Public Lands in Private Hands: The Beach Reserves of Kihei, Maui

posted in: July 1994 | 0

One of the last undeveloped stretches of coastline in Kihei, Maui, may be found near the Kihei small boat harbor. Immediately south of the boat ramp lies nestled a sandy pocket beach. Beyond that, still to the south, a trail heads down the coast, where a buffer of state land along the ocean provides a corridor for public access all the way to Wailea.

People following the trail through the kiawe may be surprised to find a detour at a newly planted lawn several hundred feet south of the beach. A rude, hand-painted sign marked “Trail” displays an arrow pointing in a mauka direction. The impression that the lawn is off-limits to the public is underscored by a nylon rope strung between wooden stakes placed at regular intervals at the edge of the grass. If the rope were not enough to discourage access, on a recent day the lawn was being watered, with sprinklers going full blast in the mid-day sun.

The re-routed “trail” follows a course between the grounds of the Kihei Surfside condominiums, on the makai side, and a dry, dusty undeveloped area mauka. The trail ends at the Kihei Surfside’s parking lot.

So, too, ends the carefully tended garden.

Behind a screen of oleander and palms, a chain-link fence separates the parking lot from an unsightly dump. Old wheelbarrows, bifold louver doors, paint cans, furniture, jalousie frames, rotting carpet, garbage cans, discarded screens, wallboard, light fixtures and lumber have been tossed here. In addition, piles of yard waste have been bulldozed far into the state land, forming high windows of limbs, palm fronds, grass cuttings, and the like. State land, which this is, has become a landfill for the Kihei Surfside’s part-time residents, their redecorators and their gardeners.

Since March 1975, the Kihei Surfside has had a permit from the state Department of Land and Natural Resources to landscape two and one-half acres of state-owned land. In consideration of the low rental rate – $117 a month now; originally it was $50 – the condominium is to welcome the public use of the state land. According to Condition 28 of the permit, “the public shall have full and unrestricted use of the cleared and landscaped permit areas at all times and… the permittee shall post a sign reading that the area is open to the public.” No such sign could be found on a recent visit.

The condominium has no permit to use state land for a dump. Nor does it have the right to clear and bulldoze other areas of state land surrounding its property, as it has done. The land around the Kihei Surfside contains a number of prehistoric sites, including a heiau. Not only does the clearing of the land raise the matter of the illegal use of state property; it also poses the risk of the destruction of historic sites.

In the county of Maui, the town of Kihei has become synonymous with poor planning. It wasn’t always such. In the 1930s and 1940s, when the area was subdivided and sold off by the Territory of Hawai’i, a strip of land described as “Government Beach Reserves” was held back to allow the public free travel along the beach.1 As a result, the state of Hawai’i now holds title to some of the loveliest and most desirable shorefront land in Maui.

In the 1950s, resort development began in earnest in the Kihei area. Soon thereafter, many of the owners of property adjacent to the government beach reserves petitioned the state for the use of the state land lying between the privately owned property and the sea. The state, which never seems to have enough money to care for its lands properly, agreed to allow resort developers, condominiums, and single-family house owners the right to landscape and care for the area fronting their properties. In some cases, the agreement between the state and the private owners called for payments of nominal rent. In others, rent was waived altogether.

In practically every case, however, the private property owners’ use of adjoining state lands was to be non-exclusive. The public, in other words, would continue to enjoy free access to the beach reserves. More often than not, in fact, the parties holding the permits to landscape state lands were required to post signs letting the public know that the landscaped areas were the public’s to enjoy. The language in the agreement between the state and the Kihei Surfside, quoted above, is typical.

Environment Hawai`i recently checked the permits along a three-mile area of the Kihei coast. From Waipu`ilani Street in the north to Kilohana Drive at the south, there are roughly 30 acres of state beach reserve land (excluding parks maintained by Maui County).

Along this stretch of beach, 11 valid revocable permits or easements have been issued by the state Board of Land and Natural Resources. At least that many – and probably more – landowners appear to be occupying state beach land without any official permit, easement, or lease. In no case were there any sign indicating that the grounds were available for public use. To the contrary, signs abounded indicating that the facilities were for guest and resident use only, as did “Neighborhood Crime Watch” signs, which, it is not unreasonable to think, are intended to serve as a clear discouragement to public use and enjoyment of public lands. In several cases, the “Neighborhood Crime Watch” signs were placed on land that the adjoining private land owners have no legal right to occupy.

