Editorial

The Wall at Sugar Cove: How Could It Be Built?

All things considered, the state Coastal Zone Management Act is about as good as laws get. It provides for tripartite management among the federal, state, and county governments – of coastal resources. And the type of management it envisions makes eminent good sense: structures that interfere with natural beach processes are to be limited, setback variances are to be allowed only in cases where genuine hardship is demonstrated; nothing is to be done to diminish public access to coastal areas, while affirmative action is to be taken to enhance it.

Against this legal backdrop, the seawall fronting the Sugar Cove condominiums on Maui stands as a testament to the way in which even the best laws depend utterly on the willingness of the responsible authorities to carry them out.

And the officials of Maui County, to judge by their actions in the Sugar Cove case, seem determined to thwart the Coastal Zone Management Act’s intent at every turn.

A Hat Trick

Consider those involved in getting county approval (and none other) for the Sugar Cove wall. There’s Paul Mancini, former corporation counsel who, now in private practice, represents the Sugar Cove owners’ association. Ralph Hayashi, former chief engineer for the county, designed the wall and assured Planning Commission members and others that it would complement natural processes rather than interfere with them. Former County Planning Director Chris Hart prepared the environmental assessments for the project.

Current Planning Director Brian Miskae succumbed to their pressure, giving a thumbs up to the seawall without bothering to ensure that all – or for that matter any – of the conditions imposed by the Planning Commission had been met.

Only Miskae bears legal responsibility for his actions. But moral culpability must be borne by them all. Trading on one’s record of public service for later private gain is a tradition honored by time, perhaps, but little else. We do not mean to suggest that there is anything inherently wrong with the private practice of the trade one knows best after a stint in government service. In this case, however, it seems clear that the former officials used their access to government to make special pleadings – and win special favors – for their client. Instead of guiding their client through the regulatory process anticipated in the conditions under which the Special Management Area permit for the wall was awarded, they sought short-cuts. Instead of instructing their client on how to comply with permit terms, they led their client in an end-run around those terms.

Recourse

The wall at Sugar Cove was built without the required permit from the Army Corps of Engineers. The Corps issued a stop-work order, which was ignored by officers of the Sugar Cove condominium owners’ association. It is within the power of the Corps to press for removal of the wall and to seek additional remedies, as provided by law.

The wall was also built without a valid shoreline certification. This in itself is a violation of the Coastal Zone Management Act (Chapter 205A-42, Hawai’i Revised Statutes). If it can be shown that the wall encroaches on state land, that would constitute a violation of Chapter 171, HRS (dealing with the management of public lands) as well as Chapter 183, HRS (dealing with the management of land in the Conservation District).

The state has not exactly made a name for itself with rigorous enforcement actions. In the case of a possible violation of the Coastal Zone Management Act, however, citizens can bring civil action against any agency that “is not in compliance” with the objectives, policies, and guidelines of the Coastal Zone Management Act; or that “has failed to perform any action duty required… under this chapter;” or that “in exercising any duty required… has not complied with the provisions of this chapter.” Any suit must be brought “within sixty days of the act which is the basis of the action,” but if the action constitutes an ongoing violation, the door to the court may be presumed to be always open.

Eating the Carrot

The state Coastal Zone Management Program, administered through the Office of State Planning, provides a combination of state and federal funds each year to the counties for help in carrying out the program’s objectives. For fiscal year 1993-94, Maui County’s Planning Department is receiving $156,772, nearly all of which ($148,422) is to go toward salaries and fringe benefits of staff supposedly working on CZM issues.

The money comes with strings, in the form of a contract that funds the county to “ensure compliance with Special Management Area permit conditions,” among other things.

Only by the farthest reach can Maui County claim to be spending the state and federal money solely on CZM-related work. The $148,422 would pay for about four fulltime employees, yet Maui County has not one planner dedicated exclusively to overseeing compliance with CZM objectives.

The state has been reluctant to threaten to find any counties in breach of their contracts with OSP, arguing that the money gives the counties the means to participate in CZM programs. Without the grant, CZM officials say, things would be even worse.

