The year is 1974. The place is Makena, Maui. A rude, three-room shack, built in the twilight of the 19th century sits between the narrow road and the pounding sea. A dense grove of hau shades the house and a smaller sleeping cottage from the afternoon sun. The air is thick with the heavy scent of plumeria. Strands of sisal and milo testify to the handiwork that the land supported so many years ago.
From time to time, an 84-year-old gentleman, John N. Makaiwa, may be spied fishing alone or in the company of friends off the rocky coast. Makaiwa has lived here all his life taking his food and making a living from the ocean, and welcoming others to help themselves to the bounty too. He still is the proud owner of two small boats he keeps on the old homestead, both of which are seaworthy.
Life at Makena has been hard. The tidal wave of 1946 nearly wiped out Makaiwa’s little house, lifting it off its foundation and relocating it 30 feet shoreward. The county has put in a water line, but Makaiwa, mindful of Makenas’ long droughts, continues to bank water in a 400-gallon tank.
Makaiwa no longer lives year-round at the old place, but he still comes to stay for months at a time, on this land – the land where, under the hau, lie buried the bones of his infant sister and his first-born child, the land where, in the yard of the old Makena Church, are the graves of his wife and son.
In 1974, one of Makaiwa’s daughters, Alice Lum of Honolulu, asked the Department of Land and Natural Resources to approve a Conservation District permit that would allow her and her husband to build a modest new house on the land. “My husband who is retired and myself propose to build” the house – three bedrooms, 874 square feet “and spend our retirement years together with my father there,” Lum informed the DLNR. “We are financially independent and will not require welfare assistance whatsoever.” The estimated cost of the house was “less than twenty-four thousand dollars ($24,000.00).” If approval is granted, “we will start to build on the marked site within 120 days,” Lum stated. Construction would be completed “within another six months.”
Lum owned a one-quarter undivided interest in the land. Other owners, who gave their consent to her application, included former Honolulu Council Member David W. Kahanu, Sarah Nakamura, of Kapa’a, Kaua’i, Lawrence V. Beckley, of San Jose, California, and Sarah Miller, of Los Angeles.
The Conservation District application was held up for a year while authorities determined what impact the new state Coastal Zone Management Act would have on construction such as that proposed by Lum. In January 1976, Lum received a determination from Maui County’s then planning director, Toshio Ishikawa, that her proposed construction of a single-family residence was exempt from the requirements of the county’s Interim Coastal Zone Management Rules and Regulations.
The following month, on February 27, 1976, DLNR staff planner Roger C. Evans explained Lum’s request to the Land Board. Evans pointed out that, according to the department’s Division of State Parks, “the subject parcel is within the Makena-La Perouse Bay State Park study area.” That division had hired a consultant, H. Mogi Planning & Research, Inc., to determine the boundaries of the park “based on the recreation resources of the area,” Evans wrote in his submittal. “The subject parcel would probably be a fairly high priority parcel to purchase” for the park “since it is makai of the road and surrounded by existing state beach reserve. The 1974 Legislature appropriated $350,000 and the 1975 Legislature appropriated $500,000 for land acquisition for this state park.”
In the end, the Land Board approved Evans’ recommendation for approval. Conservation District Use Application No.733 became Conservation District Use Permit No.733 (Maui).
The year is 1994. Old Makaiwa has been dead for more than a decade. In place of the turn-of the-century shack and outhouse is a 6,000-square-foot house consisting, as described by its owners’ lawyer of “four pod-like structures with pitched roofs connected together by flat-roofed hallways. The house is screened from the road – paved since Makaiwas’ day – by an eight-foot-high wall, composed of roughly 20-foot-long sections of bare rock wall alternating with sections of chainlink fence covered with hibiscus of scarlet and orange, purple-blossomed thunbergia, and yellow firecracker flower vine. On the makai side of the new house, a cement lanai extends to within 10 feet of the property line. A freshly planted hedge of double flower pink hibiscus, some still in their pots, fringes the manicured lawn.
Beyond the hedge lies land designated beach reserve and owned by the people of the state of Hawai’i. Standing on the dusty fill beyond the new hedge, today’s visitor has a sweeping view of uninhabited Kaho`olawe to the west. To the east, there’s an unobstructed view of the silent, long vacant house, with its marble tiled barbecue pit, reflective glass walls, and putting-green-shaved grass.
On February 11 of this year, the state Board of Land and Natural Resources approved the request of landowner Judith Carlsberg, heir to the Carlsberg Brewery fortune,1 to landscape the illegally filled area on state land fronting the house. According to Carlsberg’s lawyer, B. Martin Luna, the landscaping will be an enhancement of the public’s land and will give people using the shore an area to picnic and play.
Other Maui residents are more skeptical. According to Isaac Hall, an attorney for some of them, “the purpose and certainly the effect of the proposed use is to privatize the public beach reserve.”
Metamorphosis
The transformation of a Lilliputian cottage into a mansion more suited to Brobdingnag might be regarded as a cautionary tale of the Conservation District. The three approvals granted by the Land Board – for the small, frame structure Lum was intending to build, for certain deviations of Carlsberg’s house from the plans granted administrative approval, and for the landscaping of the state owned beach reserve – are for actions whose significance fades into the ether when compared to the imposing edifices of the house itself and the roadside wall. Neither of these, however, was anticipated by or approved by the Land Board.
