Constant Flooding Hampers Tenant’s Ability To Pay Rent for Mapunapuna Demo Business
By now, anyone who watches the local evening news knows that Mapunapuna floods dramatically during high tides and heavy rains. As local scientists and government agencies have ramped up their work to address the potential impacts of sea level rise, the low-lying inland industrial area has been repeatedly held up as an example of what low-lying areas around O`ahu could expect as a result of climate change. During the king tides earlier this year, local news outlets reported on sightings of fish swimming in the streets there as seawater flooded stormwater systems.
The fact that the flooding in Mapunapuna will probably not end anytime soon and will likely worsen with sea level rise had members of the state Board of Land and Natural Resources wondering recently whether or not it should continue to lease out lands there. At its July 28 meeting, the Land Board got an earful from one of its tenants who cited the constant flooding as the main reason why he had fallen behind on his rent.
At the meeting, the Department of Land and Natural Resources’ Land Division recommended that the board authorize its chair to extend the amount of time Island Demo, Inc., had to cure its rent default of $25,050. The company’s owner, John Leary, testified that he has noticed that every month for the past two decades or so, there is water on the road, and “the water is getting deeper and deeper. … They had a guy paddle boarding down the middle of the street.” Rusting caused by the flooding has forced him to get rid of six of his 12 work trucks, he added.
“I have 22 employees. They gotta drive their private cars through this stuff. … This is just getting nuts,” he said, adding that after 18 years on the property, he no longer believes it’s worth the $54,600 a year in rent. “It wasn’t like this. Now, it’s just terrible. Everybody wears rubber boots. All our phone lines are flooded out. Nothing works. Everything smells like mildew,” he said.
He pointed out that his lease promises “quiet enjoyment” of the property.
Land Board member Sam Gon said he completely sympathized with Leary. “It does seem to be coming to a point where the land uses for that area may no longer be appropriate,” he said.
As bad as things were at the property, Leary suggested the effort that would be required to relocate his business — which involves the recycling of construction and demolition waste —would be harder than simply sticking it out where he is.
“I have a conditional use permit to operate a transfer station. That process, I did that in 1998, that was $40,000 [for] consulting, an environmental impact statement … To get another piece of property, to go through the conditional use permit process, would take two to three years,” he said.
Board chair Suzanne Case asked the Land Division’s Kevin Moore whether the periodic flooding was being considered during regular rent re-openings. Moore said that in the last one, the appraiser gave a 10 percent discount because of the flooding, but he had also based the rent on comparable properties that don’t have similar issues.
Board member Stanley Roehrig urged the department to investigate ways to reduce Leary’s rent. “We have an issue that we are not providing a safe, quiet … enjoyment of the leasehold premises because of matters outside of the control of the tenant,” he said.
“If this were a kingdom and I were the king, I would reduce your rent drastically,” Roehrig told Leary.
Board member Keone Downing, however, suggested that if human health is being put at risk because of the flooding, the property should be closed. “You haven’t been paying your rent. You’re delinquent as of today. … There really shouldn’t be a business there,” he told Leary.
While Leary agreed that the flooding does cause hazardous conditions, he added, “It doesn’t stop us. We overcome. We’ve adjusted and overcome.” He noted that his office building floods only a few times a year, but the last time, around Christmas, the water level was around 18 inches.
Leary indicated that he still wanted to stay on the property, but that he wanted the rent reduced at the next re-opening in 2019.
Downing replied that even with a rent reduction, the flooding and resulting damages would continue. “It’s sounding like the area should be closed and the businesses should be out,” he said.
“It’s not as easy as you think,” Leary said, noting that the state Department of Transportation has a baseyard in the the area and there are other “major businesses” there.
Given the expected rise in sea level due to climate changes, Case said Leary’s situation is “a look into the future.” Contrary to Downing’s position, she said the businesses in the area can make their own decisions about whether or not to stay.
“It’s not like we can go in and close businesses down,” she said.
With regard to future rent determinations for Leary’s property, as well as others, Case said the flooding problems may have to be considered and that she expected the value of everybody’s properties affected by sea level rise are going to go down. “That’s something we’re going to have to think about,” she said.
The Land Board ultimately approved the Land Division’s recommendation. It also indicated that it wanted the division and the state Department of Health to assess the impacts of sea level rise on the quiet enjoyment of the property and determine any potential rent adjustments that need to be made.
Legacy Land Projects
Secure Full Funding
As promised, the DLNR’s Division of Forestry and Wildlife sought and won Land Board approval of full funding for the Legacy Land Conservation Commission’s top-ranked projects for 2017. At its July 28 meeting, the Land Board approved Legacy Land Conservation Program grants for the fee purchase of 2,209.207 acres of culturally rich coastal and in Waikapuna on the island of Hawai`i, and a conservation easement over 6.12 acres encompassing the iconic taro fields in Ke`anae, Maui.
