Will the third time be the charm? That, apparently, is the hope of the owner of a lot in ‘Ewa Beach who is seeking approval for a seawall built more than 20 years ago. In 1985 and 1995, she applied for after-the-fact permits. Both applications were denied by the City and County of Honolulu, with the second denial appealed all the way to the Supreme Court, where the county’s decision was upheld in 2000.
Undaunted, Sandra Thompson has once more begun the application process, joined by neighbors Inge and James Higa, whose property also is defended by a similar seawall built around the same time – and whose court appeals fared no better.
The legal circumstances that led the Honolulu Department of Land Utilization to deny them permits a decade ago have not changed significantly. Conditions of the site do not appear to have altered, to judge from photographs and other documents in the environmental assessments prepared for the most recent applications.
Why, then, should the landowners expect any different outcome this time around?
In the Beginning
The seawalls were built in the 1980s, but both the Higas and Thompson have claimed they were built as a direct result of the actions of the City and County of Honolulu more than a decade earlier. In 1967, the city built a drainage channel that cut through the beach some 500 feet east of their lots. The box-type channel, which extended into the water 30 feet or more beyond the beach, effectively acted as a groin, which interfered with the natural movement of sand up and down ‘Ewa Beach.
Soon after the channel was built, owners of lots in the newly subdivided area began complaining that the beach on the Wai‘anae (west) side of the channel was eroding. By 1971, the Honolulu Department of Public Works had received the requisite permission from the Army Corps of Engineers to remove the last 30 feet of the channel.
More than a decade passed before the county got around to taking out the part of the channel protruding into the ocean. According to an October 1983 memo from H.J. Young, chief of the Engineering Division, to Yukio Uyehara, head of the county’s Division of Road Maintenance, two lawsuits had been filed against the city “pertaining to the beach erosion allegedly caused by the outlet; one has been settled, with the city paying damages, and the other is still undergoing litigation.”
“We believe another suit is imminent if the outlet is not removed,” he noted in the memo, which asked Uyehara to “program $30,000 into your budget for the demolition and removal of approximately 40 feet of the ‘Ewa Beach Drain outlet.” Permits could be ob tained by June of 1984, work begun in July, and the job completed within four weeks, he said. The demolition was actually carried out in early 1985.
By then, property owners had begun armoring their land with unpermitted seawalls up and down Parish Drive.
Frustrated Plans
The Higa seawall was built in 1982, one of the earliest along this stretch of ‘Ewa Beach. The Thompson seawall was one of the later ones, built in April 1985. Of the series of seawalls built during this period, these two are the only ones that have not been torn out or reconfigured to comply with the demands of the Department of Planning and Permitting or its predecessor agency, the Department of Land Utilization.
According to records at the DPP, in 1984, Sandra Thompson and her then-husband, Daniel, took the first steps toward obtaining permits to build a duplex on their Parish Drive property. Nine years earlier, they had subdivided their property, carving out a 7,500-square-foot parcel along Parish Drive where they built a house in the 1970s. The remaining flagpole lot covered more than 8,000 square feet at the time, large enough, the Thompsons believed, to allow them to built a duplex house, which they could then rent out, as many of the other landowners in the area had done.
In October 1984, the Thompsons had the shoreline fronting their lot certified – a process in which a private surveyor determines where the most landward reach of the beach is and submits that survey to the state. If the state surveyor confirms the work and the chairman of the state Board of Land and Natural Re sources indicates his concurrence by signing the survey, that so-called certified shoreline becomes a boundary for purposes of deter mining setbacks, the land area that can be used for building purposes, and the delineation between the beach, which lies in the state-regulated Conservation District, and county-regulated lands.
With the certified shoreline survey in hand, the Thompsons proceeded to apply for a variance from the shoreline setback of 40 feet, the next step in the permitting process for their planned duplex. Under Honolulu’s zoning regulations, construction of a duplex requires a minimum lot size of 7,500 square feet. After the certified shoreline, however, which showed the shoreline having retreated some 15 feet landward of where it had been located a decade earlier, the Thompson lot was left with a buildable area of 7,472 square feet. On April 12, 1985, John Whalen, at the time the director of the city’s Department of Land Utilization, informed the Thompsons that their request for a shoreline setback variance for the duplex was denied.
Only then did the Thompsons decide to build a seawall, installed some 10 feet makai of the shoreline certified six months earlier. Ac cording to testimony given to the DLU in 1996 by Ellen Thompson, Daniel’s wife (he had remarried since 1984), the seawall was built on April 23, 1985, just 11 days after Whalen had denied the shoreline setback variance for the duplex. Ellen Thompson claimed, however, that the seawall was built in response to a severe storm in December 1984, which “dev astated the seaward end of his property, destroying his (5) five 50-year-old palm trees.” Daniel Thompson, Ellen Thompson said, “was the fourth owner to do so [build a wall], putting his seawall in alignment with his neighbors’ walls on each side of him.”