Norman Hill

At the junction of Waipu’ilani Road and Ulunui Street, adjoining a county-maintained restroom and small parking lot, can be found the 22,275 square feet that the state has allowed Norman Hill to landscape since February 1991, under Revocable Permit S-6749. Hill is wheelchair-bound with only limited use of his hands. He reportedly requested use of the area so that he and others in his condition could have access to the beach.

In 1993, Hill submitted plans to the Department of Land and Natural Resources that called for clearing much of the kiawe from the land and planting felled trunks upright along the perimeter of the permit area. Along the beach, Hill proposed placing “rock/boulder aggregate,” which would be embedded with logs. This, Hill said, would be necessary to allow wheelchair access to the water itself, rather than simply to the edge of the grassed land.

The Maui land agent, Alan Tokunaga, apparently had doubts about the acceptability of this plan. He forwarded it to his supervisor, Mason Young, in Honolulu. In a memo to Young dated January 13, 1993, Tokunaga wrote: “we informed the applicant that portions of the plan were unacceptable and would probably be denied. However, he insisted that the plan be submitted as drawn…

“Based upon the applicant’s insistence, review and action by higher authority [is] being requested at this time.”

There’s no evidence that any higher authority reviewed Hill’s plans. In an interview with Hill, he stated that his plans had been approved. However, any landscaping of the shoreline setback area requires county approval, in the form of a Special Management Area permit, in addition to permission of the landowner (the state). Hill stated he knew nothing about county permit requirements.

Hill has carried out his plans, pretty well as described to Tokunaga. In addition, he has buried several large logs in the sand well shoreward of the high-water mark. These logs serve, Hill said, to stabilize the beach.

While Hill’s permit does not specifically require posting of the area for public access, neither does it give him any right to exclude the public. However, cable strung between the posts and boulders blocking a drive onto the property would seem to be intended to keep out all but Hill’s invited guests.

The Flood Easement

A few hundred yards south of Hill’s rude encampment on Ulunui Street is the imposing new lavender stucco house of David Jay Flood and Marilee A. Flood. On March 11, 1994 the Land Board authorized a 55-year “Lease of Non-Exclusive Easement” for the Floods, allowing them to landscape 18,000 square feet of beach reserve land fronting their property.

In the three intervening months, the Floods wasted no time getting the landscaping started. Sprinklers have been placed in the ground; terrigenous earth has been brought to the site and spread over the sand; grass is just beginning to grow.

The Floods have not been quite as quick to erect the signs notifying the public that the property is available for public use.

The Cows of Kihei

Next door to the Floods is property owned (according to DLNR records) by William Moffett and Carol Lee Hong, who enjoy the landscaped area of 6,750 square feet between their yard and the beach for free, under Revocable Permit S-6614.

The residents appear to be golf enthusiasts, with the state’s land littered with dozens of golf balls. Two plywood cut-out cows stand watch over the beach reserve – refugees, apparently, from the promotional campaign of the Maui Petting Zoo.

Among other things, the Hong-Moffett revocable permit requires them to allow the public “full and unrestricted access and use of the subject premises at all times.” In addition, “signs to indicate that the subject premises is state-owned and open to the public shall be posted and continuously maintained by the applicants.” No such signs exist, although the permittees have had more than five years to comply with these terms.

Lipoa to Waiohuli

Douglas Sherman of Tahoma, California, has built a two-unit condominium fronting government beach reserve land south of the foot of Lipoa Street. Since 1977, he has held a revocable permit (S-5377) allowing him to landscape 4,125 square feet of state land between his yard and the ocean. Sherman’s rent was $10 a month when the revocable permit began; it is now $21 a month.

In 1982, Sherman apparently felt that his $10 monthly rental was too steep. He asked the Board of Land and Natural Resources to cancel the permit, possibly converting it to a right of entry. When the Maui land agent at the time responded with terms of a right of entry that were even more strict than those attached to Sherman’s revocable permit, that idea appears to have been dropped.

