Last month, the County of Hawai`i’s director of planning, Virginia Goldstein, sent the owner of an ocean-front house in Kailua-Kona a certified letter notifying him of numerous violations of county building laws in the reconstruction of his house. The list of violations runs to five single-spaced pages, while the list of penalties and required corrective actions runs three more.
The construction activity had occurred ostensibly to remedy storm damage inflicted by Hurricane `Iniki. But well before the hurricane struck, in September 1992, two stop-work orders had been issued (in August 1991) to the owner after inspectors discovered various violations of Special Management Area rules had been made in the course of renovating the property.
In short, for the last five years at least, owners of the house appear to have been making deliberate, determined efforts to expand it illegally. The county, meanwhile, seems to have made conscientious efforts to bring the owners into compliance — which, to judge by the reams of paper this case has generated, have so far been unavailing.
Violations
The house in Kona that has been the subject of so much contention was built in 1963 of post-and-pier construction. Since that time, it has undergone several renovations — and, as the staff of the county Planning Department has recently learned, not all have occurred with the knowledge or blessing of the county.
Having been built more than a decade before the state’s Coastal Zone Management Act took effect in the late 1970s, the house was grandfathered from compliance with them. That means that owners could not be made to correct the non-compliance, but neither could the degree of non-compliance be increased if any renovation or repairs were made to the house. Should the house be demolished or more than 50 percent of it be rebuilt, the rebuilding would have to be done in conformance with building codes and SMA rules.
As late as 1986, photographs at the Planning Department show the original post-and-pier construction was still intact, as was a seawall on the west side of the lot. Sometime between then and 1990, the height of the seawall was raised some two feet and the yard behind it was backfilled. The makai wall of the house was demolished and replaced by a new wall that extended further seaward than the original. In addition, according to a notice sent to the owner in 1991 by the county Planning Department, “a thick concrete platform was poured along the full makai edge of the dwelling,” which served as the floor of a new lanai.
“Portions of the emplaced fill and the northwestern portions of the new lanai roof, the new concrete platform, the north side walkway, and the new dwelling wall and one of the makai room extensions are constructed within the shoreline setback,” the county planning staff wrote. “This constitutes a violation of the Shoreline Setback Rules. Some of this construction also falls within the required yard setbacks, a violation of zoning portions of the County Code. Some of this recent construction appears to be in violation of the flood control portions of the County Code.”
The Hurricane
Work at the site languished for most of the next year. Then, on September 11, 1992, Hurricane `Iniki struck the Kona side of the Big Island with force. The house, owned at the time by Jerry Morey and Terry Zerngast, was damaged. Practically all the fill placed in the yard was washed by storm waves onto a neighbor’s property. Much of the recent elevation of the seawall was torn out, as was the makai wall.
Steven G. Nelson, who was overseeing design and construction work on the house, informed the Planning Department on September 21, 1992, of the storm damage. Nelson asked the Planning Department to let him know what needed legally to be done to make the house habitable.
By letter dated November 17, 1992, then Planning Director Norman Hayashi responded to Nelson. The upper portion of the seawall would have to be completely removed, and what was left of the fill would have to be removed, as would the concrete platform for the lanai. The corrections would need to be made by December 30, 1992, and in accordance with all county permitting requirements, Hayashi said.
Ongoing Problems
The seawall was lowered and some of the fill was removed by mid-December, but the restoration was by no means complete by the end of the year. Once more, the Planning Department informed Nelson in March that the existing violations would have to be corrected before any new permits would be issued. The new deadline for compliance was May 1, 1993, if the owners wanted “to mitigate any legal action by the county.” An extension was granted to June 1, and then again to June 15, 1993.
But on June 14, with remedial work still not having begun, Nelson was informed in a meeting with county Planning Department staff that all matters relating to non-compliance were being transferred to the county’s corporation counsel, for legal action. To head that off, Zerngast deposited $10,000 with his lawyers “as a sign of good faith” to demonstrate his intention to “cure” the violations, according to a letter from his lawyer to the county on June 16. One more extension was granted.
Green Light
In February 1994, the county once again inspected the house lot. At long last, the infractions noted since 1991 had been remedied. For most of the next three months, the shell of a house, in uninhabitable condition, was in compliance with county rules.
