{"id":9996,"date":"2017-10-01T02:26:50","date_gmt":"2017-10-01T02:26:50","guid":{"rendered":"http:\/\/www.environment-hawaii.org\/?p=9996"},"modified":"2021-02-12T23:01:29","modified_gmt":"2021-02-12T23:01:29","slug":"whatever-happened-to-the-haena-sandbag-revetment","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=9996","title":{"rendered":"Whatever Happened To … The Ha\u2018ena Sandbag Revetment?"},"content":{"rendered":"
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In short, it\u2019s still there, blanketed in naupaka, just as the abutting landowners want it to be. Efforts to clean up the legal morass surrounding its existence are in limbo.<\/p>\n

In August 2015, Environment Hawai\u2018i<\/em> published a cover story<\/a> on the apparent lack of state and county enforcement regarding what was supposed to have been a temporary, emergency sandbag revetment installed at Ha\u2018ena, Kaua\u2018i, two decades ago. The revetment had been put in place after large ocean swells ripped away coconut trees and chunks of lawn, creating a steep cliff across the seaward edges of several properties.<\/p>\n

A couple of weeks after our story came out, and eight months after the county Planning Department rejected a request from the landowners for yet another time extension on their emergency Special Management Area (SMA) use permit covering the structure, the agency levied fines against the owners of the five lots for violating the permit\u2019s conditions.<\/p>\n

It\u2019s unknown exactly which conditions those were or how much the county fined the owners, since Planning Department staff have failed to respond to our repeated document requests by press time. But it\u2019s likely Condition 6 was one of them. It states: \u201cShould the applicant determine that the current measures are to be permanent, an application shall be submitted for SMA and Shoreline Setback Variance Permits through the normal permitting process.\u201d<\/p>\n

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The landowners indicated as early as June 2014 that they wanted the revetment to be permanent but had not applied to the department for any such permits more than a year afterward.<\/p>\n

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Another condition that may have been\u00a0violated is Condition 2, which prohibits the revetment from extending beyond the shoreline as defined in Hawai\u2018i Revised Statutes, Chapter 205A. Under that law, the shoreline is defined as the reach of the highest wash of the waves, other than storm and seismic waves, at high tide during the season when the highest wash of the waves occurs, \u201cusually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves.\u201d<\/p>\n

Regardless of what conditions the Planning Department found to have been violated, the landowners\u2019 attorney, Randy Vitousek, contested the fines and quickly convinced the department to not only agree to a settlement and compliance plan, but to also walk back its earlier refusal to extend the emergency SMA use permit.<\/p>\n

Marching Orders<\/strong><\/em><\/p>\n

In a September 30, 2015, letter to Vitousek, Planning Department director Michael Dahilig wrote that his agency agreed \u201cin principle that SMA Use Permit, (E)-97-03 be considered active to date.\u201d<\/p>\n

Dahilig continued that the department also conceptually agreed to the context and timeline laid out in a compliance plan Vitousek had offered on behalf of his clients, Norman and Melissa Neal; Matthew and Judith Malerich; the Carroll-Downs Family Trust; Zibo, LLC; and Ohanahale, LLC. Dahilig noted that the timeline and permitting path depend on when and whether the landowners obtain a certified shoreline from the state Department of Land and Natural Resources (DLNR).<\/p>\n

The Planning Department, Dahilig added, agreed to hold off on imposing the fines unless the applicants \u201cfail to reasonably perform pursuant to the agreed upon compliance plan concerning actions under their direct control (e.g. applying for permits within a certain time).\u201d<\/p>\n

Perhaps anticipating a need at some point to obtain a Conservation District Use Permit (CDUP) and\/or an easement from the Board of Land and Natural Resources for any portion of the revetment that may now, after 20 years, lie within the public beach area, Vitousek had apparently sought confirmation that the revetment had been legally built. Under state law, the chairperson of the DLNR cannot certify the shoreline when an unauthorized improvement encroaches on state land or interferes with natural shoreline processes. In his letter, Dahilig confirmed that the revetment \u201cis considered conforming\u201d at the time the emergency permit was issued in 1996. However, he added, \u201cAs you are aware, shorelines are subject to erosion and a shoreline certification is required for any proposed development.\u201d That being the case, he stated that the landowners\u2019 proposal to leave the revetment in place would require a new certified shoreline, \u201ccurrent to within six months of any permit application.\u201d<\/p>\n<\/div>\n