Frankly, it is difficult to imagine a worse outcome for purposes of coastal management than the Sugar Cove seawall. In light of this and a host of other problematic coastal developments in Maui County – including, for example, the irregularities in approval of the Westin Maui emergency wall, the Planning Commissions recent preliminary approval of a Kihei restaurant complex in flagrant disregard of CZM objectives and Planning Department staff findings, the county’s failure to regulate commercial use of public beach parks (as we previously reported) – the time is at hand for the state Coastal Zone Management Program to put Maui on notice. If the county is unwilling or unable to live up to the terms of its contract with the state, the gravy train stops.

Wielding the Stick

The actions of Maui County, if unchecked, could ultimately jeopardize federal funding for the state CZM Program. The National Oceanic and Atmospheric Administration’s Office of Ocean and Coastal Resource Management is mandated by the federal Coastal Zone Management Act to conduct continuing reviews of state CZM activities.

The most recent review, covering the 1989-90 period, noted inadequacies in counties SMA enforcement efforts. “The OSP in consultation with the counties must examine ways to improve county monitoring and enforcement of SMA permits and conditions,” the review stated. The review also found the OSP to be “deficient in adhering to the terms and conditions of the financial assistance awards.” The counties did not complete their performance reports by the specified deadlines. In addition, the review found, the counties “should provide more analytical information regarding SMA permitting.”

Federal funding of the state CZM Program varies from year to year, but it usually runs between $700,000 and $800,000- most of which is matched by state appropriations. The total amount is woefully insufficient to pay for the types of activities needed to protect threatened coastal resources. The diversion of funds to Maui County – or any county that lacks serious intent in pursuit of CZM objectives – not only prevents the money from being spent in more useful ways, but jeopardizes the entire state program as well.

Shoring Up the Law

Ultimately, the problem at Sugar Cove maybe traced back to its very construction so close – too close – to the shore. The shoreline setback area, within which construction is to be prohibited, needs to be expanded beyond the present forty feet landward of the certified shoreline. Time and again, legislation has been introduced to achieve this, while still respecting the landowner’s right to use private property and making generous provisions for hardship. Still, as often as the legislation has been introduced, it has failed to win legislative approval. What kind of disaster will it take to gain passage of this eminently sensible bill?

Then there’s the matter of shoreline certifications – an arcane, almost impenetrable process that, if it is to work as designed, puts an impossible burden on the public. More often than not, it functions as an efficient means for owners of coastal lands to extend their property seaward – and move forward also the setback line. The prospects that the construction will be used as justification for a seawall are thereby enhanced; the likelihood of eventual property loss due to natural events is increased; and, absent changes in the federal flood insurance program, the chance of taxpayer bailout for owners of the costliest real estate in the land becomes a near certainty.

For Further Reading

Several excellent studies of seawalls and their effect on coastal processes exist. One of the best overall discussions of coastal development and shoreline hardening is to be found in Wallace Kaufman and Orrin H. Pilkey, Jr., The Beaches Are Moving: The Drowning of Americas Shoreline (Duke University Press, 1983).

In 1989, the City and County of Honolulu published the “Oahu Shoreline Study,” Part 1, Data on Beach Changes, and Part 2, Management Strategies. This study, financed in part by the CZM Program, was prepared by Sea Engineering, Inc.

More recently, Dennis J. Hwang and Charles H. Fletcher prepared for the CZM Program a “Beach Management Plan with Beach Management Districts” (Office of State Planning, June 1992).

Finally, there is Michael F. Parke’s “Shoreline Erosion Management in Hawai’i: A Call for a New Paradigm” (unpublished master’s thesis, University of Hawai’i Department of Urban and Regional Planning, April 1992).

All these works – and many more – argue forcefully that the artificial hardening of the shoreline damages natural coastal processes. And, as the shoreline loses its ability to reform itself in response to winds, tides, and weather, the more difficult, costly and, ultimately unsafe it becomes to protect structures built in the coastal zone.

Volume 4, Number 6 December 1993