At its November meeting, the state Board of Land and Natural Resources deferred for the second time acting on a proposed $31,000 fine against Grand View Apt., Inc., which owns a shoreline parcel in Mokuleia, O`ahu, that was devastated by winter swells about a year ago.
With the high surf having already undermined a seawall and with waves then scooping away sand from his yards, Grand View principal Dean Hanzawa dumped and cemented large rocks makai of his two properties and also hardened a city right-of-way that bisects them. The revetment, he said, was mainly intended to protect the public from his failing seawall, the face of which had broken away and leaned about 45 degrees toward the beach.
Although Hanzawa had called the City and County of Honolulu and the state Department of Land and Natural Resources for help, the work was ultimately done without the necessary authorization from the Land Board.
In April, the DLNR’s Office of Conservation and Coastal Lands recommended fining Grand View the maximum fine of $15,000 for unauthorized reconstruction of the company’s erosion control structures, $15,000 for unauthorized construction in the city’s right-of-way, and $1,000 in administrative costs.
At the Land Board’s April 25 meeting, Grand View representatives asked for and received a deferral to allow time for a survey to be done to delineate the extent to which the unauthorized work encroached into the Conservation District.
At the Land Board’s meeting last month, the OCCL again recommended the same fines. Grand View had prepared a survey of the area, based on a presentation by its consultant (and former DLNR director) Peter Young, but the survey failed to provide the information the Land Board had asked for in April.
The survey did not show where the original seawall had been on one of Grand View’s properties. According to Young, the original wall was somewhere buried inside the boulder revetment.
Grand View’s attorney had requested that the Land Board either allow the unauthorized uses to remain or to defer the matter so the city could be brought into the matter, said OCCL administrator Sam Lemmo.
Grand View’s position is that the erosion on its properties would not have been so severe had the city not condemned a 10-foot wide right-of-way between the two lots and then failed to fortify it. The path created a weak spot that allowed water to undermine the adjacent properties, the company contends.
Lemmo admitted that the right-of-way may have played a part in what happened, but he had a problem with the unilateral action taken by Grand View and the fact that the company built further out than what originally was there. Because the work encroached on unencumbered state land, Lemmo said he was forced to recommend an enforcement action.
In addition to the fines, the OCCL recommended that the illegal work be removed.
Young argued that if the Land Board orders the structures removed, “you’re condemning houses that were otherwise protected.”
He added that in a case where a neighboring property sought and received an easement for an erosion control structure, the OCCL stated that removing it “may destabilize seawalls and lawns on adjacent properties.
Grand View wanted a chance to obtain after-the-fact permits and an easement for the work that was done, and to coordinate with the city and DLNR on a way to keep the public access from eroding, Young said.
Howard Hanzawa, Dean’s brother and an engineer, said he designed the revetment on the south parcel 14 to 15 years ago and the other seawall had been there since the mid-1970s.
“I have no doubt in my mind if the City and County right-of-way was properly reinforced, we would have had no problem,” he said.
When asked about the recommendation to remove the portion of the structure within the Conservation District, Lemmo said that first, he still wanted a survey that shows where the original seawall was.
“I haven’t seen that survey. We asked them to survey the area of the original wall. Anything outside, that’s what we would want them to remove. The idea was they would redevelop the structure,” he said.
He explained that the Land Board has never in recent memory allowed anyone who illegally installed rocks on the beach to keep them there. All of the easements that have been issued for erosion control structures that encroached onto state property were for ones built in the 1960s and 1970s “and for some reason they became on state land,” he said, adding that the DLNR still required some of the owners to remove parts of the encroachment.
Although he admitted that everything Grand View’s representatives were saying about the county right-of-way had merit, he was just trying to be consistent with past enforcement, he said.
Dean Hanzawa said redesigning the structure at this point would be very expensive and he’s already financially exhausted, having spent nearly $200,000 on what was done.
Lemmo agreed that it would be expensive, but said it’s physically doable.
“You can’t sit there and say you can’t do it. I’ve been here 20 years and seen people engineer things much tighter. If you’re asking us to walk away from this and let it go, I can’t support this. If you’re asking us to do an after-the-fact easement, you’re sending them down the road that is going to be so expensive. They’re going to have to write an [environmental assessment], request an easement for the area. There’s substantial costs and time involved in the after-the-fact process. If they just summarily agree to remove the areas that were illicitly put in the Conservation area, they don’t have to talk to us again,” he said.
