Board Talk: Erosion, Kapa`a Lease, Coral Settlement, Turtle Bay

posted in: Board Talk, July 2015 | 0

Board Facilitates Removal of Encroachments, While Expanding an Easement for Another

“The ocean is rising. The state is getting more land every year,” said board member Stanley Roehrig at the May 8 meeting of the state Board of Land and Natural Resources.

Indeed, in May, Environment Hawai`i detailed how, more and more, the shoreline certification process is identifying properties in need of an easement from the Land Board to legitimize encroaching, but legally built, structures. (Under state law, the state owns everything up to the highest wash of the waves.)

That same month, the Land Board approved additions to yet another such easement, this one to the owner of the former Henry Kaiser estate in Portlock, O`ahu.

But the Land Board hasn’t just been allowing shoreline encroachments to stay. The board has also recently granted three right-of entry permits to apartment complexes on Maui and a Waikiki hotel that plan to remove their encroachments from the beach.

An Addition

Evershine pic 2
Evershine II’s Portlock property.

On May 8, the Land Board approved a request from Evershine II, L.P., the development group that owns the former Kaiser estate, to expand its 55-year easement by about 3,500 square feet to cover shoreline encroachments recently discovered during efforts to build on the property.

The Land Board approved the original easement in 2001 to Evershine VIII, L.P. for a channel, a concrete breakwater, and a seawall and fill that encompassed about 21,000 square feet. The company paid $58,000 for the easement, which was issued in October 2003.

Five years later, the company paid an additional $1,060 to add 384 square feet to the easement area and to include steps to the beach as one of the allowed uses.

The property’s current owner is planning some major construction near the shore and in seeking a shoreline certification, the state’s shoreline team determined that portions of the seawall and footing are outside the easement boundary, a Department of Land and Natural Resources Land Division report states.

Also, for safety purposes, Evershine II plans to keep several offshore navigational markers that were not included in the original easement and requested adding them, as well.

Following discussions among Evershine representatives and the DLNR’s Land Division, Office of Conservation and Coastal Lands, and the Land Survey Division of the Department of Accounting and General Services, “it was decided that including the additional encroachments in the easement would be prudent,” the report states.

At the Land Board’s meeting, Land Division administrator Russell Tsuji explained that the new easement areas were being added because the shoreline has moved.

“Now, all of a sudden, things are seaward of the shoreline,” he said.

To make sure those areas are covered by liability insurance, they are being added to the easement, he said.

The Land Board unanimously approved the easement amendment. Once an appraisal is done, Evershine will again have to pay for the additional area. The easement is non-exclusive, meaning that the public can traverse the area.

Dan Purcell, a member of the public, requested a contested case hearing on the easement, but, according to Land Division staff, he did not follow up with a written petition.


At the same meeting, the Land Board approved a 60-day right-of-entry permit to the Association of Apartment Owners of Napili Surf in Lahaina, Maui, to remove encroachments covering some 5,000 square feet, including a shower, fencing, concrete pads, and a bench.

In a separate item, the board voted to grant a right-of-entry permit to ORF, LLC, giving it 90 days to remove 12 tiki torches and a single concrete step fronting the Outrigger Reef Waikiki Beach Resort. The company must also deposit $17,000 into an escrow account to cover the removal. Should the company fail to remove the encroachments in the meantime, the DLNR may remove them on its own using the funds in escrow.

In the case of Hale Ka`anapali on Maui, which the Land Board took up later that month, the county Special Management Area permit process identified artificially induced vegetation that encroached onto the state beach. Under the state law that requires landowners to keep beach transit corridors free from such obstructions, the condominium is being required to removed some 2,300 square feet of naupaka from the beach.

On May 22, the Land Board approved a 30-day right-of-entry permit to the Association of Apartment Owners of Hale Ka`anapali to allow for the removal.

Unless and until the encroachment is removed, the AOAO will be unable to have its shoreline certified, a requirement of the SMA permit process.

Work is expected to begin in September.


Church Loses Kapa`a Lease,

Despite Testimony

Of Board Member

After no fewer than 50 notices of default had been issued over the past 20 years, the Land Board finally terminated on May 22 a lease for land in Kapa`a, Kaua`i, used by Tenrikyo Taiheiyo Kyokai for a church and “allied purposes.”

The church had a rental delinquency totaling several thousand dollars, according to Land Division staff. Although the church later paid $4,553 of it shortly before the meeting, about $121.41 in back rent remained and a new rental payment of $1,000 was due soon.

