Did the 2014 amendments to Kaua‘i County’s shoreline setback ordinance weaken what was once considered to be one of the strongest laws of its kind in the state?
Unlike O‘ahu, where shoreline setbacks are 40 feet from the certified shoreline, Kaua‘i was an early adopter of the view that historical erosion rates should be considered when determining how far from the shoreline structures can be built. Whereas O‘ahu’s maximum shoreline setback distance is 40 feet, Kaua‘i’s minimum distance is 60 (in addition to 70 times the historical annual erosion rate).
But a few years ago, the county amended its ordinance, No. 979, to include exemptions allowing landowners to simply bypass the shoreline certification process altogether if they can persuade the Planning Director that their proposed improvements won’t “affect beach processes, impact public beach access, or be affected by or contribute to coastal erosion or hazards, excluding natural disasters.”
This, says Wainiha resident Caren Diamond, has opened the door to all kinds of shenanigans. After reviewing the dozens of exemption requests submitted to the county since the new ordinance went into effect, she’s found that the Planning Department has denied only a couple of them. While the vast majority of the applications were for projects located 100 or more feet away from the estimated shoreline, a few have raised red flags.
In one case, a landowner received an exemption because the proposed work merely included repairs, even though Diamond said she has photos proving that the house itself lies well within the high wash of the waves.
“For years, we used this house to see debris lines. The ocean washes almost three- quarters into the house. We had fabulous pictures. The house wasn’t really set up on a good structure. The ocean is under that house,” she said. But when the owners got an exemption for their repairs, “they rebuilt every single thing,” and even added a deck, Diamond said.
“Half of that, especially the deck, is seaward of the shoreline,” she said.
Basically, under the amended ordinance, “people are setting their own setbacks,” she said, noting that applicants can simply write in how far from the shoreline their proposed improvements will be.
She expressed concerns about those projects where exemptions have been given for interior repairs or renovations, but then the landowners proceed to do much more than that.
“Interior repairs are not interior repairs. This other example that I found out here, they failed to get building permits … They are re-footing an entire house. … Nobody’s really even checking,” she said.
In another case, interior renovations for a Wainiha house located within an area estimated to be 45 feet from the shoreline received an exemption. In addition to whatever interior work had been done, she said the owner proceeded to build a rock wall and outdoor shower. With Diamond’s prompting, the county inspected the site and later required the new improvements to be torn out.
She added that the property is a place that she and other public shoreline access advocates have used as an example of “very successful beachfront vegetative armoring.”
“It has had really extensive armoring with naupaka and heliotropes,” she said, noting that the Department of Land and Natural Resources (DLNR) had at one time forced the landowner to clear some of the vegetation, but it still remains.
“I was tracking the vegetation line over time. You could see it kept moving seaward, seaward, seaward. They said they have a 45 foot setback …,” she said.
Diamond said she’s also keeping an eye on one Ha‘ena property, owned by Fredrick Kleinbub, where the county has granted an exemption for interior repairs to a house located about 40 feet from the shoreline. “That one has a really definitive shoreline. At the moment, the beach is scarping there … It remains to be seen whether he tries to armor it,” she said.
To date, Diamond has tried to appeal two of the exemptions granted: one for the Wainiha renovations, and another for the Princeville Lodge development that had been proposed in Hanalei.
While neither appeal is still active, the one filed by attorney Harold Bronstein on behalf of Diamond, the Limu Coalition, the Hanalei Watershed Hui, and Carl Imparato, argued that the county ordinance conflicts with the state coastal zone management laws.
The county lacks the statutory authority to exempt development from the state Coastal Zone Management Act, which “mandates that the development obtain a shoreline certification prior to determining a shoreline setback line,” Bronstein wrote in an April 4 appeal.
Despite Bronstein’s arguments, Diamond seemed to think some exemptions might be reasonable, especially for those properties that are located hundreds of feet away from the shoreline.
“A lot of these, sure, it seems fair enough to give exemptions for interior repairs or if they’re really far back. When we’re talking about 500 feet, there’s leeway. … There probably is some room for an exemption that’s well founded, but not within the first 40 feet of the shoreline,” she said.
Staff with the state Coastal Zone Management program could not say by press time whether or not Bronstein’s argument holds water. Staff with the Department of Land and Natural Resources’ Land Division, which processes easements for shoreline encroachments discovered during the shoreline certification process, notes that counties have always had the ability to waive shoreline setback requirements, including obtaining a certified shoreline. A formal opinion on the question Bronstein raised isn’t likely to happen anytime soon, since the owner and developer of the Princeville project withdrew their shoreline certification application to allow the county to develop rules governing an appeals process for shoreline setback decisions.
In some of these exemption cases, a state shoreline survey might have revealed encroachments into public areas that could require a Conservation District Use Permit and/or an easement from the DLNR. In fact, in the case of the Princeville project, an exemption was specifically sought to avoid having to deal with a seawall that a May 2016 site inspection by state surveyors found to be seaward of the shoreline.
County planning director Michael Dahilig did not respond to questions by press time about Bronstein’s arguments, how or whether the exemptions are being abused, and how the ability to grant exemptions has helped the Planning Department fulfill its duties.
— Teresa Dawson