In the Conservation District

posted in: August 1994 | 0

Hana ‘Hobby Horse’ Ranch Is Approved Despite Destruction of Historic Trail

In the January Conservation District Column of Environment Hawai’i, the Conservation District Use Application of one Fred Levy was described. Levy was proposing to turn 63 acres of little-used pasture land in the Conservation District at Kalia’e Point, near Ke’anae, Maui, into a private residential ranch. Although he insisted that the ranch would not be commercial, title to the land is ultimately to rest with his California-based company, Pacific Land and Cattle, Inc.

On March 11, 1994, at its meeting in Wailuku, Maui, the Land Board gave Levy the permit he sought.

The Destroyed Trail

An ancient trail, the Alanui O Pi’ilani, crosses the makai portion of the property. It connects Wailuaiki Stream, on the Ke’anae side, to Kopiliula Stream on the Hana side. In late 1992, grubbing and grading occurred on the property; and while such activity had occurred in the past, it had never before extended to the area crossed by the trail. Until recently, the trail was used by residents of Ke’anae to get to Kopiliula Stream, where they picked ‘opihi (limpets) and ‘opae (shrimp), which formed important additions to their diet and to their livelihood.

Testimony at the March meeting, as well as comments from the Ke’anae-Wailuanui Community Association, described the trail’s destruction in convincing detail.

In the final Environmental Assessment, however, Levy made a number of statements contradicting the residents’ claims of use. “The initial ‘obliteration’ of the ‘King’s Highway’ occurred circa 1963 therefore it has not been addressed in this application,” he wrote. “The local community was not using the portion of the trail which crosses the subject property. Nor were they exercising their traditional fishing and gathering rights along said trail…” Before the grubbing occurred, “the only people on the property were the owners and, presumably other trespassers growing marijuana. The ‘Kings Highway’ had not been used for at least one or two years… During the October of 1993 grubbing there may have been limited erosion. The remains of the ‘King’s Highway’ however were found rather than destroyed.”

In the final EA, Levy agreed to allow public access over “what remains” of the trail. This, however, is referred to as though it were a concession on his part rather than a public right to cross land that, as a government road, is owned in fee by the state. Levy writes: “the applicant owns the property in Fee Simple and recognizes the public access easement only along the ‘King’s Highway’ as it crosses said property.” Later on, he commented: “This is a service that is being provided to the local community in helping them preserve their traditional rights and culture.”

No Verification

The staff submittal to the Land Board, prepared by Roy Schaeffer of the Office of Conservation and Environmental Affairs, recommended that the trail “be identified and delineated as much as possible … and kept open for local subsistence use as an access route between the adjacent valleys and coastline.”

In the Land Board’s discussion of this point, Board Member Chris Yuen, of the island of Hawai’i, asked Roger Evans, administrator of the OCEA, whether the destruction of a government trail would not be a violation of some state law. Evans seemed puzzled by the question. “Why would that be a violation?” he answered.

Yuen: “To destroy a government trail?”

Evans: “It wouldn’t be a violation that I would be involved in.”

Yuen pursued the point: “To me, I regard it as an important question as to who actually destroyed the Alanui.”

Evans answered that, to determine who destroyed it one would have to “go back 30 years. That’s kind of difficult. I don’t want to suggest that the question is not important. I don’t honestly know how I’m going to be able to answer your question.”

Yuen reminded Evans that the trail seemed to be intact as late as September 1992, to which Evans responded: “I cannot at this point verify that.”

No other member of the Land Board echoed Yuen’s concerns over the trail’s destruction.

Lateral Access

Another concern of the Ke’anae-Wailuanui Community Association was that residents continue to be allowed access to the shore from Hana Highway. According to one person testifying to the Land Board, the road that leads down from the Hana Highway, crossing state land and then private property, was itself built over an old foot path. Now, Levy is in the process of purchasing a non-exclusive easement across the state-owned part of that road. Until recently, this road was used for shoreline access by nearby residents. Soon after the grubbing began, Levy placed a lock across the road where it enters the Hana Highway -removed, however, after the state Division of Land Management received complaints.

In a response to the residents’ expressed desire to continue to be allowed the use of the property; Levy wrote: “an easement for community access to the water via a road or trail from the highway to the shoreline could not be in the original deed. Nor is such an easement in the most recent Exchange Warrant [sic] deed.”