Around this time, the stretch of seawalls in ‘Ewa Beach came to the attention of the Department of Land Utilization. The city’s Building Department, alerted by the DLU, began to issue notices of violation to the owners of properties where seawalls had been built. The Thompsons’ NOV was sent out April 30.
One month later, on May 30, Daniel and Sandra Thompson filed their application for an after-the-fact shoreline setback variance to allow the wall to be left in place. But the DLU suspended processing all shoreline setback vari ance applications that were coming in from ‘Ewa Beach. Among other things, the seawalls involved work in the state Conservation District and permitting them would require the involvement of the state Department of Land and Natural Resources.
On June 5, 1985, John Whalen, then the city director of Land Utilization, informed DLNR chief Susumo Ono of the Thompsons’ unper mitted seawall as well as “six or seven other seawalls … recently constructed in this area.” “We are concerned,” Whalen wrote, “that such seawalls will cause further beach erosion and will restrict public access along the shore line.”
The next month, Whalen wrote Ono again, informing him that the city had issued five notices of violation for seawalls “constructed without appropriate permits in the vicinity of Parish Drive, ‘Ewa Beach, O‘ahu.” In addi tion, Whalen wrote, his staff was also investigating a “potential” violation on the Higa property.
“Our investigation suggests that these walls were constructed seaward of the shoreline and, therefore, within the state Conservation District,” Whalen wrote. “The case involving parcel 9-1-7:14 [the Thompson property] was referred to your office when the owner sub mitted plans showing his seawall to have been constructed seaward of the shoreline, according to his own shoreline survey certified in October 1984.”
Whalen then expressed his concern that the Department of Land and Natural Re sources was not following proper procedures for certifying shorelines. “We are particularly concerned about these potential Conservation District violations because the owner of parcel 9-1-7:2 [two lots west of the Thompsons] recently submitted a request for a shoreline setback variance. The basis for his submittal is a state certified shoreline survey dated April 30, 1985, placing the shoreline on the makai face of the illegal seawall. We do not believe this is an accurate representation of the shore line prior to construction. Furthermore, we anticipate that the other cited property owners will also request shoreline setback variances for their walls.”
Round Two
Apparently, the state did not share the city’s alarm over the unauthorized work. Nothing in city or state files suggests that the Office of Conservation and Environmental Affairs (OCEA), the now-dismantled DLNR agency that processed Conservation District Use Applications at the time, followed up with investigations or enforcement actions against the ‘Ewa Beach lot owners whose wall foundations extended well into the Conservation District.
The city, however, continued its efforts to bring the lot owners into compliance. In 1992 and again in 1995, the notices of violation went out to owners of lots where unpermitted seawalls had been built. Most of the owners worked out compliance terms with the city, either by tearing out the seawalls or reconfiguring them.
In response to the 1995 notices, the Higas and the Thompsons applied for after-the-fact permits for their seawalls, making the claim of hardship and arguing that the erosion of their property was the result of the city’s drainage channel.
In 1996, the Department of Land Utilization issued its decision: both the Higas and the Thompsons would be allowed to have seawalls, but the existing ones would need to be torn out and the new walls relocated further back from the beach.
Owners of both lots requested reconsid eration of the DLU decisions, issued in the fall of 1996. The outcome was much the same. The after-the-fact applications for variances for the existing seawalls were denied, but owners on both lots would be allowed to build a new seawall along the crest of the natural dune, which the DLU staff determined to be well inland of the existing seawalls.
Within weeks, both the Thompsons and the Higas had appealed the DLU decision in First Circuit Court. Judge Kevin Chang up held the city’s decision in his ruling on both cases made on April 4, 1998. The county’s findings of fact, conclusions of law, and deci sion and order “are supported by reliable, probative, and substantial evidence,” Chang ruled. “The consideration and reconsideration decision by the director are not clearly erroneous… The Department of Land Utilization heard, weighed, and considered the evidence presented, and correctly applied the relevant statutory provisions.”
After a failed attempt at mediation with the DPP, the owners appealed to the Supreme Court. On February 1, 2000, the justices upheld the lower court’s ruling in both cases with one-sentence decisions.
Round Three
David Tanoue, deputy director of the Department of Planning and Permitting, says the city has made repeated demands for compliance, and fines are accumulating each day the walls remain in the ground. “They now run into the hundreds of thousands of dollars,” he told Environment Hawai‘i. (DPPrecords indicate the Higas and Thompsons owe more than $350,000 in fines each.)
