{"id":16179,"date":"2024-10-03T13:03:31","date_gmt":"2024-10-03T23:03:31","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=16179"},"modified":"2024-10-03T13:13:42","modified_gmt":"2024-10-03T23:13:42","slug":"board-talk-kahala-resort-abandons-presetting-proposed-rules-for-west-hawai%ca%bbi-paku%ca%bbuku%ca%bbi","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=16179","title":{"rendered":"BOARD TALK: Kahala Resort Abandons Presetting, Proposed Rules for West Hawai\u02bbi P\u0101ku\u02bbuku\u02bbi"},"content":{"rendered":"\n

After More Than A Decade of Fighting,<\/strong> Kahala Resort Abandons Chair Presetting<\/strong><\/h2>\n\n\n\n

\u201cI am pleased to see that Resorttrust Hawaii, LLC has finally thrown in the towel (into the towel caddy placed on its own land),\u201d wrote David Kimo Frankel in his testimony to the state Board of Land and Natural Resources last month.<\/p>\n\n\n\n

For years, Frankel, along with Honolulu resident Tyler Ralston, has fought before the board and in court to get the company, which owns the Kahala Hotel & Resort, to manage the adjacent oceanfront parcel as the public beach it was meant to be when the state allowed the resort to improve the beachfront area in the 1960s.<\/p>\n\n\n\n

While the resort initially created a large sandy beach on the state parcel, much of it was eventually grassed over and used by the resort for weddings<\/a>, part of a restaurant, rentable cabanas and preset lounge chairs, and storage.<\/p>\n\n\n\n

As Frankel argued in his testimony, \u201cNone of that was legal.\u201d The permit authorizing Resorttrust to use the state parcel allowed for recreation and maintenance, not commercial use.<\/p>\n\n\n\n

Neither the Department of Land and Natural Resources\u2019 Land Division nor the Land Board, however, ever found the company to be in violation of its month-to-month revocable permit that had been renewed annually for decades. <\/p>\n\n\n\n

\u201cInstead,\u201d Frankel wrote, \u201cit was City enforcement action<\/a> that led to the removal of the restaurant and cabanas. That was an improvement, but the hotel continued to preset chairs and exclude the public. Moreover, Tyler Ralston and I have repeatedly provided evidence that Resorttrust Hawaii, LLC was not complying<\/a> with the terms of the permit. But DLNR staff refused to acknowledge the obvious.\u201d<\/p>\n\n\n\n

On January 24, in response to a recommendation by the Land Division to grant an easement for drainage pipes running from the resort across the state parcel and into the ocean, Ralston stated in written testimony that when the Land Board last renewed the permit in December 2023, \u201cResorttrust leadership sat before you and claimed that they follow the terms of RP S-7915. In actuality, they violated the terms of their RP on every of the many days I visited Lot 41 in 2023 before the BLNR meeting and every day after the BLNR meeting, by presetting many more than the 70 lounge chairs allowed by the terms of the RP.\u201d<\/p>\n\n\n\n

Ralston had planned to show photographs and video supporting his claims at the board\u2019s January 26 meeting, but the easement matter was withdrawn from the agenda.<\/p>\n\n\n\n

Less than a month later, Frankel stated in his testimony to the board last month, he and others noticed that the hotel had stopped pre-setting and storing chairs on the state parcel. <\/p>\n\n\n\n

\u201cThe towel caddy has now been moved back on to the hotel\u2019s property. The area looks so much better now,\u201d he wrote.<\/p>\n\n\n\n

Then on August 12, counsel for the resort sent a letter to the DLNR asking that the permit area be reduced from about 1,400 square feet to 64 square feet to accommodate just a beach shower, and that the monthly rent be similarly reduced from $1,485 to zero.<\/p>\n\n\n\n

\u201cThe new revocable permit, if approved today, would be a passive use of the land, with no preset items allowed by the Board, no commercial activities, full public access, landscaping at RTH\u2019s cost, and provision of liability insurance protecting the State. Land Division has no objection to the gratis rent considering the actual expense spent by RTH to maintain the grounds that is open to the public. \u2026 The applicant has not had a lease, permit, easement, or other disposition of State lands terminated within the last five years due to non-compliance with such terms,\u201d district land agent Barry Cheung stated in his September 26 report to the board recommending the approval of the downscaled permit, which would go into effect after the current revocable permit expires at the end of the year.<\/p>\n\n\n\n

Although Frankel supported the termination of the old permit that allowed for the presetting of dozens of chairs, he argued that even more should be done to make the property more accessible to the public. Specifically, he recommended that some hedges on opposite sides of the property be removed. \u201cDoing so would be an invitation to members of the public to sit there. (Who goes to the beach to site behind a hedge?),\u201d he wrote.<\/p>\n\n\n\n

Ralston added in his written testimony, \u201cWhile the hotel has done a reasonable job at maintaining the landscape in the areas fronting the hotel where their guests are most likely to view, RTH has severely neglected any maintenance on the Western end of the parcel where their guests are least likely to view and where the public is most likely to view as they walk toward the East.<\/p>\n\n\n\n

