Board Extinguishes Conservation Permit For Engelstad House on Lanikai Hillside
The Conservation District Use Permit for the planned Lanikai hillside residence of Las Vegas hotelier Ralph Engelstad and his wife, Betty, was killed by the Land Board on October 27. The action came as the board refused to grant a second time extension to Engelstad to build his house.
The Engelstad permit has been one of the most controversial ones in recent times. The permit was initially granted by default in 1987, when the Land Board voted three to one against the permit. At that time, failure to win a four-vote majority to block the permit was considered to be tantamount to a failure of the board to act. Under the statutory 180-day deadline for board action on permit requests, then, the applicant was deemed to have been granted a permit by default.1
SMA Hang-ups
According to Engelstad’s attorney, Benjamin Matsubara, the delay in building the house — and complying with the time limit imposed by the Conservation District Use Permit — is a result of the City and County of Honolulu Department of Land Utilization imposing the requirement that the Engelstads obtain a Special Management Area permit for the house.
According to records at the Department of Land Utilization, the reason an SMA permit was required was not because of the house, but because of the grading required. The DLU determined that the extensive grading and changes in storm drainage patterns that would be caused by the grading associated with construction (filling and excavation of nearly 8,000 cubic yards of soil on steeply sloped terrain) were sufficient to constitute “development” under county ordinances. As such, former DLU Director Donald Clegg informed Engelstads’ consultant on November 2, 1994, that “the proposed grading activity may have a significant environmental or ecological effect on the Special Management Area. Further the grading costs exceed $125,000 and will require a major Special Management Area Use Permit.”
The standard practice of the state Department of Land and Natural Resources’ Office of Conservation and Environmental Affairs in handling Conservation District applications is to require compliance with SMA requirements (administered by the counties) before any Conservation District permit request is brought to the Land Board for action. In the Engelstad case, however, at the time the permit application was originally considered, the land was not included in the county’s Special Management Area. This was changed on August 15, 1989, when the Honolulu City Council passed an ordinance amending the Special Management Area map so that it included the Lanikai hillside. On December 29, 1994, the Engelstads sued the City and County of Honolulu and its Department of Land Utilization over Clegg’s determination. That case is pending.
The board retired into executive session to discuss legal issues surrounding the time extension request. When the board reconvened in public, OCEA Director Roger Evans was asked to make a “clarification.” Evans mentioned that when the board issued the first extension in 1992, it was attempting to do everything reasonable to accommodate construction. Now that the City and County of Honolulu is requiring SMA compliance, Evans said, the board is constrained from granting any further approval until SMA “clearance” is obtained from the county. Evans cited an attorney general opinion in the early 1980s that the Land Board could not approve any project until SMA compliance had been attained.
Evans then amended his staff’s recommendation (which had been for denial, in any case) so that “legal compliance” with the attorney general’s opinion on SMA compliance was also cited as a reason for denial of the time extension. O`ahu Board member Michael Nekoba made the motion, seconded by Colbert Matsumoto, to deny the time extension. The motion passed without dissent.
Wiliwilinui Ridge Access Is Resolved
On November 17, the Land Board denied the request of some landowners and the Gentry Companies to place restrictions on people wanting to hike the Wiliwilinui Ridge trail, in the Ko`olau mountains above east Honolulu. Through their group, the Waialae `Iki Community Association, the landowners wanted to restrict hours of access to the trail, on an access easement going through their gated subdivision, from sunrise to sunset; to limit parking to an eight-car lot; and to require hikers to sign at the guard gate a waiver of liability.
The board agreed to limit access to the hours between sunrise and sunset — but with a provision for evening or overnight hiking allowed for people with permits issued by the Department of Land and Natural Resources. Parking is to be allowed at the lot provided, but also on any subdivision street that is at least 30 feet wide. Finally, the Waialae `Iki V landowners shall not be allowed to impose any requirement of a liability waiver as a condition of access to the trail.
The easement had been dedicated in 1979, as a condition of Bishop Estate’s permit to build a water reservoir on Conservation District land above the area now covered in houses. The reservoir was itself a condition of subdividing the land; had the Land Board withheld permission for the reservoir, the land either would not have been developed or, what is more likely, potentially developable land would have had to have been used for the reservoir. Soon thereafter, Bishop Estate sold the land to be subdivided to Gentry, which subdivided the area into residential lots.
Privatization
Initially, Gentry negotiated with the City and County of Honolulu on conditions of public access. A liability waiver was one of the conditions Gentry sought, and correspondence with the city indicates that the city’s Corporation Counsel office was ready to accede to the request. Throughout the deliberations of the Land Board, Gentry and the Waialae `Iki V owners referred time and again to the all-but-signed agreement on access with the City.
Why was the agreement not consummated? This was finally explained to the Land Board at the November 17 meeting. No sooner had the agreement been worked out in April of 1991 than Gentry decided to reroute the access through one of its less exclusive subdivisions, thereby eliminating the need to come to any agreement on terms of access through its exclusive, large-lot “Phase 2-C” subdivision at the top of Wiliwilinui Ridge.
