At present, there is a spectacular unobstructed view of the shoreline from Kewalo Basin to Diamond Head, including a complete profile of Diamond Head from the parcel. The restaurant facility would obstruct this view.
– John Whalen,
Honolulu Department of Land Utilization,
February 23, 1978, on Andy Anderson’s plan to build John Dominis Restaurant
The construction of a residence immediately adjacent to the state parcel immensely devalues the use of the state parcel as a scenic viewpoint. Once a residence is constructed where the applicants propose, the state will forever lose the opportunity to create another scenic viewpoint open to all citizens.
– Herb Kikukawa,
Hawai`i Division of Forestry and Wildlife, November 14, 1991, on Andy Anderson’s plan to build a house on Tantalus
High on Mount Tantalus lies a flattened knoll on a state-owned parcel of land. Prior to 1980, while the state maintained a trail leading to it, it boasted one of the more spectacular views of Manoa Valley, Diamond Head, Waikiki and Honolulu. Although few people hike to it today — the path is overgrown and is not posted — the Department of Land and Natural Resources intends to improve the trail leading to the site, clear some of the strawberry guava that now obscures the view, and cause it to be once more a hiking destination for enjoyment by the general public.
Although the knoll is not far, as the crow flies, from several houses along Round Top Drive, the feeling of the place is still one of isolation and tranquility.
The same qualities that have caused DLNR’s Division of Forestry and Wildlife to plan to increase public access to the area have also drawn D.G. “Andy” Anderson and his relatives to the spot. They seek not to enhance public use of the knoll but to deprive the public of the very ability to enjoy it at all. If they have their way, they will build a three-level, 5,000-square-foot house on land smack dab in front of the knoll and the public’s view from its own land will be no further than the living room windows of a large house whose occupants of record will be Dr. and Mrs. J. Grobe, Anderson’s son-in-law and daughter.
In the words of Herb Kikukawa, the O`ahu district administrator of the DLNR’s Division of Forestry and Wildlife, the house “would negate plans to use the state land as a viewpoint.” “You lose the value right there” if the house is built, he said.
Setting Precedents
The Grobes’ Conservation District Use Application, seeking permission to build from the Land Board, is the subject of a contested case hearing. Two groups of landowners were granted standing: one made up of landowners living on Round Top Drive, the other composed of landowners at the foot of the cliff, in Manoa Valley.
During the contested case hearing, held in November (not attended either by Anderson, former candidate for governor and former chairman of the state Republican Party, or by the Grobes), controversy developed on several matters. First, access to the site is unresolved. Second, there is dispute over whether the proposed house lot is in the Resource or Limited subzone. Third, there is the legal question of whether existing lots can be reconfigured, as the Grobes are proposing, so as to establish new residential parcels.
Apart from these controversies, there is the further matter of the environmental consequences that may be expected from construction of a substantial residence and the establishment of a paved access to it on steeply sloped land in the Honolulu watershed.
A Paper Road
The Grobes do not own the land on which they plan to build. At the moment, that land is owned by the Bishop Estate. The Grobes’ proposed house site straddles two large land grants — grants 110 and 473. In 1947, Bishop Estate surrendered to the state these grants and Grant 111 — an area totaling more than 180 acres. The estate received tax and liability exemptions for the 20-year duration of the surrender, while the state was able to include the land in its watershed management programs. In 1967, when that dedication expired, Bishop Estate sought to surrender the land for a second 20-year term. The state refused, citing concerns over liability.
According to testimony from John Peterson, manager of commercial projects for the Bishop Estate, Anderson made the approach to Bishop Estate sometime in fall of 1990, requesting the estate’s permission to build on the chosen site. Bishop Estate went along with the proposal, agreeing to give the Grobes an option to purchase their intended house lot for $300,000 — or roughly $10 a square foot, bargain-basement rates for Tantalus land — contingent on Land Board approval of their CDUA.
Bishop Estate’s land grants start at the foothills behind residential development in eastern Manoa Valley and include the steep cliffs that form the lower walls of Mount Tantalus. Inland from the cliffs lies a shelf on which a number of houses have been built. These houses sit on lots that once were part of the Bishop Estate land grants, too, but which were subdivided and sold in the 1920s. A separate roadway lot, 12 feet wide and roughly a quarter-mile long, was also carved out of the land grants and was held in joint ownership by Bishop Estate and the parties who purchased the adjoining residential lots.
In 1979, Bishop Estate sold its interest in the roadway lot to Charles Black, one of the owners. The state acquired an interest in the roadway in the 1930s, when ownership of the furthermost residential lot — and the accompanying share of the roadway, which terminates in a loop on that lot — was transferred to the state because of unpaid taxes. (A house once stood on the lot now owned by the state. It blew down in the 1920s or 1930s.)
