Board Talk: Illegal Subdivision of Conservation District Halts Puna Couple's Effort to Build a Home

posted in: Board Talk, December 2012 | 0

“They should have told us a long time ago,” Maureen Gapp said through tears after the vote of the Board of Land and Natural Resources to deny her a Conservation District Use Permit.

The Department of Land and Natural Resources’ Office of Conservation and Coastal Lands had recently determined that the 5.5-acre property in Puna she and her husband, John, own is not a valid lot. At their November 9 meeting, Land Board members said they needed more time to determine whether the issue could be resolved. But because the 180-day deadline within which the board was required to act on the Gapps’ Conservation District Use Application was quickly approaching, the board had little choice but to deny it. Otherwise, their application for a permit to build a single-family residence would have been automatically approved without any special conditions.

As the Land Board had anticipated — and recommended — the Gapps requested a contested case hearing.

In 1999, a previous landowner consolidated two lots — one in the Agricultural District and one with land in both the Conservation and Agricultural districts — then subdivided them so that each of the resulting two lots included land in the Conservation District.

The county approved the subdivision, but Hawai`i Administrative Rules require subdivisions of Conservation District land to be undertaken for a public purpose and approved by the Land Board.

“In this particular case, the County-approved subdivision outcome is not an identified land use that could be applied for within the Conservation District,” an Office of Conservation and Coastal Land report states.

Maureen Gapp said she told Department of Land and Natural Resources staff in 2003 that her property had been subdivided. (At that time, the DLNR was pursuing an enforcement case against the Gapps for unauthorized grading and grubbing, tree cutting, and rock removal. The case ultimately resulted in a $6,000 fine.) Even so, the OCCL accepted the Gapps’ CDUA this past May and eventually issued a Finding of No Significant Impact on their environmental assessment, albeit with reservations.

During the EA process, the OCCL had suggested that the Gapps site their house in the Agriculture District. But because that portion of the lot is riddled with archaeological sites that need to be preserved, the Gapps stuck with their plan to build in to Conservation District, about 200 feet from the shoreline. The OCCL argues that if the Gapps were to shrink the size of their house, there would be ample room in the Agriculture District for it.

“I can see impact both ways. We have a practice of avoiding Conservation District uses if they can be” avoided, OCCL administrator Sam Lemmo told the board. “I just don’t see compelling reasons to go into the Conservation District. No net gain in preservation.”

The area where the Gapps plan to build is also highly susceptible to subsidence and wave damage.

“Currently, a nearby landowner south of this proposed site is working with the OCCL to relocate his residence as far away from the Maku`u shoreline within his lot as possible. This nearby residence was recently repaired due to wave damage,” the OCCL’s report to the board states.

Maureen Gapp said she had spent $65,000 on permits for her house. “Before we spent [it], they could have told us, ‘That’s not really a lot,’ ” she said.

After an executive session, Big Island Land Board member Rob Pacheco said the subdivision issue a serious legal problem, “and we don’t have the answer.”

Because the deadline to decide on the permit application was only days away, Lemmo recommended that the Gapps either withdraw their application and re-file later, or that the Land Board deny it and they could seek a contested case hearing.

Deputy attorney general Linda Chow noted that a contested case hearing is cheaper. It costs just $100 to file a petition and that fee can be waived. It costs $2,500 to file a new CDUA, no exceptions.

Chow and Lemmo added that should the board grant a contested case hearing, the board would not need to hire a hearing officer. It could mediate a settlement.

The board went round and round trying to choose the best way forward; Pacheco said his head hurt. Chow warned the board that if it did approve the permit and it turns out that the approval was illegal because the subdivision was illegal, the Gapps end up receiving a CDUP anyway, but without any special conditions.

“We need time to resolve the subdivision issue. … A contested case hearing seems like our only way forward at this point,” Land Board chair William Aila said.

At-large board member Sam Gon, however, moved to approve the permit on the condition that the subdivision issue be resolved and the resulting conditions be set by the OCCL and the board’s chair. But after Chow warned Gon that the issue may not be resolvable, he withdrew his motion.

Pacheco then moved to approve OCCL’s recommendation to deny the permit. He added that if the Gapps requested a contested case hearing, the fee should be waived. His motion was unanimously approved.

“Sorry, folks,” he told the Gapps after the vote.

***

Former Board Chair Opposes Easement Enforcement Cases

Former Land Board chair Peter Young appears before the board from time to time as a consultant to companies or landowners seeking its approval. But on October 26, Young was simply a member of the public when he testified at length on a request by the DLNR’s Land Division to grant a non-exclusive easement to the Puamana Community Association for five “illegal” shoreline encroachments in Lahaina and to assess a $500 fine and $940 in administrative costs.

