Board Talk: Legacy Lands, Lava Tours, and Much More

posted in: July 2017 | 0

Kuka`iau Ranch Acquisition Wins Much of 2017’s Legacy Land Funds

Breaking with a decade of past practice, the state Division of Forestry and Wildlife (DOFAW) in May supplanted funding recommendations from the Legacy Land Conservation Commission with its own.

At the state Board of Land and Natural Resources’ May 26 meeting, DOFAW administrator David Smith recommended that it fully fund a request for $738,346 to complete the agency’s acquisition of nearly 4,500 acres at Kuka`iau Ranch, rather than provide $838,346 to a project to protect lands surrounding the Ala Kahakai Trail in Waikapuna, which would have required more than a million dollars of additional funding.

DOFAW made the recommendation despite the fact that the Legacy Land Commission had ranked the 2,200-acre Waikapuna project above the DOFAW-proposed Kuka`iau Ranch project in its list of priorities. Both DOFAW and the commission, though, agreed on a recommendation to award $1.5 million from the Land Conservation Fund to pay the ongoing debt service for the Turtle Bay acquisition approved last year.

“This is unusual. We generally don’t come up with an alternative to the commission [recommendations],” Smith admitted. He explained that a lack of staff led to a lapse of Legacy Land funding in fiscal year 2015-2016. As a result, about half the money was available this year for projects compared to past years.

The change in recommendation rankled several commission members, especially its chair, Theresa Cabrera Menard. At the commission’s May 8 meeting, she stated, “Usually the commission’s recommendation is what DOFAW backs in its submittal to the Land Board. But now DOFAW wants approximately $700,000 to fund its own second-ranked project at Kuka`iau, thereby leaving only $100,000 for the top-ranked Waikapuna. …

“I have one question. And it’s a very important one. Is this fair to the applicants? Applicants are expecting that this commission will select the awardees and that DOFAW will uphold that decision,” she stated.

She noted that DOFAW had only once before diverged from the commission’s funding recommendations, and in that case — involving the purchase of land along the Ka `Iwi coast on O`ahu — it was because the applicant had changed details of the project midway through the approval process. (This is discussed in an article in the May 2015 issue of Environment Hawai`i.)

In the current case, “DOFAW just disagrees with the ranking order of the commission and is asking the Land Board to fund its own project first,” she continued. “This sets a new bad precedent. It impacts DOFAW’s relationship with the public who came out to testify, the applicants themselves, and this commission. Should we expect a competing recommendation every time DOFAW puts forth an application that doesn’t receive funding?” she asked.

Smith defended his division’s proposal. “I’m not trying to slip anything through. My recommendation is different from yours. We’ll put them both on the table … and let the board decide.”

He stressed that he believed his recommendation was more logical, since it would allow one project — the acquisition of upper Kuka`iau — to be completed, while the commission’s recommendation would still leave the group seeking to purchase lands at Waikapuna with inadequate funding. He added that the Kuka`iau purchase needed to happen as soon as possible. “If we don’t do Kuka`iau [this year], we might lose the whole thing,” he said.

Despite his explanation, a number of commissioners echoed Menard’s concerns about the precedent being set, the apparent self-serving nature of DOFAW’s recommendation, and the program’s potential loss of credibility with the public.

When the matter came to the Land Board, DOFAW stood by its recommendation. However, to honor the commission’s process and desire to protect Waikapuna, Smith told the board that his division intended to fully fund all of the top projects approved by the commission in fiscal year 2017, which ended on June 30.

“That would require we come back in July to roll back FY18 funding,” Smith said.

DOFAW’s Irene Sprecher explained that the use of FY18 funds to pay for the unfunded FY17 projects would reduce funds available to 2018 applicants to just around half a million dollars.

“We would strategize and communicate that before applications. For FY19, we would be able to have a full competitive year,” she said.

The Land Board unanimously approved DOFAW’s recommendation, with the understanding that the division would return in July with a proposal to use FY18 funds to support the commission’s top-ranked FY17 projects. That include the $2 million Waikapuna project proposed by the Trust for Public Land and the Ala Kahakai Trail Association, as well as a request for $210,000 for a conservation easement to the Hawaiian Island Land Trust over 6.12 acres of taro lands in Ke`anae, Maui.

* * *

Board Slashes Proposed

Lava Tour Boat Fine

On June 9, the Land Board voted to fine a lava tour boat company $15,000 for running three tours out of Pohoiki in East Hawai`i without a commercial use permit from the Division of Boating and Ocean Recreation (DOBOR).