The area landscaped by Sherman consists of a grassy lawn between two tall hibiscus hedges, separating his area from a rather unkempt vacant parcel (owned by the state) to the north, and the 23,580 square-foot area maintained by the Waiohuli Beach Hale condominiums to the south.

Since March of 1993, Waiohuli Beach Hale has been occupying state land illegally. At that time, the revocable permit (S-5585) held since March 1, 1978, was cancelled at the request of the pemiittee, David P. Ting & Sons, Inc. The Association of Apartment Owners of Waiohuli Beach Hale had bought Ting’s fee interest in the land; in February 1993, the association’s managing agent, Destination Maui, Inc., wrote the Department of Land and Natural Resources, requesting that the permit, for which the association was paying $47 a month rent, be cancelled. The state obliged.

No sign exists to indicate that the half-acre or so of land still maintained by the management of Waiohuli Beach Hale is public. The only sign is that of a “Neighborhood Crime Watch” warning, whose unblinking eye glares seaward from the berm just back of the sand.

To the south, across a salt marsh, an area of approximately 10,000 square feet appears to be maintained by the management of the Kapulanikai Apartments. No permit could be found for the use of this area, which effectively doubles the size of the garden available for use by building residents and guests.

E.F. Bello holds a permit to landscape 4,500 square feet of beach reserve in front of his house, just Makena side of the Kapulanikai Apartments. Bello pays no rent under terms of Permit S-6733, approved by the Land Board on September 28, 1990.

Myron Higashi has a revocable permit (S-6710) to landscape 18,000 square feet in front of land he owns a short distance north of the terminus of Waiohuli Street. Higashi’s approach to landscaping appears to be minimalist; the area is hardly distinguishable from unimproved portions of the beach reserve.

Immediately to the south of Higashi, the landscaping of state land is far more elaborate – albeit unpermitted. Between 4,000 and 5,000 square feet of state land have become the extension of the private homeowner’s back yard.

A Fence Too Far

A small boat ramp and parking lot have been built off Ili’ili Road, just past its junction with Kihei Road to the south, a board fence separates state-owned land from what appears to be a private yard. The fence extends practically to the shoreline, effectively blocking public access to the rocky point.

In fact, tax maps of the area indicate that the private property line does not begin until well past the pathway to the point.

Beyond the fence lie a number of yards whose landscaping extends well into the state-owned beach reserve area. Only one – Y&M Investments, owner of Loke Hale apartments – has obtained permission to use state land. Y&M pays nothing for its use of 12,000 square feet of public land. “Its permit (S-6613) requires posting of signs indicate that the subject premises is state-owned and open to the public.” As with so many other permit holders, however, Y&M Investments has not gotten around to erecting the signs in the five years since the permit was issued.

Landscaping along this stretch of beach reserve land is extensive and lush. At one point, a cement walkway has been poured between a grassed area and the start of the slope to the sea. The sloped area also has been landscaped with an assortment of cacti and succulents. Around a small inlet, the banks of the shoreline have been hardened with a near-vertical wall. Grass clippings, palm fronds, and other yard debris appears to be heaved over the side of the bank on a regular basis.

Kama’ole 1 to Kama’ole 2

Three large condominium buildings occupy the land makai of Kihei Road between the Kama’ole Beach Park 1 and Kama’ole Beach Park 2. The northernmost of the three is the Royal Mauian; Kama’ole Nalu sits in the middle, the smallest of the three buildings; extending along the southern portion of this area is Hale Pau Hana.

The Royal Mauian pays $33 a month rent for its right to landscape 2,310 square feet of government beach reserve land. Among other things, the permit, effective January 1, 1983, requires posting of at least two signs informing the public of its right to the full and unrestricted use of the area. The only signs visible to anyone walking along the shoreline, however, read: “PRIVATE: Facilities provided for Royal Mauian resident use. Mahalo.”

At the Kama’ole Nalu, which appears to have no permit to use state land, a “Private” sign on the shower near the pool would seem to indicate that all people other than residents and guests are trespassing. No sign exists to indicate where private property ends and public land begins.