The association is seeking a shoreline certification so that it can repair a wall of a swimming pool that was built in the 1930s. The association’s representative, Mark Roy, did not oppose the recommendation to grant an easement for 1,895 square feet for a seawall, a groin, and some footings. He also did not object to the proposed fines.

Young, however, had a problem with the whole thing.

“I’m not hired by anyone to work on this. I do believe there should be some amendments incorporated,” he said.

His main concern was the DLNR’s policy of penalizing landowners for encroachments on state land resulting from beach erosion. The fines and often expensive easements arising from these situations are unintended consequences of a Land Board policy against shoreline hardening that he helped enforce.

In 1999, the Land Board adopted COEMAP (Coastal Erosion Management Plan), which strongly recommended minimizing and, if possible, prohibit shoreline hardening. Since then, the Land Division has brought several cases to the Land Board where erosion has caused once-private shoreline structures to sit on state land. In nearly all of those cases, the board imposes a fine, usually around $500, and requires the landowner to obtain an easement for the structures or to remove them. In some of those cases, the seawall easements have cost hundreds of thousands of dollars.

“In this particular case and others in the future, we have landowners following the policy [to not harden the shoreline], but are suffering consequences because of it,” Young told the board.

At Puamana, a swimming pool was built in the 1930s that was surrounded by land. Today, it’s at the ocean’s edge.

“If you look at staff submittal, the swimming pool looks like a natatorium,” Young said.

Under state law, if the shoreline moves inland, so do property lines. As a result, landowners are now having to pay the DLNR “for land they already own. … They paid for that some time before,” Young argued.

“We need to recognize, these things aren’t encroachments,” he said.

Young supported the creation of easements (at no or nominal rent), but not the fines. If structures become exposed due to natural processes, is it fair to have landowners pay a fine? he asked.

“Given what we see in the erosion maps and elsewhere, it’s one of those things that’s not going to go away,” Land Board member Sam Gon said. He acknowledged recommendations by some to work toward a planned retreat from the sea.

Managers are now better able to predict how erosion will affect certain areas. “We didn’t have these tools before. … we certainly do now,” Gon said.

But given the current rules and policies, “you have these strange situations that you’ve outlined for us,” he told Young. “It’s bothered me every single time, that a person who’s lived on a property … through no malice or intent to violate. … is faced with these kinds of things.”

Land Board chair William Aila said the DLNR recognizes Young’s arguments, but according to the law, the structures are, indeed, encroachments. However, he added, in the next legislative session, the DLNR will propose legislation that will allow the Land Board to impose nominal fee easements for structures that were originally built far from the shoreline.

“That’s the answer,” Young said. “The next answer related to this is changing what you call it. … One might argue that the ocean encroached on their land and took it away.”

He added that enacting the legislation may take a couple of years and asked the Land Board to defer the rent for the Lahaina easement until at least 2013.

“This is a consequence of COEMAP. My fingerprints are on that one. So let’s find a way … of trying to change the law,” he said.

With regard to the Lahaina case, at-large member David Goode asked Roy, the association’s representative, whether it had considered providing a new pool farther inland.

“There are limitations looking at that scenario. The structure is really a valuable historic asset. … there’s a lot of emotional attachment,” Roy replied.

Gon said he understood the historical significance. “It still flies in the face of a planned retreat from the sea. … It’s the kind of thing you can anticipate will have problems in the future,” since erosion maps indicate that the area will continue to see accelerated erosion, he said.

Landowners need to recognize that the power of the sea and natural processes, he said.

Maui Land Board member Jerry Edlao said that the board must proceed based on the current interpretation of the law and moved to approve the Land Division’s recommendations as submitted.

Gon asked to soften the language in the recommendation.

“Being fined for illegal encroachments puts a negative mark on the landowner. … When Peter says maybe we can call it something different, maybe we can sympathize with that.”

O`ahu board member John Morgan agreed.

“Why don’t we just take out the word ‘illegal’? Just say ‘encroachment,’” Land Division administrator Russell Tsuji suggested.

The board then unanimously approved Edlao’s motion with the amended language.

***

Board Declares Open Season on Big Island Axis Deer

The state Division of Forestry and Wildlife is charged with two seemingly opposing mandates: protect forests from destructive ungulates and, at the same time, manage those ungulates as game mammals.

But on October 26, DOFAW made a strong case for why axis deer on the island of Hawai`i must be eradicated. And on its recommendation, the Land Board declared that the deer on the island were destructive to agriculture and native plants and wildlife, and authorized the killing of axis deer — without a permit — until October 25, 2017.