Here’s what happened:
In The Beginning: The First CDUA
Before 1978, the governing departmental rules for land in the Conservation District were known collectively as Regulation 4. In contrast to the administrative rules that have been in force since 1978, the old regulation did not require board-approved construction to begin or to be completed within a set time.
Although Lum stated in her application that she intended to start construction within 120 days, she never turned the first spade of earth. According to her husband, Edward Lum, “we didn’t build because of a lack of funds.” The Lums did have the permission of the other owners of the land to build the house, Edward Lum stated, but apparently after the permit was obtained, the owners, who had been tenants in common, wanted the Lums to subdivide and build only on their share.
Soon thereafter, the Japanese-fired boom in Hawai’i real estate took off. John Mahaiwa died in 1983, and his heirs, the owners of the Makena lot, started looking for a buyer. In a recent telephone interview, Edward Lum told Environment Hawai’i, that the other owners would have sold out earlier than he did, but he held out, finally agreeing to sell the 1.6 acres for $1.15 million in 1988. Lum was well aware of the fact that the permit awarded in 1976 remained in force. “Since I didn’t build on it,” he said, the new owners could.
The title was conveyed to Judith Carlsberg – described by Lum as “a millionaire widow from the mainland” – in October 1988. Six months earlier, Carlsberg’s lawyer, Martin Luna, had inquired of the DLNR whether the Lums’ Conservation District permit would be considered by the department still to be in force. The Office of Conservation and Environmental Affairs has no record of Luna’s first query, but it does have in its files the department’s response, in the form of a letter dated June 15, 1988, signed by then-Land Board Chairman William W. Paty.
The letter to Luna noted that the approval given to the Lums remained valid. However, Paty wrote, the owner still had to comply with the conditions attached to the permit in 1976. Those conditions, Paty noted, required conformance with the Coastal Zone Management Act; demolition of the old house; indemnification of the state and Maui County; and compliance “with Section 2C and 2F of Departmental Regulation No. 4.”
Of course, Regulation 4, as well as its various sections, was by 1988 ancient history. Thoughtfully, Paty listed the provisions of those sections. Among the provisions of Section 2C were requirements that the use “be compatible with the locality and surrounding areas,” and that “buildings, structures and facilities shall harmonize with the physical and environmental conditions.” Paty reminded Luna that these conditions anticipated structures of “typical sizes and (one-story) heights” for single-family residences that were “then extant” – that is, existing at the time of the permit’s award – in the Makena area.
A ‘Very Compatible’ House
On September 13, 1988, more than a month before Carlsberg became the owner of record of the land, Luna delivered to Roger Evans at the Office of Conservation and Environmental Affairs four sets of plans for his client’s house.
“The proposed residence is larger than that originally submitted for the CDUA,” Luna wrote in an accompanying letter, but, he added, “the use remains the same.”
“You will note that the structure is a low-rise, one-story single-family home,” he added. “It will be very compatible and blend in well with the locality and surrounding areas… In addition, the exterior of the Carlsberg residence will be covered with a lava rock veneer and roofing material will be a charcoal gray tile.”
Just two days later, the plans were approved by Roger Evans. In this fashion, then, occurred one of the many anomalies associated with this Conservation District permit – the fact that the OCEA gave its stamp of approval to plans prepared on behalf of a party whose very name had not been disclosed to the department and who, for all that the DLNR had been told, was at the time of plan approval a legal stranger to the person holding the valid permit.
A Hard-Fought Battle For the County’s Blessing
Carlsberg took title to the property in October 1988. Construction of the house began in 1991. According to landscaping plans provided to the county Planning Department that year, it was evident that Carlsberg intended to use state land as part of the landscaped grounds. Whiteprints still available for inspection at the Maui County Planning Department show an extensive system of irrigation pipes extending across state land down to the shoreline.
On July 15, 1991, Luna requested that the state authorize Carlsberg’s filing of a Special Management Area permit application with Maui County for use of state land for landscaping purposes. That was granted in a letter from then-BLNR Chairman Paty on October 9.
But the work was not held up until the needed state and county approvals were in hand. Well before Luna wrote the state – and months before the county was notified of Carlsberg’s intention – state land had already been substantially filled.
The first record of this appears in a letter dated September 17, 1991, which is appended to the environmental assessments prepared for both the county SMA and, later, the state Conservation District applications. The letter was written by noted archaeologist Aki Sinoto, who had been hired to prepare the component of the EA relating to the possible presence of historic sites. Sinoto addressed his letter to Michael T. Munekiyo of MTM Consulting, the firm in Wailuku that prepared the EA.
“The field assessment of the… parcel was completed on 4 July 1991,” Sinoto wrote, “however, due to the extensive recent disturbance observed within the state-owned parcel, completion of this letter report was delayed”.
“At the time of the field assessment, new construction consisting of moss-rock walls with intermittent sections of chainlink fencing along the road, a newly graded pad for a house, the house itself nearly 75 percent complete, and small areas of landscaping were evident within the private parcel. Within the portion of the state-owned parcel that fronts this residential lot, the ground surface has been disturbed. Most of the alteration has been the importation of fill materials to raise the level of the house pad roughly 3-4 feet.”
