High tide came to Kapoho shortly after 3 a.m. on December 15. Stars twinkled in a clear sky. The air was brisk — sweater weather, but only just. In the distance, surf, illuminated by the full moon, pounded the lava formations that make up the coast on the southeastern shore of the island of Hawai`i.
The waters advanced in barely perceptible riffles, for the most part, lapping against the abundant, salt-tolerant milo trees growing on rocky outcrops and filling the innumerable tide pools that pock the coast like the holes in a lace collar.
As the tide came in, a handful of people monitored its inch-by-inch progress onto land that Jim and Gail Johnston bought nearly three years ago in hopes of building a home that they could live in, full-time, when Jim retires soon. The group was there to determine where, exactly, the shoreline should be fixed. The buildable area of the Johnstons’ lot, as with all lots along the coast, depends on where that line is located. Last August, Johnston, who bought the lot thinking it covered some 12,000 square feet of land, was informed by a surveyor he had hired that only 3,500 square feet of his lot was fast land. The remainder was connected to the ocean through the series of tide pools and deemed submerged land – even if parts of it are dry at low tide.
On this night, the state surveyor, Reid Siarot, three employees of the Department of Land and Natural Resources, and two members of the public were there with Johnston to verify the work of his private surveyor.
The outcome of the Johnstons’ application for a certified shoreline will not be known for some time. Complicating matters, according to Dolan Eversole of the DLNR’s Office of Conservation and Coastal Lands, was the presence of an unmortared seawall projecting a foot or two above the water at the far end of the Johnstons’ lot. Although it appeared not to affect the incoming tide, Eversole said, it could buffer high swells and thus affect the natural shoreline. In that case, Johnston would probably have to remove the wall and might even have to begin anew the process of obtaining a certified shoreline survey. (A closer look at the boundary of the property as marked on the subdivision map suggests the wall lies beyond the Johnstons’ lot, which would relieve them of any need to address it.)
As the observations ended that night, Johnston seemed relieved. The shoreline survey he had submitted to the state for certification appeared to be conservative, with the most inland reach of the high tide leaving his survey stakes dry, if not high. If removal of the seawall were required, it could probably be done by Johnston and a friend in a day or two. Things could have turned out much worse.
The appeal of Kapoho is undeniable. Lush tropical vegetation. Rocky shores. Pounding surf. And, perhaps most of all, inviting, crystalline tidal ponds that dot the coast.
With real estate prices rising through the roof all over the islands, land that has lain vacant since its creation has increased in value. Pressure to build has expanded to areas once shunned. Prospective vacation-home-owners shut out of pricier neighborhoods are turning to lots that are more affordable. And now the Vacationlands Hawai`i subdivision is experiencing a boomlet in construction and sales, with lots carved out decades ago in a paper subdivision being bought and sold in today’s hot market at ever increasing prices.
It’s a lovely place to visit, as the abundant web sites advertising bed-and-breakfast rentals attest. But is it really a place one might want to live? Or, more to the point, a place that is suitable for building?
In Hawaiian, the very name is a warning. Poho means a depression or hollow area, and if a macron is added to the final “o,” the word means “loss, damage; out of luck,” or “bog, swamp, mire, slough; sunken, sinking; to settle, as earth.” Coastal property everywhere is vulnerable to high waves, storm surges and, as one of the predicted outcomes of global warming, rising seas. But in Kapoho, as the Hawaiian name suggests, another element of risk comes into play: subsidence. The area is subject to volcanic activity, with the nearby village of Kapoho having been wiped off the map in an eruption of Kilauea volcano in January 1960. Land up and down the coast is sinking as a result of movement of underground magma or slippage along fault lines. After an earthquake in 1975, subsidence along the southeastern coast of Hawai`i Island ranged from 11 feet at Keauhou Landing to eight-tenths of a foot at Kapoho. Land there continues to sink a few centimeters each year.
Still, many lots in the area, especially those with houses already on them, sell at a brisk pace and at premium prices. In late 2005, modest homes in the subdivision were on the market for upwards of a three-quarters of a million dollars. Many of the buyers in the four decades since the subdivision was created have been out-of-state residents, such as the Johnstons, who are unaware of the difficulties – procedural as well as practical – of building in an area of high coastal hazards.
In the past, barriers to construction in Kapoho were not always hard to surmount. The county Planning Department did not uniformly require shoreline certifications as a condition of applying for building permits for the most makai (seaward) properties, since land seaward of the subdivision showed up on county tax maps as private property. With the shoreline still a hundred or more yards from the house lots (at least according to the outdated maps), the state law requiring certified shoreline surveys for coastal development did not come into play. Since the mid-1970s, houses were required to be built to withstand the depth of 100-year floods as set forth on federal Flood Insurance Rate Maps, which means most of the houses in the subdivision sit high on stilts, but no other special precautions were taken.
