On October 11, the state Board of Land and Natural Resources voted unanimously to fine Juan and Judith Silva $85,000 for unauthorized modifications to a single-family residence and placement of accessory structures within their 11.8-acre property in the Conservation District of North Hilo.
In August 2001, the Land Board approved a Conservation District Use Permit (CDUP) requested by the property’s previous owners for the establishment of agricultural uses, the construction of a work shed, a shade house, a water catchment system, and other improvements. With an amendment to the permit in 2004, the owners had until February 24, 2006, to complete those improvements. No plans were ever submitted to the DLNR.
An August 2005 site visit by the staff with the DLNR’s Office of Conservation and Coastal Lands found that the shed authorized by the CDUP had been converted into or was built to be a single-family residence.
The landowner paid $650 and secured an after-the-fact CDUP from the Land Board to cover a house of 413 square feet, plus a 368-square-foot porch and a 286-square-foot carport. The total area of the residential features would be 1,067 square feet.
The Silvas bought the property in 2020 for approximately $550,000 and proceeded over the next few years to expand the residence to 3,390 square feet and to make other unauthorized improvements. They then tried to sell the property for $1,249,000 in late 2023.
“Soon after the marketing of Parcel 044 began, OCCL received inquiries from potential buyers of the parcel,” an OCCL report to the Land Board states. The office issued a notice of alleged violation on February 5 of this year.
The Silvas responded in March, stating that they wanted to pursue an after-the-fact permit for the modifications.
The OCCL reported to the Land Board, “Cursory conversations with the State of Hawai‘i Department of Health Wastewater Branch note that the unauthorized improvements made to the SFR [single-family residence] potentially would have triggered the need to convert or upgrade the dwelling’s individual wastewater treatment system. It appears no applications or authorizations to upgrade the individual wastewater treatment system have been received or issued according to the Department of Health Wastewater Branch.”
The OCCL continued, “It has been OCCL’s position to discourage speculative activities in the Conservation District. Speculation often leads to an increase in the intensity of land uses on the area or land, and these activities do not often align with the purpose of the Conservation District. Given the above information regarding unauthorized improvements made to Parcel 044, its SFR, and the parcel’s potential valuation, staff has concerns about the message this may send to speculators and developers of Conservation District lands if the landowners are allowed to seek ATF authorizations for their unauthorized improvements.”
At the October 11 board meeting, the OCCL recommended imposing a maximum fine of $85,000 fine for the various unauthorized improvements. The office added that the Land Board could either require removal of the unauthorized modifications or allow the Silvas or a future owner to submit an application for an after-the-fact CDUP.
OCCL administrator Michael Cain reported that in addition to ignoring Conservation District rules, the Silvas failed to obtain building permits from Hawaiʻi County. He noted that a county website describes the house on the property as still being 1,067 square feet.
Judith Silva admitted that they had the additions made but asked the board to grant an after-the-fact permit and to reduce the fines.
“We were told part of [the property] was Conservation, but I didn’t know which part. We have 11 acres. … The structure was already there. We added where it was already flat. … To us, we didn’t do any damage,” she said.
Board member Kaiwi Yoon, an architect, said he found it hard to believe the Silvas did not know where the Conservation District was. (Cain reported later that the entire property is within the Conservation District.) Yoon also did not understand how no building permits were ever applied for.
“I don’t buy ignorance. To build anything anywhere, any state in the United States, you need a building permit. Before we get to the after-the-fact permit … you got some larger issues to deal with. Your house is a non-conforming structure. I’m not sure how you want us to negotiate. In my mind, there is no negotiation. We have a non-compliant structure. … We cannot put ourselves in a legally untenable situation,” he said.
He continued, “There are building codes for a reason. … Should a storm come through, your house is toast. That’s the problem. It’s not the board or me trying to be unfair. This is a matter of life and safety.”
Board member Riley Smith, who represents the Big Island, made a motion to approve the fines and to require the removal of the unauthorized improvements.
“I’d like to add, I would ask when this decision is finalized, the county property tax office be informed of the numerous violations on this property,” he said.
Yoon seconded the motion.
Before the board voted, Judith Silva asked, “There’s no way we can make this legal?”
“Neither of you are licensed in any building trade or field. No one is going to say, ‘OK, looks good,’ because they’re liable. Then insurance companies are liable,” Yoon said.
Judith Silva then asked whether the board would consider cutting the fine in half.
Cain then informed her that the OCCL’s recommendation regarding removal of the unauthorized structures allowed the Silvas to “use your fines as credit against cost of removal.”
After Smith’s motion was amended to require monthly updates from the Silvas on compliance, the board approved it.
— Teresa Dawson
cynthia zheng
Don’t you think removing the existing additions to the house would contaminate the earth and land further and further destroying this couple entire retirement fund that they had saved and socked away during their work-age by leading the simplest basic living? It is unfortunate that this poor couple bought a “dream home” in island of Hawaii thinking that they could spent the rest of the life in this peaceful, beautiful land; later found out Hilo did not have the medical treatment and care for Mrs. Silva and that they must relocate to Oahu. They bought a tiny apartment with only one bathroom in Oahu and jammed a family 4 into this tiny little apartment just so that Mrs. Sliver has the right medical treatments. It was recommended by the realtor to market the house for this price. They had no idea that the housing market “has gone up in value so much” in the Hilo area and the entire country. They were not coming to build a spec home. They were in Hilo to live the rest of their life and to home-school their kids. They found a solid licensed builder who helped them add the additions you have mentioned so the teen-age children have a little privacy and car port space for a car. The action the board is considering not only would destroy the couple’s life-time saving, but also force them into bankruptcy because they have a recourse mortgage. They bought a lemon-the permit for the original house were never signed off. How did they title company and mortgage company over-looked it? One will never know. Who are they going after if the seller of the property who sold the property to them has no money to indemnity them? What if the seller who sold to the seller who sold the Silvas the house also had spent the money? It seems to be merciful, practical and environmentally more sounding at this point is to work with them to obtain the propery permits to complete this still-one-bed-room home. It is a one bedroom. If they need to build sufficient sewage to support this one-bedroom home, it makes more sense.