Violations
On October 1, 1991, an inspector for the county’s Land Use and Codes Administration issued three notices of violation to Carlsberg. One concerned the construction of the rock wall without an SMA use permit; the second cited Carlsberg for grading and landscaping within the shoreline area; the third cited Carlsberg for grading and landscaping within the Special Management Area without a use permit.
Shortly after the notices were issued, Luna filed the necessary SMA applications. On October 9, Paty issued his response to Luna’s letter of July asking for state authorization to make the applications to the county. Luna apparently had not informed the DLNR that work had already begun by the time permission was sought, since Paty cautioned Luna that, “until the Land Board approves occupancy or a right-of-entry for landscaping purposes, your client may not proceed with any landscaping and/or fill work and any attempt to do so may result in a fine and/or Board refusal of any request to occupy the subject state land.”
Finally, on October 28, 1991, Luna filed with the county the application for an SMA minor permit to landscape about nine-tenths of an acre of the state’s 3.8-acre beach reserve wrapping around Carlsberg’s land. According to the accompanying environmental assessment, “The proposed landscaping will enhance the landscaping of the surrounding area [that is, Carlsberg’s lot] and will be installed in conjunction with the landscaping proposed for the applicant’s single-family residence.”
Back to the Drawing Board
In an effort to resolve the other violations, after-the-fact applications for a building permit for the wall and for an SMA permit for the filling of state land were made to the county. Still, by June of 1992, no permits had been issued. Instead, county Planning Director Brian Miskae wrote to Carlsberg, listing the county’s ongoing concerns. The first was the placement of dirt fill “within the shoreline setback right down to the shoreline itself.” The second item was the eight-foot-high wall, “constructed with little or no setback along Makena Road, completely blocking shoreline views, and creating a potential traffic hazard.” Miskae’s third concern was the use of public land for landscaping purposes.
Finally Miskae wrote, “a combination of factors including the location and orientation of your house, the configuration of the existing and proposed landscaping, and the high stone wall and fence, serve to create a sense of exclusivity and private property. This is entirely inappropriate along a public shoreline and especially within a state beach reserve.”
Miskae notified Luna that he could not approve the requested permits as they stood. Instead, he asked Luna to revise the application and submit a new landscaping plan for both the state-owned and privately owned parcels. The revised plans, Miskae wrote, should include “removal of the top two feet of your eight-foot wall;” “removal of the last 20 feet of the wall/fence extension on the Keone’o’io side of the property or alternately creation of an opening in this fence to indicate public access to the shoreline;” “creation of a shoreline path;” “landscape and access improvements to the state property on the Kihei [north] end” of the property; and “reconfiguration of proposed landscaping [to] create a wider area between the proposed naupaka hedge and the shoreline in order to allow public/fishermen use of the area.”
Pulling Back
The letter Miskae signed had been written by Keoni Fairbanks, at the time a planner on Miskae’s start. On July 7, 1992, Fairbanks received a memo from Charles Jencks, Maui County’s deputy director of public works.
Jencks took exception to several of the points in the June 25 letter. On the matter of the wall, Jencks wrote: “An application has been properly filed for approval, there are no setback requirements for walls, the county does not have as I recall any definitive urban design guidelines for such improvements, nor does it have any adopted policies or ordinances which would allow you to control the use of ‘public views.’ As I informed you verbally some time ago, the wall is considered part of a residential use for SMA purposes (this was agreed to by Brian, the Mayor, and me during a discussion of similar issues).”
As to the fourth point made by Fairbanks – concerning the “combination of factors” creating “sense of exclusivity” – Jencks wrote: “If the house, setbacks, landscaping, and other residential appurtenances have been approved and built to code within the owners property limits, why is there any concern? Where do we have any policies or ordinances which address the appropriateness of residential development on private property along either a public shoreline or beach reserve?”
Jencks informed Fairbanks that there was simply no basis to require lowering the wall. He also disagreed with Fairbanks’ suggestion that a shoreline path be established; the only thing you should ask for is any remediation work to return the area to its original status. He concurred with Fairbanks’ suggestion that the wall be removed where it impeded public access, but did not agree that an easement over private land for public access should be sought.
A Deal is Struck
By the end of August 1992, the matter of county approvals had been pretty well resolved. The terms of resolution were recited by Luna in a letter to Miskae dated August 27. According to Luna, Carlsberg would revise the landscaping plan for the state land “to create a wider area between the proposed naupaka hedge” – much of which in fact had already been planted – “and the shoreline in order to allow public/fishermen use of the area. The landscaping plan will be reviewed by your office before being finalized.”
Also, Luna wrote, Carlsberg would allow part of the public access trail “to enter into her property where rocks and terrain make traveling along the state beach reserve very difficult.”
In return, the department was to resolve the problem of a shoreline setback variance needed for a portion of the Carlsberg property; determine that the eight-foot wall was part of the house construction (and therefore exempt from SMA review); grant the SMA minor permit needed for the landscaping of state land; and grant a shoreline setback variance for the fill that had occurred on state land within the setback area.
In September, Luna amended his request regarding the rock wall. “We request that you determine that an SMA use permit is not required because it was constructed in conjunction with a single family residence,” Luna wrote Miskae. “However,” he continued, “we are informed that a building permit for the wall may be necessary due to the height of the wall being in excess of six feet. Accordingly we would further appreciate your consenting to the issuance of a building permit for the wall.”