While homeowners and builders from this time might have thought themselves fortunate to have escaped the bureaucratic burdens associated with construction on coastal lands, the downside of this approach is clearly apparent in Kapoho Vacationlands. Several of the lots on the makai side of the subdivision show evidence of houses lost to the elements: footings that outline the foundation of a house carried away by wind or waves; a concrete house platform surrounded by hollow-tile rubble; rock walls and landscaping for houses long gone. Of those that remain, many sit on small islets at high tide, as though defended by moats.
Johnston, an anthropologist and archaeologist with the U.S. Forest Service in northern California, might be forgiven for envying his neighbors who built their homes in that earlier stage of less stringent review. At the time he and his wife bought the land, they had no idea of the difficulties that stretched before them. In the three years since they paid $150,000 to buy the land, they’ve spent thousands of dollars for surveys, have filed one lawsuit (against the seller), had a 2004 shoreline survey rejected, and are sweating out a decision on this year’s survey. And they still have not turned the first spade of earth for construction of their dream home.
A Sea Change
The regime shift – from lax county oversight to full-on state and county involvement – can be traced to about nine years ago. In 1997, Toby Hazel, owner of a makai lot (which has since come to be known infamously as Lot 15), sought a permit to build a house on the site of a residence that had been demolished in a storm years earlier. A staff planner at the county Planning Department informed her that she would need to obtain a certified shoreline before plans could be approved and work could start.
As part of the certification process, the state surveyor at the time, Randall Hashimoto, visited the site at high tide in January 1998 and instructed the private surveyor to revise the shoreline. While awaiting the revised map, Hashimoto received a letter from a citizen suggesting that “the subject lot may be submerged during the seasonal high tide,” according to Hashimoto’s account of events, recorded in a letter to the then-DLNR administrator, Michael Wilson. On the basis of that letter, Hashimoto decided to revisit the site during the next seasonal high tide, which would occur December 4, 1998.
When Hashimoto visited the site on that date, he found that “the entire subject lot was completely submerged with the exception [of an] islet created by high ground. The tidal water and waves extended across the beach road and across the lot mauka of the subject lot.”
“As a result of this observation,” he wrote, “this shoreline application will not be approved because the subject shoreline lot is considered submerged and it does not qualify for a shoreline certification.” A map of the subdivision showing a “tentative shoreline” based on the surveyor’s visit indicates that more than three-quarters of the lots would have likely been determined to be submerged lands on that night.
(With her land basically useless for all practical purposes, Hazel stopped paying on the note she had given to the seller, Gary Ream, of Stateline, Nevada. When he sued for foreclosure, Hazel charged that Ream’s failure to disclose the fact that the property was “severely inundated with water during most of the year” constituted “a material non-disclosure and … misrepresentation and possible fraud.” In addition, she alleged that it was unclear that the property was Ream’s to sell in the first place, given that submerged lands belong to the state.” The case did not go to trial; a year later, the parties settled, with Ream taking back title to Lot 15.)
A Differing View
At the same time that Hashimoto was ready to write off Lot 15 and much of the rest of the subdivision as submerged land, the director of the county Planning Department at the time, Virginia Goldstein, offered a diametrically opposed view. Writing to a landowner who sought to build on another lot in the area, Goldstein stated that no shoreline survey was required. “According to department file records and the reference tax map, the rear (makai) property line of [the parcel] may be approximately 300 +/- feet from the shoreline…. The parcel’s overall condition is dry land.”
The discrepancy, stunning as it is, can be explained by noting that Goldstein refers to a map as the basis for her determination, while Hashimoto was on the ground, experiencing not only the highest seasonal tide of the year, but also near-record high surf. According to the National Climate Data Center, from December 4 through December 7, 1998, a high-pressure area north of Hawai`i generated swells between 6 and 12 feet high on the eastern shores of all islands.
Maps of the area, however, indicate that the Kapoho Vacationland lots lie, as Goldstein stated, several hundred feet inland of the sea. What they do not show is that the ground between the subdivided lots and the ocean consists (as do many of the lots themselves) of a fairly level expanse of mostly barren lava, pocked by tidal pools ranging in size from a few square feet to a thousand or more. At times of high surf or seasonal high tide, the lava lying between the subdivision lots and the ocean can be submerged but for a few rocky outcrops. In the lowest areas, the road has been washed out by repeated floods; in several areas, footings are all that remain of houses that have been taken out by storm surges or hurricanes. Also, in the four decades since the subdivision was approved, subsidence has meant that much of what had been dry land lying between the subdivision and the sea is now submerged – to the point that, in 2003, the DLNR’s Division of Aquatic Resources established the Wai`opae Tidepools Marine Life Conservation District over the sunken lands seaward of the subdivision.
