In Sprecklesville Maui, the owners of the Sugar Cove Condominiums may be breathing a little easier these days. Since last February, erosion of the small scarp that lies between their buildings and the ocean has been stayed by the construction of a seawall.
The seawall is made of three-ton-plus boulders stacked one on top of another in near-vertical fashion. The wall is ungrouted, a feature that dissipates the force of the waves somewhat but also may make the wall itself prone to collapse under severe storm conditions.
From the sliver of sand that is exposed at low tide, the wall rises abruptly, almost vertically, to a height of 10 feet According to the engineer who supervised its construction, Ralph Hayashi, a 10-foot-wide apron extends seaward from the wall under the sand (although, Hayashi insists, the apron does not encroach on state land). The apron is intended to encourage sand accretion and also keeps wave action from undercutting the base of the vertical wall. According to one witness to the wall’s construction, however, the apron was not installed according to plan.
While the entire structure, including the apron, is supposed to extend no further than the certified shoreline (which should be the high reach of the wash of the waves), the lower portions of the wall up to three feet are coated in glossy green algae, suggestive of near-continual dousing. Along the remains of a beach where sand was once so plentiful it was mined, the wall stretches some 500 feet.
With all that is known today about seawalls and their damaging consequence to the beach, one can only marvel that the Sugar Cove seawall was ever allowed to be built. When one examines the records associated with the condominium association’s application for permits to build the wall, one can reasonably argue that, as a matter of fact, it was not allowed to be built at all.
The wall as built is not the same structure that was approved by the Maui County Planning Commission in granting to the condo association a Special Management Area permit and a Shoreline Setback variance in June of 1992. In addition, the wall was completed despite a stop-work order by the Army Corps of Engineers in April 1993, shortly after construction began.
A Retreating Coast
The Sugar Cove Condominiums lie between a rock and a hard place – literally. The property immediately to the east has been protected for at least the last fifty years by a seawall. To the west lies a rocky headland.1
According to documents accompanying the Sugar Cove SMA permit application, the seawall to the east “marks what was at the time of its construction a contiguous shoreline. The wall is now some 65 feet seaward of the high water mark at Sugar Cove.” The document (“Expanded Shoreline History and Photographic Analysis,” prepared by former county planning director turned consultant Chris Hart), goes on to say, with no tongue in cheek, “Vertical seawalls such as this are generally recognized today as environmentally unacceptable shoreline protection options because of their adverse impact on sand supply for beaches on their down drift side, and because they ultimately contribute to beach loss due to wave scour action.”
Long before that first seawall was built, sand loss and shoreline retreat had characterized the coast in the Sprecklesville area. According to Hart, “beach retreat” was noted by area residents soon after the turn of the century. Several factors have probably accounted for the rapid rate of erosion. First, changes to the onshore environment have likely accelerated the rate of erosion. These include forty years of sand mining (ending in the 1960s), the adjacent vertical seawall, dune destruction, and the resultant decline of offshore coral reefs due to siltation from runoff.”
Hart continues: “Between the 1930s or 1940s and 1972, the average rate of retreat was about 0.6 to 0.8 feet per year. However, since 1972” – the year the land was sold for development of the condominium complex – “the average rate of shoreline retreat increased to about 3.1 feet per year. For the two and one half years ending in February 1990, the top of the scarp has eroded at a rate of 5.2 feet per year while the 9 foot contour [at the base of the scarp] has eroded at a rate of 7.4 feet per year.”
In the winter of 1987-88, a storm caused “large chunks of shoreline fronting Building 3” to wash away, carrying with them several large trees, according to Hart. At that time, the residents fortified their shoreline with sand-bags and, in 1989, with tires covered by heavy netting (so-called “tire gabions”). Also, Hart says, at this time the residents “initiated discussion on permanent engineering solutions to beach erosion.”
The Hayashi “Beachwall”
In 1990, consultants hired by the condo association presented a report describing two options: the first was a “single-slope revetment,” the second a dual-sloped “Hayashi beachwall.” As described by Hart, “residents of Sugar Cove, determined to preserve or possibly enhance the beach, expressly requested the consideration of this compound slope configuration beachwall because of its design intended to encourage sand accretion.”
Their decision was reviewed by two University of Hawai’i professors, Willem Bakker and Doak Cox. As Hart reports, both supported the “compound slope” configuration (the Hayashi wall) – though they favored “an alternative design in which the upper portion of the beachwall is less steep than presently proposed.”
