In October 1971, John Lynwood Zeller acquired a small (5,400 square feet, more or less) parcel along Kane`ohe Bay, just north of the Hygienic Store. Less than four years later, the state Comptroller, under whose jurisdiction falls the office of state surveyor, put the Department of Land and Natural Resources on notice that Zeller was trying “to artificially induce accretion along the sea front of his property. He has placed tile and concrete cylinders … The owner should be asked to remove this low barrier. Otherwise, in a few years, he will be claiming all that additional land as natural accretion.”
No response from the DLNR is evident.
In June 1980, the state Comptroller again notified the DLNR of the debris fronting Zeller’s lot.
No response from the DLNR is evident.
In October 1980, the Army Corps of Engineers told Zeller that the tile barrier and trash along the shoreline violated the Clean Water Act and the River and Harbor Act. Zeller was given 30 days to remove the obstructions.
No response from Zeller is evident.
The Second Ten Years
A state survey crew in January of 1981 found that, far from Zeller clearing out the debris that had been there the year previous, “he had placed additional junk in the area to induce further accretion artificially.” Also, the DLNR was advised that Zeller should be cited for violating the state’s Conservation District laws.
Again, no response.
In 1983, the state surveyor observed mangroves had been planted about 15 feet in front of Zeller’s land. Zeller’s surveyor was notified that, “in the future, should the owner attempt to claim this additional area, the state of Hawai`i will contest the claim.”
In December 1985, Zeller asked the DLNR if he could purchase the accreted land.
At last, a response. Mason Young, then a land agent with the DLNR’s Division of Land Management, conducted an inspection in May 1986, found Zeller had placed a trailer house on state land, and informed Zeller that it should be removed at once. A follow-up inspection found, in addition to the encroachment by the trailer house, encroachment by a portion of the steel frame of an unfinished structure Zeller had started to build about 1980. Ordered to remove the encroachments “immediately,” Zeller instead simply demolished the trailer house in place.
In a meeting with Zeller in May, Young suggested Zeller hire an attorney to gain title to the accreted land by quiet title action. Zeller started on this course, but eventually the case was dismissed, without prejudice, “for lack of prosecution.”
The Third Decade
For reasons not clear, the matter of Zeller’s encroachment languished from 1986 up to 1991, when Zeller again initiated a quiet title action.
On January 19, 1993, Zeller, then 83 years old, died. His heirs pursued the case, however, and in July 1994, the matter finally came before Judge Patrick Yim of First Circuit Court. On behalf of the state, Deputy Attorney General Bill Tam had asked the court to deny Zeller’s claim to the land. In addition, Tam asked that Judge Yim find that Zeller’s efforts to induce accretion through the placement of construction debris, tiles, mangroves, cylinders, engine blocks, metal siding, and other junk, constituted an encroachment, whose removal should be ordered by Judge Yim.
Yim agreed with Tam that Zeller’s heirs had no right to take title to the land, which, he found, had accreted artificially. But he denied Tam’s request for a court order requiring an end to the encroachment.
“The defendants” — that is, the state — “have failed to offer any evidence of the exhaustion of administrative remedies to compel the plaintiffs to clear all debris from the property and restore the natural shoreline,” Yim wrote. “The court has considered the defendants’ prayer for ‘other relief’ and hereby denies said request.”
The Board Acts
With the judge refusing the state’s plea for an enforcement order, the matter landed in the lap of the Land Board. And so, on October 28, 1994, the board voted its approval of a staff report that, among other things, found that “the Zellers have knowingly, willingly, and repeatedly encroached on state-owned land since at least the mid-1970s” and required them to “remove and clear all debris, mangrove trees, and construction materials or waste” seaward of the Zellers’ property line, as it had been determined in 1950.
The Zellers were given 60 days (that is, until December 27) to complete the clean-up or face a fine of $500 per day.
The only member of the public to testify (apart from the Zellers’ lawyer, Richard Y. Wada) before the board was Bernie Lam Ho. Although Lam Ho was present because of an interest in a different matter on the agenda that day, he said, “this thing kind of worked me up. I’ve lived in that area for 67 years, born and raised there, and I know that area.”
He continued: “I’ve told the state people a couple of times that, ‘hey, you guys better get your land straightened out up there.’… There’s a lot of encroachment in that area. Three quarters of every lot in there is encroachment on existing state property… I don’t know what we’re going to do. People are just sitting back and saying, ‘let `em go, let `em go.’ Guys keep killing the ocean. Nobody bothers them. The inspectors don’t come in. They stay there a couple of years, plant some grass in there and pretty soon they own the place… Somebody sleeping! The state’s not doing their job.”
Board Chairman Keith Ahue agreed with Lam Ho that, according to the pictures presented by staff, “There’s a lot of other properties that go beyond the [Zellers’] trailer.”
Deputy Attorney General Tam acknowledged the problem. “One of the things that we discovered when we were working on this is the extent to which the gentleman [Lam Ho] is right. And that may present some problems for the Land Board because I think what we’re going to discover is there have been a lot of seawalls built illegally, in this whole area, and it’s not a small amount of land that people have acquired for themselves.”
Commented Big Island Board member Chris Yuen: “We take `em one at a time.”
Epilogue
As of mid-December, the Zellers had not begun the clean-up. Debris from the trailer still littered the state land. A for-sale sign was posted along the highway.
On the makai side of the property, looking back toward Mokapu peninsula, one after another seawall juts out, all of them reaching further into state land than the Zellers’ most ambitious efforts.
— Patricia Tummons
Volume 5, Number 7 January 1995
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