In short, it’s still there, blanketed in naupaka, just as the abutting landowners want it to be. Efforts to clean up the legal morass surrounding its existence are in limbo.
In August 2015, Environment Hawai‘i published a cover story on the apparent lack of state and county enforcement regarding what was supposed to have been a temporary, emergency sandbag revetment installed at Ha‘ena, Kaua‘i, two decades ago. The revetment had been put in place after large ocean swells ripped away coconut trees and chunks of lawn, creating a steep cliff across the seaward edges of several properties.
A couple of weeks after our story came out, and eight months after the county Planning Department rejected a request from the landowners for yet another time extension on their emergency Special Management Area (SMA) use permit covering the structure, the agency levied fines against the owners of the five lots for violating the permit’s conditions.
It’s unknown exactly which conditions those were or how much the county fined the owners, since Planning Department staff have failed to respond to our repeated document requests by press time. But it’s likely Condition 6 was one of them. It states: “Should the applicant determine that the current measures are to be permanent, an application shall be submitted for SMA and Shoreline Setback Variance Permits through the normal permitting process.”
The landowners indicated as early as June 2014 that they wanted the revetment to be permanent but had not applied to the department for any such permits more than a year afterward.
Another condition that may have been violated is Condition 2, which prohibits the revetment from extending beyond the shoreline as defined in Hawai‘i Revised Statutes, Chapter 205A. Under that law, the shoreline is defined as the reach of the highest wash of the waves, other than storm and seismic waves, at high tide during the season when the highest wash of the waves occurs, “usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves.”
Regardless of what conditions the Planning Department found to have been violated, the landowners’ attorney, Randy Vitousek, contested the fines and quickly convinced the department to not only agree to a settlement and compliance plan, but to also walk back its earlier refusal to extend the emergency SMA use permit.
In a September 30, 2015, letter to Vitousek, Planning Department director Michael Dahilig wrote that his agency agreed “in principle that SMA Use Permit, (E)-97-03 be considered active to date.”
Dahilig continued that the department also conceptually agreed to the context and timeline laid out in a compliance plan Vitousek had offered on behalf of his clients, Norman and Melissa Neal; Matthew and Judith Malerich; the Carroll-Downs Family Trust; Zibo, LLC; and Ohanahale, LLC. Dahilig noted that the timeline and permitting path depend on when and whether the landowners obtain a certified shoreline from the state Department of Land and Natural Resources (DLNR).
The Planning Department, Dahilig added, agreed to hold off on imposing the fines unless the applicants “fail to reasonably perform pursuant to the agreed upon compliance plan concerning actions under their direct control (e.g. applying for permits within a certain time).”
Perhaps anticipating a need at some point to obtain a Conservation District Use Permit (CDUP) and/or an easement from the Board of Land and Natural Resources for any portion of the revetment that may now, after 20 years, lie within the public beach area, Vitousek had apparently sought confirmation that the revetment had been legally built. Under state law, the chairperson of the DLNR cannot certify the shoreline when an unauthorized improvement encroaches on state land or interferes with natural shoreline processes. In his letter, Dahilig confirmed that the revetment “is considered conforming” at the time the emergency permit was issued in 1996. However, he added, “As you are aware, shorelines are subject to erosion and a shoreline certification is required for any proposed development.” That being the case, he stated that the landowners’ proposal to leave the revetment in place would require a new certified shoreline, “current to within six months of any permit application.”
Whether the landowners need an SMA use permit, a CDUP, or both may depend on where the shoreline is determined to lie. Anything seaward of the shoreline will likely require a CDUP as well as an easement from the state. (It should be noted that in 2008, the DLNR certified the shoreline for one of the Ha‘ena lots involved to lie at the top of the revetment, rather than at its toe. It did the same for another parcel in 2010. While the DLNR has sought and received fines for violations of Conservation District rules based on less, and has charged landowners thousands of dollars for easements to cover exactly this type of shoreline encroachment, its Office of Conservation and Coastal Lands and Land Division have chosen to hang back in this case following a 2008 letter from the county asserting that the 1996 emergency SMA and shoreline setback variance permits were still in effect.)