Following up on this, in January 1995, Gentry applied to the Land Board for approval of a realigned trail. The new access route would travel over public streets, providing “easier, more convenient access” to hikers. As Gentry explained, “Tentatively approved subdivision plans will allow Phase 2-C to be protected by an unmanned carded security gate at the project entrance, and permitting public access through the carded security gate entry would be difficult to implement.” In any event, Gentry informed the DLNR’s Office of Conservation and Environmental Affairs that the public access easement going through the Phase 2-C subdivision “was only temporary and subject to change.”
‘Upscale’ Views
As the deadline for board consideration of the application approached, the OCEA began receiving comment extremely critical of the new access route. As a fallback position, Gentry proposed to the DLNR limited pedestrian access through the gated subdivision.
In a letter from Tosh Hosoda of the Gentry Companies to the DLNR Division of Forestry and Wildlife dated June 2, 1995, Hosada stated: “The Association is proposing that trail users be allowed to park outside of the WIV security guard house, register with the security guard, and walk up through the WIV subdivision to the trailhead … Although some trail users may not view this as an ‘ideal’ solution, the distance is not too great (less than one mile) and the public would no longer be denied access to the Wiliwilinui Trail. A few people have even commented that they would probably enjoy walking through an upscale community of architecturally designed homes and landscaped yards.”
No Sale
When Gentry’s proposed alternate access route came before the Land Board for a hearing on June 23, 1995, it was rejected outright. While the DLNR staff was directed to come up with a temporary arrangement for access, Gentry was instructed to allow unconditional vehicular access to hikers through the Phase 2-C subdivision pending adoption of the temporary agreement.
The Land Board considered the matter again in July. The landowners’ association presented a list of their proposed conditions for access, including a waiver of liability, a limit of six cars allowed to park near the trailhead, and hours of hiking restricted to between 8 a.m. and 5 p.m. The DLNR staff presented its own proposal, calling for an eight-car parking lot to be provided and compliance “with the Rules and Regulations” (including the liability waiver) proposed by the Waialae `Iki Community Association.
Once more, the Land Board rejected any conditions, and instructed the interested parties — landowners, developer Gentry, hiking and hunting groups, and environmental groups — to get together to work out a permanent solution. The talks bore no fruit.
Unconditioned Access
On October 25, the Land Board considered the recommendations of its staff for a resolution of the dispute. According to the staff report, the staff, “with the concurrence of Na Ala Hele, has determined that mandating the public to sign a waiver of liability to gain access to the state Forest Reserve … is contrary to the principles of a public access agreement” made before the subdivision was developed, and also is “contrary to the principles of a public access subdivision that is required by law, as a condition of final subdivision approval” by the City and County of Honolulu for the Waialae `Iki development.
After hearing testimony from nearly two dozen witnesses, nearly all of whom supported unconditional access, the Land Board was ready to vote. Board member Michael Nekoba made a motion to allow unimpeded sunrise-to-sunset access, and overnight hiking by permit; to allow unlimited parking by hikers on subdivision streets at least 30 feet wide; and to allow the landowners to require hikers to waive liability as a condition of access, pending the Land Board’s receiving an answer from the attorney general on whether state law gives the landowners automatic immunity. Speaking against the motion were Chris Yuen and board Chairman Michael Wilson. Wilson likened the idea of having to sign a waiver for trail access to having to sign a waiver for beach access. Yuen opposed Nekoba’s motion on similar grounds:
“What turns my opinion on this is,” Yuen said, is the fact that liability “becomes an issue for the homeowners because they have chosen to have a gated community, which gives them a degree of control that most people don’t have in their neighborhoods. But it’s only for that reason that they have potential liability for people using their streets, going up and down. People in neighborhoods where it’s a public street, no gated community, if an accident happens on their street, it’s the City and County’s problem.”
When the vote was taken, Nekoba was joined by William Kennison and Herbert Apaka. Without the four affirmative votes required for passage, the motion failed.
Board Member Colbert Matsumoto had been called away from the meeting, but returned moments after the vote was taken. Another vote on Nekoba’s motion was taken, but failed again, this time on a 3-3 vote.
The board then approved, on a 4-2 vote (Nekoba and Kennison opposed), to allow access under the conditions spelled out above.
1.For a more thorough discussion of the trials and tribulations associated with this permit, readers may wish to refer to previous articles in Environment Hawai`i: September 1990, page 1; February 1991 “[url=/members_archives/archives_more.php?id=532_0_33_0_C]Ka`iwa Ridge Is Spared As Board Defines Construction[/url],” April 1992 “[url=/members_archives/archives_more.php?id=813_0_32_0_C]Thumbs Up on Anderson’s House, And an Unlikely Champion of the Homeless[/url].”
— Patricia Tummons
Volume 6, Number 6 December 1995