Board Talk

Redesign for Kuhio Beach Work May Leave State Without a Builder

Balancing pleas to “just do something” against those seeking more public comment, the state Board of Land and Natural Resources voted October 13 to begin developing plans and specifications for a revamped Kuhio Beach restoration project, provided that they are presented to the public.

For ten years, the state has struggled with the project’s design to reduce safety hazards, to improve the water quality of popular swimming waters along Waikiki’s Kuhio Beach, and to create a larger, more stable beach area. Last year, a design that broke up the one, long existing breakwater into three curved ones was presented to the Land Board. While approving the project’s concept, the Land Board postponed its development pending a beach restoration expert’s review of the design prepared by contractor Edward K. Noda & Associates, Inc. Noda’s company had never done a beach restoration project before and the Department of Land and Natural Resources’ Land Division felt an expert’s opinion was needed.

At the board’s October 13 meeting, the Land Division presented the results of the expert review done by Olsen Engineering, Inc., of Florida, which had “probably designed more of these projects than anyone else in the world at this time. They have seen what works and what doesn’t,” according to comments made at an August 10 briefing by Olsen’s principal coastal engineer Kevin Bodge.

Bodge had found several faults with Noda’s design, including the amount of sand needed for nourishment, the slope of the beach, and, the viability of having sand permanently covering the breakwaters. With the support of the Land Division, the firm recommended a new design. While keeping the number and placement of the breakwaters originally proposed, Olsen Engineering suggested changes in their shape and orientation to increase and better stabilize the dry beach area. These changes would also reduce the size of breakwaters, while cutting the cost of the entire project by $300,000.

Land Division planner Samuel Lemmo told the Land Board that these changes should not require preparation of a new environmental assessment because the project, as a concept, had already been subjected to an earlier EA and approved by the Land Board. “It is staff’s opinion that the project changes are not significant enough to require additional Chapter 343, HRS review. The modifications are within the scope of the original permit and environmental document issued for this work, and in fact represent a reduction in potential impacts from those anticipated in the approved EA,” Lemmo wrote in a report to the Land Board. (Chapter 343 is the state law that requires disclosure of environmental impacts through publication of an EA or an environmental impact statement.)

Noda engineers disagreed. A new design would require a new EA, they said, adding that Noda would refuse to do the work if the Land Board adopted Olsen’s recommendations.

Howard Gerhing, acting administrator of the DLNR’s Division of Boating and Ocean Recreation, commenting as the applicant, cautioned the Land Board about moving ahead without the consent of the Waikiki Beach Advisory Committee. The committee, a group of about two dozen people including residents, beach users, hotels, businesses, and governmental agencies, guided project planning over the last decade and had approved the Noda design earlier this year.

A handful of members of the public gave mixed, but mostly critical, testimony to the Land Board, with one person saying, “We would not be in favor of proceeding for the sake of proceeding.” After the Land Board discussed EA and contract issues with the deputy attorney general, board member Kathryn Whang Inouye encouraged Noda to stick with the project and subcontract the work to “experts,” which would allow local engineers to pick up new knowledge about beach restoration.

“It’s my hope is that Noda and Associates works with staff at DLNR to work on an arrangement with Bodge [of Olsen],” she said. “Should that not be the case, however, in reviewing the alternative proposal, I would like to see the department develop plans and specifications on the design, but, as expressed by members of the audience today, I would like that design to be presented to the public.”

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BLNR Faces Lawsuit Over La Perouse Houses

After more than a year of opposition from Native Hawaiian and environmental communities, Douglas Schatz of Fort Collins, Colorado won approval to build a new vacation house and guest cottage on two parcels he owns in the Conservation District at La Perouse Bay, Maui. At its September 22 meeting, the Board of Land and Natural Resources approved a Conservation District Use Permit for the entire project, despite recommendations from its staff that the cottage not be built.

But the permit faces a challenge in Second Circuit Court by several Native Hawaiian individuals and groups. Their appeal claims, among other things, that the Land Board erred in not granting them standing for a contested case hearing – a contested case that, according to their attorney, Isaac Hall, would have allowed them to present evidence of their use of the area for legally protected cultural and traditional practices.

The area in and around the Schatz parcels, which sit next to the Ahihi-Kina`u Natural Area Reserve, is rich with valuable natural and cultural resources, including anchialine ponds and ten archaeological sites, one of them an ancient Hawaiian fishpond (Keone`o`io).

