Ensuring public shoreline access has never been an easy task in Hawai`i. Almost always, it involves the state or county government acquiring easements across private property as a condition of development.
Take the case of a subdivision in Pepe`ekeo, a community on the Hamakua coast of the Big Island, about 10 miles north of Hilo. The land, once part of a vast sugar plantation, was purchased about a decade ago by a mainland entity, Continental Pacific, and subdivided into small agricultural lots. As a condition of subdivision approval, the company surrendered an extensive system of easements for public pedestrian access to and along the shoreline.
But though the public’s right to get to and follow the coast would seem to be as ironclad as any language can make it, in practice, the armor appears to be rusting away.
The Map Is Wrong!
At least that is the case at a 1.81-acre lot that sits right at the entrance of a gated shoreline subdivision. The lot has been owned since 2009 by Big Island resident Scott R. Watson and an LLC called Hilo Project whose sole member is a San Jose attorney, Gary L. Olimpia.
The deed to the property clearly states that it is subject to not just one but two public access easements. The first, described on conveyance documents that memorialize the subdivision conditions as Easement 6, allows the public to park on roughly a quarter-acre of the lot – the westernmost portion of the property that extends beyond the fence, wall, and vehicular-access gate that mark the start of the gated development. The second, Easement P-14-A, provides for lateral pedestrian public access along the shoreward boundary of Watson’s lot, with the total area of the pedestrian easement coming to roughly three-quarters of an acre. In other words, the area of Watson’s and Olimpia’s land that is not burdened with access easements is less than the area over which the public has been granted unimpeded access.
Because of the existence of foundations of structures dating back to the time when the old Pepe`ekeo sugar mill was in operation, the pedestrian easement on Watson’s lot first meanders inland along the private roadway to the northern boundary of his lot, then switches back toward the shore, hugging the top of a small precipice along the makai limit of the lot until it runs into the neighboring property to the north.
And if the maps that accompany the grant of easement are not clear enough, there’s also a formal metes-and-bounds description of them.
In October, Environment Hawai`i heard reports that access had been either denied or rerouted at the site by Watson, who is in the process of building what he calls the “Pepe`ekeo Palace” on the property – a two-story, 7,200-square-foot house with a large swimming pool and tennis court. Two visits to the site confirmed the reports.
Piles of earth, excavated from the worksite, had been placed in front of the only opening in the wooden fence leading from the public parking area into the subdivision. While it was possible to walk around the piles, an effort to follow the map of the easement was frustrated by Watson himself, who informed Environment Hawai`i that he had received written permission from the Hawai`i County Planning Department to relocate the lateral shoreline easement to the northern side of his property for at least two years.
But a boundary map that Watson himself had given to the Planning Department indicated that the new easement Watson was offering was not on land he owned, thereby making anyone who used it a trespasser over land owned by Continental Pacific.
Watson continued to insist, however, that the land did belong to him under a proposed parcel consolidation and resubdivision with Continental Pacific that was in the process of being approved at the county. The original property lines were drawn incorrectly, he said, so even though the PC&R was still not completed, he was nevertheless owner of the land that would be included on the final map, when all was put right.
In addition to the redrawn northern boundary, Watson also claimed to own land up to 20 feet of the paved private road, although, again, tax maps and the metes-and-bounds description of the property in his deed do not support this.
The encounter ended with the visitor being directed to an unmarked path Watson had mowed through the tall grass that led to the shoreline. Anyone wanting to follow the public easement fronting Watson’s land would be prevented from doing so by a sturdy fence that ends right at the cliff face.
Back in 2002, Watson was issued a cease-and-desist order while he was developing a lot just outside of Hilo. The county determined Watson had been grading and grubbing in the Special Management Area without having obtained permits for the work. He was fined $2,000, but, after Watson requested the fine be reduced in light of the costly corrective action, the county pared it back to $1,000.
In 2008, Watson was working on an 8-acre shoreline parcel at Ninole, around 20 miles north of Hilo. Once again, the Planning Department issued a cease-and-desist order and notice of violation for unpermitted improvements and cleared land, among other things, within the SMA and also inside of the shoreline setback. For this, he was fined $1,500. Following payment of the fine, the Planning Department notified him that future violations by him of county rules regarding work in the SMA or shoreline setback would “be considered recurring and will be subject to an increased fine, up to a maximum of $100,000 per Special Management Area violation and $10,000 per Shoreline Setback violation. In addition, daily fines may be imposed.”