“Notably, the Western groin is littered with exposed, broken-o\ufb00 PVC irrigation lines, rusty rebar sticking out the ground, large concrete rubble chunks several feet across, and dislodged, broken black plastic landscape border edging. The adjacent island has many yards of several types of synthetic geo-textile fabric used in landscaping lodged in the boulders, long lengths of now-defunct gray-bar electrical conduit broken o\ufb00 on both ends just laying around, as well as other trash and human-made debris. RTH has not been maintaining the Western groin and island in compliance with the terms of RP S-7915, and the DLNR land agent responsible for paying attention to this has chosen to look the other way for many years.\u201d<\/p>\n\n\n\n

Both Frankel and Ralston asked that the new permit include terms that explicitly limit use of the parcel to non-commercial\/maintenance purposes.<\/p>\n\n\n\n

Compensation<\/strong><\/p>\n\n\n\n

In justifying his division\u2019s recommendation not to charge rent using the parcel, Land Division administrator Russell Tsuji explained to the board, \u201cIf we were to get the property back, we would not maintain it at all.\u201d He added that Resorttrust would maintain liability insurance for the property that would protect the state from any claims.<\/p>\n\n\n\n

Attorney Onaona Thoene, representing Resorttrust, testified that the company spends $50,000 to $60,000 a year maintaining the land.<\/p>\n\n\n\n

Resort vice president and manager Joe Ibarra added that he expected an estimate from a landscaping company by the end of the day on the cost to remove the pipes that Ralston had identified. He said the work would probably be done by the end of the year.<\/p>\n\n\n\n

With regard to Frankel\u2019s recommendation to cut back or remove the hedges, Thoene said, \u201cWe respectfully decline. Some of the hedges appear to serve as erosion control.\u201d<\/p>\n\n\n\n

She said \u201cmaintenance\u201d under the new permit should include landscaping, irrigation, and lighting.<\/p>\n\n\n\n

In discussing a motion by board member Vernon Char to approve the staff\u2019s recommendation (with amendments to clarify that the permit was for maintenance and landscaping, including irrigation, sand raking, and lighting), board chair and DLNR director Dawn Chang and board member Aimee Barnes expressed their discomfort with forgoing rent.<\/p>\n\n\n\n

While the only permanent fixture of the resort\u2019s would be the shower, the permit area spans about 1.3 acres. <\/p>\n\n\n\n

\u201cEven if we didn\u2019t maintain it, the hotel would maintain it,\u201d Chang said. \u201cIt\u2019s open to the public, but also it is a benefit to your guests,\u201d she told Ibarra.<\/p>\n\n\n\n

She continued that the money generated from the rental of state property goes into the Land Development Special Fund, which supports the department\u2019s monitoring, enforcement and other management efforts in other areas.<\/p>\n\n\n\n

\u201cThat is my difficulty with just having it gratis. I would support some kind of amendment. $1,400 (roughly the current rent) is approximately $17,000 a year. It\u2019s not in my view an insurmountable expense for the hotel,\u201d Chang said.<\/p>\n\n\n\n

Board member Riley Smith, however, seemed to support the idea of not charging rent. He recounted how, at a resort on Hawai`i island, which he represents, resort staff are \u201cthe first responders if something happens. \u2026 The benefits to the community and the response time more than makes up [for the lack of rent],\u201d he argued.<\/p>\n\n\n\n

\u201cI think they would do that anyway,\u201d Chang countered.<\/p>\n\n\n\n

Barnes added that she was concerned about the precedent that would be set if the board approved the recommendation as is. \u201cProviding compensation for the use of state lands is something that a good actor should be willing and eager to do. \u2026 I have a concern about offering this gratis. There are a lot of things that a lot of folks do that then may be brought before us as evidence of why they deserve to have their RPs gratis going forward,\u201d she said.<\/p>\n\n\n\n

She suggested that maybe the board could meet somewhere in the middle and charge half the rent that the resort has been paying. <\/p>\n\n\n\n

Chang wanted the rent to at least cover the DLNR staff time to prepare submittals to the board and to enforce permit conditions. Also, she said, charging rent for the use of public lands, even those that are open to the public, \u201csends a message to the public there is some consideration, even though we\u2019re receiving a benefit.\u201d<\/p>\n\n\n\n

\u201cWe\u2019re a little bit in a place where we\u2019ve gotten so used to bad actors that when we have a good actor, our bar is so low,\u201d Barnes said.<\/p>\n\n\n\n

After Ibarra said he would be willing to consider a reduced rent, rather than gratis, the Char amended his motion to include a monthly rent of $750. With that, the board unanimously approve the motion.<\/p>\n\n\n\n

Easement <\/strong><\/p>\n\n\n\n

Just before taking up the Resorttrust permit, the board unanimously approved a recommendation from the Land Division to grant the company a 12,700-square-foot perpetual, non-exclusive easement for three drainage lines that have run from the hotel through the state property since the early 1960s. Two of them are outfalls from the resort\u2019s lagoon, which receives the resort\u2019s air conditioning cooling water. A third is for storm stormwater.<\/p>\n\n\n\n