At the Hale Pau Hana, chaises lounges line the top of the bank. Two stairways lead to the beach below. No signs exist to indicate that the public has unfettered rights to the use of state land, although two such signs are required under terms of Revocable Permit S-5835.

Actually, Hale Pau Hana Homeowners Association has two revocable permits from the state. S-5835 covers the landscaped area of 24,200 square feet (slightly more than half an acre). For this, the association pays $29 a month.

Revocable Permit S-5834 was issued in 1980 for construction of a seawall on just under a tenth of an acre of state land. Until December 1992, the monthly rental was $58. Since then, Hale Pau Hana Homeowners Association has paid $231 a month for the occupancy of this land.

A Permit Revoked

In 1980, Hale Pau Hana’s original revocable permit for landscaping was revoked by the Board of Land and Natural Resources – an action rare, if not unprecedented. The permit itself had been issued on an after-the-fact basis to cover existing landscaping, construction of four stairways to the beach, a shower, shuffleboard, two barbecue areas, and eleven tiki torches. At its May 9, 1980, meeting, the Land Board determined that Hale Pau Hana had failed to get the necessary county permits for the improvements; had not obtained consent of the land Board for further improvements; and, by impairing the public’s access to the Anchor Cove Restaurant, had made an “unlawful, improper, or offensive use of the premises.”

Following revocation of the permit, Hale Pau Hana was required to remove most of the improvements.

The Kihei Surfside

Kilohana Drive marks the southernmost boundary of Kihei town. Equidistant from the turnoff to the Kihei boat ramp (on the north) and the intersection of Kihei Drive with Kilohana Drive (on the south) is the turnoff to the Kihei Surfside and the Mana Kai Maui resorts. (Access is over state land, for which non-exclusive easements have been granted.)

The Kihei Surfside is an imposing building, with lushly landscaped grounds on the north side. Most of the grounds – some 2.5 acres, in fact – are on state-owned beach reserve land. For the non-exclusive use of this area, the Kihei Surfside pays $117 a month. On state land the condominium management has placed three putting greens and a barbecue stand. The rest is a vast expanse of weed-free lawn, with occasional palms.

On the makai side of the resort, a paved walkway appears to cross state land. A series of concrete steps lead to the rocky shore. No record could be found in state files for any permit to use this portion of state-owned land. State land (as reported earlier) is being used by the condominium as a dump.

The Kihei Surfside’s permit to landscape (S-5104) requires it to provide to the public “full and unrestricted use of the cleared and landscaped permit areas at all times.” In addition, it is to post a sign reading that the area is open to the public. The only signage on the premises appears in the parking area. It reads: “Private Parking: Kihei Surfside Residents & Guests Only.” No sign indicating the public’s right to use the area could be found.

The Mana Kai Maui

Revocable Permit S-5405 was issued to the Association of Apartment Owners of Mana Kai Maui in May 1977. The area to be landscaped is within a rectangle of 13,000 square feet, bounded on three sides by unencumbered state land and on the north by the land owned by the resort. For this, Mana Kai-Maui pays the state $101 per month.

Once again, the permit requires signs to be posted indicating the public’s rights to enjoy the landscaped area. And, as before, no such signs could be found. Rather, there were the by-now customary warnings that the ubiquitous “chairs and lounges are for the exclusive use of the registered guests of the Mana Kai Maui.”

There is no clear demarcation between the area under permit and surrounding state land. In fact, to judge from the available tax map and from a recent appraisal submitted to the state, the landscaped area would seem to extend well beyond the limits of the narrow rectangle abutting the resort’s private property.

To the east of the building, state land is being used by the Mana Kai Maui as an overflow parking lot. A sign reading “Additional Parking for Mana Kai Maui” points to the state land, which has been graded and graveled. The condominium’s dumpster sits on state land as well.

1 Land Commission records in the state archives are incomplete. However, minutes of its deliberations in the early 1930s indicate commissioners used the term “beach reserve” interchangeably with “road,” although no paved road ever existed there and the area could not be driven in an automobile. In this regard, comparisons with what is happening at Kihei to what happened to O`ahu’s Diamond Head Beach Road may be inevitable. For more on the Diamond Head Beach Road controversy, readers may consult the November 1993 edition of Environment Hawai`i.

Volume 5, Number 1 July 1994

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