Finally, a Permit
At long last, on April 20, 1993, the county issued to Carlsberg the SMA permit and shoreline setback variance needed for the landscaping. As a condition, Carlsberg was to maintain a path for public access from the southern end of the property to the beach reserve. Carlsberg would not be allowed to place plantings on the part of her property adjoining the public access path if the plantings, when mature, would spread into the public land.
To screen the house from the public’s view, “a substantially continuous hedge” at least three and a half feet high would be planted along the makai property line. Shrubs in this area are not to extend further than 25 feet into the public property.
To allow the public to know where private property begins and public property ends, bollards at least two feet high are to be installed permanently at the corners of the property. A sign directing the public to the path is to be placed near the southern end of the roadside wall.
Finally, Carlsberg was to prepare and submit to the Planning Department by July 19, 1993, “a detailed report addressing… compliance with the conditions” of the permit. No such report could be found in a review of Planning Department files made in April 1994.
Land Board Arranges The Titanic’s Deck Chairs
In the summer of 1992, Luna was seeking approvals not only from the county, for the landscaping of state land and resolution of other matters, but also from the Department of Land and Natural Resources, for after-the fact approvals related to construction of the house.
Luna had written the DLNR on June 15, 1992, calling the department’s attention to the fact that the house varies in several minor respects from the plans submitted in September 1988. Judith Carlsberg, the owner of the Makena property, requested that “we bring this matter to your attention in order that appropriate action may be taken by DLNR,” Luna wrote.
Luna listed nine discrepancies, involving construction of the driveway, location of gates in the wall, a cement lanai rather than the flagstone pavement specified in plans, a shake roof as opposed to gray tiles, a dwelling and garage area of 6,000 square feet instead of 5,720, a rock wall along the road interspersed with chain link fence instead of a solid rock wall, a stucco exterior instead of a lava-faced exterior for the house, and removal of the hau grove on the south side of the property. Also, a swimming pool that had been called for in the original plans had not been built, Luna noted, but Carlsberg intends to build the pool in the future when circumstances permit.
On September 25, 1992, the Land Board fined Carlsberg $500, gave the “built” plans the board’s blessing, and imposed its now-standard time limits on installation of the swimming pool (that is, that construction begin within a year of approval and be completed within three years).
DLNR Staff Recommends Denial of Permit
With the county SMA approval in hand, Luna was able by the summer of 1993 to apply for the state’s approval to landscape the beach reserve.2 On July 29, 1993, he submitted a Conservation District Use Application for this purpose. Formal state approval of the application, required since it involved the use of state land, was given August 30, 1993.
According to the application, naio and beach naupaka were proposed for planting along the shoreline, while the more mauka area would be planted with “spider lily, agapanthus, and a grassed lawn.”
The conditions that had been imposed by the county regarding public access became, in the state application, beneficences bestowed by Carlsberg. “In the interest of further facilitating public access along the shoreline,” Luna wrote in the CDUA, “the path will be indicated by a sign… Applicant is also willing to provide a hedge along the southwest (makai) property line so as to retain the public’s privacy” Carlsberg was “willing to provide a hose-bib so that fishermen can wash off,” Luna wrote, adding: “All proposed improvements will be maintained by the Applicant at her own expense.”
A public hearing on the application was held in Kahului on November 18, 1993. Dan Carlsberg, the owner’s son, was commended by one Land Board member for his generosity, and was asked to explain why he was proposing to do the state the favor of landscaping its property. According to the record of the hearing, Carlsberg responded that the beach reserve, as it is right now, … “obstructs my view and it’s a little unaccommodating with all the dirt and dust that blows around.” He added: “That’s my benefit… I get to use my patio and stuff and not worry about the dirt.”
Dan Carlsberg was insistent that access would nor be obstructed – indeed, it would be welcomed. “I’ll build access, I’ll make access. I’ll advertise it in the paper that it’s being done,” he said.
Parking Problems
Not everyone in the hearing room was impressed. Rudy Nu’uwai, who has lived in Makena his entire life, pointed out that access to the public land has been made more difficult by the construction of the rock wall and fence at the southern end of the property. “I was born in this area and I know the original owner, John Makaiwa, and we did a lot of fishing there,” Nu’uwai stated. “But now there is a huge stone wall that blocks this whole beach area.”
Another person, unidentified in the record, testified that when John Makaiwa was alive, fishermen could get to the little beach and to the point from the northern end of the property. “John Makaiwa’s house was right next to this hau bush. We used to get in to the beach on this end [the north side] to fish, but no more because of the huge, almost ten-foot rock wall, and it goes all the way to this end [south side]. The owner says he is going to provide an access, but the problem is, this road is so narrow there is no parking space…
“In my mind,” the testifier said, “it still goes back to Diamond Head” – referring to the dispute involving the state and private owners along Ka’aiawai Beach in O’ahu.3
“This is what I don’t want to happen on a property like this.”
In comments made later at the hearing, OCEA Administrator Roger Evans related his own problems finding a place to park when he made a visit to the site. “I can represent to the Board that going down there today there was difficulty on the part of your staff finding any parking, and that your staff wound up parking on the driveway of the property with, in front of us, is a rather large, wooden, intimidating wall” – referring to the gate at the main turn-in to the property. “I can represent to the board that while on the property, representation was made to me relative to the car, ‘Move it or I’ll move it.’”