DOBOR had proposed a much larger fine of $80,000 for eight illegal trips. That amount reflected the maximum per-violation fine of $5,000, assessed against both the vessel owner, Shane Turpin, dba Kohala Tours, as well as the captains involved in the illegal trips.

Turpin does hold one of the four available commercial use permits for Pohoiki, but for a few days in early February, he ran two vessels there. At the Land Board meeting, he claimed that he had run two boats out of Pohoiki because he had mistakenly believed that DOBOR rules allowed him to use a vessel permitted for one harbor for up to ten days in another harbor, despite the four-permit cap at Pohoiki. What’s more, he argued that should the board choose to fine him, it should be for three trips, not eight. While the non-Pohoiki-permitted vessel (Lava Kai 2) is the one that made eight trips, Turpin explained that DOBOR was in the process of transferring his permit to that vessel at the time of the violations. The vessel that was actually permitted at the time (Lava 1) only made three trips during that time.

DOBOR administrator Ed Underwood, however, suggested that Turpin intentionally committed the violation. “He told me on the phone the reason why he ran the second boat was to bring issues to a head” regarding the insufficient number of commercial permits at Pohoiki.

“I told him we’re open to increasing the number of commercial permits. We need to engage in rule-making. Staff is beginning that process now. It takes a while,” Underwood said.

Regardless of whether Turpin intentionally committed the violations, Land Board member Stanley Roehrig seemed concerned about DOBOR’s decision to fine the captains, as well.

“If the company is the permittee, why are we charging all the captains? If five people take turns being the captain, you gonna charge all five? Are we overcharging? … We need to decide if everybody who grabs the wheel is gonna get charged,” he said.

Deputy attorney general William Wynhoff, representing DOBOR, replied that the division’s rules say no person shall engage in commercial activities without board permission, and that a captain who goes out and is knowingly engaging in commercial activities should be charged.

Chris McGuire, an attorney representing Turpin, argued that an $80,000 fine was excessive. “The board has bigger fish to fry. …  My client did go over the line in a few instances, but not in a manner that would justify lowering the boom,” he said, suggesting a fine of no more than $5,000.

Land Board member Chris Yuen agreed, in part. He made a motion to approve a fine against Turpin for just the three trips that the Lava 1 made. At the maximum allowable fine of $5,000, that worked out to a total of $15,000. Yuen estimated that the three trips generated about that much in revenue.

“I don’t think $5,000 per violation is excessive,” Yuen said, adding that he didn’t quite understand Turpin’s explanation of why he ran the two boats, which allowed him to collect so many more people.

“It’s pretty clear we’re giving them the benefit of the doubt by saying let’s act as if you swapped the Lava Kai 2 for the Lava 1. Then they would have had only 26 people … but they had another 23, perhaps more. At $150 to 200 per passenger, the math doesn’t work out that differently than $5,000 per violation. If somebody makes a deliberate violation, it’s not excessive to charge them what they earned from the violation,” Yuen said.

Carrying Capacity

Before DOBOR imposed a commercial vessel cap of four at Pohoiki in 2014, Turpin had two boats permitted there. When the cap was imposed, the lava had stopped flowing into the ocean, so Turpin didn’t really need to run more than one vessel there. But in 2016, the lava returned, as did demands from people to see it. Whether he’ll ever be able to regain a second permit is an open question. While DOBOR is considering reviewing the cap, Underwood said the area is heavily congested with both public and commercial users.

“Turpin has the largest vessel. If the other three would increase in size [to match his vessel], there would be a 200 percent increase in people. The county says there is such a demand down there they want DLNR to help pay for upkeep,” Underwood said.

Land Board chair and DLNR director Suzanne Case added, “There is tension. It’s hard for boats to get in and out when there’s people in the water. … The volcano is erupting and there’s a lot of popularity and people want to take these lava tours.”

She said the permit cap was established to address safety issues. “The push to open that is the popularity of the lava tours. [Pohoiki is much closer to the flows than Hilo harbor.] Even if you opened up the question, there would be no guarantee the result would be an increase … because of the safety issues,” she said.

Roehrig asked Underwood if his division was planning to place traffic cops at Pohoiki.

“It’s dangerous. The kids go right down the ramp. The surfers are there. … It’s a very nasty area right now. What plans do we have for that?” he asked.

Underwood replied that the Division of Conservation and Resources Enforcement has been policing the area.

“I’m talking about DOBOR,” Roehrig said.

“DOBOR has no staff in Hilo. We could go to the Legislature and ask for additional staff,” Underwood said.

