“I’m hearing a lot of shirking of responsibility,” board member Aimee Barnes said on December 7, after the Board of Land and Natural Resources heard from Sunset Beach homeowner Eric Freeman and his attorney, Bernard Bays.
Freeman had just claimed he purchased his eroding shorefront lot in 2020 for $2.5 million sight-unseen and was unaware of just how close the house was to falling into the sea. He then allowed for extensive erosion control measures to be placed on the public beach, despite being warned repeatedly by the Department of Land and Natural Resources’ Office of Conservation and Coastal Lands that the work being done was illegal.
Bays told the board, “The Freemans are not bad actors. … They see a generic shoreline disclosure, they don’t think anything of it. The next thing they’re trying to do is preserve their house.”
The OCCL’s report to the board told a different story.
“Despite receiving verbal and written notice of their unauthorized activities from the OCCL starting in January 2022, the Freemans have failed to remove debris and past unauthorized erosion control structures… and they have willfully continued to allow unauthorized work within the Conservation District in the subject area on at least twenty-two separate days or occasions,” the OCCL report stated.
At the Land Board’s December 7 meeting, the OCCL recommended Freeman and his wife, Moniza, be fined $937,000: $15,000 for the initial Conservation District violation, $330,000 for the 22 days of willful violation, and $592,000 for failure to remove the encroachments from state land after receiving an order to do so on February 7, 2022.
“At some point someone needs to take responsibility,” Barnes said. She also indicated that Freeman’s excuse that he didn’t know how bad the erosion was “didn’t sit great” with her.
The property’s previous owners, Gary and Cynthia Stanley, had also incurred fines for violating Conservation District rules by installing unauthorized sand-filled geotextile tubes (also known as burritos) on the beach fronting the house, which they, and later the Freemans, used as a vacation rental.
The DLNR entered into a settlement with the Stanleys that required removal of all but one burrito and payment of a $3,000 fine. In September 2020, they obtained an emergency Conservation District Use Permit for the remaining burrito and a tarp and sold the property three months later.
That permit required the landowner to secure a right-of-entry permit from the DLNR’s Land Division for the use of public land, to not add any new erosion control measures, and to remove the erosion control structures by the permit expiration date of September 3, 2023.
By January 2022, however, investigators observed white polypropylene bags around the burrito, OCCL administrator Michael Cain told the board. He added that the OCCL would never authorize the installation of such bags because “they break apart and end up in the environment.”
Even so, more bags were seen later, and eventually a “whole pyramid of tubes” was installed, Cain said. Some were apparently deflated and in the water, he said.
He recommended that the fines be paid within 90 days of the board’s action and that all unauthorized material be removed by July 1.
The OCCL also asked the board to authorize the Attorney General’s office to file a notice of pendency of action. Based on Act 236 of the 2023 Legislature, the DLNR has the ability to attach a lien on a property for failure to comply with enforcement actions related to unauthorized structures on public lands.
“I believe this is the first item brought to the board where we’re using this tool,” Cain said.
Bays stated that the Freemans plan to relocate the house about five feet further inland and raise it on posts. To do that, they are going to need, among other things, approval from the state Department of Health for a new septic system.
“As soon as we move this house back, we’re going to restore the shoreline as you requested,” he said, adding that their goal was to restore the beach at the end of the summer.
He warned that it can take a year and a half to get a building permit from the City & County of Honolulu and said he was trying to meet with the mayor and managing director to expedite that.
He added that the Freemans will contribute $150,000 to help fund studies of ways to save the beach.
“I’m incredibly sorry we’re all sitting here. I’m a huge environmentalist… I’m usually on the other side of this. I really am,” Eric Freeman added. Given all the work that needed to occur before he could move his house, he asked that the Land Board defer the matter until the end of next year.
Board member Kaiwi Yoon pressed him on what he knew before he bought the property. Noting the $2.5 million purchase price, Yoon told Freeman that he must be a smart businessman, yet he bought the lot without doing due diligence.
“Honestly, erosion never crossed my mind,” Freeman replied. “I know this house now is toast. … It’s such a burden now.”
Randy Meyers, a retired school teacher who lives nearby, said that the tarps that some of the owners have placed along that stretch of beach have already endangered lives. “There was a surfer that was almost killed by one of these tarps,” he said. “[It] wrapped around him and took him to the shorebreak. A lifeguard cut him out.”
When Land Board chair Dawn Chang asked Freeman whether he was acknowledging that he put anything on the beach, he denied it.
“You hired a contractor,” Chang replied.
In the end, the board approved the OCCL’s recommendations, with amendments that allowed the cost of any remediation work done in the next four months (not including moving the house) to be credited against the fine and required the landowners to notify the community of the work being done and to restore the public right-of-way.
Bays then requested a contested case hearing, which the board quickly granted.
The Freemans will need to return to the Land Board with a request for a right-of-entry permit for the continued use of state land. The OCCL had asked the board to approve a right-of-entry permit over the state land, but the contested case request puts that on hold.
—Teresa Dawson
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