posted in: Board Talk, November 2006 | 0

Land Board Rejects Conservative Approach to Setback at Ha`ena

To avoid the expense of a contested case hearing, which would probably have led to a compromise settlement anyway, the state Board of Land and Natural Resources decided last month to let Kent and Kathryn Browning of Rolling Hills, California, build their Ha`ena, Kaua`i, dream home 70 feet from the shoreline – a setback suggested by the Brownings’ attorney Randy Vitousek.

At the Land Board’s October 13 meeting, the Department of Land and Natural Resources’ staff had recommended that the board approve the Brownings’ Conservation District Use Application for a single-family residence on their 30,000-square-foot property, with a setback of 106 feet from the certified shoreline. The DLNR’s Office of Conservation and Coastal Lands had calculated that setback using a novel formula that accounted for sea level rise and a 50-year life span of the structure, and included storm and design/safety buffers.

The formula, however, proved too novel for the Land Board and was slammed by Vitousek.

Noting that Maui County doesn’t incorporate a design/safety buffer in determining its building setbacks, and that Kaua`i, Honolulu, and Hawai`i counties require only standard setbacks of between 20 and 40 feet, Land Board chair Peter Young asked OCCL administrator Sam Lemmo, “How come we’re different from that?”

Lemmo said the formula was derived from the Hawai`i Coastal Hazards Guidebook, whose publication in January 2005 was supported by the DLNR, among other agencies, and he listed other references as well – the state’s Coastal Erosion Management Plan and a recently published booklet on purchasing coastal real estate – that direct people to take greater precautions when building along the shore.

“Basically, we’re bending over backwards to try to protect beach resources through policies and practices, and existing rules and … to protect homeowners from coastal hazards,” he said. He later said that while he approved of Maui County’s setback regulation that takes into account 50 years of erosion rates, “It doesn’t go far enough.”

Even so, Land Board member Tim Johns worried that if the board were to adopt the OCCL’s recommendation, it would be the only entity in the state to use such an “ad hoc” formula. When Johns questioned Lemmo about whether the counties have different setbacks for different zones, Lemmo responded, “Urban land is for urban uses. Conservation is for conservation….We have a different mission from the counties. This is the only way to protect the resource… If the county allows encroachment, there will be erosion and we will lose the beach there.”

With regard to the claim that his division’s formula was unprecedented and the suggestion that it was ad hoc as well, Lemmo didn’t seem to think that mattered. “I’m not here to argue against that comment…Our statutes and rules allow the board a lot of discretion,” he said.

According to Vitousek, however, the OCCL was wrong in its interpretation of DLNR rules, as well as in its calculation of erosion rates.

To begin with, Vitousek said, Conservation District rules seem to preclude the board from requiring setbacks greater than 40 feet. Even if the board had the authority to establish greater setbacks, Vitousek argued that buffers in the limited subzone of the Conservation District are unnecessary because its rules regarding homes sited in that subzone require them to be designed to withstand the hazards associated with the property – in this case, coastal hazards.

He said his clients could work with a setback of 65 to 70 feet, but not 106 feet.
“There’s a big difference between 60 feet and 100 feet,” he said, noting that the Brownings’ consultant, Edward K. Noda and Associates (EKNA), had recommended a setback of 61 feet.

Using eight aerial photographs from 1950 to 2002, EKNA calculated two erosion rates using the vegetation line and the toe of the beach. Based on the more stable vegetation-based erosion rate with adjustments for error and accelerated sea level rise, EKNA determined that the shoreline fronting the Browning property was eroding at a rate of 0.29 feet per year.

Following the coastal hazard guidebook’s recommendation that a 70-year structural life be considered when calculating setbacks, in addition to 20-foot storm and safety buffers, EKNA believed that a setback of 60.3 feet would be sufficient.

In reviewing EKNA’s report, the OCCL noted that the vegetation line along different sections of the shore suggested two different erosion rates. The discrepancy “may be a function of widespread landscaping in the area or localized coastal processes that prevent the landward migration of vegetation at the subject site,” Lemmo wrote in a February 2005 letter to Ben Welborn of Landmark Consulting Services, retained by the Brownings to assist in the Conservation District application.

In that letter, OCCL recalculated the setback using the annual erosion rate EKNA had come up with using the toe of the beach, “since it is thought to be a better indicator of long-term shoreline changes that cannot be manipulated as the vegetation can be,” Lemmo wrote.