“I’m not talking about having someone there every day. I’m talking about having a community meeting to familiarize yourselves with problems. That’s a hotspot,” Roehrig said. Underwood replied that he was “willing to reach out to the community.”

* * *

Board Raises Rent

On Hilton Fireworks

The Friday night fireworks show that the Hilton Hawaiian Village has been putting on for the public for more than two decades is now subject to rent closer to that imposed on all other fireworks shows for the portion of the public beach designated as a safety zone around the launch area.

In the past, Hilton representatives had successfully argued that the hotel’s Friday shows should not be subject to the standard $500 in rent for a right-of-entry permit because they provide such a benefit to the public and nearby businesses. But in an effort to be fair to those that pay the full rent for their safety zones, the DLNR’s Land Division proposed last month to increase the rent for the Hilton shows from $50 to $250. Hawai`i Explosives & Pyrotechnics, Inc., which runs the show for the Hilton, would be the actual permittee.

While the rent hike would increase the Hilton’s annual costs for the shows by about $10,000, some Land Board members suggested that the hotel can afford it and, in any event, businesses that benefit from the show could help pitch in toward that increased cost.

At the Land Board’s June 9 meeting, Hilton representatives again stressed the community benefit of the Friday shows, which regularly draw hundreds of spectators.

“We recognize your argument that there is a community benefit, but there is also a commercial and business benefit to Hilton,” board chair Suzanne Case said. “Arguably, anybody else that does this could argue that it is a community benefit. … Other fireworks, everybody gets to see them.”

“I don’t think anybody else does it 52 times a year,” replied Hilton vice president Jerry Gibson.

“There are people that don’t like the fireworks,” Case noted – a point many pet owners might agree with.

Rick Egged of the Waikiki Improvement Association urged the Land Board to consider the fact that the weekly fireworks shows cost Hilton $446,000 a year, which the hotel has to constantly justify.

“It’s difficult. It’s always a question of whether they’re going to get it approved. … I would really request the board consider not increasing the rate,” he said.

Board member Sam Gon suggested a further compromise: raising the rent to just $100, rather than $250. While member Chris Yuen seconded his motion, it ultimately failed.

Even so, Yuen argued to keep the rent as it is. “We have a beneficial relationship [given] the increased spending that in some way makes its way back to the state. I think Hilton doesn’t want to come here and say, ‘If we pay more, we’ll yank the show.’ … When somebody does something that’s really nice, even if we can charge them more, should we charge them more?” he asked.

But given that the annual permit covering the shows was expiring that day, a Friday, and a new one was needed to cover the show that night and through June 2018, Gon made a motion to pass the Land Division’s recommendation.

“I think it’s a good compromise, not perfect. We value your operation and all you folks do at Waikiki. If this doesn’t work, you could come back. Maybe we’’ll revisit it and change it,” Roehrig said. “We get the heat from both sides. Heat comes every day. We get it on the social media, too. We have to be transparent,” he added.

With that, the board approved Gon’s motion.

* * *

Seawall Easement Costs 

Vex Land Board, Landowners 

Manuel Madeira patiently waited hours for his item to be heard and to speak his piece on what he saw as the unfairness of the DLNR’s Land Division proposal. But even though the division director and Land Board members agreed that it wasn’t fair, the board voted to charge his company, West Coast Roofing, Inc., thousands of dollars for an easement covering his legally built seawall in Makaha, O`ahu — for the second time since 2013.

In January 2013, the Land Board authorized a 55-year non-exclusive easement for a 131-square-foot portion of the company’s seawall that was found to be encroaching on the public beach. The company paid $3,000 for the easement in September 2013.

That month, however, a state surveyor conducting a shoreline certification discovered that an additional 190 square feet of seawall was encroaching on the beach. The area had been previously buried under sand.

On June 9, the Land Division proposed that the company pay $4,351 to extend the easement so that it covers the additional area.

Madeira testified that in addition to already paying $3,000 for an easement and another $3,000 for a survey of the area, “they want me to pay an additional $4,000.”

“I looked at the wall yesterday. Now only 106 square feet of the wall is exposed. The sand shifts on this shoreline. We don’t have any real loss of shoreline. To make matters worse, I was required to get $1 million liability insurance of part of my land outside the seawall. It’s land I cannot protect, yet I have to have liability insurance. … When it was brought to my attention I would be incurring another cost … I don’t feel it’s fair,” he said.

“We agree it is a challenging situation,” Land Board chair Suzanne Case said, noting that legislation had been proposed to minimize costs for easements covering legally built seawalls. Those bills, however, have consistently failed, year after year.