Dahilig required the landowners to apply for a certified shoreline within 60 days of his letter, which they did. Despite the 2008 and 2010 determinations that the shoreline was located above the revetment, they asserted in their application that the shoreline was located about 20 feet seaward, at the revetment’s toe.
On March 2, 2016, DLNR shoreline specialist Andy Bohlander and state land surveyor Reid Siarot — accompanied by some of the landowners, their surveyor Brian Hennessy, Planning Department staff, and concerned citizens Caren Diamond and Beau Blair — set out to identify any physical evidence of the shoreline. “Historical certified shorelines were also reviewed,” Siarot stated in an August 12, 2016, letter to Land Division administrator Russell Tsuji.
“Considering both current and historical evidence, the shoreline for certification was determined to be a combination of the top bank and shorelines certified on September 29, 2008, and December 23, 2010. Also, a geotextile sandbag revetment was identified on the makai side of the shoreline. The applicant’s surveyor was instructed to revise the map and photos and to resolve the shoreline encroachment,” he wrote. Hennessy never did so.
Because of the unresolved encroachment, Siarot stated that the shoreline could not be certified by the deadline of September 17, 2016, and recommended that Tsuji reject the application, which he did.
A month later, Vitousek appealed the rejection on behalf of the landowners, arguing that it was erroneous under Hawai‘i Administrative Rule (HAR) 13-222-16 and Hawai‘i Revised Statutes sections 205A-41 and 42.
HAR 13-222-16 does not dictate where the shoreline should be set. It states only that when the shoreline is located at a revetment, the toe “shall be marked and identified on the map.”
HRS 205A-41 includes definitions of several terms, including “shoreline area,” which includes all land between the shoreline and the shoreline setback line “and may include the area between mean sea level and the shoreline, provided that if the highest annual wash of the waves is fixed or significantly affected by a structure that has not received all permits and approvals required by law or if any part of any structure in violation of this part extends seaward of the shoreline, then the term ‘shoreline area’ shall include the entire structure.”
HRS §205A-42 describes how the Land Board must adopt rules prescribing procedures for shoreline determination and appeals, “provided that no determination of a shoreline shall be valid for a period longer than twelve months, except where the shoreline is fixed by artificial structures that have been approved by appropriate government agencies and for which engineering drawings exist to locate the interface between the shoreline and the structure.”
Vitousek pointed out that the county and DLNR gave their permission to install the emergency structure and that the county, through Dahilig’s latest letter, had confirmed that the county permit, at least, was still active.
“The sandbag revetment is a legal, permitted structure and the shoreline is properly located at the toe of the revet- ment [which] fixed and established the shoreline,” he wrote.
For many years, the DLNR used to simply set the shoreline at the seaward edge of a seawall, but it abandoned that practice in 2010 after consulting with the Department of the Attorney General (AG), according to the Land Division’s Kevin Moore. “The position is based on case law and interpretation by the AG,” he told the Land Board earlier this year.
Now, the department takes into account all evidence of the highest wash of the waves, regardless of whether a seawall or revetment blocks the sea directly in front of it. The result has often been that the shoreline is determined to be behind or partway up the structure. In those cases, the Land Division usually seeks Land Board approval for non-exclusive easements for the structures, so long as they were legally built.
Although the shoreline certification process was never intended to also determine property boundaries, court decisions over the years seem to have led the department to use the information gathered through that process to assert state ownership of lands extending seaward of the shoreline.
Vitousek testified to the Land Board earlier this year that the department’s approach was flawed.
“There is a process to determine a boundary. It’s different from certifying a shoreline,” he said, arguing that the state should have to prove that it owns the land below the shoreline in a land court proceeding or some other proceeding.