Evans went on to assure the board, “we will be looking into these kind of questions as we move further” with the application.
Water Worries
Other people testifying were concerned about the amount of water that would be required to landscape the state property. Ellen Earnesty, who lives further down the water line from Carlsberg, was concerned that the already substandard water service enjoyed by her and 11 other families would be reduced if Carlsberg put in a hose bib and sprinklers on the state land.
Earnesty proposed two “better alternatives: One, you leave it as it is, naturally, or, with three and a half acres there, maybe it should become a real park, and have some picnic tables, barbecues, etcetera. Because I’ve seen enough on Maui where people landscape it and then they put up signs and in a few months the signs end up behind vegetation and the vegetation grows up and people can’t get through and if someone does get through and picnic, the sprinklers just happen to go on.
“I have a feeling,” she continued, “that this is simply a way of getting more beachfront area as opposed to really giving something to the public.”
‘Contrived and Unnatural’
In processing Conservation District use applications, the Office of Conservation and Environmental Affairs routinely sends copies of the applications to selected sister agencies in state and county government, giving them opportunity to comment.
Oddly, the first agency review seems to begun in March 1993, months before the formal submittal of Conservation District Use Permit MA (Maui) 2635, and after rejection of a similar application, on February 22, 1993, on technical grounds. According to the staff submittal, prepared for the Land Board’s agenda of February 11, 1994, “the subject application was modified due to adverse comments from some of DLNR’s divisions. These comments were received during the internal review period and are included below.” Just why the department should be conducting an “internal review period” after an application had been rejected is not explained in the staff submittal nor in any other document available in the public files.
The DLNR’s Division of Forestry and Wildlife was extremely critical of the application. DOFAW noted that the applicant had already encroached on state land and had planted naupaka – a shrub that is not naturally found in the Makena area – in the area where the “informal concrete path” was being proposed. This, DOFAW stated, “creates an appearance that one cannot go beyond that point without trespassing onto the applicant’s property.”
Also, DOFAW said, “public access to the shoreline near here was made difficult some years ago by private property owners wishing to restrict public access. Landscaping was done to create the appearance of private property and public access was inhibited….
“The proposed project seeks to develop a contrived and otherwise unnatural setting at the site…. It seems that the applicant wanted to emphasize the beautification aspect of the state property which in essence would add scenic value to her property. Nowhere in the EA does it address public access.”
DOFAW’s comments on the revised application were only slightly less damning. DOFAW noted that the parcel still “has the appearance of private land… The grade/elevation of the property combined with vegetation growing around the edge of the elevated state parcel makes access difficult.”
If the Land Board were inclined to approve this application over DOFAW’s objections, DOFAW suggested several conditions, most of which involved clear signage assuring that the public would have no difficulty knowing how to get to the point and posting the boundary between private and state land.
Keep it Wild
The DLNR’s Division of State Parks also was skeptical of the proposed use. In its first-round comments, the division stated: “We question the need to landscape beyond the private property boundary into state-owned lands. While such action would enhance the adjacent owners front yard, it replaces the naturally growing ground cover and may also serve to inhibit public access across lands no longer appearing as public beachfront lands.”
The division remained skeptical when given the chance to comment on the revised application: “We question whether the applicant’s interest in landscaping the state-owned shoreline strip is in the public’s interest, as the existing landscape throughout this rural, semi-wild shoreline should be allowed to subsist rather than be supplanted by a luxuriant, manicured landscape.”
Comments from the Natural Area Reserve Commission, whose Ahihi Kina’u reserve is but a short distance away, mentioned possible water-quality deterioration as a result of pesticide and fertilizer run-off from the landscaped area. Also, concerns were expressed over further introductions of non-native plants, such as be-still and spider lily, that could be problems if they became established in the nearby reserve.
The Maui County Department of Water Supply voiced its objections to the proposal for landscaping. That agency noted that its rules prohibited the owner of a lot served by a water meter providing water to an unmetered lot – such as the state parcel. Echoing some of the residents’ concerns, the Department of Water Supply noted that the water system in the lower Makena area is barely adequate to meet existing needs and that a new meter to serve the state’s lot could not be applied for until substantial improvements are made to the distribution system in the area.
Thumbs Down
The task of preparing an analysis of the Carlsberg application for the Land Board fell to Sam Lemmo, a staff planner in the DLNR’s Office of Conservation and Environmental Affairs. Lemmo pulled together agency comments and statements made by the applicant’s agent and testifiers at the public hearing. After describing the nature of the application and summarizing the agency comments, Lemmo concluded his written submittal to the board with an analysis of the issues and his recommendations for board action.
Lemmo identified “several important land use issues relative to this case including: 1) project consistency with the objectives of the Protective (P) subzone, 2) public access to and use of the shoreline area, 3) water availability for irrigation, and 4) the unauthorized fill and grading.”