Concluding his response to the community’s concerns, Levy wrote in the final EA: “Clearly the Ke’anae-Wailuanui Community Association has a Socialistic viewpoint with regards to property rights… Although said rights are subject to the jurisdiction of the [Department of Land and Natural Resources] and its respective administrative rules (providing for land use within the Conservation District), they are the property rights of the land owner.”

‘A Hobby Horse Farm’

Levy’s statement that his ranching activity would not be commercial occupied much of the Land Board’s discussion of his application.

At the meeting, the question was brought up first by Gladys Kanoa, a member of the board of the directors of the Hana Soil and Water Conservation District. “My feeling is that, as most of you know, if you have a hobby horse farm, you write it off your taxes. Most corporations have to file a type of tax return that’s automatically commercial for the IRS. So, is he [Levy] not going to write off any of these structures for the horses, he’s not going to depreciate the value of these thoroughbreds? Is that not commercial? Can anybody clarify that for me?”

Into the breach jumped Evans. “I can clarify that,” he said, going on to explain that the application was only for the house, not for the ranch – which, he said, qualified as a nonconforming use.

“Here comes a new owner, potential owner. New potential owner says, ‘I want to put up a house, which did not exist before.’ New owner has to go through CDUA process, which the new owner is. ‘I do not intend to rent this out; I do not intend to use this house for any commercial purposes.’”

“We come before the board, we say, if the board approves the house subject to conditions, one condition is, there shall be no commercial use of this application, which is specifically for the house… Specifically the board is saying, if they approve, you cannot use this application which involves the house only for commercial purposes.”

Evans’ statement that the application involved nothing more than the request to build a house startled Kanoa. “I didn’t understand that the application had to do with the house only. I understood that these 4,000, 6,000 square feet of horse stables and what not… was part of the application.”

Evans acknowledged that yes, that was part of the application.

Kanoa, still puzzled, responded: “That has to do with commercial use.”

Evans: “It will be a lot of different things.”

Gift Horses?

At this point, Board Member Yuen pointed out that there was a difference between the non-conforming activity of the past (the cattle ranch) and the activity Levy was proposing. “When I read [the application],” Yuen told Evans, “I thought you were exempting it from commercial because he wasn’t going to sell the horses, that there wasn’t going to be any economic use of the horses except that he likes horses. It sounded a little strange to me, but I’m very concerned now with the interpretation that because there’s been a non-conforming use of a cattle ranch that then I can convert that to a hobby horse farm and also have new structures put on the property for the hobby horse farm without that being commercial.”

Yuen pursued the point. “See, I just don’t understand. This guy, he’s going to raise his horses and then what’s he going to do, let them grow old on a ranch somewhere? Give them away to his friends? I have a really hard time believing that these horses will not ultimately be sold as a regular activity…

“He has close to 5,000 square feet of covered stables with room for 19 horses. Some hobbies are commercial.”

Board Member Sharon Himeno disagreed with Yuen. “I know people who have horses and they ride them and that’s the end of it. Now, if he had a horse ranch, was breeding and selling and feeding and charging people to ride his horses, then that’s another story.”

Runoff

When the property was graded in 1992, runoff from the exposed lands went down the cliffs on either side of the property and into Kopiliula and Wailuaiki streams. According to testimony from Gladys Kanoa of the Hana Soil and Water Conservation District, in November 1993, “two weeks after one of the most intense rainy periods of the year,” one of the district’s board members “inspected the land via the Alanui from Wailuaiki and through the traditional access from the Hana Highway… The ocean surrounding Kalia’e Point was chocolate brown. Severe erosion and runoff had occurred and was still occurring from the unplanned, uninspected, and over grading that had obviously been done by a bulldozer within the previous month… Long, steep slopes were dozed straight down into the low-lying areas. In one of these low places the runoff caused a gully three feet deep…

“[T]he most severe erosion is into Kopiliula Stream. This erosion is on the access road through state forestry land, near the entrance to the applicant’s property. Two deliberate cuts were made for the purpose of runoff into the stream. Runoff is so severe that the stream bank has been denuded of vegetation for a six-foot-wide portion to the stream.”

The cuts off the access road had been made by Levy’s agents sometime in the summer of 1992. While the road crosses state-owned Conservation District land, no Conservation District permit had been obtained. As reported in the January 1994 article of Environment Hawai’i, Roger Evans had informed the state Division of Land Management that any expansion of the road would require filing of a Conservation District Use Application, but Levy had the road expanded – and the drainage cuts made – without ever seeking a Conservation District permit.