The deer run wild on Maui and Moloka`i, where they were first introduced from southeast Asia in the 1860s. The DLNR considered introducing them to Hawai`i island in the 1970s to enhance hunting opportunities, but after strong protests from the conservation community, it backed off the plan. Such an introduction would “result in unacceptable levels of damage to natural resources, including economic damage to local farmers,” a DOFAW report to the Land Board states.

In recent years, however, hunting enthusiasts have surreptitiously and illegally transported deer on Maui to the Big Island. DOFAW estimates that fewer than 100 of them now roam the Big Island. Division staff had shot and killed three of the deer as of late October.

The deer reproduce rapidly, at an estimated a rate of 30 percent a year, the DOFAW report states. Their hooves disturb soils, contributing to erosion. Their feces on agricultural lands threaten public health. And they are voracious, eating everything from forest plants, to cattle feed, to crops.

“Maui County has estimated the two-year cost of damage by axis deer to farms, ranches, and resorts in Maui County at over $2 million. Over that same two-year period, an additional $1 million was spent to remove deer from farm, ranch, and resort locations. Based on the proportional loss of agricultural product on Maui, the University of Hawai`i estimates the potential impact to agriculture on Hawai`i Island at over $8 million annually,” DOFAW states.

A Land Board declaration that the animals are pests on the island and may be destroyed without a permit eliminates the need for DOFAW to amend its hunting rules, agency administrator Paul Conry told the board at its October 26 meeting.

“This is a move to continue our efforts to totally remove axis deer on the Big Island,” he said.

When asked by Big Island Land Board member Rob Pacheco why the division was only seeking five years of unfettered axis deer eradication, Conry said that the department’s rules require a time limit.

“I love the fact that they’re being declared a pest. That’s not the case on any other island,” said at-large board member Sam Gon.

Conry admitted that people have asked why the same action isn’t being taken on any of the other islands. He said only that on Moloka`i, at least, “we have sustained hunting.” He added that on Maui and Moloka`i, there are no bag or season limits on axis deer.

Land Board chair William Aila noted that his office had received a number of testimonies supporting birth control over the killing of deer.

“It’s not practical,” Conry said, adding that the same suggestion has been made for controlling feral cats.

“Even if you spay them, they’re still there for how many years … continuing to contribute to degradation,” Conry said.

***

Board Grants Chair Power to Close State Parks

“Is it right to take this public policy forum and give it to an individual? … Sometimes there’s wisdom in numbers,” said Geoff Hand, a kayak tour operator at Kealakekua Bay on the island of Hawai`i.

At the Land Board’s November 9 meeting, the DLNR’s Division of State Parks asked the board to delegate its authority to the chairperson to establish visiting hours and to “close or restrict public use of all or portions of any state park when necessary for the protection of the area and/or the safety and welfare of persons or property.”

In 2006, the board delegated its authority to the chair to establish park hours, which would allow a chairperson to close an entire park by setting no hours. A chairperson could not, however, close a portion of a park.

Although the public notice on the item didn’t name any particular park that would be targeted, a few kayak tour operators from Kealakekua Bay seemed to believe the expanded authority would be used to close at least some part of Kealakekua Bay State Park.

One month earlier, the Land Board cancelled an executive order giving jurisdiction of the underwater portion of Kealakekua Bay to the DLNR’s Division of Boating and Ocean Recreation. That area was then assigned to State Parks.

The purpose was to have the entire bay under one jurisdiction, Aila said at the November meeting. State Parks administrator Dan Quinn added that it was an attempt to regulate kayak activities.

Big Island Land Board member Robert Pacheco asked board chair William Aila whether the DLNR was looking at a limited closure at Kealakekua.

“We’re looking to close, beyond hours, to close sections of the park. … We’re looking for added flexibility … to address concerns at Kealakekua or other state properties,” Aila said.

Hand said it wasn’t clear why the chairperson’s authority needed extending. “There’s nothing to justify it,” he said. “There could be abuses under this.”

Pacheco was ambivalent about the request.

Aila said that less than a year ago, he was asked to visit Kealakekua Bay to address a wide range of issues, including extortion, drug dealing, illegal kayaking, and dolphin harassment, among other things.

“This would address all of that at one time,” Aila argued.

After an executive session, Pacheco voted with the rest of the board to approve the delegation, with the understanding that Aila would brief the board on a management plan for Kealakekua Bay within the next month or so.

Teresa Dawson

Volume 23, Number 6 — December 2012

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