Fair market rent for the easement would be a one-time payment determined by appraisal.<\/p>\n\n\n\n

\n\n\n\n

Proposed Restrictions on <\/strong> West Hawai\u02bbi P\u0101ku\u02bbiku\u02bbi<\/strong><\/h2>\n\n\n\n

On December 18, a prohibition on the take of p\u0101ku\u02bbiku\u02bbi (Achilles tang) from the West Hawai\u02bbi Regional Fishery Management Area, approved by the Land Board in 2022, will sunset.<\/p>\n\n\n\n

At the board\u02bbs September 26 meeting, the DLNR\u02bbs Division of Aquatic Resources recommended extending the moratorium on the fish \u2014 which is targeted for food and by the aquarium industry \u2014 to 2026. The division also recommended establishing a p\u0101ku\u02bbiku\u02bbi  fisher registration program to capture catch data and, after the moratorium ends, implementing a bag limit of four per person per day through 2036.<\/p>\n\n\n\n

The division asked the board\u2019s permission to hold public hearings on these proposed amendments to Hawai\u02bbi administrative rules.<\/p>\n\n\n\n

Back in 2022, the Land Board had approved a daily bag limit of five per person, despite concerns from DAR and then-board chair Suzanne Case that the population in West Hawai\u2019i could not sustain that level of take.<\/p>\n\n\n\n

Before the September board meeting, Case submitted written testimony against DAR\u2019s proposed new bag limit of four (she preferred a daily take of one) and recommended that the moratorium should be extended to 2027, not 2026. In her written testimony, she stated, \u201cThere is no<\/strong> scientific basis<\/strong> yet to support this catch limit, and while there does need to be some catch limit, a limit of four per day risks extirpation<\/strong> of p\u0101ku\u2018iku\u2018i locally and regionally in Kona. \u2026<\/p>\n\n\n\n

\u201cThere is no data yet on the fundamental question that must inform a bag limit:<\/strong> what rate of p\u0101ku\u2018iku\u2018i extraction will be equal to or less than the replacement rate<\/strong> of the population!<\/strong> No monitoring of the impact of the moratorium over the past two years, no information on extraction levels, no studies indicating what a healthy recovered population would look like.<\/p>\n\n\n\n

\u201cDAR\u2019s own surveys show further declines in abundance, size and even presence of<\/strong> p\u0101ku\u2019iku\u2019i.<\/strong>\u201d<\/p>\n\n\n\n

After a presentation by DAR staff showing how population densities of the fish have  steadily declined over the last decade or so, board member Aimee Barnes said she was struck by just how little is known about the population dynamics. She asked how adaptive management will play into \u201cthe idea of picking a number today \u2026 for a future that, at the very least, seems to be highly uncertain.\u201d<\/p>\n\n\n\n

DAR fisheries program manager Dave Sakoda said, \u201cWe see this as a precautionary approach. We do hear a lot from fishers that we shouldn\u2019t take management action in the absence of scientific justification. In this case, we feel there should be a reduction in take. \u2026 We do intend to adaptively manage as we learn more about what\u2019s driving these trends.\u201d<\/p>\n\n\n\n

He said the division planned to try to gather more data on the fish during the extended moratorium.<\/p>\n\n\n\n

\u201cI know you guys are always walking a fine line. It\u2019s a knife edge trying to balance the different interests here. But at the end of the day it\u2019s not going to be in anybody\u2019s interests if these populations plummet and cease to exist,\u201d Barnes said, adding, \u201cWe really rely on you to give us the science so that we can make the tough decisions and often bear the brunt of people\u2019s unhappiness when we do that. I just would really encourage you to set aside what you think is maybe gonna make people happy and tell us what you think is really necessary to make sure that this is something that\u2019s around for our future generations.\u201d<\/p>\n\n\n\n

DAR biologist Chris Teague then explained, \u201cIf you set the bag limit too low, I feel that you would be likely to see a number of fishers not complying at all. \u2026 If we get buy-in from fishers on that number, then they\u2019re more likely to abide by the rules and we\u2019d get more compliance. That\u2019s kind of what we were worried about setting it too low. That\u2019s how we landed at that four, was in talks with the community members at those public scoping meetings.\u201d<\/p>\n\n\n\n

Board member Riley Smith moved to approve taking the proposals out to public hearings, with a modification that the daily bag limit be zero, rather than four. The board unanimously approved his motion.<\/p>\n\n\n\n

\u2014Teresa Dawson<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

After More Than A Decade of Fighting, Kahala Resort Abandons Chair Presetting “I am pleased to see that Resorttrust Hawaii, LLC has finally thrown in the towel (into the towel caddy placed on its own land),” wrote David Kimo Frankel … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":16158,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[13,8,338,529],"tags":[3],"class_list":["post-16179","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-board-talk","category-fisheries","category-land-use","category-october-2024","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16179","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=16179"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16179\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/16158"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=16179"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16179"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16179"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}