In fact, on March 11, Evans informed the Land Board that his staff had considered the complaints of unauthorized work on the state-owned road. “We, based upon our review, felt there was no substance to the complaints and as such we closed the file on them,” he said.

To deal with the problem, the Land Board conditioned its approval on Levy working with the Hana Soil and Water Conservation District to develop a plan to mitigate erosion and runoff from the private parcel. Runoff resulting from cuts made in the hugely expanded access road over state land was not addressed by the Board.

Other Concerns

House plans Levy submitted with his applications describe a one-story structure of more than 6,675 square feet under roof; an adjoining pool and lanai give it an even greater footprint. When confronted with residents’ concerns about the size of this house being far greater than any house now built in the area, staff planner Roy Schaeffer wrote, “Staff feels it is more appropriate to consider the ratio of the proposed development to the undeveloped lands that would remain on the property. According to the applicants’ calculations, the ratio of constructed floor area to undeveloped land area is 1 to 412.67.”

By that reasoning, which went unchallenged at the Board meeting, the more remote and undeveloped a parcel is, the larger the house that OCEA staff would find appropriate for construction.

Another issue was whether the very application was properly completed. Ke’anae resident Elaine Wender told the Board, “First of all, I don’t believe we have an application… The CDUA is not signed. Also, the applicants did not indicate their interest in the property,” as required on the DLNR’s master application form.

Evans was asked about this by Board Chairman Keith Ahue. “There was some question raised earlier about the CDUA not being signed.”

Evans: “That’s incorrect… Our rules are clear. Under that, what must be done, there must be a signature of the landowner…”

Wender pointed out that although the blank calling for the landowner’s signature was signed, the blank where the applicant was to sign was not filled in.

Evans continued with his explanation: “If you are an applicant and not a landowner, the landowner will sign and then you sign as the applicant. If you are the landowner, you sign it. As a matter of fact, would this particular application to have been submitted to us, as it was, and no action taken within 180 days, this application would have been approved by default according to the rules.”

“Even without the signature?” Ahue asked.

“Without the signature,” Evans responded.

Sole Dissent

Wender attempted to rebut Evans, noting that, according to the language on the DLNR application form, signing the “applicant” blank is optional only when a use of water is being sought and the applicant and the landowner are one and the same party.

To no avail. Immediately after her comments, Maui Board Member William Kennison moved for approval of the permit. Sharon Himeno seconded. They were joined in their vote for approval by Ahue and O’ahu Board Member Michael Nekoba.

Chris Yuen alone voted to deny the application, citing his concerns over the destruction of the Alanui, soil erosion and runoff problems, and, last but not least, the “borderline” determination that no commercial use would be made of the ranch.

Staff Report Proposes Fines for Garden at Onomea

The staff submittal prepared for the Levy application was forgiving to a fault when considering activities that may be construed as violations of DLNR rules. It relied heavily on statements made by the applicant and his agent, with little effort made to verify their claims.

In contrast, the submittals prepared for the Conservation District application of the Hawai’i Tropical Botanical Garden are punctiliously detailed. The planner who prepared these submittals, Catherine Tilton, was rigorous in her attempt to verify the claims of the applicant, Daniel Lutkenhouse, founder and president of the non-profit botanical garden.

Perhaps the differences between the approaches of Tilton and Schaeffer can be explained by differences in the nature of the applications they were handling. Schaeffer’s assignment dealt with a new project; Tilton’s was to discuss how the garden had complied with conditions of a previously issued permit as well as to provide to the Land Board recommendations concerning a pending amendment to the original permit and a request for a contested case hearing on that pending permit change.

The submittals were to be presented to the Land Board for decision at its meeting of March 24, 1994. (For further background on the Hawai’i Tropical Botanical Garden, readers may wish to consult the March 1992, October 1992, October 1993, and November 1993 articles of Environment Hawai’i.)

Whose Road Is it, Anyway?

One of the thorniest disputes that has developed around the garden’s activities concerns its use of what some describe as a Jeep Trail, what the garden calls its Shuttle Road, and what the state surveyor describes as the Old Government Road. No one involved denies that at one time, a government road led down from what is now the Old Mamalahoa Highway (better known as the four-mile scenic route off the new Belt Highway) to the valley floor and Onomea Stream.

Lutkenhouse and his agents have claimed that the road has eroded away just below the Mamalahoa Highway. What remains of the road within the garden is a “road remnant leading nowhere”, he says. The surveyor he hired (a member of the garden’s board of directors) backed him up on this. In July 1993, Lutkenhouse wrote the Department of Land and Natural Resources, asking to purchase the “remnant” road.