Despite the recent payment and the fact that the division was dealing with relatively small dollar amounts compared to some leases, Kaua`i District land agent Marvin Mikasa recommended proceeding with forfeiture given the property’s history.

“Apparently there was a lot of different types of default,” Land Division administrator Russell Tsuji told the board. The tenant apparently failed to keep the property in a sanitary condition and built within the county setback without county permits.

When it came time to discuss the matter, Kaua`i Land Board member Tommy Oi, a former land agent, recused himself, saying he had worked with the family for many years with the family that runs the church and tried to help it to resolve its lease issues. He also later stated that he worked construction with the church’s former reverend, Nobunao Hamada.

But once the other Land Board members started asking questions, Oi started participating in the discussion, explaining the history of the church’s tenancy and why it had been allowed to stay for so long despite the repeated rental delinquencies.

Deputy attorney general William Wynhoff then reminded Oi that he had recused himself and suggested that it would be more appropriate for him to make his comments from the other side of the table, where members of the public testify.

“I’d just feel a little more comfortable,” Wynhoff said.

Oi, as a member of the public, later went on to explain that Nobunao spoke no English and his family struggled to pay the rent after the DLNR raised it years ago. He added that a Nobunau’s daughter in Honolulu would sometimes pick up the bill.

Charlotte Hamada, who took over her husband’s position four years ago, admitted that she was “a very bad accountant” when it came to the rent, but defended the work of her church, which has taken in abused children, beggars, and drug addicts.

“We don’t get paid for our job from Japan,” where the church is headquartered, she said.

She said she planned to eventually move back to Honolulu, but asked the board to let her family stay on the Kapa`a property just a few more years. Before that, her son Chad, who lives on O`ahu, would move to Kaua`i to take over the church.

As she and Chad detailed activities on the property, it became clear that at least some of the people living there were not exactly welcome and were unruly to say the least.

“My oldest son, who is in jail now for abusing my husband, he brings in all kind of drug people [into] that back house,” she told the board.

When Hawai`i island board member Stanley Roehrig asked how many people were in the church’s congregation, she said only her family.

How about other people, the homeless? Roehrig asked.

Chad said that the homeless people stay in the back house are supposed to come to service, but “my parents are so old, people are trying to hit them.”

“The people my dad did help, it’s not in the hundreds, but they are people [doing well] in the community,” he said.

Although he had not yet been approved to take over the church, Chad said he planned to help finance and run it.

When Roehrig asked Chad how he planned to keep the disruptive people out, he replied, “Trust me. … I go home every month for the last 15 years to clean everything up, to prepare for the next service. They scatter because I will not let that happen to my parents.”

Maui Land Board member Jimmy Gomes didn’t seem assured by that.

“You still go back once a month, everyone scatters. Once you have your service, they will go back again,” Gomes said.

While he supported the intent of the church, Gomes said, “Personally, I see you have a sore and it’s not healing. It’s still bleeding.”

Chad agreed and said the Land Board had every right to deny his mother’s request, but still asked it to give him a change to turn things around.

Gomes chided, “I’d be pulling my mom out of there and bringing them to Honolulu.”

Oi testified that there has always been drug-related crime in the area, particularly in nearby Kapa`a park. He also urged the board to reconsider.

“All I trying to say, I cannot see getting rid of these people. They going be homeless. You’re just creating another problem,” he said.

“Although it was part of my job to get rid of these guys … I try to resolve the situation. I cannot see kicking out one church that was something to help the community,” he said.

Jennifer Jasper, a next door neighbor of the church, had an entirely different take.

“I have been harassed, my house has been burnt. I have been shot at. … The neighbor has been burglarized ….” she said, adding that the police cars come to the property six at a time in the middle of the day and on weekends.

“A man walked out from their yard plain naked,” she said.

“I get called a f-n whatever. When I’m in the garden, they say get the f- back in your house,” she said.

“We call the cops all the time. The drug activity, everybody knows, even the fishermen tell their children to stay away from this house because of the drug dealing. … everybody knows and none of you have helped me,” she said, adding that she feared for her life. “I can tell you right now I’m going to get retaliation when I get home. … These people are acting very nice. It’s a different scenario at home.”

The friction between Jasper and the Hamadas was palpable in the board room; a few heated comments were exchanged.