Lemmo noted that DLNR rules require “all applications be reviewed in such a manner that the objective of the subzone is given primary consideration,” but went on to point out: “there are also secondary issues… including: past board practice, surrounding uses and activities, resource values… and the ability to mitigate adverse environmental impacts…”
The primary purpose of the protective subzone, Lemmo noted, “is for protection of important conservation resources, such as critical watersheds, natural area reserves, marine sanctuaries and other designated unique areas.” In that light, he continued, “every activity that seeks the use of land within the (P) subzone for consumption or development should be discouraged.”
But, he added, “the concept of protection should not, a priori, preclude all uses and/or activities from the (P) subzone.” Some that might be acceptable, he said, were passive recreation, research, or socially necessary activities, such as installation of water transmission lines.
In this case, Lemmo wrote, “the proposed landscaping use represents a significant deviation from the naturally occurring vegetation… By replacing the existing coastal landscape with a grass lawn, the natural qualities of the area are changed and/or lost.” In terms of meeting the primary purpose of the protective subzone, then, this project failed, according to Lemmo’s analysis.
A Residential Use
Lemmo then analyzed the project for consistency with what he had described as the “secondary issues.” When viewed in light of past board actions, the project did not pass muster. “Between 1978 and 1989,” Lemmo wrote, “there were approximately 100 applications submitted to the department for a use within the (P) subzone. Approximately 25 were withdrawn by the applicant and eight were denied by the board. Five applications for a single family residential use were identified. Of the five, four were denied by the Board. “The remaining approvals were almost all for government uses, including water lines, research, and a campground.”
Lemmo reasoned that this application was residential in nature, since, by the applicant’s own statement in the EA, it was an extension of the landscaping for the house. “The question,” he wrote, “is whether the board should allow the applicant to extend their residential use onto state beach reserve land that is in the (P) subzone.” Since the board has denied all but non-conforming residential uses in the protective subzone, Lemmo argued, denial of the application was consistent with past board practice.
Impediments to Access
Lemmo’s analysis then went on to discuss the possible trade-off involved if Carlsberg’s application were approved: Carlsberg would get a prettier yard, while the public would have improved shoreline access, “provided that the applicant encouraged access and use of the area.”
But Lemmo was obviously skeptical about the desire of the applicant to encourage access. He wrote: “staff brings attention to testimony received during the public hearing… Apparently, public access to [a] portion of the shoreline was inhibited by the construction of the applicant’s wall.” He noted that two people testifying had reported people living in the Carlsberg house had harassed residents making use of the state land. “In staff’s view,” Lemmo concluded, “the applicant has already taken measures to restrict public access to this portion of the shoreline… While staff recognizes the potential benefits of allowing private entities to improve state-owned beach reserves such as this, one should be reasonably assured that the improvements will, in fact, serve a public purpose and not a purely private purpose.
Lemmo observed that Carlsberg said the landscaping was needed to control dirt and dust blowing from the illegally filled state land. “However,” Lemmo wrote, “staff believes that this hardship was self-imposed when the parcel was filled and graded without the department’s authorization.” If the fill were removed and the land restored, as Lemmo proposed, this problem would be eliminated.
Lemmo recommended that the Land Board fine Carlsberg $500 (the maximum penalty allowed by law at the time the violation occurred); require Carlsberg to restore the land to its previous condition within 180 days of the board’s action; and deny the requested permit for landscaping.
A U-Turn At Board Meeting
The Land Board was scheduled to decide the Carlsberg landscape application on February 11, 1994. As he customarily does, OCEA Administrator Evans explained the application to the board members. Although the board had copies of Lemmo’s 25-page-long analysis (not counting exhibits) in the briefing notebooks prepared for the meeting, board members usually rely on DLNR staff to summarize the issues. In this case, as in most others, it was clear from the discussion that the board had not had an opportunity to read Lemmo’s submittal carefully.
At the outset of his presentation, Evans told the board that he disagreed with Lemmo’s analysis (although at no time was Lemmo mentioned by name). Here is how Evans, in his inimitable way, described the events leading up to that day’s meeting:4
“In this process, we had, as we have in all our processes, we had an analyst assigned to the case. And because of some concerns expressed on behalf of the analyst, it seemed prudent on my part that the analyst be given an opportunity to go out, to present to you on Maui for the public hearing on this matter. And you folks will recall that occurred within the last couple of months.
“Also, in discussions following those aspects, there were two discussions that I had with the analyst, expressing some possible reservations. Nonetheless, and not withstanding any concerns I had at that time, the recommendation that you see before you, relative to the violation, and the application, is that of the analyst.
“And finally, seeing this recommendation, I reviewed the process with the analyst and asked if he felt that he was treated fairly in the process. And the indication to me was that, he was – treated very fairly.
“At which point I indicated that I may have some differences with him as he felt it would be fair for me to have some opinion on this project. And he also indicated that would be fair.
“As a result, there is in my view some difference relative to the violation and relative to the application itself. On the question of the violation, which we together feel comfortable that the violation did in fact occur… Most of the disturbance on the state-owned portion occurred as a result of filling the adjacent area, and the adjacent area is the actual residence itself, which is outside the Conservation District. So, clearly, in staff’s view, we do have a violation.” (Emphasis added.)
Forgiveness
But Evans argued that the board should not go along with Lemmo’s recommendation that the site be restored: “And the reason … is that you have a piece of land that was filled. Any damage to the environment that was going to occur or to historic sites that was going to occur has already occurred. The reality is by attempting to have the fill restored to its original condition, the land before the fill, it would be very difficult.”