Over the last year, public interest in the use of the road has become heightened. The Survey Division of the Department of Accounting and General Services was asked to “confirm” the survey provided by Lutkenhouse. For the most part, the state surveyor did confirm the private survey, but there were two exceptions. First, contrary to Lutkenhouse’s claim that there is no connection between the Mamalahoa Highway to the old road remnant, the submittal reports, “the survey work conducted by the State Land Surveyor shows that a portion of the Old Government Road does connect to the Old Mamalahoa Highway.” Second, while “the applicant’s surveyor places the end of the state-owned Old Government Road at a point along the banks of Onomea Stream which drops approximately thirty feet to the stream below,” the state surveyor found that “the Old Government Road and the Donkey Trail [a path on the adjoining parcel] are one continuous Road linked by a ford which crosses Onomea Stream.”

In light of the surveyor’s findings, the staff recommends requiring the garden to work with the DLNR to agree on a “public shoreline access management plan,” which would include access via the state-owned Donkey Trail and via the state-owned Old Government Road.

Historic Sites

The DLNR’s Historic Preservation Division conducted a site visit in June 1993. At that time, the submittal states, “HPD staff observed many historic sites on the subject property that were not reported to their office.” Tilton then asked both the Historic Preservation Division and Lutkenhouse to discuss the garden’s compliance with its original permit condition requiring work to stop, pending review by a state official, when any historic remains were discovered.

Lutkenhouse responded that “no historical objects or sites were encountered… and had they been, the garden staff would have reported it.”

The Historic Preservation Division found otherwise. Its investigation had concluded that historic sites “were encountered during the construction and maintenance of facilities of the garden,” although at no time was the state Historic Preservation Division alerted to the presence of such sites. Field inspections over the last year have helped “establish the fact that sites are present,” the submittal states. “At this point, we would recommend that an archaeological inventory survey of the … garden be done to clearly identify and describe sites…”

Fines and Remedies

Altogether, the staff submittal identifies five of the 29 conditions of the original permit that have been breached and recommends fines totaling $8,000 for those violations as well as removal of that portion of the garden gate occupying the state-owned road. “Additionally,” it says, “although in compliance with Condition 29 requiring an aquatic survey, the applicant waited over ten years to submit a report that was completed in 1983.”

“We are concerned with the applicant’s apparent inattention to their permit requirements and question their ability to properly follow and carry out the directions of the Board,” the submittal states.

As to the proposed and already built improvements for which new permission is being sought, the staff submittal recommends violations totaling $2,500 for the five after-the-fact improvements. Contingent upon Lutkenhouse receiving county Special Management Area clearance, the staff submittal recommends Board approval of the after-the-fact improvements, but that it withhold approval of the proposed improvements “until the applicant can demonstrate to the Board and Department their ability to comply with the conditions of their permit.”

On March 24, the Land Board voted to accept the staff’s recommendation for the after-the-fact and proposed improvements, including the $2,500 fine. It deferred action on the recommendation of fines for violations of the existing CDUA, pending clarification of a legal question. (Members of the Pele Defense Fund had requested a contested case hearing on the matter of past violations. The Land Board took the request under advisement.) The request for a contested case on the permit amendment, made last year by Ed Johnston, was denied.

A Walk in the County

As indicated above, county SMA clearance had not been obtained at the time the staff submittal was written. On March 11, however, the Hawai’i County Planning Department issued an SMA Minor permit to Lutkenhouse. In the letter of notification, county Planning Director Virginia Goldstein noted that past SMA permits had been approved with the condition that “public access to and along the shoreline shall not be impeded,” although the county has never required Lutkenhouse to provide a means of public access to the shore on the garden property.

The “background” facts recited by Goldstein are, moreover, at odds with the DLNR’s findings on the matter of the Old Government Road. “According to the applicant,” Goldstein writes, “the only public road within the Hawai’i Tropical Botanical Garden is a road remnant of the old Government Road… There is no public access from the Old Mamalahoa Highway to the old Government Road remnant.” Goldstein goes on to say, erroneously, that the state surveyor confirmed the survey made by Lutkenhouse, finding that “the road remnant ends at a point along the banks of Onomea Stream where it drops approximately 30 feet to the stream below.”

— Patricia Tummons

Volume 4, Number 10 April 1994