The Hayashi wall is named after its inventor, Ralph Hayashi, a former chief engineer for the county of Maui and now a private consultant. Hayashi contends that his wall “emulates nature’s construction of a typical beach profile terminating with a sand dune or berm.” The vertical part is to have a slope mimicking that of a natural dune, while a horizontal apron extends seaward at a far more gradual slope, mimicking the slope of a beach. This, Hayashi wrote in an undated paper presented to the International Conference on Coastal Engineering (Taiwan, 1986), “accommodates the energy forces of waves, minimizes wave rebound and scouring, and allows the deposition of sand, thus encouraging beach build up. The design of the beachwall addresses the problem of erosion at the toe of seawalls.” An illustration in the paper shows atypical Hayashi wall with a slope of 1 foot vertical rise for 5 feet horizontal distance (1:5) for the seaward portion of the structure (the part extending to the low-watermark). In that same illustration, the more vertical slope is 1:1, although the text states that this slope may be steeper. The Sugar Cove seawall has a slope of between 4:1 and 5:1 – for all intents and purposes, it is straight up and down.
The Application
On December 13, 1991, the Association of Apartment Owners of Sugar Cove Condominiums filed applications with the county Planning Department for a Special Management Area permit and a shoreline setback variance permit in connection with the owners’ decision to defend their property with a Hayashi wall.
The vertical section of the wall would be built landward of the certified shoreline, plans stated, while the apron of the wall would extend seaward for 23 feet, to the low-water mark. The value of the project was placed at between $500,000 and $750,000. An accompanying map showing the recently certified shoreline indicates the landward march of the sea inland some 70 feet or more from the time the shoreline was first surveyed (around the turn of the century). If the topmost edge of the scarp – or even the scarp’s base – were used to delineate the certified shoreline (instead of the makai edge of the tire gabions), that shoreline “retreat” would have been even more pronounced.
The applications were sent out for comment to the many agencies that have jurisdiction over activities in the coastal area. The Army Corps of Engineers notified the county that a Department of the Army nationwide permit would need to be obtained – and that this, in turn, required approvals from the state Department of Health (as to protection of water quality) and the Office of State Planning (as to the consistency of the project with the Coastal Zone Management law).
The state Department of Land and Natural Resources indicated a number of concerns, including public safety and liability when the wall would be exposed, possible historic sites and presence of cultural deposits. In addition, for any work seaward of the certified shoreline, a Conservation District Use Permit would be required.
Inappropriate Comparisons
The comments of the Office of State Planning are contained in two letters to county Planning Director Brian Miskae. In the first, dated March 9, 1992, OSP Director Harold Masumoto expressed concerns that “encroachment into the area seaward of the shoreline may have serious adverse impacts on the beach and is contrary to the intent of the shoreline setback provisions.” Further, Masumoto wrote, “the proposed encroachments into the Conservation District may inhibit access along the shoreline of this beach. Therefore, the proposed project is inconsistent with the CZM recreational resources policy.” The wall’s slope “may not allow for the accumulation of sand,” he added. In arguing for the sand-accreting qualities of the proposed wall, the applicant had stated that a similar structure at Ka’anapali, Maui, had resulted in sand accumulation. Masumoto rejected this argument, stating, “The Ka’anapali area is not influenced by the same wave types and coastal currents as are present at the project site.”
In the second letter (April 9, 1992), Masumoto elaborated on this point. “We reiterate that comparisons to similar walls in Kihei and Ka’anapali may not be appropriate. Besides the differences in wave and current patterns, the placement of the beachwalls may be different relative to the shoreline. In addition, we understand that sand was placed over the Ka’anapali beachwall after construction.”
While in his earlier letter Masumoto had recommended denial, in April, he stated: “If it can be substantiated that the proposed project is clearly in the public interest and is in compliance with the objectives and policies of the Coastal Zone Management (CZM) Program, we will not have any objection. Serious consideration should be given to alternate designs to alleviate our expressed concerns.”
‘We Are Not Convinced….’
The county Department of Public Works was just as skeptical as Masumoto. George M. Kaya, director of that department, commented that “the sloped portion of the revetment appears too steep to promote sand accumulation. Near-vertical shoreline structures deflect the power of waves in such a way that it scours the sand at the foot of the structure and prevents the natural accumulation of sand on the shoreline. It is recommended that the slope be modified to better facilitate sand accumulation.”
Kaya recommended that “the entire beachwall be located as much landward as possible and buried. If it is the intent to protect the buildings from possible undermining due to wave action, the vertical portion of the wall should be placed in close proximity to the buildings’ foundation.”