Mike Friedel, with the DPP’s code compli ance branch, said that while the Higas and Thompsons appealed the decisions in the 1995 applications, the meter continued to run on daily fines, but the city suspended efforts to collect pending outcome of the appeal. After the Supreme Court decision, the city began issuing notices of violation again, but, Friedel said, the corporation counsel for the city de cided not to attach the fines to the real property taxes owed by the Thompsons and Higas. Instead, the city put a “block” on renewals of the parties’ vehicle registrations and driver licenses.
In two May 12 letters, Mary O’Leary, presi dent of Land Planning Consultants LLC, no tified the DPP that the Higas and Sandra Thompson, had hired her company to prepare shoreline setback variance applications for their seawalls. Based on their “continuous efforts to address the violations, it is respect fully requested that the DPP release any restrictions placed on the renewal of driver’s licenses and car registrations,” she wrote. The Higas and the Thompsons, she continued, were senior citizens who needed to drive to work and “attend to the necessities of life and routine medical attention.”
The Department of Planning and Permitting agreed to lift the block, but only after the department accepted the variance applica tions and the Higas and Thompsons paid $1,000 against the accumulated total fines on each property. A May 25 DPP letter to O’Leary explained that although additional fines would not be assessed while the applications are being processed, the existing fines are “due and owing.”
On June 17, the Higas paid the $1,000 and on September 9, Sandra Thompson paid $500 – her half of the assessment, Friedel said. Daniel Thompson refused to pay anything toward the fines, he added, and though Daniel Thompson remains co-owner of the property, it is Sandra Thompson alone whose name appears as applicant on the most recent environmental assessment.
Although neither permit application had been accepted as of mid-October, the DPP requested on June 22 that the Motor Vehicle, Licensing, and Permits Division remove the administrative attachment of the fines from James Higa’s driver’s license and vehicle registration.
In 2004, as the first step in reapplying for permits, the Higas and Sandra Thompson retained Tom Nance of Water Resource Engineering to study the seawalls. His analysis, all 14 pages of which are included in recent environmental assessments for the seawalls, concludes that removal of the walls would not only result in loss of 10 to 12 feet of property for the lot owners, but would exacerbate any erosion problems along “a 1,200-foot-long section of the shoreline, which includes 14 different properties.”
Following the Nance report, O’Leary prepared draft environmental assessments for the seawalls fronting the two parcels. On Septem ber 8, the state Office of Environmental Qual ity Control published a notice that the docu ments were available for public review, with the comment period expiring October 8. The city Department of Planning and Permitting opened files and began inter-agency review of the draft documents. Under the DPP’s regulations, however, no application can be accepted for processing until all the requirements of the environmental review process, set forth in Chapter 343 of Hawai‘i Revised Statutes, are satisfied. This is accomplished when the director of the department issues either a finding of no significant impact, in the case of environmental assessments, or accepts a full-on environmental impact statement.
The State Weighs In
The DLNR’s Office of Conservation and Coastal Lands, which now processes applications for work in the shoreline area as well as in the state Conservation District, commented on the draft environmental assessments on October 6.
In five single-spaced pages, replete with diagrams and footnotes, OCCL administrator Sam Lemmo tore into the overall discussion of the shoreline environment and in particular the Nance analysis of beach processes contained in the Thompson draft EA. His response to the Higa document was nearly as long.
“Contrary to the opinion stated in the DEA,” Lemmo wrote, “scientific evidence shows that seawalls (regardless of height) neither minimize reflection nor allow sand to be redeposited on the beach. All hardened vertical structures reflect more wave energy than the natural sandy beach faces they are placed upon.”
He took special exception to claims by Nance that removal of the seawalls would result in further erosion along ‘Ewa Beach. Far from protecting adjoining properties, Lemmo wrote, the Thompson and Higa seawalls are exacerbating losses: “The erosion of adjacent properties that have removed seawalls is a scientifically documented effect known as ‘end scour.’ The current walls are having a pronounced effect on both the neighboring properties and their own beaches.”
“Walls are documented to enhance beach erosion … while regarding beach recovery,” he continued. “This is in direct opposition to the statement that these structures are stabilizing the beach.”
In a not-so-subtle dig at Nance’s work, Lemmo wrote: “We would recommend that future site evaluations and technical reports … be prepared by coastal engineering or coastal geotechnical firms, as they are qualified to discuss substrate interactions and environmental processes within the coastal zone.”
“The Department questions the DEA finding that the seawall will have minimal long-term effect on the shoreline processes at the project site,” Lemmo wrote. “The purpose and function of the structure is to prohibit the landward erosion of the shyoreline, thus impacting the shoreline processes. If the structure did not impact the shoreline, there would be no need to build one in the first place.”
“Both city and state agencies have requested that the wall be removed,” he wrote. “We strongly advise removal of the current structure combined with sand renourishment of the coastal dune and beach… The cost of remedial shore protection is a significant problem for shore owners and government in [and] of itself, but the loss of beaches is an even greater concern.”