Using this new rate, the OCCL calculated a 132.4-foot setback, which the Brownings immediately objected to. The OCCL then recalculated the setback using a 50-year structural lifespan and came up with a setback of 106 feet.

At the Land Board meeting, Vitousek noted that the coastal hazard guidebook discourages using just the toe of a beach to determine erosion rates because it is highly variable. Young added the county’s required 20-foot buffer as well as the additional 20-foot “safety” buffer plus the calculated erosion rate should account for all foreseeable changes throughout the lifetime of the structure. Adjusting that rate to accommodate sea level rise seemed like “double-dipping,” he said.

“We’re going to get into a theory of sea level rise, and global warming…” Young said.

“Sea level rise is not a theory,” Lemmo replied, adding that the strong theory of accelerated sea level rise warrants an adjustment to erosion rates.

“For every foot of sea level rise, you’re going to get 100 feet of horizontal movement, so we need to start thinking about incorporating some measure to accommodate sea level rise,” he said.

Land Board member Sam Gon asked whether OCCL’s proposed setback was similar to others in the area. Lemmo said in another case 700 feet down the beach, where the owners were also represented by Vitousek, OCCL had sought a setback of 90 to 100 feet. The matter ended up in a contested case hearing, which led to a compromise setback of 71 feet.

In response to a question by at-large member Johns about why a similar compromise hadn’t been reached for the Browning property, Lemmo explained that the Browning parcel had a higher erosion rate. Vitousek added that the 71-foot setback was based on a vegetation line, not the toe of the beach. “That was the industry standard at the time,” he said.

“If we go to a contested case, do you really think it will be a different result?” Johns asked Lemmo.

In response, Lemmo stressed the difference between the two properties, stating that the Brownings’ parcel was far more susceptible to erosion and that an adjacent property already has a scarp that would quickly eat into a 60-foot setback if it extended next door.

Despite Vitousek’s evidence that the vegetation line has been stable for 52 years, Lemmo insisted that the shoreline had been artificially stabilized by trees (although Vitousek argued that they were mere “sticks”).

“Because of that attempt to stabilize, the data is not going to show you the true erosion pattern for that area,” he said.

Young then argued that because the size of the trees indicated that they weren’t recently planted, and because naupaka and ironwoods are common along the beach, “What is the manipulation?” He added that the vegetation line is one of the factors used in establishing the shoreline.

“That’s for purposes of shoreline certification,” Lemmo said. “In terms of manipulating erosion rates, this is a scientific endeavor and it involves a long-term analysis of the shoreline change. If the shoreline change of the beach toe indicates a significant movement, and using vegetation it does not indicate significant movement…if you want to go with a combination, that’s fine with me, but you can’t discount the toe.”

In the end, the Land Board decided against setting a setback based on an erosion rate and instead chose to simply accept Vitousek’s offer of a 70-foot setback.

“I view that as a fixed amount, not based on a formula,” Young said after the vote.

* * *
All Tree Reclaims Lease

Threatened by a lawsuit, the Land Board has decided to follow the advice of its deputy attorney general and give back to All Tree Services, Inc., its agricultural lease for roughly ten acres in Waimanalo.

The board had cancelled the lease last July following complaints from Waimanalo farmers that the company was illegally using the property as a baseyard for its landscaping operations and was not engaged in any real diversified agriculture. The company was also accused of constructing an office building without city permits. After months of granting deferrals to allow All Tree to come into compliance with lease terms, the Land Board, with the support of the Waimanalo Agriculture Association, eventually voted to cancel the lease, despite All Tree’s efforts to remove all of its landscape vehicles and equipment from the property and get its building permitted. After the cancellation, All Tree sued the state, and on October 13, the Land Board’s deputy attorney general recommended that the board reconsider its July decision and allow his office to work with All Tree’s counsel, Kali Watson, on settlement documents.

Waimanalo farmer Tom Staton, whose Quality Turfgrass company is across the street from the All Tree property, told the Land Board that he was “a bit in the dark” about the recommendation to reconsider, since no staff report had been made public. Even so, he recommended that the board stick to its initial decision and “let a court decide if there was an error.”

