Hawai`i County Sends Violation Notices to Builder Over Construction at 2 Sites

posted in: January 2013 | 0

Over the last month, the County of Hawai`i Planning Department has taken several actions with respect to the projects of builder Scott Watson that were discussed in the December issue of Environment Hawai`i.

The ‘Pepe`ekeo Palace’

On November 29, Hawai`i County Planning Director B.J. Leithead-Todd issued a Notice of Violation and Order to Watson as a result of unauthorized work being done at the property in Pepe`ekeo where he is building what he describes as the “Pepe`ekeo Palace.”

The county inspector had visited the work site and found that the swimming pool was not being built in the location set forth on the approved plot plan. “The forms erected for the walls of the pool are located within the proposed tennis court that was considered a historic structure by the Department of Land and Natural Resources, State Historic Preservation Division,” Leithead-Todd wrote.

Further, although the Planning Department had allowed Watson to build up to 20 feet from the property line, describing it as a “side yard setback” (as opposed to the 40-foot setback set forth in conveyance documents to accommodate shoreline access), Watson’s construction encroached into even that minimal setback. The foundation for the dwelling was at 19 feet, the county inspector found. The “side yard open space requirement” of 14 feet was also breached. The so-called “grand lanai” extended three feet into the “side yard open space.”

“Furthermore,” Leithead-Todd wrote, “according to the construction documents, it shows an overhang projecting into the open space.”

The “shoreline setback requirement” of 50 feet was breached as well, with the “column of the southeast corner of the grand lanai” located just 28 feet from the shoreline.

Watson also appears to have altered the shoreline itself, defined as the top of the pali running along the makai side of the property. “The south side top of pali appeared to be altered by additional fill material and was newly landscaped with vegetation which appears to extend onto the adjacent property… This new fill and vegetation also covered one of the historic concrete foundations on the south boundary,” Leithead-Todd wrote.

Silt barriers were not in place, the construction work and temporary public access “may be encroaching onto the adjacent property,” and a four-foot-high fence around the pool was added “without a review or approval from the Planning Director.”

Watson was ordered to cease and desist all construction activities on the property and, by December 31, to, among other things:

  • Submit a detailed survey map of the property, including the locations of all structures (including historic foundations and remains), footings, foundations, septic location, and all other improvements in relation to the property boundaries as well as the “existing public access easement” and the “temporary public access easement;”
  • Relocate all structures to the agreed-upon setbacks;
  • Obtain approval from the State Historic Preservation Division for relocation of the pool and for placing fill material over another historic concrete structure;
  • “Obtain all appropriate authorizations and permits for all activity” on the private property located seaward of his lot;
  • Submit an application for a Special Management Area Assessment for “the unpermitted uses, activities, and operations” on both his own lot and the privately owned seaward property.

“In view of the above [violations] and the recurring disregard for the rules governing uses, activities, and operations within the SMA and the shoreline setback area, as demonstrated by being repeatedly cited for similar violations over the past 10 years, you are ordered to pay a combined civil fine of $20,000,” Leithead-Todd wrote.

The county appears to have been prompted to issue the violation notice, at least in part, by a letter from Theresa Donham, archaeology branch chief for the State Historic Preservation Division, an arm of the Department of Land and Natural Resources. Donham had written Leithead-Todd on November 20, stating that her agency had become aware that Watson was not in compliance “with the agreed-upon mitigation measures” to deal with the historic sites on the property.

“We therefore request that you issue a cease work order so that we can determine the extent of damage that has occurred to the preservation site and recommend revised mitigation measures,” she wrote. The Planning Department’s NOV and stop work order was issued nine days later.

The Stream Access

To get permits to build an enormous house in Pauka`a (now being marketed for $5.9 million), Watson agreed that the public would have access to Pauka`a Stream. The access is clearly described in plat maps. It is also appended to deed documents, where a metes-and-bounds description of the access to the stream is provided.

Yet, according to a source inside the Planning Department, the county administration is not so sure that the access is legitimate. In the mid-1980s, when the larger-lot subdivision was permitted, the County Council declined to accept the dedication of a trail to the stream, citing liability concerns. Now attorneys from the county’s Office of Corporation Counsel are advising that the easement is unenforceable, this source says.

A call to the county planning director was not returned by press time.

The Heliport

On December 6, Leithead-Todd issued a Notice of Violation and Order to Watson concerning the heliport he constructed atop his clifftop mansion in Ninole, on the Hamakua Coast about 20 miles north of Hilo.

The letter makes reference to a YouTube video in which Watson and others are seen flying helicopters to the house and landing them on the clearly marked rooftop heliport and the driveway. Under Hawai`i County Code, heliports are prohibited in the state Agriculture District unless a special permit is obtained.

Watson also is in violation of the county’s Special Management Area rules, because the application he filled out for the house “did not include a heliport.”

Watson was ordered to cease and desist any further operations of the heliport and to inform the department that he had stopped operating it by January 9. He was also fined $500 for operating the heliport in the Agriculture District and $10,000 for the SMA violations.

As before, he was instructed to make payment “only by cash, cashier’s check, or money order.”


We erroneously reported in our December issue that part of Scott Watson’s swimming pool and other improvements at Ninole may have encroached into the state Conservation District.

Under a declaratory ruling issued by the state Land Use Commission in 1999, the Conservation District boundary was shifted to the top of the cliff along the ocean boundary of Watson’s property. If Watson did any work to clear vegetation along the cliff or caused debris to be dumped into that area, Conservation District regulations would apply.

However, the pool and paved areas in the area of his land adjoining the cliff do appear to be in the state Agriculture District, under the 1999 LUC ruling.

— Patricia Tummons

Volume 23, Number 7 2013