Board Talk

DLNR Moves To Ban Houses In Flood Areas

After six years and a recent lawsuit and contested case, the Department of Land and Natural Resources took steps last month to repeal a rule that encourages construction in flood-prone areas of the Limited subzone of the Conservation District.

Before 1994, rules generally prohibited new construction of houses in the Limited subzone. Lands that are placed in that subzone include steep slopes, flood zones, and areas of high volcanic hazard. But in 1994, in an effort to mirror county rules that allow construction in flood zones with mitigation measures, the Land Board adopted rules (Chapter 13-5-23) that list houses as an “identified land use” in the Limited subzone, provided they are in a flood plain or coastal high hazard area and comply with county regulations regarding the national Flood Insurance Program.

But complications arising from a recent proposal to build a home in Honokohau, Maui, have prompted the board to reconsider the rule.

Early last year, James Richard McCarty and his wife, Victoria, applied for a Conservation District Use Permit to build a house on a 1.5-acre lot in the Limited subzone at Honokohau, on Maui’s west side. An environmental assessment for the project received a Finding of No Significant Impact from the DLNR in October.

But when their application came before the Land Board in November, Land Division planner Sam Lemmo’s report to the board recommended denial.

According to Lemmo’s interpretation of the rule, applications for residences can be accepted in the Limited subzone under two conditions: when the house site is in a flood zone or when it is a “kuleana” use (when land was privatized in the 19th century, the kuleana parcels referred to small house and farm lots).

The McCartys believed – and were led to believe by DLNR staff, they say – that their project met both of these conditions. They had provided evidence – pictures, interviews, etc. — that their land once had houses and other structures on it. In 1946, a tidal wave swept through the area and destroyed the structures, which were not rebuilt. In evaluating the kuleana evidence, however, DLNR staff found the boundaries of present lots did not match those of lots created in the original land commission award.

To claim kuleana rights, Lemmo wrote, the parcel must be in its original configuration as issued during the Great Mahele (Land Division) of the 1850s. In the McCartys’ case, he wrote, “The land has substantially changed shape and was potentially divided subsequent to the Great Mahele.”

Regarding the condition that the house sit in a flood area, Lemmo wrote that the project site is subject to only minimal flood hazard, did not warrant any special building or insurance requirements, and therefore did not meet the flood zone requirement.

The Land Board agreed and voted to deny the permit. McCarty, who had not heard of these contentions until a few days before the November meeting, objected to the board’s denial and asked for a contested case hearing.

“We find ourselves now where this thing has tracked along in a logical sequence,” McCarty said. “Following the rules, following any advice the department would give us, we sold our home, live in a rental house, invested the proceeds of the sale of the house in new property….”

While discussing the permit application, O`ahu member Kathryn Whang Inouye questioned the appropriateness of the flood rule.

“Why are we allowing it at all? If we don’t allow [a single-family residence] if it’s not a floodplain, why would we allow it at all if it’s in a floodplain areaÉ So my question is, is this a law that should be repealed? It doesn’t make sense to me.”

“That’s an option,” Lemmo said. A month later, at the Land Board’s December 14 meeting, Lemmo appeared with a request to remove Chapter 13-5-23 from the administrative rules.

The board voted unanimously to take the proposal to public hearing. At the same meeting, it also approved the appointment and selection of a hearing officer for the McCartys’ contested case. Chairperson Gil Coloma-Agaran noted that the McCartys had also filed a complaint against the DLNR in Circuit Court.

The state’s 800-slip Ala Wai boat harbor generates more than $3 million a year. Of that, more than $1 million a year is siphoned off to help out smaller, ailing piers managed by the Division of Boating and Ocean Recreation (DOBOR), many of which are on other islands. If the Board of Land and Natural Resources hands the Ala Wai over to a private operator, that money will no longer be available to subsidize other piers. If the marina is privatized, many tenants in the Ala Wai will not be able to afford to house their boats there, and paddlers and surfers will lose their free parking.

Those were just a few of several drawbacks offered by angry boaters who came out in force December 14 to discourage the Land Board from approving DOBOR’s proposal to select a private developer and operator of the Ala Wai harbor.

DOBOR, which has been harshly criticized in three legislative audits over the last decade, says it is incapable of rehabilitating the Ala Wai on its own. The Land Board agreed, and voted unanimously to approve DOBOR’s privatization plan for the Ala Wai, but with several amendments.

The most significant amendment addressed the concerns of boaters who felt shut out of the selection process. Under DOBOR’s plan, the state will seek proposals for development and management of the roughly ten-acre harbor, but will not hold a public auction for the lease. Instead, it will negotiate directly with whoever has the best proposal.

DOBOR administrator Mason Young said this process allows flexibility in choosing a manager. At public auction, he said, the state has no choice but to go with the high bid.

At-large Land Board member Tim Johns was concerned that the public was not being given an opportunity to comment. “Where is the sunshine?” he asked Young. Johns suggested that a citizen advisory council might help create minimum requirements for proposals, a suggestion that seemed to please many of those testifying.

The board then decided that representatives from two Ilikai associations, area yacht clubs, the Ala Wai Marina Board, the Surfrider Foundation, paddlers, the Prince Hotel, Ocean Users Coalition of Hawai`i, and the Ala Moana Neighborhood Board would make up the council, and asked that the council complete its work in six months, before any request for proposals are made.

Other amendments include compliance with the state environmental disclosure law (Chapter 343), performance bond requirements, and hiring of an independent appraiser. The board also asked that the future lessee, DOBOR, and the advisory council submit annual reports, and that DOBOR provide quantitative data on how other municipalities have handled the transition of public to private marina management.

The poor planning that placed low-income housing right on a beach in Makaha has now caused the state to approve plans for a breakwater that it would otherwise never accept.

Back in 1999, the Land Board forced changes to a City and County of Honolulu plan for a long breakwater at Waikiki’s Kuhio beach to control erosion. While hardening the shoreline, through seawalls, breakwaters, or groins, may protect a targeted area, the structures tended to exacerbate erosion elsewhere, the state found. After delaying more than a year to get the right design, the Land Board finally approved a set of three T-shaped groins instead of the long wall the county originally wanted.

So when the Land Division presented the Land Board on October 26 with a request to approve construction of an old-fashioned breakwater at Mauna Lahilahi Beach Park, board members were taken aback.

“This looks old,” Kaua`i Land Board member Lynn McCrory told staff planner Sam Lemmo, commenting on the out-dated design. Mauna Lahilahi beach fronts the Makaha Surfside Apartments. The proposed breakwater will be a 10,000 square-foot stone structure connected to the southern shoreline, extending seaward, then bending to run almost parallel to the shore. Once the breakwater is completed, the beach will be renourished with 5,000 cubic yards of sand as well as the sand from the three-ton bags in the revetment. Since 1972, the shoreline there has receded 60 feet. Two hurricanes accelerated the rate of erosion.

Lemmo, who has worked extensively on beach nourishment projects and has been recognized for his efforts to save Hawai`i’s beaches, admitted that he was concerned account the project’s viability, but was still recommending approval.

Board member Johns was concerned about the policy implications. “We should be avoiding this; we shouldn’t be doing this,” he said. Lemmo admitted that building the apartments so close to the beach was “one of the worst planning decisions ever made.” To which, Johns asked, “Should we be compounding it?” Despite his concerns, Johns said he would vote in favor of the project. McCrory, who said she was initially going to vote against the project, also went along with it.

“The difference here is we’re dealing with 400 low-income people who have nowhere else to go,” Lemmo told the board, which then unanimously approved the project.

— Teresa Dawson

Volume 12, Number 7 January 2002