Despite Lemmo’s argument, Land Board member Vernon Char wanted to see whether a solution that involved the city could be achieved. He made a motion to defer until the Land Board’s first meeting in April.
Before the board could vote, residents of the area upset that their public access has been taken away, urged the Land Board to approve the OCCL’s recommendation so Grand View had an incentive to fix the problem.
One resident, Kelly LaPorte, alleged that Grand View was telling only part of the story. He said the work started in the middle of 2013 and heavy equipment was being moved through the right-of-way.
“In December, after they did construction over the summer … I just gotta think that accelerated the erosion,” he said, adding, “I don’t know what the solution is. Deferring it and deferring it means the public doesn’t have access to public beaches. That’s now a private beach, not a public beach.”
Before the Land Board voted, Lemmo argued one last time against deferral.
“Do I feel like you’re making the correct motion? No. The way to draw the city in is to follow through with the action. They will ask for a contested case,” Lemmo said. A contested case would allow the city to formally intervene.
What’s more, the board could still find that there had been a violation even though a solution has not yet been worked out, he continued.
In the end, the Land Board unanimously voted to defer the matter so yet another survey could be done and possible solutions prepared.
Malaekahana State Park Gets New Manager
For the first time in some 20 years, Malaekahana State Recreation Area will have a new operator. On November 14, the Land Board approved a five-year lease to Malaekahana Beach Campground, LLC, which plans to manage and improve the 36-acre park.
A state evaluation committee had determined that Lanihuli Community Development Corporation, which has run the park for the last two decades and whose permit ends December 31, did not qualify to submit a request for proposals to the DLNR’s Division of State Parks for the short-term lease.
Lanihuli’s president Craig Chapman admitted, “Basically, I’m a lame duck and I’m out of Dodge.” But he was clearly angry at how things were ending.
“I want to get something clear: I don’t want what happened to me to happen to Ray,” he said, referring to Malaekahana Beach Campground’s CEO Ray Sanborn.
“During the time I’ve been there, not a dime has been spent [by the DLNR] on Malaekahana and I’ve been on a month-to-month permit,” Chapman said. In the past, Chapman has complained that such short-term tenure made it difficult for him to get adequate financing for improvements. He added that he thought the dangerous trees at the park should be trimmed.
“I don’t want Ray to … take on the liability of an unsafe park,” he said, noting that some trees are 80 feet tall.
“A gal almost got killed on October 13. The whole root came out. … You’ve got another Sacred Falls in the making,” he said. The DLNR closed access to Sacred Falls years ago after a rock slide killed several people.
Chapman also complained about State Parks’ request for qualification process. He called it flawed at best, noting that to qualify, an applicant had to be able to pay $2,000 a month plus 7 percent of gross revenues. The request for proposals then changed the proposed rent to $2,000 a month or 7 percent of revenues.
“That’s a $2,000 a month swing,” Chapman said. “We had $6 million ready to go. I had 20 years of experience.”
He finished by suggesting that the evaluation process was also flawed.
“It’s very, very difficult going into an evaluation commission when you know you have biased individuals. … I know park staff said, ‘I hate that guy and I want them out. One of the people on the neighborhood board said, ‘We got `em,’” Chapman said.
(In 2012, State Parks had, indeed, tried to oust Lanihuli for, among other things, allegedly conducting unauthorized grading, construction and landscaping. Parks administrator Dan Quinn said at the time that management at Malaekahana was a mess. For more on this, read our March 2012 Board Talk.)
Jim Anthony, a member of the public, testified that when he asked State Parks for any correspondence that had been circulated about the Malaekahana lease, he was told he would have to pay $2,600 to get the documents. Anthony speculated that they contained back-channel discussions, including with Land Board chair and DLNR director William Aila, about ways to oust Chapman.
Anthony asked that the Land Board defer approving the lease so the matter could be discussed further. He added that there was a chance of litigation.
“If you wanna do a litigation, you do a litigation. If you want me to make a decision in this, I’m not going to make a decision on small information. I don’t think this is the proper forum for that,” Hawai`i Land Board member Stanley Roehrig told Anthony. Chapman had left the meeting immediately after speaking.
“It’s a heavy allegation to say the chairman … is involved in any kind of hanky panky,” Roehrig said. “My own instincts are, I don’t wanna go too far down this road.”
The Land Board ultimately voted to approve the lease, but directed staff to find a way to give Chapman the time and ability to remove his property from the park.
Anthony then requested a contested case hearing.
Volume 25, Number 6 December 2014