Evans then discussed his disagreement with Lemmo’s analysis that the use was inappropriate for the protective subzone and therefore should be denied:
“Relative to that specific denial, I’d like to draw your attention if I may to page 20, paragraph 3 [of Lemmo’s submittal], which provides a basis for that recommendation. Basically, ‘The question is whether the board should allow the applicant to extend their residential use onto state beach reserve land that is in the P subzone.’
“We question that, insofar as the residential use clearly – that use occurs outside the Conservation District. This application at no time sought for, or sought a residential use in the Conservation District. The question of residential use in the Conservation District is not the question before the department or the staff…” (Emphasis added.)
On Lemmo’s point that the purpose of the protective subzone is to protect natural resources, Evans noted that the natural resources “in this case has already been degradated [sic]” – failing to note, however, that this was the applicant’s doing.
Evans concluded his opening comments by urging the board to “consider the possibility, based upon my comments this morning, that it would be prudent and appropriate given the situation that has occurred on the property… that the board consider approving this application.”
To the Woodshed
William Kennison, the Maui representative on the Land Board, expressed dismay that the staff analyst would recommend denial. “Basically,” Kennison said, “what [the applicant] is trying to do, as I follow this program, he’s trying to landscape this area and improve public access.”
Herbert Apaka of Kaua’i agreed, going so far as to urge Evans to reprimand the staffer.
Apaka: “He won’t take any suggestions from somebody with knowledge?”
Evans: “What I can do is-”
Apaka: “You inform him that the board is not happy.”
Evans: “We will take the message back. And we’ll sit down.”
Apaka: “Because the way the thing was submitted, so many things wrong with it. Should be a person with expertise doing these things. And this dummy, he has for two or three years in the department, [compared] to someone who’s been working with it for a long time. So I think that’s immature. I think you should talk with him.”
Water? No Problem
Kennison asked Evans about the county Department of Water Supply comments. Evans responded, “I would say that the question of water is a county concern rather than this board’s.” If the county rules prohibited putting irrigation lines onto the state land from the adjoining private hook-up, Evans had a solution for that: “If you don’t want to have irrigation lines on the state-owned portion, we can put the irrigation lines on the private property and let it shoot over.”
In any case, Evans told the board, the particular aspects relating to the landscaping would – if the board approved this use – be decided when staff reviewed the more detailed landscaping plans submitted by the applicant.
The Wall
Christopher Yuen, board member from Hawai’i County wanted to make sure that the public would realize it had the right to use the landscaped area up to the Carlsberg property line.
Evans responded by noting that “the limiting factor in the public’s use of this piece of property” was not so much any lack of signage, but parking – a situation aggravated with construction of the wall, which prevents off-road parking in front of the house.
In a follow-up discussion of the wall, Evans repeatedly described the house and the roadside wall as being outside the Land Board’s jurisdiction – echoing the mis-statements he had made twice in his opening comments to the board.
Yuen: “The wall… that wasn’t a violation, I take it.”
Evans: “Oh, that’s outside conservation…”
Yuen: “The guy’s house is still in conservation.”
Evans: “Nope.”
Yuen: “I thought his house was in.”
Evans (curtly): “Nope.”
Yuen: “The house is not in conservation?”
Evans (angrily): “No!”
For a few moments on the DLNR’s tape of the meeting, there’s no sound but the shuffling of pages. Then:
Yuen: “Well, maybe there’s some error here. Page 20, second paragraph from the top, says here: ‘Staff notes that the applicant’s residence is situated on the adjoining private parcel, which is also within the P subzone.'”
Immediately Evans’ memory was refreshed. “Okay,” he replied. “It was – you’re correct. I stand corrected. It was approved some number of years ago, under the old regulations.” As related above, Evans himself was the planner who handled the original application who approved the house plans in 1988, and who, in 1992, had brought before the board the matter of the minor deviations between the approved house plans and the as-built structure. But none of this was mentioned to the board.
Yuen noted that he had the impression from the way people were talking at the public hearing “that the wall was not something that was, like, 15 years old… People were complaining about the wall. And when we had the public hearing, I assumed that the wall was just completely outside the Conservation District.” Yuen asked Evans to check into the matter.
“That’s very good,” Evans said. “We’ll take our enforcement action on it. Find out when the wall was built and possible violation.”
(In fact, as was noted earlier, the letter of archaeologist Aki Sinoto, included in the environmental assessment and referred to by Evans in establishing the fact of the illegal filling of state land, states also that the wall was being built at the time he made his field inspection in the summer of 1991.)
Use versus Disposition
At this point, Evans launched into a digression, attempting to explain to board members that construction of the wall may not have required a separate Conservation District Use Permit if it was built in conjunction with the house.
Evans: “We haven’t required someone [who] wants to have a house, and the house is approved – have a house within the single family residence, we have in the past – somebody wants to put up a garage, a swimming pool, a wall – we have basically – and that was at the board direction, if the board wants to change its direction with us, that’s fine. But generally, the land use that’s set. You don’t require a CDUA for a house, a CDUA for a swimming pool, a CDUA for a wall. The land use is single family residence.”
