Condominium Planned for Kona Sparks Debate Over Shoreline Rules, Seawalls

posted in: August 1998 | 0

A controversial plan to develop a small parcel along the Kona coast has developed into a much larger dispute over coastal development in general. The county of Hawai`i Planning Commission agreed to hold a contested case hearing over a Special Management Area permit for the development; that hearing has been put on hold while parties attempt to come to an agreement.

At issue is the plan of a SoBay Hawai`i, Inc., to build a five-level (four residential floors, one parking level), 21-unit condominium block on a lot that it claims to be 29,414 square feet. Before 1970, a seawall running along most of the makai side of the land was built on the property, which fronts Waiaha Bay. Two rather ramshackle structures remain on the mauka part of the lot, along Ali`i Drive. In the last quarter century, the wall has broken down in several parts as a result of natural wave action. Sand has returned to the area, making it one of the few spots between Kona and Keauhou where bathers can enjoy a natural beach. The offshore breaks have become a popular surfing spot, called Honl’s, after a former owner of the land.

The lot lies between Ali`i Drive and the ocean. At the southern end of the triangular parcel, sand now extends nearly to the highway. Photographs taken by opponents of the development show waves running up nearly to the road.

Shrinking Setback

In 1980, a previous owner had successfully petitioned the county to reduce the standard 40-foot shoreline setback – the area in which structures are normally not allowed. The justification for doing so was that, with the 40-foot setback and other standard setbacks (from side and front boundaries), the buildable area of the lot would be less than 50 percent of the lot area. As a result, the shoreline setback area is 20 feet from the certified shoreline.

But even with this more generous setback provision, the present developer had difficulty keeping the planned building inside the setback areas. An environmental assessment prepared last year showed that the project would need a variance to allow lanai decks for two units to overhang the setback; in addition, a planned driveway at the south end of the lot would almost entirely be in the setback. Other elements requested in the variance application included rebuilding the seawall and constructing a pedestrian beach access (at a point where, opponents note, it would be submerged during high tide).

In May 1997, the Department of Land and Natural Resources accepted a survey that established the certified shoreline along the seawall or where the wall was thought to have been. The certification map makes mention of the disrepair of the wall, noting that at places, the “upper portion of wall [is] destroyed” and elsewhere, that the “lower portion [of the wall] may be buried by sand.” The certification was valid for a year– until May 14, 1998.

Shortly after the survey, the draft environmental assessment was made public. In comments on the document, Kona residents who frequent the area noted that recent heavy storm waves had caused further damage to the seawall, which was no longer visible along up to half of the 250-foot frontage.

After publication of the final environmental assessment, a court challenge of the document was brought by Walter Aniban Sr., a part-Hawaiian, and the West Hawai`i Surfing Association, Inc. In addition, these two parties, and a third – apartment owners of a neighboring condominium, the Kona Reef – were granted standing in a contested case hearing before the Planning Commission for both the SMA permit and the shoreline setback variance. In connection with that case, Judge Ronald Ibarra issued a temporary stay preventing any work on the seawall.

Shrinking Applications

When the Planning Commission began holding hearings on the SMA and setback variance applications, it became apparent that the variance was going to be difficult to obtain, especially in the dwindling amount of time left to begin work before expiration of the shoreline certification. Consequently, the developer had the plans redrawn, eliminating the need for lanai overhangs and the pedestrian access. And, instead of seeking a setback variance for rebuilding the seawall, SoBay attorney Randy Vitousek announced at an April 17 commission hearing that SoBay had asked county Planning Director Virginia Goldstein for administrative approval of repairs to the wall.

SoBay’s request was dated February 23 but was not received by the Planning Department until March 23, 1998. By the time Vitousek announced that SoBay had made the request, Goldstein had already responded to it favorably, in a letter dated April 15.

Kevin Seiter, attorney for Aniban and the association of surfers, was incredulous. He reminded the commissioners that “when I got the notice for this meeting, it states that the repair of the seawall is included in the SSV [shoreline setback variance] application.”

Deputy Corporation Counsel Patricia O’Toole was asked to respond. She acknowledged that the seawall variance was included in the meeting notice, but added: “However, there is a Planning Department rule which would allow the director to approve repair. And I believe she has … granted the request.” No copies of Goldstein’s letter were available at the meeting.

Seiter again protested. Although the variance was “the subject not only of the contested case but a lawsuit filed in Third Circuit Court,” he said, “I’m finding out for the first time that the planning director has told them they can rebuild the seawall.”

Goldstein rose to her own defense. The wall was not going to be rebuilt but rather just repaired, she told the commission.