Kaya alone seems to have been noticed that placement of the vertical portion of the wall on the certified shoreline would mean that it would rise up several feet seaward of where the condo association lawn stopped – at the topmost edge of the scarp. “In any event,” he wrote, “the wall should not be any closer to the certified shoreline than the existing ‘top bank’ location.”
The County’s Response
On June 2, 1992, the Planning Department staff presented its recommendations on the application to the county Planning Commission. Its recommendation memorandum stated that the wall “would not result in adverse effects to coastal processes” in the immediate vicinity, although “the understanding of the effect of shoreline protection structures… is an imperfect science. The Planning Department feels that systematic monitoring of the conditions near the proposed revetment would result in a better understanding of the effects of this and similar structures.”
The memorandum went on to say: “with the incorporation of mitigation measures the proposed action essentially meets the objectives, policies, and guidelines of the SMA Rules and Regulations. The final configuration of the revetment may change due to review by the Board of Land and Natural Resources, Office of State Planning, Army Corps of Engineers, and the Department of Public Works in terms of subsequent reviews.
Supporting the memorandum was a lengthier report from the planning director, setting forth more fully the applicable regulations, the concerns of the various agencies, a description of the project, and a justification for the recommendation.
Setback Conditions
To justify the award of a setback variance, the planning director’s report describes the conditions the applicant must meet. First of all, there must be a finding of hardship “if the facilities or improvements are not allowed…” The report notes that, “If the structure is not built it is likely that erosion would continue to severely erode the subject parcel. The scarp is within 13 feet of Building 3 and within 20 feet of the other two shorefront buildings, thus making them especially vulnerable to structural damage from further erosion.”
A finding of hardship is not in itself sufficient to award a variance. Conditions must be imposed that address four areas of concern: public shoreline access, interference with beach processes, public safety, and public views.
With respect to the first concern, the county setback variance rules require conditions be imposed to “maintain safe lateral access to and along the shoreline or adequately compensate for its loss.” On this point, the planning director’s report states, “According to the applicant, the primary objective of the beachwall project is the enhancement of public benefit by creating a stabilized sand beach as a recreational amenity. There currently exists a public beach right-of-way to the Sugar Cove beach. The right-of-way is often unstable and unsafe, especially during periods of erosion when the clay scarp is exposed…. The construction of the wall will promote and enhance the shoreline access. A concrete stairway with pipe handrails will be constructed to enhance public safety and shoreline accessibility.” (As the wall was built, however, the only stairways are for condo residents. The public right-of-way is more “unstable and unsafe” than ever.)
As to the second concern – “to minimize risk of adverse impacts on beach processes” – the report states: “The beachwall is designed to assimilate [sic] the natural beach … The shoreline would be lost to the public if there is not a mechanism by which the sand can accumulate on the beach. The beachwall provides for this accumulation and, therefore, the beach can be saved for the public benefit.”
Public Safety?
The wall, as built, is composed of loose boulders stacked to a height of 10 feet along one side of a narrow public beach. In this light, the third concern of the county in granting setback variances – “to minimize risk of structures falling and becoming loose rocks or rubble on public property” – would seem to be especially important. At this point, however, the report launches into a discussion of siltation. “By reducing erosion of materials from the backshore area, siltation and turbidity in the nearshore waters will be reduced… The project will provide a positive impact in enhancing nearshore water quality for many recreational divers who frequent the site.” The matter of public safety is nowhere addressed.
And as to the fourth setback concern – “minimize adverse impacts on public views to, from, and along the shoreline” – the report states: “The upper reaches of the Hayashi beachwall can be concealed by vegetation…. Public views to, from, and along the shoreline would not be impeded. In fact, there would be a visual improvement over the temporary shoreline protection measure of the tire gabions.”
SMA Issues
As part of the state Coastal Zone Management law (Chapter 205A, Hawai’i Revised Statutes), counties are given authority to issue permits for development inside a narrow belt of coastal land described officially as the Special Management Area. Only those projects that are consistent with SMA objectives are supposed to be issued permits.
In this case, the planning director’s report seems to accept the applicant’s statement that, notwithstanding the erosion concerns (for which the setback was requested under the hardship rule), “the primary objective of the project is the enhancement of public benefit by creating a stabilized sand beach as a recreational amenity. [The applicants] outline the four areas of public benefit as pedestrian access, preservation of the beach, enhancement of near shore water quality, and recreational access.”
The Permit
The Planning Commission approved the SMA and shoreline setback variance permits on June 2, 1992. A letter sent out two days later set forth the conditions of approval. The very first one required the applicant to obtain “the proper permits from the Department of the Army, Board of Land and Natural Resources, and [county] Department of Public Works.”
