Builder Defies Planning Department with Helipad on 'Sod Farm' Dwelling

posted in: December 2012 | 0

“Waterfalling Estate.”

That is the name that Scott Watson has given to a house he has built at Ninole, on the Hamakua Coast of the Big Island about 20 miles north of Hilo.

Like most other houses with names, it is imposing. According to plans submitted to the Hawai`i County Planning Department, it includes:

  • A theater room (replete with sloped floor and eight theater-style seats);
  • A circular three-floor elevator;
  • A “grand lanai” on the ground floor, along with two bedrooms and two bathrooms;
  • A “grand living room,” kitchen, bar, dining room, powder room, computer room, lanai, and “portecashere” on the second level;
  • Two master bedroom suites on the third floor, each with his-and-hers bathrooms, plus a library and more lanais.

The plans also called for a helipad on the roof, but that was scratched out, with “omit” written alongside it. Helipads are not something the Planning Department allows on single-family homes.

On a clear day last July, however, not one but two helicopters left Hilo airport, flew up the coast to Ninole, and landed at Waterfalling Estate. One (operated by Blue Hawaiian) set down on a clearly marked helipad on the roof of the house. The other (owned by K&S Helicopters) landed on the driveway. And, as if to flaunt the violation in the Planning Department’s face, the event has been memorialized in a seven-minute-long YouTube video.

That may be one of the more flagrant violations associated with the development of the property owned by Watson and Laurie Fraser Robertson on a former mac nut orchard. It is not the only one.

Instant Infractions

Almost from the start, the county Planning Department was issuing notices of violation in connection with the Special Management Area Use Permit Assessment Application (SAA) Watson submitted in April 2008 for development of what was described as a “sod farm.” A department inspector visiting the site in May noticed a “number of violations on subject property including: grading of land greater than 1 acre in area, grading and digging within 40 foot of shoreline setback, construction of a paved driveway within the SMA, various cemented structures (unclear of proposed uses), land cuts with house and garage pads, utility trenches dug, no [Best Management Practices] implemented.”

That prompted then-Planning Director Christopher Yuen to issue a notice of violation in July, citing:

  • The clearing of 7-plus acres of mac nut trees without a permit;
  • Grading within the shoreline setback area for which no variance had been applied for or permitted;
  • Active digging within the shoreline setback by a “mini-excavator,” which had not been permitted;
  • “Cuts over five feet in height” made to the natural grade of the land to prepare for the as-yet unapproved house and garage;
  • “Various additional construction activities … including concrete poured for a fountain, utility trenches dug, and other identified work. Most of this work was not proposed [in the SAA application] and none of it had yet been permitted;”
  • “A drainage trench was dug between the house pad and garage pad… No permit was granted to allow runoff from the construction site to be directed into the nearby stream which exists into coastal waters less than 100 feet downstream;”
  • Placement of soil mounds within the shoreline setback that were not bagged or covered, so the mounds were being eroded, “likely over the edge of the cliff;”
  • No construction barriers or silt fences.

Yuen noted that the Planning Department staff had issued a verbal stop-work order at the time of the inspection and that a written one had been issued the following day. To resolve the violation, Watson was required to correct the violations and pay a $1,500 fine, all of which were done by August 8. In the letter closing the file, Watson was warned by Yuen that future violations by Watson of Planning Department or Planning Commission rules “will 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.”

At the same time he paid the fine, Watson submitted a second SMA use permit assessment application, describing the nature of development/activity as “a turf farm with a single family residence.” Total value was placed at $750,000. The objectives of the proposed project were said to be “to raise sod and live on the farm.”

A Belated Permit

It was not until October 2008 that Watson and Robertson received the SAA permit for their house, a tennis court, and “sod farm.” With the estimated value of construction not crossing the threshold for a major SMA permit, Yuen approved the application – excluding, however, what was labeled on plans as a “west wing” attached to the garage, which included a bedroom, “lunch room” with kitchen, a game room, and office. This addition, wrote Yuen, “for all intents and purposes, reflects the construction of a second single family dwelling on the subject property, which is not permitted unless approval for an additional farm dwelling is first issued by this office.” It could not be approved as a guest house, since it exceeds the zoning code limit of 500 square feet, he noted. Nor could it be approved as a detached bedroom, “since it includes much more than simply a bedroom addition and is situated more than 50 feet from the main living area of the farm dwelling.”

Watson could apply for a second farm dwelling, but for this he would need to obtain an SMA Major use permit, Yuen noted, but “we do wish to explain to you that we have some reservations about any such attempt to apply for an additional farm dwelling since we simply can’t justify such an approval based on the limited amount of agricultural activity involved in the turf farm that you proposed on this property.”

Watson received a building permit for construction of the main “farm dwelling” in December of 2008. The value of the construction he placed at $1.5 million.

An As-Built Pool

Nothing further appears in Planning Department files until October 2011, when Watson submitted an after-the-fact application for an SAA permit for a “proposed 10,000 square foot swimming pool.”

Although construction of the pool without a permit almost certainly involved violations of Planning Department rules, Watson’s application was approved with no questions asked by current Planning Department director Bobby Jean Leithead-Todd.

In YouTube videos too numerous to count Watson may be seen showing off the pool, which he says is probably the largest residential pool ever built. It holds 240,000 gallons, he says, and is 16 feet deep at its deepest point. A 30-foot water slide runs from the second floor level of his house down to the pool, which also sports two Jacuzzis, gas jets that light up the infinity edge, and three racing platforms. Along one side of the pool is what Watson says is a 15-car parking area.

The building permit for the pool, which Watson finally received in March of this year, indicates that the cost of the project was $692,000 – more than twice the $300,000 figure cited in his SAA application to the Planning Department.

Conservation District Issues

One of the earlier documents in Planning Department files relating to this property is a boundary determination issued in 1999 by the state Land Use Commission. According to the map recording that determination, roughly a third of Watson and Robertson’s property lies in the state Conservation District, which is tightly regulated by the state Department of Land and Natural Resources.

The owners were reminded of this in Yuen’s first letter to them, the Notice of Violation of July 2008. It was brought to their attention again in 2012, when the Planning Department responded to a question about the deferral of action on a subdivision request for the same property. “This application proposes to subdivide the property in the state Land Use Conservation District,” wrote staffer Jonathan Holmes. “The subdividers will need to coordinate with the Department of Land and Natural Resources’ Office of Conservation and Coastal Lands to ascertain the possible need to obtain a Conservation District Use Permit.”

A site map Watson submitted to the county showing the improvements suggests that much of the pool, a long stretch of a concrete drive, all of one constructed pond and part of another lie within the Conservation District. Further, the tree-cutting and grading that were apparently carried out in the Conservation District, at the makai end of the property, would also constitute Conservation District violations.

Environment Hawai`i asked Sam Lemmo, administrator of the DLNR’s Office of Conservation and Coastal Lands, whether he had received any application for a CDUP. He said he had not. He did receive a complaint about possible Conservation District violations on the site in 2009, he said, but did not follow up because his reading of the map at that time suggested the department might not have jurisdiction.

However, in a recent email to EH, Lemmo indicated that his office had not closed the case. “We are looking at it,” he wrote.

Patricia Tummons

Volume 23, Number 6 — December 2012

environment hawaii scott watson ninole waterfalling estate hawaii county planning department helipad

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