Land Division administrator Russell Tsuji informed Madeira, “So you’re aware, the shoreline certification is good only for one year. If it [the shoreline] is determined again to be further in, you could need another easement.”

When it came time to vote on the matter, board members hesitated.

“Aaugh!” member Keone Downing exclaimed.

“I feel for landowners, too,” Case said, while Tsuji complained, “I can’t even get a hearing on that bill” on shoreline easements.

“I think I’m gonna vote no. Hopefully, we’ll send a message to the Legislature. They can’t put all this on top of us,” member Stanley Roehrig said.

Tsuji explained that those who have opposed the proposed legislation to allow the DLNR to receive less than market rent for easements for legally built seawalls view it as encouraging shoreline construction at a time when sea level is expected to rise. The state Office of Planning is one agency that has consistently expressed concern about the bills.

“Whatever the law is, we need to apply it fairly across the board,” Case said. “We agree it’s challenging. We’re going to continue to try to fix it. I don’t see we can avoid our responsibility to follow that law.”

In the end, the board, except for Roehrig, voted in favor of the Land Division’s recommendation.

(For more on this, read “Bills Facilitating Shoreline Easements Fail For Fifth Year at Legislature,” in our March 2017 issue.)

* * *

New Royal Hawaiian Groin

Gets Permit, With Conditions

On June 9, the Land Board approved a Conservation District Use Permit for the construction of sand-retention groin fronting the Royal Hawaiian and Sheraton Waikiki hotels. But it may be months, or longer, before the permit is actually issued.

That’s because some board members had serious doubts about whether the design prepared by the DLNR’s contractor, Sea Engineering, will achieve the department’s goal of rebuilding and maintaining the beach fronting the hotels. As a result, the board made a third-party review a condition of its approval.

Sea Engineering has proposed building a T-head groin that would extend 160 feet from the Sheraton’s seawall. Built in 1927, the existing 370-foot-long groin is dilapidated in parts but serves to prevent sand from being swept away by ocean currents. A portion of the groin is submerged and broken apart and ‘[c]ollapse of the structure would cause the sand that is impounded on the eastern side of the groin to be released,” according to a report by the DLNR’s Office of Conservation and Coastal Lands.

In 2012, the DLNR, with Sea Engineering’s help, replenished the Royal Hawaiian-Moana Surfrider section of Waikiki beach with up to 27,000 cubic yards of sand, but three years later, the beach had lost about 30 percent of the new sand, the report states. As a result, the department is now proposing to repair or replace the Royal Hawaiian groin with a more stable structure to maintain the beach.

In April, the Land Board deferred the OCCL’s permit request because some members wanted more information on how the new groin would help matters. For one thing, they wanted to know whether the existing groin could simply be repaired. Sea Engineering’s Scott Sullivan returned to the board last month to explain things further.

Sullivan noted that the first 100 feet of the existing groin are somewhat intact and functional, but then the groin becomes submerged and progressively more broken, making it “pretty ineffective.”

Should the groin fail, it could potentially undo the benefits of the 2012 beach maintenance project, he said.

“You asked, could we repair the existing groin? It cannot withstand a hurricane type event,” he continued.

Big Island board member Stan Roehrig remained skeptical. “We’ve had a number of tidal waves hit over the last umpteen years and the groin is still there. How is it that this new engineer [at Sea Engineering] said it can’t withstand a tidal wave if it has? Did he go out and look at the history? … It sounds like he just made that up in his office,” he said.

Sullivan tried to assure Roehrig that his colleague’s conclusions were based on sound calculations. “From an engineering standpoint, we have a responsibility to design these correctly. It’s standing there, I admit. Why? I don’t know. We’re lucky. We can continue to be lucky if that’s the way we want to go. I can’t tell you why it’s still standing. I can tell you that it shouldn’t be,” he said.

Roehrig still wanted to know if something could be installed that was substantially the same shape as the existing groin.

Sullivan suggested that the DLNR could just make a big wide concrete wall there, but the problem is that it would only be about 100 feet long, which he believed was not long enough to maintain the beach to the width that the department wants.

“It won’t be very much more efficient than what we’ve got. The wall will be stable. It’s not going to be sufficient to save the beach,” Sullivan said.

“How do you know? You don’t know!” Roehrig argued.

Sullivan reminded board that he was simply designing the groin for the DLNR.

“I’m working for you. This is not my wall. … We should not be adversarial here. We’re on the same team. We’re trying to do what’s best for you,” he said, noting that a T-head groin would help prevent rip currents during high surf, which can move sand offshore.