The roadway may have been traversed by buggies one time, but was never developed for use by motor vehicles. At present, the road boundaries are at some points impossible to distinguish from surrounding terrain. A bamboo thicket, impenetrable to all but pedestrians, has grown up in one section of the roadway.
Limited Access
Questions about the use of the roadway were raised in a lawsuit filed a decade ago by Charles Black against the state. The public had been using a trail thought to follow the roadway as access to the then state-maintained lower portion of the Manoa Cliff Trail. Black objected to this, saying that the hikers, who had to use an easement over his land to get to the roadway, created a nuisance. The outcome of that suit in August 1981 gave the roadway owners (including the state) the right to use the roadway lot, as well as the easement leading to it, but only to the outer limit of each owner’s property. This meant people could hike out to the state’s property and use it for any purpose the state might allow — but they could not use it as an access to the Manoa Cliff Trail. This decision meant that the state had to develop a new “interceptor trail” leading off Round Top Drive to give hikers access to the Manoa Cliff Trail. That part of the trail that lay between the interceptor trail and the roadway fell out of general use, although a number of people continue to hike it without substantial objection from the owners of the land (the Catholic Church and Bishop Estate) over which the old trail crosses.
The Grobes have said they are intending to use the roadway, but it is not clear that they can obtain the legal use of it. Bishop Estate has said it intends to reacquire the interest in the roadway that it sold to Charles Black, in return for which it would give Black about 10,000 square feet of Bishop Estate land directly makai of Black’s property. If and when the Grobes’ option to purchase the Bishop Estate land is exercised, the estate would convey to them at the same time a part of Bishop Estate’s ownership interest in the roadway. In this fashion the estate would confer on the Grobes legal access to their new lot. The other owners of the roadway — nearly all of whom participated formally as contestants in the DLNR’s contested case hearing — have indicated they will seek to challenge this in court, should things get that far.
Subzone Boundaries
The Grobes have claimed that the lot they wish to create falls into both the Limited and the Resource subzones, although they say the site where they intend to build their house is wholly within the Resource subzone. Houses have been allowed by the Land Board on lots of record in the Resource subzone, but (unless nonconforming rights or court orders apply) never has the Board approved houses in the Limited subzone.
According to testimony presented by Kikukawa of the DLNR, who helped draw the subzone maps for Tantalus back in 1978, the boundary for the Resource subzone in that area follows a contour line above the 1,420-foot elevation, which would place most of the proposed house lot in the Limited subzone. Kikukawa’s testimony was supported by that of one of the contestants, Roy A. Vitousek Jr., who had the various maps (tax, subzone, and contour) describing the area printed to the same scale and then overlaid. The surveyor hired by the Grobes, Kendall Hee, on the other hand, testified that the Limited subzone boundary did not begin until below the 1,400-foot elevation.
Unfortunately, the DLNR’s own subzone maps, which are to be the last word on subzone interpretation, are not detailed enough to allow easy or precise resolution of the matter when one is concerned with sites straddling the subzone lines.
Mobile Home Plans
Complicating things further is the fact that the configuration of the proposed house lot and the site actually proposed for construction have been changed substantially since the Grobes’ original CDUA. The initial CDUA showed a rectangular lot with a driveway “flagpole” parallel to, but separated by a few feet from, the roadway parcel. Drawings displayed at the public hearing on the CDUA held in February 1991 show a U-shaped house well inside the boundaries of the state parcel. Plans unveiled at the contested case hearing show an L-shaped lot crooked around the state-owned land. The “flagpole” remains, although the Grobes are not intending to use it for access. The shape of the proposed house plans has kept pace with these changes, so that now the floor plan is no longer rectangular but L-shaped, curled as snugly as 10-foot setbacks will allow against the state’s property.
The architect hired by the Grobes, Joe Lancor (designer also of Anderson’s John Dominis Restaurant), testified in the contested case hearing that the Grobes were intending to landscape state property, which in effect will become their front yard if the house is built. During construction, state land also would be used a construction staging area. He claimed at one point that the CDUA covered the clearing and revegetation of state land, but later claimed that state permission would be sought separately.
Whatever subzone the house site lies within, the overall grade of the land certainly qualifies it for inclusion in the Limited subzone, the definition of which includes areas having an overall slope of greater than 40 percent. The Grobes stated on their CDUA that “the subject property is very steep,” but added that “the proposed residential parcel is relatively flat, containing slopes of 16-18 percent.” Their own surveyor, however, testified that the grade cutting across the corner of the “L” of the parcel was 30 percent, though in later testimony, he said further checks showed grades as high as 57 or 58 percent. Wayne Ching, resource management forester with DOFAW, checked the area with an abney level (a device used to determine slope) and found grades of 56 and 57 percent on the proposed house site. Where the roadway joined the state-owned parcel, he found slopes of up to 70 percent.
