit corridor,” Morita wrote on her blog in April 2010 shortly after the Legislature had overwhelmingly approved the bill that became Act 160. (Full disclosure: Morita sits on the board of Environment Hawai`i.)
Since then, the DLNR has been successful in getting more than two dozen landowners across the state to remove encroaching vegetation. As of January, it had pursued 44 cases, more than half of which were located on the south shore of O`ahu (which includes Kahala). The rest were in West and South Maui, West Hawai`i, and Wainiha.
The DLNR had opened only three cases on Kaua`i as of January, but the island may soon see a jump in enforcement cases, according to DLNR representatives. One of those three cases has already been resolved.
On March 1, state land surveyor Reid Siarot informed Peter Taylor, a surveyor for Wainiha property owner Robert Rucker, that before the state Department of Accounting and General Services could certify Taylor’s proposed shoreline, Hawai`i Administrative Rule 13-222-19 required the “shoreline encroachment into the beach transit corridor be resolved by removing the vegetation seaward of the shoreline.”
In the past, the state has used HAR 13-222-19 to require landowners to remove or obtain easements for structural shoreline encroachments only. But after the passage of Act 160, the DLNR began applying the rule to vegetation, Siarot says.
Rucker responded quickly, removing by mid-April a hedge that was about a dozen feet deep. (Whether or not the area will stay open remains to be seen. A sprinkler and buried irrigation lines were visible at the corner edge of the cleared area last month.)
Since Rucker’s case, however, the DLNR has decided not to use the DAGS shoreline certification process to implement Act 160. Instead, the OCCL will take the lead, Siarot says.
“The shoreline certification rules have to be followed and vegetation alone is not a justification to reject a certification application,” according to OCCL administrator Sam Lemmo. “However, if our shoreline specialist [who accompanies DAGS on shoreline certification site visits] notices a case of vegetation interfering with beach transiting or egregious examples of vegetation growing out on the beach when he is out in the field, he reports them to OCCL for appropriate follow-up.”
DLNR director William Aila testified to the Legislature on March 28 that his department had recently surveyed 80 properties on Kaua`i’s North Shore and would be issuing notices to several landowners that appear to have induced vegetation onto the public beach.
In addition to the DLNR’s efforts, the Kaua`i Planning Commission has also taken Act 160 seriously. In its January 2012 design approval for a Wainiha property owned by California’s Gan Eden, LLC, the commission included a condition that the company apply for a right-of-entry from the DLNR to allow vegetation clearing seaward of the shoreline fronting the lot.
This past May, the DLNR’s Land Division finally brought matter to the Board of Land and Natural Resources, which unanimously approved a right-of-entry to clear 3,750 square feet of vegetation “to expand the sandy portion of the beach area for use by the public.” The board also authorized its chair to issue future rights of entry to maintain the cleared area.
Despite its success and Aila’s suggestion that his department would soon be sending notices to Kaua`i landowners with induced vegetation, Act 160 actually had a sunset date of June 30. So this past session, the administration introduced Senate Bill 1162 and House Bill 931, which proposed making the provisions of Act 160 permanent. In addition, several of the legislators who had joined Morita (now head of the state Public Utilities Commission) in sponsoring Act 160 introduced House Bill 17, which extended the sunset date for just two years.
“If this were a public road or sidewalk, a neighboring landowner would be required to keep his landscaping from encroaching upon the public road/sidewalk. Similarly, the public needs landowners to maintain their landscaping to keep the ‘beach transit corridor’ safely passable. It is a reasonable requirement that should be enforceable,” wrote Big Island resident Deborah Chang in testimony on House Bill 17, which is now Act 120. (Chang also is a member of the Environment Hawai`i board.)
Dozens of residents from coastal areas across the state, as well as the state Office of Planning, the Office of Hawaiian Affairs, the Chamber of Commerce of Hawai`i, and the DLNR, among others, testified in support of the bill, which proceeded to advance, while the administration’s bills stalled.
In her testimony, Morita added that Act 160 has been “the only successful tool in dealing with abuses by abutting landowners who deliberately cultivate salt-tolerant vegetation to manipulate the shoreline and block lateral access.”
DLNR’s Aila added that the Act has been a deterrent to those who might be thinking of inducing seaward growth of their vegetation.
The strongest opposition to HB 17 came from the Land Use Research Foundation (LURF), a non-profit research and trade association that represents some of the state’s largest landowners and developers.
LURF director David Arakawa testified that the DLNR should first provide a report on the implementation of Act 160 so the public can evaluate whether it should be made permanent. He also asked that all pre-Act 160 agreements between private property owners and the state that require the state to maintain shoreline areas not be affected should HB 17 become law. Such agreements currently apply to a number of Waikiki hotels and properties along state Na Ala Hele shoreline trails.
Furthermore, “LURF maintains the belief that landowners who live along the shoreline have important property rights, as well as the legal right not to be prosecuted by the state or to be charged fees for non-performance of maintenance obligations which should properly be performed by the state,” he wrote.
“The casting off of state maintenance responsibilities onto private landowners will result in landowner liability issues which will require state funding for the legal defense, indemnification, and payment of damages for personal injury claims and lawsuits,” he continued.
To the Hawai`i Association of Realtors, the bills would require landowners to clear naturally occurring but “unmaintained” vegetation along the shore. (Chang, however, argued that the act only required the clearing of unmaintained vegetation that had been artificially induced or planted.)
In the end, although the administration’s bills were not passed, the Legislature did approve HB17, which had been amended to make Act 160 permanent and clarify that it “shall not be construed to modify or alter any agreement of the [DLNR] that was in effect or executed on the effective date of this Act.”
Only four legislators voted against the bill, which also prohibits the intentional taking of sand, coral, and rock from beaches.
Because the bill was amended so that it doesn’t affect existing agreements, LURF’s Arakawa says he’s happy with Act 120 as it is. He qualifies that, though, by saying he would have liked the DLNR’s January report on enforcement activities to have been posted somewhere the public could easily find. He says he also would have liked further clarification on how penalties would be pursued and more public outreach.
“When people sell real estate for shoreline [properties] … I’m not sure whether this kind of stuff is disclosed,” he says, adding that extending the sunset date, rather than making the law permanent, would have given the DLNR time to work with real estate agents on disclosure language.
On Kaua`i, at least, landowners have had a chance to talk with the OCCL during its recent survey of the North Shore.
The OCCL’s Lemmo stated in an email that his office is “definitely doing enforcement,” but declined further comment because “it is an open potential violation proceeding.”
“We hope enforcement of Act 120 will stop the loss of public shore,” Diamond says.
No doubt Diamond is eagerly awaiting the fruits of the OCCL’s efforts, which may one day restore the beach enough to entice her to resume her regular beach walks — for pleasure, not as an enforcer.
As Morita said three years ago in her blog, “[H]opefully, with this more explicit language in statute, people like Caren Diamond and Harold Bronstein who have been guardians of the shoreline fighting in court these kinds of abusive planting and cultivating practices can get … much deserved rest from this battle.”