After the board approves the use of a given piece of land for, say, a single-family residence, Evans continued, the owner “comes in a year later, six months later. Wants to put a swimming pool in. We take a look. What’s the land use? The land use is single family residence. So, we’d go through with it,” referring to the administrative approval process.
Yuen remained somewhat skeptical: “If we are sitting here as a board and we approve somebody’s house – I’m getting away from this particular application, but if we’re sitting here and approve somebody’s house, and there’s no stone wall, it might make a difference to the board whether the guy wants to put a ten-foot-high stone wall all around the property.”
Evans patiently explained his interpretation of the difference in responsibility between the Land Board and his duties as administrator: “This is a struggle that the board needs to discuss. Because the difficulty from our perspective: Is the board going to be a state executive policy-making board, or is the board going to have us develop rules and regulations that say you can have a six-foot wall, a four-foot wall, a ten-foot wall, and where they’re appropriate. This is, I think, the kind of struggle that we’re going through on a daily basis.”
Protest
The day before the board met in Kona to decide the Carlsberg application, Isaac Hall, an attorney on Maui, filed by facsimile a long letter objecting to the application. Hall wrote on behalf of the groups Keauhou O Honua’ula, established to protect the rights of Native Hawaiians, and Hui Alanui O Makena, composed mainly of Native Hawaiians born and raised in the Makena area.
Hall compared the proposed use of the state beach reserve by Carlsberg with the situation on Diamond Head Beach Road on O’ahu. “Given the general respect prevailing in Hawai’i for the property interests of other people, someone approaching the public beach reserve, viewing the lawn extending from [the Carlsberg house lot] out across [state land] to the ocean, with Ms. Carlsberg or one of her agents standing there with a hose watering the area, would conclude that this was private property and would be discouraged from using and enjoying this public beach reserve… This effective privatization of this public beach reserve would violate Article XI, §1 of the Hawai’i State Constitution.”
Article XII, §7 of the state Constitution, Hall reminded the board, requires the state to protect all rights of Native Hawaiians in their ancestral ahupua’a. Already this protection had been violated, according to the testimony of Rudy Lu’uwai, Hall noted.
His letter was written in vain. At no point in the next day’s meeting was there any indication that board members had either received it or read it.
Yielding
In the end, the Land Board approved the application, subject to 25 conditions. A fine of $500 was imposed for the illegal filling of state land.
The conditions incorporate all of the requirements imposed by the County of Maui in issuing the Special Management Area permit and the shoreline setback variance. Carlsberg is also required to obtain “the appropriate land disposition” (a 55-year non-exclusive lease, in all likelihood) from the DLNR’s Division of Land Management for the use of state-owned land. In addition to the signage called for in the Maui SMA permit – that is, a sign facing the road, at eye level, at least 1.25 square feet in size, that points to the access path – the Land Board has required a sign on the grass lawn, “delineating the boundary between the public and private property.”
Condition 16 is the now-standard requirement that work be initiated within one year of the date of approval and that it be completed within three years. Condition 20 requires Carlsberg to “provide documentation (i.e., book and page number) that this approval has been placed in recordable form as part of the applicant’s deed instrument.”
Epilogue
Nearly three months have passed since the Board’s approval of the landscaping request by Judith Carlsberg. The state is still waiting to see the plans for landscaping the public area. The fine has been paid.
On March 21, Martin Luna transmitted to the DLNR a copy of a declaration of restrictive covenants filed with the Bureau of Conveyances on March 3, 1994. This declaration was identified on the letter of transmittal as relating to the landscaping application. In fact, however, the declaration does not satisfy the recordation requirement of the landscape application, but instead recites the terms and conditions of the Land Board approval given in September 1992. No one searching the Bureau of Conveyances for encumbrances on the Makena property would have any way of knowing of the Land Board’s more recent action.
Meanwhile, in Makena, no sign yet exists to point the way to the public access path. The bollards that the county required to be placed at the property corners, to denote the limit of private property, have not been installed , nor has the line between public and private property been posted, as required by the state. One sign has been put up, however. Planted prominently in front of the massive wooden gates marking the main entry to the house, a “for sale” notice advises prospective buyers to call the Kihei office of Coldwell Banker McCorrmack for more information.
According to an agent there, the house went on the market on March 30.
The asking price was $4.5 million.
1 In several documents, Carlsberg has instructed mail to be sent her at the IPG Company in Los Angeles. IPG is a successor to Carlsberg Financial Corp. For four short months, starting in October 1973, Carlsberg Financial held title to the land in Ka`u where, in the late 1980s, Charles Chidiac proposed to build the Hawaiian Riviera Resort. For more on this, see [url=/members_archives/archives_more.php?id=626_0_33_0_C]“Ghosts of Speculators Past Stalk Land Proposed for Resort,”[/url] Environment Hawai`i, July 1991.
2 According to DLNR records, Luna had first made a Conservation District Use Application for the landscaping months earlier. This, however, was rejected on February 22, 1993 “for a technicality.” Details of the application or the reason for rejection cannot be determined any longer from information in the OCEA files.
3 For a fuller discussion of the Diamond Head Beach Road issue, see the [url=/members_archives/archives1993.php]November 1993[/url] edition of Environment Hawai`i.
4 This quotation and ones following are taken from a transcript prepared from DLNR tapes by Environment Hawai`i.
— Patricia Tummons
Volume 4, Number 11 May 1994
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