Tantalus Couple Seeks Damages, Fights Enforcement Regarding Land Boards’ Conservation District Decisions
A couple that owns an old two-story house on rainy Tantalus Drive reached out a few years ago to the state Office of Conservation and Coastal Lands to learn how to proceed with much-needed erosion control on their property following a December 6, 2021 landslide.
The first problem: Grading work had already begun and the City & County of Honolulu had issued a notice of violation for it. The second: A subsequent OCCL investigation revealed that the home had been expanded long ago without a Conservation District Use Permit.
On September 26, the state Board of Land and Natural Resources approved a recommendation from the OCCL to fine Robin and Mami Glass $34,000 for four Conservation District violations. It also ordered them to remove the decades-old unauthorized improvements to the house and to file for an after-the-fact Conservation District Use Permit for the erosion control work, which had already been completed.
The Glasses’ home on Tantalus Crater or Puʻu ʻUalakaʻa, where annual rainfall is around 160 inches or more, contains steeply sloped areas, according OCCL planner Trevor Fitzpatrick’s report to the Land Board.
“It should come as no surprise to the Glasses that structures that were likely constructed in the late 1940s or 50s are appearing to fail after approximately 50-70 years of weathering and use,” he wrote.
The house lies within the Honolulu Watershed Forest Reserve and the Conservation District’s resource subzone.
At the board’s September 26 meeting, the OCCL recommended fining the couple $15,000 for the unauthorized modifications to their house, $15,000 for unauthorized grading, $2,000 for unauthorized landscaping, and $2,000 for unauthorized driveway construction.
OCCL administrator Michael Cain explained to the board that the agency discovered the alleged violations after Robin Glass sought permission in July 2022 to do emergency slope stabilization work. Glass proposed installing a retaining wall at the foot of a steep slope and to replace a deteriorated walkway-apron-patio-deck around the house.
In his letter to Cain seeking guidance, Robin Glass wrote that recent landslides, mudslides, erosion and ephemeral streamlets and waterfalls were “imminently likely to cause personal injury, undermine & damage improvements, alter the grade, penetrate improvements on my property and others in the immediate neighborhood.
“This harmful activity has been ongoing for the past 21 years since I purchased the property and possibly for the past 73 years since my house was built, but recently, the intensity, frequency and volume of it has arrived to an alarming level.”
Cain informed Robin Glass that the work would require a Land Board permit and an environmental assessment. “However, over the course of the year, we realized he had actually begun doing the work,” Cain told the board.
His office discovered an August 2022 notice of violation from the City & County of Honolulu for grading without a permit.
The OCCL also discovered the unauthorized modifications to the residence and issued its own notice of alleged violation in June 2023.
Cain told the board that the maximum developable area for the Glasses’ residence is 3,278 square feet based on their lot size.
Records indicate that the original size of the nonconforming, two-story house was 1,154 square feet.
“At some point, the bottom floor was enclosed, adding about 744 square feet, bringing the total to 1,898 square feet,” Cain said. “We believe that occurred over 25 years ago. We also have records showing this was disclosed to the Glasses when they bought it.”
Fitzpatrick’s report to the board also noted, “OCCL files indicate that the Glasses appeared to have made no attempts to bring the dwelling into compliance as no correspondences or applications were submitted in the past approximately 25 years that the Glasses have owned the property. … [I]t is staff’s opinion that the Glasses should be held accountable for the unauthorized modifications made to the single-family residence that resulted in an approximately 744.3 square feet or 64 percent increase to the dwelling’s total developable area.”
He added that OCCL staff had concerns that the residence may not be structurally sound.
The Glasses’ efforts to construct 1,884 square feet of patio, deck, and walkway around the house would put the total developed area 500 feet over what’s permissible, Cain said.
With regard to the recommendation to require the Glasses to obtain an after-the-fact permit for the erosion control work, Cain said, “We want to make sure it meets safety standards.”
He said that while his office was recommending that the Glasses remove the unauthorized house improvements, returning it to its original size of 1,154 square feet, the board could choose to have the Glasses seek an after-the-fact permit for the enclosure of the bottom floor.
The board ultimately chose not to. Instead, it unanimously approved a motion by member Calvin Young to approve the OCCL’s recommendations.
The Glasses did not attend the Land Board meeting and did not request a contested case hearing. Days earlier, on September 23, they filed a complaint in 1st Circuit Court against the Land Board and its chair, Dawn Chang, the OCCL and Cain, the governor, and state attorney general Anne Lopez seeking damages and declaratory and injunctive relief. That same day, they also filed a motion for a temporary restraining order and preliminary injunction to prevent the Land Board “from proceeding with or relying upon the scheduled BLNR hearing on September 26, 2025, concerning plaintiffs’ property.”
The Glasses’ complaint alleges that a Conservation District Use Permit the Land Board granted in 1972 for driveway improvements altered the drainage on Tantalus Drive so that runoff flowed onto their property. In December 2021, that runoff caused a landslide that damaged their home and seriously injured Robin Glass, their complaint alleges.
Attorneys for the state have filed a motion to dismiss the complaint. They note that the Glasses failed to exhaust administrative remedies related to the OCCL enforcement action.