Fast forward to 2012. Watson had been working on the Pepe`ekeo lot, for which he had obtained in May an SMA permit allowing for construction of the house, swimming pool, and tennis court.
In July, however, a site inspection revealed “ongoing land altering activity and the extensive removal of vegetation within the 50-foot shoreline setback line of the subject property and on the lands immediately makai of the subject property under separate ownership.” The work had been done without compliance with conditions in the SMA permit, according to the notice of violation the Planning Department issued on July 20. Among other things, the letter stated:
Nearly all vegetation between the shoreline and the 20-foot side property setback and 50-foot SMA setback lines had been cut down. This included vegetation on property belonging to Continental Pacific, which owns the land makai of Watson’s down to the shore.
Silt barriers were not properly placed.
There had been no prior notification to the Planning Department in advance of their installation, as required by the SMA permit.
“Some excavation and ground disturbance by heavy equipment makai of the 50-foot SMA setback line was observed, including mechanized equipment being within 10 feet or less of the top of the pali.”
“Significant amounts of vegetation debris remained within the area makai of the area where the construction and silt barrier was supposed to be located.”
Finally, a “gate-type barrier” had been erected within Easement P-14-A with a sign stating, “Posted – Keep Out.”
Watson was ordered to take a series of corrective actions by August 24, 2012. The actions included restoration of public access easements, all of which “shall be kept open in full accordance with the terms of [recorded easement documents] unless prior written approval by the Planning Director is granted authorizing the temporary closure of any portion of said easements as being necessary to ensure the safety of the public.” He was also ordered to replace “each shade tree removed that was of 6” or more in diameter, as measured at not more than 12” above grade.”
Although the county’s Planning Commission rules allow for civil fines of up to $100,000 per violation, plus $10,000 for each day the violation persists, the Planning Department proposed a fine of just $10,000 in total. All corrective action, including payment of the fine by cash, cashier’s check, or money order, was to be done by August 24.
Even so, that was too much for Watson. According to a Planning Department letter to Watson dated August 22, at a site inspection that took place on August 15, he “verbally requested a reconsideration” of the $10,000 fine. “Taking into account your cooperation in trying to resolve this matter,” wrote April Surprenant, planning program manager, “we are granting a reduction of the civil fine from $10,000.00 to $8,000.00.” Surprenant set a deadline of September 20 for payment “or a daily fine will be assessed.”
She noted that public access easements “are [to be] kept open. However, a reminder that prior written approval by the Planning Director for temporary closure may be allowed for public safety reasons only.” Also, a revised SMA assessment application (SAA) would need to be submitted and approved for deviations Watson was now proposing from the original plan.
Both Surprenant and Planning Director B.J. Leithead-Todd confirmed to Environment Hawai`i that no written approval for any change in the public access had been issued. Surprenant did say that she had discussed with Watson a possible temporary closure of up to two years to accommodate his construction activities, but that nothing would be done until he resolved the violations and had a revised and approved SAA.
Leithead-Todd, reached by telephone, told Environment Hawai`i that she had discussed with Watson the possible relocation of some of the access. “The public was still going to have access, but things would be moved around,” she said. “I was unaware he had blocked anything off.”
But on September 20, when Watson arrived at the Planning Department, it was not with a cashier’s check in hand. Instead, he turned in another hand-written request that the Planning Department further reduce his fine.
He laid out a story of him being given different instructions by the State Historic Preservation Division, by the county’s SMA planner, and others. And he added a postscript: “Mayor Kenoi asked if you could cc him all my info on this matter. Mahalo.” (A photo of Kenoi and Watson apparently taken on a terrace of the Ninole house where Watson now lives was posted to Watson’s public Facebook page on October 3.)
On October 25 – more than two months past the original deadline for the fine, and more than one month past the second deadline – Leithead-Todd informed Watson that his request for further reduction of the fine was denied. According to one source in the Planning Department, the letter was a result of extensive discussions involving the mayor, department director, and planning staff.
