Was it just repair and maintenance of a nonconforming structure that didn’t require permits? Or did Elizabeth and Michael Dailey build a brand-new seawall, using components of their old revetment, in violation of Conservation District regulations?
After bouncing back and forth from the Board of Land and Natural Resources to the lower courts, this matter will finally be decided by the Hawaiʻi Supreme Court, nearly 20 years after the Daileys fortified the revetment fronting their beachside lot in Mokuleia on Oʻahu’s North Shore.
On March 4, the high court accepted the Daileys’ writ of certiorari.
In a June 2022 contested case hearing decision and order, the Land Board found that in 2006-2007, the Daileys demolished their old rock revetment and built a new seawall makai of the shoreline. The wall was taller and denser than the revetment had been, and as a result, would erode the beach more quickly, the board found.
The order called for the Daileys to be fined and required them to remove the seawall fronting their property.
The Daileys filed an appeal with the Environmental Court. In May 2023, Judge Jeffrey Crabtree granted a motion by the Land Board to dismiss the appeal.
He agreed with the board’s argument that under state law, appeals regarding the Conservation District must go directly to the Hawaiʻi Supreme Court unless an exception is met. The 2022 contested case over the Dailey seawall “did not arise from a shoreline setback determination,” he found, and, therefore, was not an exception.
In his findings of fact, Crabtree described some of the case history:
“Sometime in the mid-to-late 1960s to 1970, then-landowner Fred Dailey (husband and father respectively to Elizabeth Dailey and Michael Dailey, but since deceased), stacked loose rocks and boulders in a sloped configuration … on the makai side of the property to protect the Appellants’ land and home from high surf damage and beach erosion.
“Approximately thirty-five years later, in 2005, winter surf and waves acting against the rock pile caused some of the rocks to fall onto the beach on the makai side of the revetment, triggering public complaints….
“Both an emergency conservation district use permit application by the Daileys and an enforcement case were opened with the Department of Land and Natural Resources’ Office of Conservation and Coastal Lands,” he wrote
The OCCL denied the emergency CDUP application. Among other things, the agency determined that the Daileys had failed to prove the revetment was a repairable, nonconforming use, legally built outside of the Conservation District.
But because the OCCL was not able to determine that the revetment wasn’t a nonconforming use, the agency dropped its enforcement case.
“Beginning in 2005/2006, the Daileys engaged in self-help (i.e., without any approvals or permits) regarding the fallen rock pile. Rather than repairing the rock pile back to or close to its original condition, the Daileys built a new and substantially different seawall largely on top of the 1970 rock pile,” Crabtree continued.
“Based on the Daileys’ construction of the new seawall, which continued through 2006/2007, the OCCL opened a new conservation district violation case,” he wrote.
He noted that in a prior appeal – which, in retrospect, should have been heard by the Hawaiʻi Supreme Court – the Environmental Court had found that “observations by staff supported the BLNR’s finding that the highest wash of the waves in 2007 actually topped the seawall,” and that “there was sufficient evidence to support the BLNR’s finding and conclusion that the new 2006/2007 seawall was makai of the then-shoreline.
“This meant the new 2006/2007 seawall was within the conservation district and DLNR’s jurisdiction. Therefore, a variance or other authorization from the BLNR was required before building the new-and-different 2006/2007 seawall,” he wrote.
Attorneys representing the Daileys have countered in court filings that during the contested case hearing, the DLNR “failed to provide any expert or expert report that quantified or measured the revetment’s height, depth, width, or dimensions.” They argued that the Land Board’s finding that the seawall work “ultimately caused major changes to the rock pile” was “completely unsupported,” as was the board’s finding that the 2006-2007 work was a new structure.
In a summary disposition order issued last May, the ICA upheld Crabtree’s decision to dismiss the appeal. Although the Daileys asked that the courts transfer the case to the Hawaiʻi Supreme Court, the Environmental Court and ICA argued they did not have that authority.
The Daileys then applied to the high court, which granted cert last month.
— Teresa Dawson
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