The current county planning director, Chris Yuen, who took over from Goldstein with a change in administration in late 2000, said that for a while, the county was requiring shoreline certifications for all lots in the subdivision, but then decided that for lots mauka of the roadway, no more than a site inspection would be required to determine whether a lot was connected to the ocean. One of the reasons for the change was that the DLNR refused to accept shoreline certification applications from lot owners whose land lay mauka of other private house lots, since a determination of a shoreline that lay mauka of existing houses was implicitly a statement that land seaward of that shoreline was submerged. Such a finding would raise legal questions that the DLNR – and everyone else involved – was just as happy to avoid.
By 2003, when the Johnstons acquired their land, the situation at Wai`opae was confused and confusing. Previous county Planning Department determinations had been based on the idea that the makai parcels in the subdivision were dry land, using only old maps as a reference. Apparently because of this, the Johnstons were not aware when they submitted their initial building permit application of the need to comply with Special Management Area rules. When they submitted what they thought was, according to Jim Johnston, a “fully complete permit application” in June 2003, they were told they would need to submit a Special Management Area Assessment. After doing that in July, they received word that they would need to include a certified shoreline survey.
“Given that the subject property, as represented on Hawai`i County Tax Maps, does not appear to abut the shoreline we understand the confusion … in this case,” wrote Planning Director Yuen. “However, a tentative shoreline survey from the State Surveyor’s visit to the subdivision on December 4, 1998, indicates that the shoreline may be considerably mauka of your property. If the BLNR determines that the shoreline is mauka of the subject property, the lot would then be classified as submerged lands and within the State Land Use Conservation District. Therefore, due to the uncertainty of the shoreline’s position with respect to your lot, we cannot process your SMAA application.”
In mid-2004, the Johnstons applied for a shoreline certification, based on a survey that had been conducted in June of that year. The survey showed that nearly three-quarters of their lot – 8,599 square feet – lay seaward of the shoreline, leaving them with just 3,501 square feet on which to build their house.
But in August, the DLNR rejected the application, with the Land Division’s administrator at the time, Dierdre Mamiya, informing the surveyor that “subsidence is causing your client’s property, as well as many others in the area, to become inundated with ocean water at high tide. Based on evidence that the State Surveyor Office gathered on site visits” – the infamous 1998 survey – “it is evident the actual shoreline is farther mauka of your client’s property. For these reasons, we are denying your application for shoreline certification.”
The Johnstons were undaunted. In December, they filed a complaint in Third Circuit Court against the former owner of the land, Gary Ream (the same Gary Ream who had sold Lot 15 to Toby Hazel in 1991). They alleged, among other things, that Ream “provided no explanation to [them] either in the disclosure statement or otherwise, as to the nature, extent, and severity of the subsidence and flooding on the property.”
Because of the county requirement to obtain a shoreline certification as a condition of a building permit, and because the DLNR rejected their shoreline certification application, the Johnstons have been unable to build, the lawsuit alleged. “As the former owner of Lot 15, [Ream] knew of the DLNR’s findings but never disclosed such information until after the close of the sale,” they claim.
At the same time, Jim Johnston stood watch during the December 2004 high tide, determining that he could indeed reapply for a certified shoreline since the advancing water did not entirely submerge his land. Last August, the Johnstons’ contractor surveyed the land again, and his survey – identical to the one the previous year – was submitted in November to the DLNR for certification. In an accompanying letter, the Johnstons’ attorney, Steve Lim, noted that state law defining the shoreline excludes the reach of water during “storm or tidal waves.” “We believe that the hurricane storm tide was the cause of the inland flooding that resulted in the state surveyor’s 12/04/98 ‘tentative shoreline’,” Lim wrote. “Based on direct observations of [the Johnstons’ lot] during coinciding storm events and high seasonal tides, a significant portion of the parcel is mauka of the highest wash of waves.”
This time, the DLNR accepted the application as complete and began processing it. By the third week in February, the Johnstons should know whether they can move forward with their plans to build on the lot. In the meantime, they have asked for a continuance in their lawsuit against Ream until March 31.
 For background on the politically charged subdivision of Puna land vulnerable to volcanic disturbance, see George Cooper and Gavan Daws, Land and Power in Hawai`i (Honolulu, 1985).
— Patricia Tummons
Volume 16, Number 7 January 2006