Roehrig, a lawyer,  seemed sympathetic to Jasper’s plight, noting that he had a case where homeless people living in a self-storage space “terrorized the countryside” and one of them struck his client in the head with a cow bone.

“He’s lolo right now. It’s not a small thing,” Roehrig said.

Although Roehrig suggested deferring the matter to give Chad a chance to bring order to the property, the rest of the board favored termination.

Land Board chair Suzanne Case said she was concerned with the long history of violations and that it didn’t seem fair to members of the public who were being affected by those violations.

In the end, the Land Board unanimously approved the lease termination.



Settlement for Coral Damage

Sea Sport Cruises, Inc., (SSC) will pay the state $7,000 for coral damage caused in September 2013 when its 149-passenger catamaran Ocean Odyssey grounded near Ma`alaea Harbor, Maui. On June 12, the Land Board approved the fine recommended by the DLNR’s Division of Aquatic Resources (DAR).

According to a staff report, DAR based the fine on a value established in a 2007 case in which the coral reef area scarred by an anchor. The damaged area was valued at $140/square meter.

Using that standard, the DAR calculated the $7,000 fine based on a damage area of 47 square meters.

A staff report notes that SSC “took prudent measures to mitigate and avoid further damage by flooding the vessel to minimize movement … in the surf while awaiting salvage.”

During discussion, Land Board member Ulalia Woodside seemed interested in pushing for a more current assessment of coral value. She asked DAR acting administrator Alton Miyasaka whether his division ever planned to revisit the $140/square meter standard and adjust it to account for inflation.

Miyasaka responded that the value of the damaged area actually depends more on the quality of habitat affected.

So, no accounting for inflation? Wooside asked.

“That’s built into that value is the current value we see in it. It’s based on things like what species it is, how rare, how big a damage, the area in which it’s in. We have a base amount per square foot, then we adjust,” he said.

“But that base hasn’t changed in a while,” she said.



Governor Signs

Turtle Bay Bill

On June 12, Gov. David Ige signed Senate Bill 284, allowing for the permanent protection of 665 acres of coastal land surrounding the Turtle Bay Resort on O`ahu’s North Shore. The $45 million acquisition will still require approval of the state Board of Land and Natural Resources, which is expected to vote on the matter soon.

At a briefing before the Land Board that day, state Attorney General Douglas Chin said that with the Governor’s signature, the state was a step closer to resolving a decades-old controversy that began when the Kahuku sugar mill closed in the 1960s.

The interest in development and job promotion that followed resulted in agricultural land being  rezoned to for resort development. And when previous owners of the resort moved to act on its entitlements several years ago, it resulted in a number of lawsuits, as well as strong community opposition.

“It’s resulted in several litigations, several controversies that will hopefully be resolved,” he said.

Under the purchase allowed by SB 284 (now Act 121), the state will acquiring the fee for 52.8 acres. About 570 acres would be owned by the resort, but would be covered by a perpetual conservation easement held by the state.

The state will contribute $35M, or 78 percent of the total cost. The City & County of Honolulu is contributing $7.5M for a small portion of land, and the nonprofit Trust for Public Land, with Army funding, will provide $2.5M to complete the transaction.

The easement terms will require the resort to maintain and accept liability for the area.

“It’s not meant to be an active park. It is a green space that contains about eight miles of pathways. You would be able to walk through and enjoy an area that is essentially preserved and conserved,” Chin said.

The state also plans to issue a 65-year lease to the resort for the fee area, which also  requires the resort to assume liability and the responsibility to maintain the land in a certain condition and provide public access.

What’s more, the purchase agreement includes a commitment from the resort to provide 80 public parking spaces and to allow the Kahuku high school golf team have their fees waived during daylight hours.

One parcel, located on the Kahuku side of the resort, that was originally targeted for protection is not included in the deal.

Chin said it was “left out there as an additional portion that could be worked out.” The state or other agencies have until December 2017 to finalize an agreement to buy that property. Parties involved in the current purchase just don’t have the money for it right now, he explained.

Land Board member Keone Downing asked resort representative Drew Stotesbury whether that deadline could be pushed further, but Stotesbury was adamant that the option end at the end of 2017.

Chin noted that Kawela point was being saved. He said it was the “crown jewel in terms of development potential, as well as potential for a public park type area.” The two parcels that make put the Kawela portion accounted for the vast majority of the purchase price, he said.

“It is a great relief to know that area will not have a big hotel all over it,” although the resort still has the ability to build two new hotels, he said.

— Teresa Dawson

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