Board Talk

posted in: Board Talk, July 2014 | 0

Laney, Morita Contest Land Board Ruling On Their Vacaation Rentals in Hanalei

 

When the state Board of Land and Natural Resources met May 24 to decide how to deal with the unauthorized construction of two cabins in the Conservation District that were illegally used as vacation rentals, a lot of numbers for potential fines got thrown around.

The Department of Land and Natural Resources’ (DLNR) Office of Conservation and Coastal Lands (OCCL) recommended fines totaling $30,000 plus $1,000 in administrative costs and the removal of the structures within 120 days.

Attorney Harold Bronstein, representing landowners Lance Laney and Mina Morita, said he thought that was excessive and suggested a fine of $5,000, including administrative costs.

Kaua`i Land Board member Tommy Oi offered a compromise, recommending a total fine of $16,000.

At-large/conservation Land Board member Sam Gon, however, argued that Laney and Morita could, and perhaps should, be fined $15,000 for the construction and $15,000 for each illegal vacation rental, which would total $45,000 plus administrative costs.

In the end, with Oi voting in opposition, the Land Board went with the OCCL’s recommendation and Bronstein requested a contested case hearing.

In Laney’s and Morita’s defense, Bronstein noted that in 1993, the DLNR authorized them to rebuild their home that had been destroyed by Hurricane Iniki. When later confronted by the department with complaints of unauthorized construction, Laney explained that before the hurricane, the property had one house, a storage site and two smaller house buildings and that nothing beyond that was being built.

No response came from the DLNR, Bronstein said.

Twelve years later, on June 18, 2008, the DLNR wrote Laney again about a complaint of unauthorized construction. According to Bronstein, Laney again explained what had been on the property previously. The DLNR followed up with an inspection, but, once more, Laney never heard back from the department until December 2013, following another complaint.

“The failure to take any action during this time for approximately 18 years I find arbitrary at best,” Bronstein said, adding later that had the DLNR pursued a violation case early on, the maximum fine under its rules at the time would have been $2,000 for each violation.

He also argued that the cabins were merely accessory uses to the single family residence requiring only a site plan approval from the department and not a Conservation District Use Permit from the Land Board.

“If there is any violation, and I argue there isn’t … it is the failure to get a site plan approval for accessory structures,” he said, adding that the DLNR penalty schedule calls for fines of $1,000 to $2,000 for such violations.

“The penalty does not match the crime, if there is a crime,” he said, although he did admit that when confronted about the commercial use of the cabins, Laney stopped it.

“It’s not going to happen again. … I think it’s undisputed that Laney’s actions have been transparent,” Bronstein said.

Oi, however, noted that Laney’s property tax information does not show the cabins.

“During Iniki, you’re allowed to rebuild, but you have to call the county so they can do an assessment of the property so that they could tax it accordingly,” Oi said.

To assess whether the structures were accessory or vacation rentals, Gon asked Bronstein whether they included amenities such as bathrooms, kitchens, and hot and cold running water.

“They were not built for vacation rental, [but] built for personal use, be it family or whatever,” Brontsein said.

Given the significant expenses Laney and Morita were likely to incur removing the structures removed, Oi suggested that the Land Board waive the OCCL’s proposed $15,000 fine for the unauthorized construction but retain the $15,000 fine for the illegal vacation rentals.

Dan Purcell, a member of the public, however, encouraged the Land Board “not go light on this” because of Morita’s position as head of the state Public Utilities Commission.

“People look to you for guidance on this in terms of ethics,” he said. “I just can’t say enough that if you go light on this, you make exceptions, you set the tone for ethics in the state.”

Still, Oi made a motion to delete the proposed fine for unauthorized construction of structures and fine Laney and Morita $15,000 for the vacation rentals, plus $1,000 in administrative costs.

Gon said he had a hard time with such a fine given that there was not one, but two vacation rentals on the property.

“If one were to fine for each violation, it would still come out to $30,000. … Actually, it would be $45,000. I can see removing the $15,000 for the [structures] but I would tack on another $15,000 for the other vacation rental,” he said.

Maui Land Board member Jimmy Gomes agreed with Gon on maintaining a larger fine.

“If we slap `em on the wrist, you’re setting a precedent that is going to haunt the department further down the road,” he said.

Just before the vote, at-large member David Goode also pointed at that an advertisement for one of the cabins stated that it had just been remodeled and now included a new kitchen and living room.

“Reading that makes me wonder a little more about the construction side of the thing. I’m torn a little bit now, but I’m starting to get a feeling for a higher fine,” he said.

Oi’s motion ultimately failed, with Land Board chair William Aila being the only other member to support it.

A subsequent motion by Gomes to simply accept the OCCL’s recommendation passed, with Oi dissenting.


* * *
Board Approves Seawall
To Protect a Maui Condo

On May 9, the Land Board unanimously approved yet another shoreline structure on Maui. This time it’s not to protect critical infrastructure, but to keep the Hololani Resort Condominiums (HRC), located just south of the Kapalua Resort, from becoming uninhabitable.

The University of Hawai`i has estimated erosion is eating away more than half a foot of beach every year in that area. And the history leading up to Hololani’s request for a seawall is a familiar one. The property just north of it, Pohailani Condominiums, is fronted by a seawall and little to no sand. Hololani and the Royal Kahana condos to the south have no such protection. Hololani is experiencing significant erosion, while the Royal Kahana still has a relatively stable sandy beach. For years, temporary structures (i.e., sandbags and erosion blankets) that were allowed to be put in place by the DLNR and Maui County have protected Hololani, but the condo now wants to install a 370-foot revetment along the 400-foot shoreline fronting its property.

In its report to the Land Board, the OCCL stated that it “does not believe that the effects of the HRC’s structure would rise to the level of ‘adverse.’ The area is already suffering from the adversities of a chronic sand deficit, as well as shoreline impacts from past armoring. …

“Without massive sand nourishment projects, it appears that the beaches along this stretch of coastline are in danger of continued narrowing and loss, especially when accelerated sea level rise … is considered. Thus, while the structure could represent an incremental adverse effect, staff does not believe that the project itself has a ‘substantial adverse impact.’”

Hololani consists of two eight-story towers. Without protection, Hololani’s north tower would likely be uninhabitable in the near future, the report stated.

OCCL administrator Sam Lemmo told the Land Board that the quality of the beach also factored into his recommendation to approve the structure.

“If this was a dune system, I would not be sitting here,” he said.

His report acknowledges that the structure will likely increase erosion fronting the condo and the Royal Kahana and includes a recommendation that should the Royal Kahana experience adverse effects from the new revetment, Hololani must place beach-grade sand in the area as mitigation. The OCCL also recommended that the structure be placed as far inland as possible to reduce the footprint within the Conservation District and to extend the life of the beach.

* * *
Land Board Must Include
Hawaiian Cultural Expert

In addition to having a member with a background in conservation and natural resources, the Land Board must now also include an expert in native Hawaiian traditional and customary practices. On June 20, Gov. Neil Abercrombie signed House Bill 1618, introduced by Joe Souki, which added the new requirement.

The DLNR, the Office of Hawaiian Affairs, and the Association of Hawaiian Civic Clubs, among others, supported the bill.

“Nearly all of the boards and commissions under the [DLNR] require a member with a background in native Hawaiian traditional and customary practices. Last session, legislation was enacted requiring such expertise for the Natural Area Reserves System Commission,” DLNR director and Land Board chair William Aila stated in his testimony on the bill.

 

— Teresa Dawson

 

Volume 25, Number 1 July 2014

 

Leave a Reply