The seventh condition requires the applicant or its representative to “monitor the conditions adjacent and near to the proposed revetment for a minimum period of five years after the completion of said revetment… Said documentation shall include photographs and sufficient information to determine fluctuation of the sand deposits in the immediate area.”
The twelfth and final condition requires the applicant to provide the Planning Department with “a detailed report addressing its compliance with the conditions established… Further, this report shall be reviewed and approved by the Planning Department prior to the issuance of the building permit.”
Failure to Comply?
The Army Corps of Engineers to date has received no application for a national permit authorizing the construction of a seawall at Sugar Cove. The Department of Land and Natural Resources, on the other hand, has received two – and possibly three – Conservation District applications, though processing of the applications was aborted before any action was taken by the Land Board.
Reference to the earliest application is made in a letter from Paul Mancini, attorney for the Sugar Cove owners’ association, to Miskae, dated February 6, 1992. Mancini, a former Maui corporation counsel now in private practice with Case & Lynch, asked Miskae for “assistance in expediting the permit processing” so that Land Board approval of the Conservation District Use Permit could be obtained before the end of March 1992. Mancini states, in that letter, “In September 1991, our office filed with the Department of Land and Natural Resources an Environmental Assessment and application for a Conservation District Use Permit to construct the revetment…” No record of that application remains on file at the DLNR’s Office of Conservation and Environmental Affairs.
The second application was made on June 6, 1992, immediately after the award of the SMA permit. Six months later, the file was closed. In a letter December 14, 1992, to Paul Mancini, attorney for the Sugar Cove owners association, then-Land Board Chairman William Paty stated: “We have yet to receive a follow-up to our letter dated October 5, 1992. We, therefore, are closing the subject file and returning your filing fee.” The October letter had sought further information that might support the claims of Ralph Hayashi that construction of the wall “should not increase the potential for flood data.”
In addition, Paty told Mancini in the October letter, “we informed you that the Board of Land and Natural Resources has adopted a seawall policy that prohibits the construction of a seawall unless a public benefit is demonstrated. Further, the intended action must show that it will protect, preserve, and enhance public shoreline access and public beach areas… There is no conclusive evidence that definitely shows that the proposed beachwall will result in improving shoreline access or promote the buildup of sand along the shoreline. We, therefore, are unconvinced that the proposed project will benefit the public.” The October letter closed with a list of suggestions as to how public benefit could be assured (by dedication of another public beach right-of-way, by redesign of the seawall using a less vertical slope, by construction of a walkway recessed into the slope of the wall, allowing dry public access at times of high tide or, alternately, by construction of a walkway atop the seawall; or by construction of the wall entirely on private property outside the Conservation District).
Another Go-Round
In early January 1993, Mancini submitted a third CDUA on behalf of the Sugar Cove owners (file number MA-2620). According to a letter from Mancini to Paty dated January 20,1993, new plans called for providing public shoreline access by means of “proposed three (3) ft. wide public lateral access walkway on top of the revetment portion of the proposed beachwall with pipe railings and stairs at appropriate intervals, in order to accommodate public access to the beach.” Furthermore, in addition to the existing shoreline access on the eastern edge of the condominiums, “a proposed three (3) ft. wide public shoreline access along the westerly portion of the property line” would be provided.
The application did not require a public hearing, but on February 25, 1993, the Land Board did hold a public informational meeting. The few members of the public who attended were concerned primarily with protecting shoreline access. But the Maui board member at the time, John Arizumi, didn’t like the plan. He remarked that if the walkway were placed along the top of the wall, passersby would be able to peer into the bedrooms of the oceanside condo units.
Following the public meeting, Land Board Chairman Keith Ahue provided Mancini with a list of the concerns of various DLNR agencies over the seawall design. In addition, Ahue asked that consideration be given to a more gradually sloping wall, that the applicant provide a study comparing the Hayashi beachwalls fronting the Mahana and Ka’anapali shores to the wall proposed for Sugar Cove, and that the applicant be willing to develop a “sand replenishment plan” in cooperation with the University of Hawai’i.
By the time Ahue’s letter went out-April 26, 1993 – work on the wall had already begun. On May 20, Mancini notified Ahue that the application was being withdrawn. No explanation was provided.
Emergency!
On February 6, 1993, high storm swells were predicted for north-facing coasts of Hawai’i. A contractor hired by the condominium owners brought in a bulldozer and boulders, which he proceeded to place at the base of the scarp.
