Seawalls: No One Wins the Waiting Game
In ‘Ewa Beach, owners of two properties have held out against legal demands that their seawalls, built without permits more than 20 years ago, be removed. This despite unambiguous rulings by the Honolulu agency that has jurisdiction over construc tion in the shoreline setback area that the seawalls had to go – rulings upheld by the First Circuit Court and again by the state Supreme Court.
The city has made repeated efforts to force the landowners into compliance. It has issued numerous notices of violation. It has attempted to attach fines to the owners’ property taxes and placed blocks on re newal of their vehicle registrations and driver licenses. And all to no effect.
Now the property owners are once more seeking after-the-fact approvals of their ille gal seawalls.
When will they accept “No” as an an swer?
Laws Aplenty
These seawalls are not the sole instances of unpermitted defenses along O‘ahu’s coast. They may, however, represent one of the longest-running open enforcement cases in the files of the Honolulu Department of Planning and Permitting. Members of the public, laboring under the impression that the city can enforce its laws, may be excused for thinking something’s fishy here.
Talk to enforcement officers, and the level of frustration is obvious. Talk with planners, and it’s the same story. Talk with department chiefs, and you’ll get a litany of reasons why the city cannot force the issue. Most significant among them is the recent law making city claims take a back seat to claims of private banks, which effectively disables the city from foreclosing to collect mounting fines.
Another confounding factor is the blur of jurisdictional lines. Anything seaward of the certified shoreline lies in the Conserva tion District, which places it in the kuleana of the Office of Conservation and Coastal Lands, an agency of the state Department of Land and Natural Resources. Landward of the shoreline lies the county jurisdiction.
Any work in the Conservation District – and this would include placement of under ground footings for seawalls – requires a permit from the Board of Land and Natural Resources. Claims from private landown ers to own land seaward of the shoreline are dubious, to be sure, given a long tradition of courts holding that beaches are owned by the state as a public trust. Still, such owner ship claims have often caused staffers at the DLNR to back off or, at most, give low priority to enforcement of obvious viola tions.
Cooperation?
In the past, the low level of interaction between the state and county agencies to address the prickly problems of seawalls and other coastal defenses has been one of the most intractable obstacles to protection of the state’s valuable beaches. A glance through the files of the ‘Ewa Beach proper ties makes this abundantly clear. In the 1980s, the state was put on notice that the seawalls in this area constituted a probable Conservation District infraction, yet noth ing was done. Again in the 1990s, when the DLNR was asked to comment on the own ers’ applications for after-the-fact permits, the agency’s Land Division coyly claimed that they would be involved only if the walls were on state land – something neither the owners nor the city would be likely to argue, although their position flies in the face of common sense, to say nothing of common law. Such timidity is hardly what the situation calls for.
To their credit, both the state and counties seem to be trying to iron out their differences. Maui County now requires anyone seeking to do work along the coast to project the 50-year erosion prospects for the property where construction is proposed. The City and County of Honolulu is working with the state on a more informal means of moving forward on long-standing violations by defining “jurisdictional” shoreline boundaries, which have no force of law but which, in the absence of a certified shoreline, at least give agencies a baseline against which future work in the shoreline area can be judged. The DLNR has launched an ambitious educational program to inform anyone and everyone with an interest in coastal lands about the hazards of constructing in an area where the forces of nature are so vigorous and immutable. It has also streamlined the process of permitting alternative ways of dealing with eroding coasts, such as beach nourishment.
A Failure of Will
All these developments represent progress in warding off future problems. But if one believes that sea levels will rise in coming years, as a result of global warming and melting glaciers, the need to address past mistakes in permitting and construction should begin to figure into the equation at some point.
What will happen when – not if – rising seas encroach on developed areas that are now undefended by seawalls? To avoid owners’ claims of taking, will the state have to pay fair market value to buy out the interests of owners of some of Hawai‘i’s priciest real estate or allow them to build coastal fortifications to protect their land?
Those are the questions that the public should begin to ask now, at a time when reasonable and relatively inexpensive op tions remain available. A few simple steps are no-brainers:
- Increase the shoreline setback, with a requirement that calculations of future ero sion should not only take past patterns into account, but also should allow for the increasingly likely prospect that a warmer climate will raise sea levels and aggravate coastal hazards.
- Make enforcement a priority. Today, people who are in wilful violation have an easier time getting after-the-fact approvals of their seawalls than do people who follow the law. Until this changes, expect the violations to continue. At a minimum, county and state agencies should have the ability to exercise their police powers to rip out offending walls after appropriate ap peals have run their course.
- Begin now to plan against the day when the coast will move inland. Will some developed areas have to be sacrificed to save beaches? Identify those areas now. If Mother Nature effectively condemns coastal prop erties, what obligation does the public have to compensate owners for uninsured losses?
Managing development in the state’s coastal areas was never easy. In the future, it promises to be all but impossible if the agencies charged with regulating shoreline structures do not become more aggressive in pursuing the public’s interests.
— Patricia Tummons
Volume 16, Number 5 November 2005