At the September meeting, Department of Land and Natural Resources staff recommended approval of the larger half of the project (a 4,284-square-foot single-family residence with a 700-square-foot swimming pool), but it did not support a second 1,746-square-foot house proposed for a separate parcel, where a tennis court now stands.

“Staff believes the Board would be operating fully within their discretionary authority to deny this element of the proposal. This is based primarily on the fact that the proposal is not clearly consistent with the Board’s policies of 1) ‘accommodating’ private landowners who seek to occupy single-family residences in the Conservation District, and 2) seeking to prevent speculation on Conservation District land,” the report continues.

Rory Frampton, who represented Schatz at the Land Board meeting, explained that the area had long been used by the military, ranchers and others, and added that the cottage would take up less space than the existing tennis court. Maui Land Board member William Kennison also saw no problem with the additional residence and recommended approving the entire project.

When the project first came before the board, Dana Naone Hall and Leslie Kuloloio, among others, testified in opposition, saying the construction would threaten access by native Hawaiians who traditionally used the area and would also threaten natural resources. Naone Hall and Kuloloio, along with two Native Hawaiian organizations – Hui Alanui o Makena and Keauhou o Honua`ula – requested a contested case hearing.

On September 8, the Land Board voted to deny them standing. When the matter of the permit came before the board on September 22, then, the entire board supported Kennison’s motion to approve it.

On October 6, Hall appealed the decision in court. In his filing, Hall wrote that, among other things, the Land Board improperly decided their conclusions of law during what was termed a “preliminary” hearing on standing, and it improperly determined that traditional and customary rights were not affected by the project.

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Streamlined Beach Nourishment Permitting System Stalls

Beaches throughout the islands are shrinking because seawalls and other forms of shoreline hardening – meant to prevent erosion – have disrupted wave action and the natural movement of sand. The state Department of Land and Natural Resources has devised a new statewide permit that would speed small-scale relief for disappearing beaches, but its approval has been delayed until the DLNR’s Land Management Division staff can strike a balance between streamlining beach nourishment projects and providing adequate public participation.

“Researchers found that nearly 25 percent, or 17 miles of sandy beaches on the island of O`ahu have been lost or severely narrowed over the past 70 years,” writes planner Samuel Lemmo of the DLNR’s Land Management Division in a September 22 report to the Land Board. At the September 22 Land Board meeting, the division presented for approval their new, streamlined permit that would give the board chairperson the authority to issue permits for beach nourishment projects statewide. As things are now, all such projects must be approved by the entire Land Board.

The permit would cover sand excavation from channels, stream mouths, small boat harbors, and near shore sand deposits, and would also cover deposits of up to 10,000 cubic yards of sand on dwindling beaches statewide, with some exceptions for ecologically or culturally sensitive areas.

Environmental quality would be maintained by Corps and permit guidelines and project controls, as well as by a Panel of Technical Experts (PTE). The PTE would evaluate applications for consistency with the provisions of the permit and Corps regulations, and would ensure projects will not significantly damage the environment.

While commending the intent of the permit, board member Colbert Matsumoto worried that removing the Land Board from the loop would detract from public input. All Land Board meetings are noticed to the public, and in the past, public comment has proved vital to discussing the merits of at least one project that involved the dredging of sand and its placement along nearby beaches. Matsumoto raised the issue of the Hawai`i Kai marina dredging project, which was brought to the Land Board last year “under the guise of beach nourishment,” he said. Several members of the public appeared before the Land Board opposing the project, some requesting a contested case hearing.

“You still had opposition, in spite of all the agency expertise,” Matsumoto told Lemmo. “There is a role for public input.”

“I don’t know how to draw that line [where things come to the Land Board or they don’t]… If the science of beach nourishment was more precise, it would be easier,” Matsumoto said.

The Land Board voted to withdraw the item until it could be reworked to “mirror the [Land] Board process,” as one staff member put it.

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One House Only On Split-Zoned Land

Because of a steep slope, drainage problems, community opposition and laws that prohibit more than one single-family residence per conservation-zoned lot, Richard and Elizabeth Knake were denied a Conservation District Use Permit to build a second residence on the upper half of their Maeli`eli ridge lot, which is in the state Conservation District. The lower half of their property is in the Urban District.

Citing a lack of information to approve the project, DLNR’s Land Division staff recommended on September 8 that the Land Board deny the couple a permit for their project on land in Kahalu`u, on the windward side of O`ahu. Land Division administrator Dean Uchida said administrative rules do not specify whether more than one single-family residence is allowed on split-zoned property.