In May, at DOFAW’s request, the board voted to award most of the DLNR’s 2017 land conservation funds to the division for the acquisition of Kuka`iau Ranch lands. Division administrator Dave Smith said at the time that the purchase could be jeopardized if it did not receive full funding quickly. Although the Land Board also granted $100,000 to the Waikapuna project, the amount fell far short of the $2 million requested by the Ala Kahakai Trail Association and Trust for Public Land.
Before the May board meeting, the chair and other members of the Legacy Land Conservation Commission had expressed concern over the fact that DOFAW’s project, which the commission had ranked below the Waikapuna project, would be receiving full funding at the expense of the other projects. DOFAW promised to seek board permission to use 2018 funds to fulfill the funding requests for the Waikapuna and Ke`anae projects.
With the Land Board’s approval of grants totaling $2,210,000 for two projects and the $1.5 million that must be paid out of the Land Conservation Fund to pay the debt service on the bond used to protect lands at Turtle Bay, only about half a million will be available to grantees next year.
(For more on this, see our July 2017 “Board Talk” column.)
Roehrig Vows to Oppose
Future Coastal Easements
Land Board member Stanley Roehrig has had enough. On July 28, for what seemed like the millionth time, the Land Division sought board approval to expand an easement for a coastal structure so that it covers an area subsequently found to be encroaching onto the state land. This time, the easement covered a seawall and stairs in Kahala, for which the original landowner paid $83,020 in 2009. Last year, a state survey found that the structures encroached beyond the shoreline and outside the 773-square-foot easement area by about 200 square feet. Extending the easement to cover that area would cost $20,513, the division reported.
Despite concerns expressed by board member Keone Downing that the current landowner, R&I Hawai`i, Inc., may have committed Conservation District violations in making unauthorized improvements to the area, the board ultimately approved the amendment. Before the vote, however, Roehrig reiterated his longstanding concern that the division’s shoreline easement process was flawed and unfair.
“Has the Legislature ever passed legislation identifying who owns what [when] somebody builds a wall and global warming and whatever cause the sea to rise so the wall is in the ocean now? … By what lawful right do we have to charge the landowner one penny?” he asked the Land Division’s Kevin Moore.
“I sincerely believe we should submit a bill to the Lege to get lawful authority, or we should pay these people rather than saying they owe us money,” Roehrig continued.
He added, “I’m willing to approve this one, but I vote ‘no’ from now on on these unless we go to the Lege to resolve this issue.”
To this, Moore reminded Roehrig that the department has tried and failed for years to get legislation passed to allow the easements to be granted at less than market rates. With regard to questions about the department’s authority to require easements over seawalls found to sit seaward of the shoreline, he added that the state Department of the Attorney General has taken the position that such authority has been established by case law.
“Is there a written opinion to this effect?” asked Roehrig, who is also an attorney.
“We can certainly revisit it with them,” Moore replied.
“”We’re not here to take peoples’ money just because we’re a board,” Roehrig stressed, adding, “I think we should not continue to put our head in the sand and take peoples’ money. Do something so each side gets a fair deal.”
Board chair Suzanne Case noted that in the meantime, “if you’re using public property, you have to pay for it.” After the board approved the easement amendment, she assured Roehrig that she would work with the Land Division and AG’s office on the form of an appropriate legal review of the state’s authorities.
Shoreline Hardening Policies
For Old and New Structures
Another glimpse into the future with rising sea levels: On August 11, the Land Board issued a right-of-entry permit to allow the Kahana Sunset residential condominium in West Maui to conduct emergency seawall repairs along a 340 square foot section.
“Similar to other shorefront properties on the coast of West Maui, Kahana Sunset has suffered from erosion related problems in recent years. Presently, the undermining of the seawall in close proximity to building A has progressed to a point that the building foundations may be in danger of collapse or major failure,” a staff report states. The repairs are expected to include the temporary placement of “jumbo” sandbags in front of the seawall and the filling of cavities with concrete.
Maui Land Board member Jimmy Gomes confirmed that the seawall was in dire shape, noting that at one section, the ocean “shoots like a blow hole right into the yard.”
Generally, the Land Board and DLNR frown on shoreline hardening, as it exacerbates erosion of the beach and neighboring properties. In the case of the Kahana Sunset condos, the complex was built in 1971, before the department’s current coastal management policy had been developed, and simply allowing one of the structures to fail would pose a serious public health hazard, the Land Division found.
To prevent future situations like Kahana Sunset’s, the DLNR’s office of Conservation and Coastal Lands has started to include in Conservation District Use Permits for single family residences a condition prohibiting shoreline hardening.
— Teresa Dawson