On October 7, 1st Circuit Judge Shirley M. Kawamura denied the Glasses’ motion for a TRO, but granted their request for a preliminary injunction hearing, which has been scheduled for December 30.
In the meantime, the court is expected to decide on the state’s motion to dismiss, as well as a motion the Glasses filed in October to stay the enforcement of the Land Board’s decision.
[UPDATE: On December 4, the 1st Circuit Court granted the state’s motion to dismiss and determined that the Glasses’ motion for a stay was moot.]
Board Narrowly Votes to Deny Permits To Consolidate, Resubdivide Puna Lots
It was like one of those award show moments where the announcer accidentally declares the wrong winner.
At its November 14 meeting, the Land Board voted 3-2 to deny a pair of applications to consolidate and resubdivide two adjacent shoreline lots in the Conservation District in Puna on Hawaiʻi island.
The Department of Land and Natural Resources’ Office of Conservation and Coastal Lands had recommended that the board deny the applications filed by Ryan Pastorek, who owns one of the parcels, and his father, Paul Pastorek, who owns the other. The OCCL determined that the homes the men proposed to build on their resubdivided lots were too big and out of character for the area, even though their proposed development would fall within the maximum developable area for each lot.
OCCL administrator Michael Cain admitted that a recommendation for denial is not something his agency does often. Single family residences are an identified land use in the region, he continued. “We just feel it’s not to scale,” he said. The proposed dwellings would each be just under of 5,000 square feet and would be located near each other. Japanese soaking tubs and outdoor showers were also proposed for both parcels, as well as a 1,050-square-foot pool and hot tub, and an 893-square-foot art studio on Paul Pastorek’s lot.
“This plan, we don’t feel is appropriate for the Conservation District in this rural area,” Cain said. His staff’s report also stated, the “cumulative scope of the proposed developments appears to substantially change the character of the existing surrounding community of modest rural dwellings and open space to a multi-residential large estate.”
Ryan Pastorek, a California-based photographer who has been coming to Hawaiʻi for years, said of his property, “This is my refuge.” Even though his lot didn’t yet have a home on it, he said he started a neighborhood watch for the area in 2019 and organized Beach Road cleanups over the years.
Hawaiʻi County had already granted Special Management Area permits for the homes, which prohibited the Pastoreks from creating any man-made access to the ocean.
Ryan Pastorek’s next-door neighbors, Susan Audrey and Don Wood, who had lived there for 23 years, testified in support of the applications. They said they have been longing for a responsible citizen like Ryan to move in. “He has become a best friend and he doesn’t even live here. He is the leader of our community,” Don Wood said.
The board was under pressure to render a decision that day, as the deadline to rule on the applications was November 18 and the board would not meet again until December. Without a decision to either approve or deny them, they would be automatically approved.
Only five of the Land Board’s seven members attended that day’s meeting. Board members Doreen Canto and Kaiwi Yoon were absent.
Attorney Onaona Thoene, representing the Pastoreks, had submitted written testimony on November 12, vehemently opposing the OCCL’s recommendations to deny. At the board’s meeting, she argued that the proposed homes were similar in size to homes in nearby developments and to what the Land Board had approved a CDUP for in the past. (Cain later countered that the CDUPs for single family residences in the area were for smaller homes, generally less than 4,000 square feet.)
A motion by Hawaiʻi island Land Board member Riley Smith to approve the applications failed, with only board member Calvin Young voting in support. Smith had argued that allowing limited development in the remote, largely undeveloped area between the Hawaiian Paradise Park and Hawaiian Beaches developments would make it safer. “It’s a benefit,” he said, adding that the people who live in such homes pay more in taxes, which helps the community.
When it looked like the board might approve the permits, Cain said that the OCCL had a number of conditions it would want attached, including ones preventing any shoreline hardening and requiring the moving or dismantling of the homes if natural hazards eventually threaten their integrity.
Board chair Dawn Chang and member Denise Iseri-Matsubara, however, echoed the OCCL’s concerns about how the proposed development might change the character of the area. Even if the board had approved a CDUP for a similarly sized house in the region, Iseri-Matsubara expressed concern about creating a trend. “Size is not the only criterion. The concern is changing the nature and character of the area when you start to go a lot larger,” she said.
Chang made a motion to approve the OCCL’s recommendations, which board members Iseri-Matsubara and Karen Ono supported. Smith and Young opposed it.
After the latter vote, Chang announced that the applications were automatically approved, apparently assuming that a 4-1 vote, at least, was necessary for her motion to pass.
Thoene replied that her clients were willing to accept the OCCL’s proposed permit conditions.
Shortly afterward, however, Chang announced that the deputy attorney general advising the board recommended the board take a recess. While the rest of the board waited in the meeting room, Chang met with the attorney in private.
Upon her return, Chang announced that she had been advised that the board needed only a simple majority of the members present to make a decision.
“I am going to correct the record. When the vote was made by 3-2, an action was made. The permit was not issued by default. I apologize. It was my mistake. I have been corrected,” she said.
Thoene then requested a contested case hearing on both agenda items regarding the applications.
— Teresa Dawson
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