Several members of the community, including neighbors and Senator Bob Nakata, testified against the application. One neighbors said runoff from the Knakes’ property had clogged drainage in the area and flooded the street. Others neighbors raised technical objections, stating that the driveway needed for access to the house would be steeper than city regulations allow and the slope of the proposed house site is too steep to support the project. Many who opposed the house also complained that they were not notified of the project soon enough.

Sen. Nakata told the board it should allow no new dwellings in the Conservation District. Nakata said that the split zoning of some Kahalu`u properties occurred in the late 1950s-early 1960s, when there was a push for development of the area, including resorts and construction on offshore islands. The community fought it and “it took nearly two years to get rid of most of the zoning,” he said. The Knakes already have a large house on their property, he said. Approving another would set a bad precedent.

Land Board member Kathryn Whang Inouye agreed that current zoning did not allow a second house. After an executive session, she moved to accept the DLNR staff’s recommendation. “The application may not be appropriate for the lotÉ When the LUC [Land Use Commission] zoned the land, the intention was to not build on the Conservation land. They would have allowed subdivision if [building on conservation land] was intended.”

Board member Lynn McCrory also disapproved of the application because it had not addressed the visual impact, steepness and disclosure issues raised by the community. Lacking that, she said, “There are too many unknowns to do anything but deny [the application].”

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Kaua`i Land Owners Get Time Extensions

Land Board approval of single-family residences on conservation land is not unusual, but it is not without its problems. At the Land Board’s August 25 meeting in Maui, the board grappled with whether or not to allow two-year time extensions for Conservation District Use Permits that were about to expire on properties that were sold after the permits were issued.

“How many times can we keep doing this?” asked Kaua`i board member Lynn McCrory about a time extension request for a property in Haena. “It keeps getting sold. Five years ago the [CDUP] was issued.” Normally, CDUPs require initiation of construction within on year of issuance, and completion within three years.

McCrory suggested making the current owner, diet guru Dean Ornish of Sausalito, California, “get his own CDUP. This place is getting so bad,” she said, adding that other similar lots are being used for vacation rentals, which is not allowed on conservation land.

“It’s kind of an urban setting with all the houses,” Land Management Administrator Dean Uchida said, adding that it might be appropriate to remove the area from the conservation district.

“It doesn’t look like a conservation district; it looks like a subdivision,” McCrory said.

Since Ornish did not attend the Maui meeting, instead of denying the extension, the Land Board extended his permit for three months, while DLNR staff analyzed the issues in the meantime.

The board went on to consider another time extension request by a new property owner for a CDUP issued in 1997. Owner Joseph Kobayashi also did not attend the Maui meeting, and the board extended his permit for three months as well, but expressed concern that the cumulative impact of selling properties and extending their CDUPs might endanger the natural resources.

–Teresa Dawson

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Judge Voids Permit For HELCO Plant

For eight years, Peggy Ratliff and Mahi Cooper battled the plans of the Big Island electric utility, HELCO, to expand its 32-megawatt generating plant at Keahole, immediately upslope of the Kona airport.

They went before the state Board of Land and Natural Resources, which, after a contested case hearing, failed to muster the needed majority vote to deny the utility the permit it sought to install another 56 megawatts of generating capacity on the 14-acre Conservation District site. Years of litigation followed, in which Ratliff and Cooper were aided by the heavily discounted services of attorney Mike Matsukawa.

Finally, on September 18, Third Circuit Judge Ronald Ibarra determined that the Land Board’s Conservation District Use Permit had expired last April, when one of the conditions in the default approval – a deadline to complete construction within three years – passed without HELCO having requested a time extension.

HELCO is still awaiting a permit from the state Department of Health Clean Air Branch. In addition, the Hawai`i Supreme Court has before it several appeals of court cases involving other aspects of the expansion.

According to Curtis Beck, a spokesman for HELCO, the company is considering asking the Land Board for a time extension, although no firm decision has been made.

Under its own rules, the Land Board can consider time extensions only when the request for them has been made before the expiration of the permit. Thus, the board would have to waive its own rules to entertain any request for a time extension for the HELCO plant.

In addition, since the HELCO permit was obtained through default, the board’s rules have been changed to forbid the location of diesel-fueled power plants on land within the state Conservation District.

To date, the company has invested more than $80 million in the plant expansion, Beck said. This includes the purchase of turbines and work on structures to house them.

— Patricia Tummons

Volume 11, Number 5 November 2000