Addressing the Land Board’s concern expressed in April about the new groin becoming a hazardous attraction to people, Sullivan recounted his observations during a recent king tide.

“I walked from Queen’s surf groin up to the Moana hotel. We had a fairly dangerous situation. Half the island was jumping off the Kapahulu drain.  … Waves would knock them down. People are going to do what they’re going to do. I don’t think there’s any solution. Everywhere I looked, people were climbing any structure,” he said. With regard to the new groin, if built, he said, “Yes, they’re going to be all over it.”

Roehrig said his concern about a T-groin is that he believed it would be put in a place where he learned how to surf as a kid.

“I want the place for the keiki to learn how to surf,” he said.

“I think we decided that spot is a bit east of the proposed T-groin,” board chair Suzanne Case said.

There was some debate over whether the removal in 2012 of two groins that had been deemed to be ineffective and safety hazards changed the makeup of the beach thereafter.

Land Board member Keone Downing seemed convinced that the removal had increased erosion, especially in front of the old Waikiki Tavern. Sullivan, on the other hand, said whether or not their removal caused erosion, he didn’t think they were effective.

The bigger issue was that a bunch of sand the DLNR put there in 2012 washed away, Case said. “Do we need a big picture here? Is this [groin] a first step in a series of improvements?” she asked.

“Yes,” OCCL planner Tiger Mills replied.

Sullivan added that the department had recently contracted Sea Engineering to look at Waikiki from the Natatorium to the Hilton Hawaiian Village. “It’s time to take a look at the big picture and come up with a long term strategy. We’ve been asked to look at short term, five years, and long term. The Royal Hawaiian groin replacement is the first project. … It really needs help,” he said.

Case asked Sullivan whether there were designs other than the T-groin that would solve the erosion problem. “Are there other opinions about how best to hold sand in?” she asked. “Is this something reasonable professionals can differ on? … We’re making a big investment in this. How do we know this is the right one?” she asked.

Sullivan first defended his company’s work. “Our firm has great engineers. I think we do as good a job as you’ll find,” he said. With regard to a possible alternative, he said that whatever the design, it would have to meet the objective, which in this case is to keep the 2012 beach position. To do that, “we need to dissipate wave energy before it reaches the hotels,” he said.

Whatever design is ultimately decided upon, Sea Grant’s Dolan Eversole suggested in testimony that something needs to be done quickly. “I want to leave you with a simple message: The current groin is in a very poor state. The last three winters, we had to close the Royal Hawaiian beach stairs,” he said. “The existing condition of the groin is dysfunctional.”

Land Board member Sam Gon moved to approve the permit. In seconding the motion, member Chris Yuen offered an amendment.

“I don’t mean any criticism of the engineer, but we have heard skepticism from board members,” he said. Yuen and Case recommended that the board seek a second opinion on whether a T-head groin meets the goals of the project. He left it up to the board chair to execute a contract to evaluate the design.

Gon said he liked the idea of an independent corroborator. “It’s an important project in an important spot. It is my expectation that a second opinion will corroborate [the T-head design]. If it doesn’t, we should know about it,” he said.

With that amendment, the board unanimously approved the permit.

* * *

Health Hazards Force

Old Uncle Billy’s to Close

On June 9, the Land Board voted unanimously to renew a revocable permit to Savio HBH Development Company LLC, for one month — to July 14 — with the understanding that the company would not book any more guests at the Pagoda Hilo Bay Hotel (formerly known as Uncle Billy’s Hilo Bay Resort) on Hilo’s Banyan Drive and would work to close the place immediately. The permit extension would give Savio time to remove any personal property, as well.

Board member Chris Yuen added that Hawai`i County inspectors would be evaluating the hotel property in the coming days and if they found any emergency situation that required guests and employees to be removed immediately, the Land Board chair would be authorized to close it earlier.

Peter Savio of Savio HBH supported the board’s decision, noting that he was basically babysitting the hotel for the department and was not really interested in holding onto the property. As a Land Division report to the board stated, “The revocable permit was intended as an interim measure to keep the hotel in operation until such time that the Banyan Drive Hawai`i Redevelopment Agency, organized under the supervision of the County of Hawai`i, Planning Department, develops a long-term conceptual plan for the future of the Banyan Drive resort area.”

Last year, Erskine Architects, Inc., a consultant for the state, found that the hotel “contains numerous life safety issues.” Those included an unsafe stair tower in the West Wing, insufficient escape routes in case of fire, termite infestations, and large quantities of hazardous materials.

The DLNR announced on June 17 that the hotel was to close immediately.

—Teresa Dawson

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