Residential development of Conservation District land may strike some environmentalists as a trivial problem. Usually, no critical habitat for rare or endangered species is involved. Rarely is the area proposed for development pristine. Nonetheless, the case histories presented here suggest the problem is anything but inconsequential. The Fazendin house will scar a treasured landmark. The Engelstad house may pose a threat to downslope residents. As a result of the Liem case, speculation on undeveloped Conservation District land in the General subzone may be expected to increase.
Actually, speculation is the wrong word. If a landowner has enough time and money, and the right people working as his agents, the risk of failure is vanishingly small. And, contrary to the usual order of things, the higher the stake one can put up, the less the risk. The only loser in this game is the public.
The Staff
In considering Conservation District Use Applications, members of the Board of Land and Natural Resources rely heavily on staff. But is staff advice always sound enough to support the weight of board decisions? Environment Hawai`i has not gone through every residential CDUA that has come before the Board (many hundreds over the years), but in the three that we have examined closely, staff presentations to the Board appear to fall short of the mark.
Consider the Fazendin case. Here, the Board was given to believe that the Fazendin lot qualified for nonconforming use. That argument runs counter to the Department’s Administrative Rules, however, since the site is a consolidation of two lots and thus is not a parcel whose boundaries have remained fixed since 1957.
The Liem case provides another example. When the Board was considering this CDUA, it was advised that there was little choice but to approve the request for a house since it was in the General subzone. Any other action, the Board was advised by staff, might make the Board’s decision vulnerable to legal challenge. It may be true that the Board has almost invariably approved requests for houses in the General subzone. But nothing in the Rules or the statutes requires the Board to grant anything other than nonconforming use. (In fact, a policy on residential construction in Conservation District land was approved by the Board on January 23, 1981. That document states quite clearly that the Board’s overall policy of allowing one house per lot still demands “that each case be treated on its individual merits.”)
Staff actions in the Engelstad case are most perplexing. Not only was spot zoning made the sole basis for recommending that the Board deny the CDUA, but staff also accepted the opinion of the applicant’s lawyer as to the date the 180-day period for Board review expired. It is reasonable to wonder why the Attorney General’s office was not consulted at the time for its opinion on he matter.
Many members of community groups opposed to the Fazendin and Engelstad houses have accused staff, particularly OCEA Administrator Roger Evans, of being more responsive to the concerns of the applicants than to those of the community. It is impossible for an outside observer to know the truth of these claim. In the most recent report to the Governor by the Department of Land and Natural Resources, however, Evans mentions that one of his prime goals for the 1989-90 fiscal year was the establishment of a “client feedback system… where customers can judge the quality of service provided them.”
In fact, the OCEA’s enduring clientele is not any particular developer, nor even the universe of developers. It is the public. That the OCEA does not view it that way should give one pause. Nor does it help to overhear a chance remark made by Evans at the February 24, 1989, Board meeting. Following a vote to impose fines for violations at the Fazendin site, Evans may be overheard on the Board’s own tapes of the meeting to say to Jim Ferry, the former DLNR Chairman acting as the Fazendins’ agent: “Mr. Ferry, just for your information, publicly we’ll try to see that that doesn’t happen again. We’ll try to be better.”
The Board
If the six members of the Board of Land and Natural Resources were selected for their thoughtfulness or concern for stewardship of the state’s natural resources, staff advice might not count so much. Unfortunately, Board members have not always been selected for these reasons. Moreover, because of the length of members’ tenure – they are appointed for one four-year term, and are usually reappointed for a second – a meaningful change in the makeup of the Board may be years off.
Still, the O`ahu seat is vacant at the moment. Governor Waihe`e should be encouraged to fill it with someone who has ties to the environmental community instead of developers.
Change the rules; level the field
With rising pressures on undeveloped land, Hawai’i can ill afford to have the current generous policies of the Land Board extended into the indefinite future. Both administratively and legislatively, changes need to be made.
First, the Legislature should consider restoring language in the original law (passed in 1957) clarifying that the Land Board is not expected to approve CDUAs for any purpose other than clearly nonconforming or permitted use. (This language disappeared in a “housekeeping” measure passed in 1977.)
An amendment to Chapter 205A, the Coastal Zone Management Act, might be in order as well. At present, single-family residences are not regarded as development, thus enabling houses such as the Liems’ to escape county review. This exemption should be either deleted altogether or amended so that houses above a certain size (5,000 square feet, for example) are required to obtain a county SMA permit before being built in Conservation District lands that fall within Special Management Areas.
Second, the Department should revise its Administrative Rules in several areas. House size should be limited by rule. The Rules should clearly set forth when and under what terms a CDUA is deemed accepted. To avoid a repetition of the Engelstad debacle, some limit should be placed on the number of times a landowner can file a CDUA for a given parcel within a fixed time – say, one application every five years. This would make would-be builders more receptive to community concerns from the outset; it would level the playing field somewhat, reducing the advantage that people with wealth enjoy over those who lack such resources and it would reduce wear and tear on both the public and the DLNR staff.
A Question of Law
A more profound question arises concerning the Administrative Rules: Is the very practice of granting conditional use permits, specified in the Rules, supported by law? Specifically, §183.41 sets forth three types of Conservation District land uses that the Board may allow; nonconforming use for farming or residential purposes (if the land qualifies); permitted uses (as defined by the Board for each subzone); and “temporary variances” for all other activities. Residential use is not a permitted use, by the Board’s own rules.
In present practice, and by present Rules, permits for houses and other types of uses that are neither permitted nor nonconforming are granted as so-called conditional uses – a term found nowhere in the statute, and one whose meaning is quite apart from that of temporary variance (which is defined in the Rules as a use not to extend beyond one year). What seems to have been the original legislative intent that these uses would be for limited periods only has been either forgotten or discarded.
If the Administrative Rules depart from their statutory foundation as radically as they would seem to, it raises interesting, serious, and far-ranging legal questions.
Finally, there is the problem – perceived, if not real – of erratic or whimsical enforcement of existing statutes and rules. For example, on the same day that the Board fined Fazendin a mere $1,400 for his blatant violations, it fined Richard Chamberlain $10,000 for the accidental cutting of trees. (A landscaping firm the actor had hired got carried away, and cut trees on adjoining state land without his knowledge or permission. Chamberlain’s real offense, one wag suggested to us, was his failure to retain a well-connected lawyer to plead his case before the Board.)
A perusal of the OCEA files raises another issue related to enforcement: cost. Staff planners in some instances have been required to find out how much an investigation will cost before they are allowed to order it. Police and the courts do not charge for their services. Similarly the Division of Conservation and Resource Enforcement (the DLNR’s police) and the Department of Accounting and General Services (its surveyor) should not charge OCEA for work done in connection with possible violations of DLNR rules (or, alternatively, fines for Conservation District violations should be allowed to go into a fund to pay for enforcement costs).
Many years ago, DLNR reports to the Governor stated the number of suspected violations of Conservation District land reported, as well as the number resolved. Recently, the only figures provided by the OCEA are for number of complaints received and for fines paid. A return to more detailed reporting practices on violations would be a welcome step in the direction of boosting the public’s flagging faith in the OCEA.
Volume 1, Number 3 September 1990