“Right now, when there’s a sloped seawall, if the water splashes part-way up the wall, they require an easement for the part of the wall that’s seaward. … The county doesn’t like that,” he said before urging the Land Board to address this situation.
To this, the Land Division’s Tsuji reminded the board, “the shoreline certification rules are clear: if we can’t resolve [an encroachment], we can’t move the shoreline certification process forward.”
Board member Chris Yuen acknowledged that some type of legal action may be required to change property boundaries, but added, “from staff’s position, they feel obligated to do something about [encroachments]. The path of least resistance is to agree to settle this encroachment. … It would be possible for the state to turn its back on this encroachment. It’s not what they want to do.”
Vitousek wasn’t buying it.
“If you use an easement, you’re conceding someone else owns the land, … that their boundary has been surrendered just based on a shoreline certification. … There’s tremendous creep of how far shorelines go,” he said. Perhaps alluding to his clients’ situation, he then suggested that if the state can certify a shoreline at the bottom of a wall (or the toe of a revetment, in this case), the state could enter into an encroachment agreement with the landowner, rather than require an easement.
“Generally, if you have a boundary dispute with your neighbor, you have to go to court,” he said.
Over the past several years, the DLNR has charged landowners thousands of dollars — sometimes tens or hundreds of thousands of dollars — for shoreline encroachment easements. For a structure the size of the sandbag revetment in Ha‘ena, the market value of an easement could easily be hundreds of thousands of dollars, given that the five abutting properties have a total market value of nearly $12 million. Despite Vitousek’s suggestions to the Land Board, it seems doubtful that the state can simply choose to revert to past practice and set the shoreline at the toe given the physical evidence that the high wash of the waves extends past it.
Diamond says that at the state’s site visit to the structure in March 2016, there were signs of “a really large swell that had just washed to the top of that. … It was really clear.”
She added that surfers and lifeguards have reported seeing loose sandbags in the water and that she has photos of that as well.
In an April 2015 letter, Diamond and Ha‘ena resident Chipper Wichman pleaded with the DLNR to have the revetment removed, as “it was never intended to be a structure that would be kept in place for nearly two decades.” They claimed that the sandbags were compromising the integrity of the beach dune, the nearshore marine environment and the county’s nearby beach park, and they included photos of the revetment blocking lateral public access. They also argued that all of the current owners were aware of the erosion problem when they bought their properties.
The two homes built on shoreline setbacks that were based on shorelines set at the top of the revetment sit far enough away from the ocean that they shouldn’t experience any problems if the revetment is removed, Diamond told Environment Hawai‘i. She added that at least one of the older homes is “really small” and could be moved inland. “Things can be moved back, as long as it’s done before an emergency,” she said.
“The one house that has been there since 1958, it’s a concrete house. … I don’t see it going anywhere,” she said, suggesting that the state could condemn it.
“Pay people fair market value. It shouldn’t be that high if there’s such an erosion problem,” she said.
She added that the DLNR’s Office of Conservation and Coastal Land has indicated that it would support some sand pushing to protect the properties if the revetment is removed.
“It gives them a little protection. That seems like some middle ground,” she said.
Whatever path the landowners or government agencies take will depend in large part on where the shoreline is ultimately determined to be. It’s been more than a year since Vitousek appealed the rejection of his shoreline certification application. Land Division staff has said there is no deadline by which the DLNR must respond. The agency’s rules only state that once the Land Board chairperson determines that the appellant has standing, a briefing schedule must be set. Once all briefs are received, the board or chairperson must make a decision within 60 days. If that doesn’t happen, the appeal is deemed denied.
The Land Division’s Ian Hirokawa said that given his department’s backlog of appeals, he had no idea when an order might go out to determine standing and a briefing schedule.
(For more on this, see our August 2015 issue, available at www.environment-hawaii. org.) — Teresa Dawson