The board ultimately sided with its attorney. At the same meeting, the board also rescinded the cancellation of a lease owned by Hemaloto and Leona Alatini, who were also using their 9.4-acre lot in Waimanalo as a landscaping company baseyard. On September 8, the Land Board voted to cancel, but gave the couple until the board’s October 13 meeting to cure all defaults. According to Land Division administrator Russell Tsuji, the Alatini property was in compliance with the lease and the couple had submitted an acceptable farm plan to the state. The board approved Tsuji’s recommendation to allow the Alatinis to keep their lease.

* * *
Census of Marine Life Wins NWHI Permit

“Welcome to the public process,” Land Board member Tim Johns told University of Hawai`i professor Steve Stanley as he complained to the board that “people are making too much fuss” about the proposed permit for a Census of Marine Life research expedition to the Northwestern Hawaiian Islands.

Ever since the state established a marine refuge in the Northwestern Hawaiian Islands in 2005, scientists, some of whom had been working in the far-away atolls for years under permits from the U.S. Fish and Wildlife Service, have been thrust into the unfamiliar and uncomfortable position of having to defend their proposals at the Land Board’s public meetings.

And the public has shown up in nearly every case so far with some kind of criticism about the methods or the necessity of the research being proposed, and always, about the fact that the public has so little time to review the permit application before it is brought to the Land Board for action.

The Census of Coral Reef Ecosystems (a project of the Census of Marine Life) permit, proposed by National Oceanic and Atmospheric Administration coral reef expert Russell Brainard, was no different.

The Census of Marine Life is a ten-year research project involving scientists in more than 73 nations working toward quantifying “what is known, unknown, and what may never be known about the world’s oceans,” the project’s website states. Within the NWHI, census researchers planned to identify new species, ranging in size from microbial to 60 centimeters, and collect an average of 10 specimens of each.

Because the number of new species that will be found is unknown, “we cannot predict the number and type of species that may be collected,” Brainard stated in his permit application.

When asked by Big Island Land Board member Rob Pacheco about what this research will do to help the refuge, state Division of Aquatic Resources administrator said the project will help fill a the state’s knowledge gap regarding the smaller, less obvious organisms.

Without that information, managing the refuge would be “like trying to manage a forest with knowledge of trees and birds…but not insects,” Polhemus said at the September 22 Land Board meeting.

But with human activities pretty well restricted in the refuge and surrounding national monument, Environmental Defense lead scientist Stephanie Fried wondered how such information would assist management and criticized the need to collect species for the sake of collecting them.

“When is it ever going to be enough?” she asked the Land Board. “I still haven’t heard how doing it this year will help management. This is really a prospecting expedition and it’s one of many,” she said.

State Division of Aquatic Resources coral reef ecologist Dave Gulko, testifying as an individual, requested that the Land Board limit the researchers to sampling organisms smaller than two centimeters, to avoid the unnecessary take of rare organisms. (Gulko argued that any new large organisms found are probably rare if they haven’t been identified during previous surveys of the area.) Gulko asked that sampling of acropora coral be deleted from the permit, also because of its rarity, and noted that Brainard’s proposal to dredge sand to collect sand organisms can be done outside state waters.

With regard to Fried’s concern about bioprospecting, Polhemus told the board that this is strictly prohibited, and all collections, no matter where they end up, belong to the state of Hawai`i.

With the research cruise scheduled to set sail October 6, Brainard agreed to make several concessions to address Gulko’s concerns. With those concessions, the Land Board voted to approve his permit request, but it deleted sand dredging from the permit, limited sample sizes of new species to less than two centimeters, limited sampling to a maximum of five per species per habitat type, prohibited the sampling of live acropora coral, and prohibited the take of any organism greater than five centimeters already known from French Frigate Shoals.

Unsure whether those permit amendments went far enough to protect the refuge’s resources, Maui Land Board member Jerry Edlao opposed the permit. Although he voted in favor of the permit, at-large member Johns was concerned that the permit review process had broken down in this case, with the Land Board being forced to resolve scientific disputes. “A lot of this could have been resolved beforehand,” he said, adding that it was unseemly to negotiate such details at a Land Board meeting (considering that only one board member is a scientist, and a terrestrial one, at that).

He added that he did not want to entertain any more NWHI permits this year, since the process clearly needed fixing.

— Teresa Dawson

Volume 17, Number 5 November 2006

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