In late April 1994, most government employees in Hawai`i went out on strike. With no one able to respond to complaints about construction activity, work at the Zerngast house took an unpermitted turn. According to a May 2 letter from Nelson — who had, by now, informed the county that his services on this project had been terminated — during the strike, “major deviation from the original approved plans” had occurred in the framing of the roof while unauthorized structural work had occurred in the shoreline setback and flood zones. The existing carport had been converted into a garage absent any building permit from the county, Nelson wrote, while structural requirements set forth a properly issued building permit were being ignored.
On May 3, Melvin List, architect for the project, advised the county that he, too, was no longer associated with the project “due to a mutual agreement with the owners.” The following day, May 4, Nelson informed the county that “illicitly altered plans, diagrams, or other data may be submitted regarding” the Zerngast house. Nelson reported that a blueprint company had notified him “that the owners’ agent had tampered and altered the drawings” Nelson had made, and then had demanded that the altered drawings be reproduced.
In June, a county planner conducted a site inspection. He found that the entire roof had been removed — an action that effectively disqualified the house from being rebuilt to nonconforming status. “For the practical purpose of the nonconforming rules of the Zoning Code,” the planner, Earl Lucero, wrote in his report of the inspection, “the entire removal of the former roof constitutes its destruction and the destruction of the nonconforming portions.”
In a follow-up letter to the builder, Hamlet Charles Bennett, Planning Director Goldstein notified him that “because more than 50 percent of the nonconforming roof’s replacement value was removed, it cannot be rebuilt” to its earlier dimensions.
Second Story
The original roof had been removed so that a second — unpermitted — story could be added to the house. Not only did this violate the building permit that had been issued by the county; it also violated restrictive covenants placed on owners of the Kahalu`u Beach House Lots by Bishop Estate. Zerngast was notified of this by a letter from Rick Robinson, Hawai`i land manager for the Kamehameha Schools/Bishop Estate, dated September 13, 1994.
According to records in the Planning Department’s files, Zerngast’s lawyer responded by informing Robinson that the second story would be removed. Work on the house was halted once more.
But on November 3, “a load of roofing material arrived and carpenters resumed building,” a neighbor wrote to the Planning Department, adding that the carpenters said they were going to “finish the entire structure.”
“It’s very plan to see visually the building is built beyond the scope of the permit,” the neighbor, Simmy McMichael, wrote. “Why doesn’t the county take the steps to halt this non-conforming situation?”
Red Flag
On November 18, Deputy Planning Director Norman Oleson and Earl Lucero of the Planning Department’s West Hawai`i office visited the site. That same day, Oleson instructed the county building supervisor “to immediately issue a stop work order on construction/renovations” at the house site. Oleson and Lucero had found “that construction is proceeding with total disregard of the Planning Department’s zoning code requirements.” The stop-work order was posted on November 21.
Once more, work stopped on the house — temporarily. In late January, McMichael informed the Planning Department that the builders were back — this time removing the evidence of illegal encroachment into the setback area. An inspection on January 31 by Robert Makuakane, former County Council member and now special assistant to Mayor Steve Yamashiro, Kiran Emler, building supervisor, Raymond Kimoto, senior building inspector, and Earl Lucero.
What they found, as reported in Goldstein’s letter mentioned at the start of this article, were: illegal enlargements and additions in the shoreline setback area; illegal roof replacements to the house and garage; no staking of the setback area; removal of a bearing wall on the north side; and illegal reconstruction and enlargement of the house.
Goldstein informed Zerngast and his builder, Bennett, that “payment of a civil fine will be required” (emphasis added) for the shoreline setback violations, with up to $10,000 for each violation plus $1,000 for each day the violation persists past the inspection date. She spelled out similar penalties for Special Management Area violations.
Zerngast and Bennett were given 30 days to contest the findings and request a hearing on the department’s findings. Shoreline setback rules, Goldstein noted, allowed for a negotiated settlement (subject to approval by the county Planning Commission).
In the event that Zerngast wants to undertake corrective action and cannot complete it within the 30-day deadline, Goldstein wrote, “we will attempt to work out a reasonable extension.”
— Patricia Tummons
Volume 5, Number 9 March 1995
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