Along most of the coast of Kihei, Maui, a strip of state-owned land lies sandwiched between the ocean and the makai boundaries of privately owned lots. The land was set aside as a beach reserve when most of Kihei was subdivided in the 1930s and 1940s. The apparent intention of the state in holding on to this strip of land was to make certain that the public would always be able to have access to the ocean without worrying about trespass over private property. In recent years, the state has regarded the beach reserve as parkland that neither the state nor the county government is capable of managing.
As Kihei developed, the state gave more than a dozen private property owners permission to landscape the adjoining section of beach reserve. In practically every instance, permission was accompanied with a requirement that the area owned by the state be posted to indicate that the public was free to use the landscaped area, up to the boundaries of the private property.
As Environment Hawai`i reported in [url=/members_archives/archives_more.php?id=1287_0_30_0_C]July 1994’s cover article[/url], not one sign had been erected along the entire coast of Kihei to let the public know of its rights to use the beach reserve land. In addition, people with no permit from the state to use the beach reserve were found to have landscaped it extensively — again, with no notice being given to the public of the fact that it was publicly owned land.
‘Possible Encroachments’
On August 4, the Maui agent for the Division of Land Management conducted an inspection of the Kihei area. Five holders of permits were found to be in violation of the requirement that signs be placed on the landscaped beach reserve adjoining their properties. The Kihei Surfside, the Hale Pau Hana, the Royal Mauian, and Loke Hale condominiums, as well as one owner of a single-family residence were sent notices of violation of permit terms by the Maui land agent, Alan Tokunaga, in late August.
In October, Tokunaga prepared a report on the status of the Kihei beach reserve, which was presented to the Board of Land and Natural Resources at its meeting of October 28. According to his report, only three areas had signs — areas under permit to E.F. Bello, to Hale Pau Hana Homeowners’ Association, and to the Kihei Surfside (the permit held by Seaside Developers). He confirmed what Environment Hawai`i had reported about “possible encroachments on the beach reserves by private land owners,” but while Environment Hawai`i found at least 10 instances where adjoining owners appeared to have landscaped state-owned beach reserve land without the requisite state approval, Tokunaga reported just four “possible” instances. In his report to the board, Tokunaga stated that the land owners would be notified of the encroachments “once research on these properties” was completed by his office.
Tokunaga also reported that William Moffett, one of the landowners who had had a permit for landscaping of the beach reserve, had requested that his permit be cancelled after he was notified of the need to install signs alerting the public to its right to use the landscaped area. The permit was cancelled, Tokunaga said.
Small Steps
In November, Environment Hawai`i conducted another tour of the Kihei beach reserve. Public-use signs were found at the Kihei Surfside, the Hale Pau Hana, in front of E.F. Bello’s house, and on land occupied under permit by Norman Hill. The Kihei Surfside signs have been placed so as to be entirely invisible to anyone approaching the area from the shoreline trail, are small and inconspicuous in the best of circumstances, and fail to indicate clearly the boundary of private property.
Bello’s sign, tacked to a coconut tree, reads: “State Beach Reserve: Public Use Allowed.” Here again, however, there is no clear delineation between public and private areas.
At the Hale Pau Hana, the sign is low to the ground and partly obscured by vegetation. Still, it was posted in an area where the public stands a chance of seeing it. Language on this sign reads: “State Beach Reserve: Public Access and Use Allowed.”
Hill’s hand-lettered sign reads: “State Beach Reserve: Public Access Allowed. No Vehicles.” While the land under permit to Hill may not be the most intensively managed or groomed, the sign here is the least ambiguous, largest, and, in all likelihood, the one most likely to be seen by the public.
Progress of a sort had occurred at the Royal Mauian condominium. Last spring, signage on the beach reserve read: “PRIVATE: Facilities Provided for Royal Mauian resident use — Mahalo.” By November, those signs had been removed from the state land, although no other signs had replaced them.
At the Mana Kai Maui, one of the few condominiums in Kihei where the fronting beach reserve leads into a broad, clean sand beach, signs were being prepared on the day Environment Hawai`i visited. The billboard-size signs are not intended, however, to alert the public to its right to use the landscaped beach reserve area. Rather, the signs warn ominously of the perils of using the beach. “ENTERING AND SWIMMING IN THE OCEAN IS DANGEROUS,” the signs cautioned. Fine print as well as the now-commonplace symbols crossed by diagonal red bars described the dangers in greater detail.
Public Involvement
Last April, the Land Board approved the request of the Division of Land Management to issue five 55-year non-exclusive easements in the Kihei area that would replace the existing month-to-month revocable permits, the instrument by which landscaping by private parties of the beach reserve is now allowed. At that time, two organizations — Keauhou o Honua`ula and Hui Alanui o Makena — and four private individuals — Dana Hall, Alice Kuloloio, Leslie Kuloloio, and Edward Chang, Sr. — requested a contested case hearing be held on the easements.
At the Land Board meeting of October 28, 1994, the Division of Land Management asked the Land Board to deny the contested case request, alleging that no party had the necessary legal standing.
Mason Young, administrator of the Division of Land Management, acknowledged that one of the major concerns expressed by the contestants was enforcement of permit conditions. When Young became aware of this potential problem, he said, “I instructed my staff on Maui to go out and do the inspections and to cure whatever violations were occurring on the premises.” The report of Tokunaga, described above, was the result.
“There was and is continuing follow-up of staff to correct whatever infractions are occurring on the premises,” Young told the board, “and we’re also ensuring that the signs that are placed on the properties have the appropriate wording to show that the public use and access to the premises is permitted.”
Board member Libert Landgraf suggested putting the beach reserve on recreational maps published by the state. Young was agreeable to this.
Board member Christopher Yuen suggested that the state itself should not let the private landowners erect signs but rather should charge them enough to pay the state for erecting the signs. This would ensure uniform wording, size, and placement of the public notice, he said. Once again, Young was agreeable to the suggestion.
Isaac Hall, attorney for the contestants, told the board that a contested case hearing was needed to ensure that Young’s promised follow-up would occur. “These lands are not public, not available to the public; they are being used as if they were private land, access is being restricted. And that’s why we want a contested case.”
The Land Board did not grant the contested case request; neither did the board deny it. Instead, Mason Young was instructed to work with the contestants as well as the community in attempt to develop a plan for adequate signage for the beach reserve. The contested-case request was held in abeyance, to be decided at a later date.
Volume 5, Number 6 December 1994