That day, police reported receiving a call for “personal assistance” from an “anonymous female.” The woman “reported a bulldozer at Sugar Cove, 320 Pa’ani Street, building a seawall, wanted police to determine if owner had a permit,” the police report states. “Manager of property… related both DLNR and Ann Cua of county Planning Dept. have been notified and authorized emergency building of seawall to save dwellings on shore front.”
There is no paper trail supporting the manager’s claim that the county or the DLNR had been notified. Instead, the first notice the county received of the work at Sugar Cove appears to have come two days later, when, on February 8, the secretary of the owners association applied for an emergency permit.
Green Light
Planning Director Brian Miskae responded to the emergency request in a letter to Mancini dated February 22, 1993. “With regard to the issue of an Emergency Permit for Sugar Cove, said permit is hereby denied in as much as the work has been completed and… an emergency no longer exists,” he wrote.
Miskae noted that the SMA permit and shoreline setback variance already granted by the Planning Commission required DLNR and other approvals before the start of construction. But, he added, “The Planning Department has no objection to the construction of the portion of the wall that is within the County’s jurisdiction.” A strong proviso was added; “however, you are advised that if the state does not approve the construction of the wall on their property, you may need to consider other alternatives for shoreline protection which could include removal of the wall within the County’s jurisdiction.”
Following a visit from Mancini, a second, milder letter was issued by Miskae on March 17, to “clarify” the previous letter. The Planning Department had received a letter from Hayashi, Miskae stated, indicating “that a reduction in the apron length of the Hayashi Wall will not cause additional erosion to the beach.”
“We therefore have no objection to the wall remaining if the apron within the state’s jurisdiction is not built. We do however note that the conditions of the Planning Commission’s approval would be applicable to the modified wall.”
On March 25, Hayashi applied to the Public Works Department Land Use and Codes Division for a building permit. In an accompanying letter, Hayashi stated that he was including three sets of revised plans, which “include the changes required by the Land Use and Codes Administration, and revisions required for design changes.” The permit was issued the same day (No. 93/564), with the stipulation that the “wall shall not extend beyond certified shoreline.” When Environment Hawai’i asked the Land Use and Codes Division for a set of the revised plans to review, the only plans that could be found were those that accompanied the original SMA permit.
Red Light
In April, the Army Corps of Engineers was alerted to the fact that the wall was being built. On April 26, the Corps issued a stop-work order to the contractor of record, Mark McMillan of Mac Contracting.
“This regards the seawall you are constructing for the Sugar Cove Condominium,” wrote the Corps’ operations division chief, Michael T. Lee. “I have been informed that the seawall does not have a Department of the Army permit authorization … As a result, I must order you to cease further work until a DA permit is issued.”
According to McMillan and his attorney, Margaret Jenkins, McMillan did not receive the stop-work order until the first week in June. By that time, he had been pulled off the job in a contract dispute and Selland Construction Company had taken over. Jenkins notified the Corps of Engineers on June 3 that McMillan was no longer involved with the project. At the same time, Jenkins transmitted a copy of the stop-work order to the officers of the Sugar Cove owners association.
Work continued on the wall, which was completed some weeks later.
Conservation Concerns
The Department of Land and Natural Resources put the county on notice that regardless of where the wall was built the applicant had to fulfill certain state requirements. On May 5, 1993, the county Public Works Department had submitted comments on the Conservation District Use Application for the seawall (before the application was withdrawn) and, in those comments, had alerted the DLNR to the fact that the county had already issued a building permit for the wall.
In response, Land Board Chairman Keith Ahue wrote Public Works Director George Kaya on May 19, 1993. “As noted in your comments, a county building permit was issued … [A] recent site inspection by the Department to the subject property shows several stakes in the sand. Do the stakes represent the certified shoreline? We note that the January 30, 1992, certified shoreline is no longer valid. What certified shoreline was used in issuing the building permit and was it valid when the permit was issued?”
Ahue requested a response “to the questions and issues raised in this letter. Also, we would like to request a copy of the approved plans” submitted to Kaya’s department. Neither a response nor a copy of the plans was ever received.
1 The lot to the west is owned by Cyrus Monroe. He joined with the condominium owners’ association in applying for the seawall, and when the Planning Commission awarded the permit, it was for a wall on both properties. Unlike the Sugar Cove property, Monroe’s was not fronted by a beach. Eventually, his wall was built, although not by the same contractor that completed work on the Sugar Cove wall. Our discussion focuses on the Sugar Cove property, which, better than Monroe’s, illustrates the issues that arise when walls are built next to beaches.
Volume 4, Number 6 December 1993
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