“We note an apparent pattern of grading and grubbing of the parcel, and subsequently, also including construction activities, without first submitting a Special Management Area Use Permit Assessment Application for each proposed development,” Leithead-Todd wrote, after summarizing his several previous infractions.
“Please note that the $8,000 must be paid by Friday, November 16, 2012, or a daily fine will be assessed,” she wrote. That afternoon, Watson delivered an $8,000 personal check to the Planning Department, which the Planning Department accepted, notwithstanding its earlier demand for payment with cash, certified check, or money order. Esther Imamura, the planner who accepted the check, told Environment Hawai`i she was just happy to have the fine paid. She said the county would not know until November 28 if the check cleared.
A Bedroom Easement?
Suprenant was also questioned about the Planning Department’s decision to allow the house to be built as close as 20 feet to the top of the small pali that runs along the shoreline in this area and which also defines the property boundary.
According to the SMA permit for the subdivision, “No house or other substantial structure shall be built closer to the ocean than 40 feet from the top of the sea cliff. This condition shall apply even if the shoreline is later certified at a location makai of the top of the cliff.”
However, a plot map showing the layout of the structures Watson is building on the property indicate that only a 20-foot setback has been required for the house, even though the public access easement runs along the same setback.
Surprenant insisted that the public will be able to use the lateral shoreline easement, even if erosion may eventually narrow the setback to less than 20 feet.
“You mean the public could eventually be traipsing through Watson’s bedroom?” she was asked.
“Yes,” she replied.
Watson justified the decision to allow a 20-foot setback, rather than the 40-foot one required in the SMA permit, by describing it as a side-yard setback.
“We consider that 20-foot setback a side yard because it is the property line and there is land beyond/below it well before reaching the certified shoreline,” she stated in an email. She did not respond to a follow-up question asking how that determination could be consistent with terms of the subdivision conditions, especially the provision stating that the 40-foot setback is to be imposed regardless of where the certified shoreline is fixed.
The county has also allowed Watson to extend the driveway and pool deck up to five feet within the 50-foot SMA setback area.
Watson’s original application for an SMA use permit, filed with the county in October 2011, stated that the cost of the project (“construction of (1) single family residence with pool and tennis court”) would have a fair market value of $1,000,000. House plans showed a structure with a total of 7,892 square feet.
The Planning Department responded by noting that the proposed development would require an SMA major permit, since the house area exceeded 7,500 square feet and the value was $1 million.
In April, Watson submitted a revised house plan, indicating he would now have a total living area of 7,035 square feet (excluding, however, an attached garage of 994.5 square feet). This apparently satisfied the county, which then went forward with processing of a Shoreline Area Assessment, rather than an SMA major, permit for the project.
One of the requirements of the SAA that was issued on May 25 was that Watson “submit for our review and approval the additional plans when the pool and deck design is confirmed.”
In October, work was well underway on the pool. However, no plans were found in repeated reviews of Planning Department files.
As Environment Hawai`i was going to press, Leithead-Todd stated that her department was going to be issuing a cease-and-desist order to Watson for the work on his pool. “Maybe we gave him too much rope,” she said.
A PCR on Hold
When Watson refers would-be hikers on the shoreline easement to a path that goes over a neighboring lot, he insists that the property to which he is directing the visitors really belongs to him, as will be shown when a property consolidation and resubdivision application receives county approval.
The county did receive such an application in 2009. However, it cannot be approved until a Shoreline Assessment Application is completed and approved. That, in turn, cannot happen until there is resolution of the notice of violation Watson was issued back in July.
One of the requirements in the subdivision SMA permit calls for lot owners to obtain an NPDES permit “for any land disturbance of more than one acre.” (The National Pollutant Discharge Elimination System permit is to ensure compliance with the federal Clean Water Act. The program is administered by the state Department of Health.)
Nothing in county files indicates that Watson has been asked to do this. When Environment Hawai`i called the DOH’s Clean Water Branch, the clerk who checked the records could find no NPDES application for the Pepe`keo property.
Surprenant was asked why the Planning Department did not include this (and other subdivision SMA permit requirements) in the permit it granted to Watson. She responded that the department was now looking into these issues.
Volume 23, Number 6 — December 2012
environment hawaii pepeekeo shoreline access easement scott watson bobby jean leithead-todd bj mayor billy kenoi