Breakaway Lots
Peterson of Bishop Estate testified that if the Grobes’ CDUA is approved, the estate will not use that approval as a precedent for further subdivision. But Peterson also admitted that the estate was planning to break off another chunk of the same parcel to give to Charles Black in return for an interest in the roadway lot. Peterson acknowledged further that even though he knows of no plans to create more residential lots out of Grants 110, 111 and 473, he cannot say what estate trustees may decide to do in the future.
For all practical purposes, the number of “buildable” lots in the Conservation District was frozen in 1957, when Chapter 183 was enacted. Subdivision of lots of record as of January 21, 1957, may occur, but it is not to increase the overall intensity of use that attached to the original property.
The Grobes and Bishop Estate have sought to address this concern by uniting two Bishop Estate parcels (Grants 110 and 473), subtracting from that the 30,000 square feet to be sold to the Grobes, and ending up with two new parcels, A (the small lot), and B (approximately 130 acres). Vitousek, a lawyer who lives on Tantalus near the proposed house site, testified: “If the state Board of Land and Natural Resources permits the applicants to be the first to carve a new residential lot out of portions of Grant 110 and Grant 473 since the inception of the state’s Conservation District, or if the BLNR permits a new residential lot in the Limited subzone, a dangerous precedent is set.” It would, he continued, “entitle other developers, including Bishop Estate with respect to the remainder of Grants 110 and 473, to argue that they too should be permitted to carve out new residential lots in the Conservation District.”
The Paving of Tantalus
The environmental assessment accepted by the Office of Conservation and Environmental Affairs was hardly comprehensive. Evidently recognizing the need to do better in the contested case proceedings, attorneys for the Grobes — Don Kitaoka and Jan Sullivan, of the firm Takeyama and Sullivan — and unnamed others acting on the Grobes’ sought to substantiate claims that environmental harm would be minimal.
Among the first to so testify was George A.L. Yuen, former director of the Department of Health and now a water management consultant (with John Mink). Yuen, who said he was approached to testify by “a relative of Dr. Grobe,” insisted he was not “an advocate,” but was merely interested in assessing the effects of construction of this house on water resources. In his first appearance, he as to the potential effects of additional leakage from its septic tank on two springs in the area — Makiki Springs and Herring Springs. The effect of residential development on aquifer recharge would be “negligible, very small.”
Yuen was apparently worried that he had addressed recharge concerns insufficiently and begged the indulgence of the contested case participants to make a second appearance on the Grobes’ behalf. Actually, he said, there would be no impact at all — not even negligible — on aquifer recharge. With the house having a catchment system and septic tank, there would be no loss of any water available for aquifer recharge from what now is available on the site.
Bruce Tsuchida, an environmental planner, testified that he had done studies showing that the visual impact from Manoa Valley and from further upslope on Tantalus was negligible. Under questioning from Donna Leong, attorney for the Tantalus landowners, Tsuchida stated he had not done any “viewplane analysis” from the state property abutting the proposed house site. The house would indeed block the view from the boundary of the state land, he acknowledged.
Supposing that the Grobes are able to surmount legal obstacles to their use of the roadway, turning that roadway into a usable access to their house site for construction vehicles will require substantial clearing and, most likely, cutting into the upslope land of adjoining property owners. There is nothing in the Grobes’ CDUA file or in the testimony submitted for the contested case hearing that indicates how the Grobes plan to address the erosion problems caused not only by house construction, but by developing access to the site.
Consolation Prize
Someone advising the Grobes concluded that the loss to the public of the views from the state-owned land might raise objections. To deflect such concerns, Don Kitaoka, one of the Grobes’ attorneys, asked Tsuchida to look for an alternate site that might be developed as a scenic overlook for the public.
He found such a site, along the old Manoa Cliff Trail, and prepared drawings showing how it might be developed, complete with picnic tables and trash cans — amenities not customarily found in the state-maintained trail system. “If the abandoned trail were reopened, the Grobes would be willing to provide an amenity to the public” by developing this alternative lookout, he testified.
Kitaoka as much as admitted that the plans drawn up by Tsuchida were intended to divert the hiking public away from the state-owned lot adjoining the Grobes’ proposed house site. “We anticipate testimony that they [the state] want to use areas closer to the site as public viewing areas,” he told the hearing officer, Keith Tanaka. “We want to show that other areas are available.”
According to Randy Vitousek, another adjoining property owner who has hiked in the area all his life, the proposed lookout “is in no way comparable to views” from the state-owned knoll. The Grobes’ house amounts to “taking an extraordinary natural resource away from the public and giving it to one person.”
Volume 2, Number 7 January 1992