Seiter pointed out that in the area of the sandy beach, “there is no seawall to be repaired. So my concern is that in the name of a minor repair, what they’re going to do is to construct a whole new seawall on that beach, on the sandy beach.”

Councilmember Curtis Tyler testified that Goldstein’s decision amounted to “a circumvention of the public process.” He asked Goldstein if she would hold a public hearing on SoBay’s request when it presented her with final plans.

“There is no requirement for a hearing on this,” she said. The plans came into Goldstein’s office on May 8. Goldstein’s final approval was sent out May 12, without Goldstein notifying Seiter or any of the other agents for parties involved in the contested case hearing (except Vitousek). Her letter states that work may begin at any time up to two years from the letter’s date.

When Seiter learned of the decision, he told West Hawai`i Today that should SoBay try, “they won’t be able to work with 30 to 100 people sitting an inch away from their certified shoreline.” He added, “the real enemy is not the developer or the natural elements, but Goldstein. She’s the environmental Darth Vader of West Hawai`i.”

Mediation

Meanwhile, back in Third Circuit Court, Judge Ibarra ordered the state, county, SoBay, and the other contestants to engage in mediation — an order that the state appealed to the Supreme Court, which upheld Ibarra’s order. The mediator is state Representative David Tarnas, whose district includes Waiaha Bay.

As negotiations were underway, Vitousek attempted to obtain the agreement of the state to a stipulation that would have allowed SoBay to repair its wall — which, SoBay has claimed, has been further damaged by unknown persons, over and above any damage it may have suffered as a result of natural forces.

However, the state’s position, as formulated by deputy Attorney General Dawn Chang, now seems to be that where the wall has been breached, the past shoreline certification no longer is valid. In a letter to Vitousek dated July 15, Chang writes:

“It is a shame that the wall has been damaged. However, while the state is sympathetic, it is not able to sign the stipulation. It may not be legal for the wall to be repaired unless a determination is first made as to whether the site of the wall is within conservation-zoned lands. Under the Department of Land and Natural Resources’ rules, the former shoreline certification for the property is now in doubt because the artificial structure which formed the makai boundary is no longer intact and has been altered.” Because the state “cannot stipulate to ignore a legal requirement,” Chang returned the stipulation to Vitousek unsigned.

The matter is scheduled to come again to the Planning Commission in late August. By then, the parties are hoping to have reached a negotiated agreement as to the scale and site of development, if any, at Honl’s beach.

Other Issues

In documents submitted in anticipation of the now delayed contested case hearing, attorney Mike Matsukawa, representing the Kona Reef apartment owners association, set out several positions that, if upheld, could bring about radical changes in the way seawalls and shoreline certifications are handled.

As noted above, the county of Hawai`i (and other counties) tend to regard seawalls existing before 1970 as legally grandfathered. According to Matsukawa, however, there is nothing to support this view. “During territorial years,” he writes in a June 8 memorandum, “the harbor board managed harbors and also the ‘shores’ and ‘shore waters’ of the territory. Under Section 112-17, R.L.H., no person could place ‘any structure … on or within the shores … of the territory without a written permit from the board.'”

The Honl family, builders of the first wall on the site, was “required to obtain such a permit for the stonewall in the 1950s from the harbor board. To my knowledge, there is no written permit in the files of the harbor board or its successor which shows that Honl obtained a ‘written permit’ from the harbor board to build the stonewall on the ‘shores’ of the territory at Waiaha.”

Should the seawall have been built illegally on state or territorial land, it is a trespassing structure, Matsukawa argues, regardless of its age.

Chip Fletcher, the guru of coastal retreat in Hawai`i, submitted testimony in support of the parties opposed to any rebuilding of the seawall or its use as a definition of the limit of privately owned property. Fletcher states he had observed the wall, “which is not intact. I am of the opinion, since the failing of the wall, a wider beach has established itself, and the actual shoreline is mauka of the wall. In other words, the public, sandy beach extends mauka of the wall, especially at the south end. Rebuilding the wall will have an immediate, adverse effect on the beach and shoreline area and processes. It will result in an immediate decrease in beach width, and the legal shoreline will move makai of the actual shoreline. The wall is preventing the high wash of the waves from establishing the legal shoreline, and the rocks in the failed part of the wall are either buried or have moved makai of the wall into the shoreline area and Conservation District. Based upon my personal observations, the actual shoreline and beach extend mauka of the failed wall, to Ali`i Drive and the southern end of Waiaha [Bay], which would make the sandy beach public property. To allow rebuilding [of] the wall will not only adversely impact coastal processes, it will make ‘trespassers’ of members of the public who have the right to access the shoreline on public beaches.”

Volume 9, Number 2 August 1998