The request of David Fazendin to build a house on a ridgeline of Mount Olomana, in Windward O`ahu, has received much publicity lately. Just how large a house he will be able to build, and where, are questions unsettled as Environment Hawai`i went to press. In response to community concens about the case, William Paty, Chairman of the Board of Land and Natural Resources, on July 31, asked ex-Land Board Chairman Susumo Ono, to look more closely into the community’s concerns. The Board was scheduled to decide in late August whether to grant a contested case hearing.
Fazendin first filed a CDUA in 1987, seeking to build a “post and pier” house on the slopes of Mount Olomana. The parcel was in the General subzone and it met all the requirements to qualify for nonconforming use. Fazendin easily obtained a permit for a house, despite expressions of concern from community associations that the site was inappropriate.
But Fazendin did not begin construction within the required one year of approval. The Land Board notified him that his permit was “null and void” in September 1988. In October, he reapplied but the new application diverged from the original in several respects. First, he was seeking to build on a site that straddled two lots, both of which he owned, and to do this, he needed Board approval for consolidation. One might think that this would effectively disqualify him for nonconforming use (since the consolidated lot was not in existence in 1957) – but the Office of Conservation and Environmental Affairs, which serves as the Board’s staff recommended Fazendin be granted nonconforming use. (The argument was made that by allowing just one house on the consolidated lot, the land Board would be halving the potential density of the site, since each of the two preexisting lots would have qualified for nonconforming use. However, this ignores the fact that the smaller of the two lots was virtually unbuildable because of size and slope.)
Second, Fazendin no longer wanted the “pier and post” house, but was now proposing a 5,000 square-foot multi-stoned masonry structure with two-foot-thick walls, and a second dwelling, described as a maid’s quarters, atop a free-standing garage.
A third factor now was the evidence of violations of Conservation District rules. Fazendin admitted in his second CDUA to having illegally poured a driveway and concrete pad for a garage. OCEA staff found other apparent violations. Trees on the site had been severely damaged. Grading was suspected to have occurred on adjacent state-owned land. Most significant was discovery of what was described variously as a “hole,” “serious erosion,” “grading” or “excavation” – a cut just large enough to accommodate Fazendin’s house.
Fazendin blamed the “hole” on the Army Corps of Engineers. A spokesman for the Corps told the OCEA that they had never gone near the site. The City and County of Honolulu told the OCEA that the grading was to its knowledge done since the time Fazendin acquired the land. An adjoining landowner swore in an affidavit, however, that the cut had been there long before Fazendin owned the land.
In its submittal to the Board on February 24, 1989, the staff recommended the Board give Fazendin approval to build a house as a nonconforming use. But the staff also recommended fines totaling $3,000 for violations as well as remedial action: removal of the driveway above the 250-foot elevation and restoration of the natural grade that had been destroyed by grading at the ridgeline.
The Board granted approval of the CDUA, although because Fazendin had not submitted specific plans, it could not give approval to anything more than the “concept” of building one single-family dwelling on the consolidated lot. It reduced the fines to $1,400 and deferred imposition of the remedial action, pending submittal of final plans.
At the Board’s meeting of May 26, 1989, Fazendin’s building and construction plans were rejected. In the letter to Fazendin, Board Chairman William Paty stated that the Board “specifically disapproved” the siting of the house; the style and three-story nature of the house, the “maid’s quarters”, and the location of the planned stables. The board deferred on the matter of forcing removal of the driveway, subject to the applicant’s “providing an additional professional survey.”
On August 17, 1989, Fazendin wrote Paty requesting a reconsideration of the “conservation zone application decision” (even though he had already received Board permission to build a house). For the next five months, no correspondence to or from Fazendin or any of his agents appears in the files.
That does not mean that nothing happened. According to information in the file, in October, OCEA Administrator Roger Evans and Board member at-large Moses Kealoha visited the site, and in December, Kealoha made another tour of the property.
In February, the staff again recommended that the Board deny Fazendin’s request for approval of his plans and that it turn the matter over to the Attorney General for enforcement of sanctions. Also, the staff asked the Board to require Fazendin to “submit plans which place the base of the allowed single family residence either at the bottom portion of the lot… or at the general location of the former stables proposed in the original application.” But the Board deferred action. Kealoha expressed a desire to take an onsite visit “to get a better view on the application and its substance.”
In March, Mike Buck of the Division of Forestry and Wildlife reported evidence of grading on state land adjoining the Fazendin property and other possible violations, including someone camping on the garage pad. Two days later, Evans asked the Department of Accounting and General Services to see if there had in fact been an encroachment on state lands. On March 15, Fazendin told the planner in charge of the case at OCEA that a survey crew had his permission to go up anytime. Yet on March 16, Stanley Hasegawa, a surveyor with DACS, was told by Evans to cancel his survey, scheduled for March 19.
When the Board met on March 23, then, it had no survey. (Given that the DAGS surveyor later, in May, found that about 5,000 square feet of state land had been cleared, the absence of a survey at the March meeting takes on some significance.) The staff submittal again recommended denial of the landscape plan and action by the Attorney General. But at the meeting, Evans urged a more moderate course.
According to the DLNR’s tapes of the meeting, Evans told the Board that the staff submittal was “based upon the original house plan dimension and a separate maid’s quarters. Subsequent to the submittal being written, we do have a letter from the applicant that indicates…that the top of the house…would not be above the garage pad…The applicant has now assured us that the house will be painted in such a fashion that it will blend into the environment…The third thing… this landscaping plan that the applicant has submitted to us…would effectively, for practical purposes, we cannot say absolute, would shade for the most part the house from view of the public.”
Regarding concerns that state land may have been graded, Evans said, “I asked in writing, our state Department of Accounting and General Services to conduct a survey on the property. After I had sent the request, … it was brought to my attention that the landowner may not have given permission to cross his land … At that time, I specifically asked the state surveyor to put the survey on hold…”
The Board went along with Evans. It rejected staff recommendations, granting Fazendin not just the request for reconsideration of the house site, but actually approving the house site itself, and allowing the driveway to remain as built. Revised building and construction plans would still need to be submitted to the Board for review and the Board also would have to sign off on the color. Chairman Paty cast the lone dissenting vote, “as I feel this site is inappropriate.”
In April the Board received petitions for contested case hearings from three parties, including County Council Member John Henry Felix. Those petitions were scheduled to be accepted or denied at the Board’s meeting of August 24, 1990.
As of this writing, the Board has yet to be apprised of the findings of the DAGS survey.
Volume 1, Number 3 September 1990