Lemmo’s remarks conclude with a recommendation that the finding of no significant impact, which the draft EAs anticipate will be issued by the city, should be rejected.
Catch-22?
In addition to fulfilling the requirements of the state environmental disclosure law, an other element in the application process must be satisfied before the Department of Plan ning and Permitting can move forward on any application for a seawall or other shoreline structure: a certified shoreline. And it remains to be seen how the Higas and Thompson can surmount this obstacle.
Regulations of the Department of Land and Natural Resources, which is ultimately responsible for certifying shoreline surveys, require that at the time application for certification is made, “If the shoreline is being located at the base of a manmade structure, a copy of all documents supporting that the structure has been approved by the appropri ate governmental agencies or is exempt from such approval.”
The draft environmental assessments show that in October 1995 and February 1996, the chairman of the Land Board certified surveys that placed the Higa and Thompson shore lines along the seaward face of the seawalls. However, shoreline certifications are valid for a period of no more than one year from the date they are certified.
In September, 2004, a contractor working for the Higas and Thompson submitted for certification another survey placing the shoreline once more at the face of the seawalls. This time, certification was refused. The two draft environmental assessments are silent on how the property owners intend to address the shoreline certification problem.
Yet another issue unaddressed in the environmental assessments is the fact that the footing of the seawalls, which protrude into the shoreline area, lie within the state Conservation District and require a Conservation District Use Permit. In 1996, the Higas had submitted an application for a CDUP with the DLNR. That application was the subject of much internal discussion at the department, with many of the concerns about how to proceed resulting from the fact that in 1986 and again in 1995, the Land Board chairman had certified surveys placing the shoreline along the face of the Higa seawall.
In a memo dated November 8, 1997, to then deputy attorney general Dawn Chang and state surveyor Randall Hashimoto, the administrator of the DLNR’s Land Division at the time – Dean Uchida – described two cases of seawalls that had been brought to his attention by the corporation counsel for the City and County of Honolulu. That office “wanted some information what position DLNR is taking in both these cases.” Uchida was seek ing advice on how the DLNR should respond.
With respect to the Higa seawall, Uchida noted that the footing for the seawall is in the Conservation District. “Based on this finding, the Higas were informed that they needed to get a Conservation District Use Application approved by DLNR for the footing of their existing seawall.” But, he continued, “Under the shoreline certification rules, how is the shoreline certified in situations like this where the footing … extends several feet makai of the exposed face of the structure? For revetments, the certification is to be at the toe of the slope of the revetment, [so] it would appear that we need to be consistent or the state will assume liability for the footing that is makai of the face of the seawall… If we find that the certified shoreline is at the face of the structure to include the toe of the seawall, then no CDUA is required.”
Uchida then outlined the history of the neighboring Thompson seawall, noting that in1984 they “constructed a seawall approximately … 17 [feet] mauka of the original deed boundary. At this point, there was a violation of the Conservation District and also an encroachment on what the state would claim as a public easement.”
“Complicating the problem,” he went on, “is that in 1986 and again in 1996, the state certified the shoreline at the face of the existing seawall. The effect of this action was to move the Conservation District boundary from the previous certification to the new certified shoreline at the face of the seawall. The rules prohibit us from certifying the shoreline if there is an encroachment on state lands.”
In the end, the Higa application was rejected. On February 10, 1998, Uchida in formed James Higa of the department’s posi tion that “the subject wall is entirely within the jurisdiction of the City and County of Honolulu, Department of Land Utilization. This would be revealed if the shoreline were recer tified at the toe of the subject seawall.”
Encroachments?
Finally, the environmental assessments are problematic in that they claim that the private property owned by the Higas and Thompsons extends well beyond the seawalls into the beach area. In 1977, the Hawai‘i Supreme Court held in In re Sanborn that land seaward of the shoreline belonged to the state and was not fixed by any metes-and-bounds description. “The ‘vegetation and debris line,’ found by the land court to reflect the upper annual reaches of the wash of waves, is the line that the land court should have determined to be the Sanborns’ beachfront title line,” the Supreme Court found. If the Sanborn decision applies to the Thompson and Higa parcels, then at the very least the footings of the seawalls occupy state land, for which an easement would need to be obtained.
In recent months, the DLNR’s Office of Conservation and Coastal Lands has launched a major public education campaign about the hazards of building in coastal areas and the need to respect natural beach processes. It has encouraged landowners wanting to defend their property against erosion to look at alternatives to seawalls, such as beach nourishment projects.
So what is the DLNR’s response to the apparent Conservation District violations and encroachment on state land represented by these seawalls?
Says Lemmo, “This won’t be an enforce ment issue for the DLNR.”
— Patricia Tummons
Volume 16, Number 5 November 2005