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Whether the landowners need an SMA use permit, a CDUP, or both may depend on where the shoreline is determined to lie. Anything seaward of the shoreline will likely require a CDUP as well as an easement from the state. (It should be noted that in 2008, the DLNR certified the shoreline for one of the Ha\u2018ena lots involved to lie at the top of the revetment, rather than at its toe. It did the same for another parcel in 2010. While the DLNR has sought and received fines for violations of Conservation District rules based on less, and has charged landowners thousands of dollars for easements to cover exactly this type of shoreline encroachment, its Office of Conservation and Coastal Lands and Land Division have chosen to hang back in this case following a 2008 letter from the county asserting that the 1996 emergency SMA and shoreline setback variance permits were still in effect.)<\/p>\n<\/div>\n

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Dahilig required the landowners to apply for a certified shoreline within 60 days of his letter, which they did. Despite the 2008 and 2010 determinations that the shoreline was located above the revetment, they asserted in their application that the shoreline was located about 20 feet seaward, at the revetment\u2019s toe.<\/p>\n

Digging In<\/strong><\/em><\/p>\n

On March 2, 2016, DLNR shoreline specialist Andy Bohlander and state land surveyor Reid Siarot \u2014 accompanied by some of the landowners, their surveyor Brian Hennessy, Planning Department staff, and concerned citizens Caren Diamond and Beau Blair \u2014 set out to identify any physical evidence of the shoreline. \u201cHistorical certified shorelines were also reviewed,\u201d Siarot stated in an August 12, 2016, letter to Land Division administrator Russell Tsuji.<\/p>\n

\u201cConsidering both current and historical evidence, the shoreline for certification was determined to be a combination of the top bank and shorelines certified on September 29, 2008, and December 23, 2010. Also, a geotextile sandbag revetment was identified on the makai side of the shoreline. The applicant\u2019s surveyor was instructed to revise the map and photos and to resolve the shoreline encroachment,\u201d he wrote. Hennessy never did so.<\/p>\n

Because of the unresolved encroachment, Siarot stated that the shoreline could not be certified by the deadline of September 17, 2016, and recommended that Tsuji reject the application, which he did.<\/p>\n

A month later, Vitousek appealed the rejection on behalf of the landowners, arguing that it was erroneous under Hawai\u2018i Administrative Rule (HAR) 13-222-16 and Hawai\u2018i Revised Statutes sections 205A-41 and 42.<\/p>\n

HAR 13-222-16 does not dictate where the shoreline should be set. It states only that when the shoreline is located at a revetment, the toe \u201cshall be marked and identified on the map.\u201d<\/p>\n

HRS 205A-41 includes definitions of several terms, including \u201cshoreline area,\u201d which includes all land between the shoreline and the shoreline setback line \u201cand may include the area between mean sea level and the shoreline, provided that if the highest annual wash of the waves is fixed or significantly affected by a structure that has not received all permits and approvals required by law or if any part of any structure in violation of this part extends seaward of the shoreline, then the term \u2018shoreline area\u2019 shall include the entire structure.\u201d<\/p>\n

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HRS \u00a7205A-42 describes how the Land Board must adopt rules prescribing procedures for shoreline determination and appeals, \u201cprovided that no determination of a shoreline shall be valid for a period longer than twelve months, except where the shoreline is fixed by artificial structures that have been approved by appropriate government agencies and for which engineering drawings exist to locate the interface between the shoreline and the structure.\u201d<\/p>\n

Vitousek pointed out that the county and DLNR gave their permission to install the emergency structure and that the county, through Dahilig\u2019s latest letter, had confirmed that the county permit, at least, was still active.<\/p>\n

\u201cThe sandbag revetment is a legal, permitted structure and the shoreline is properly located at the toe of the revet- ment [which] fixed and established the shoreline,\u201d he wrote.<\/p>\n

Divergent Views<\/strong><\/em><\/p>\n

For many years, the DLNR used to simply set the shoreline at the seaward edge of a seawall, but it abandoned that practice in 2010 after consulting with the Department of the Attorney General (AG), according to the Land Division\u2019s Kevin Moore. \u201cThe position is based on case law and interpretation by the AG,\u201d he told the Land Board earlier this year.<\/p>\n

Now, the department takes into account all evidence of the highest wash of the waves, regardless of whether a seawall or revetment blocks the sea directly in front of it. The result has often been that the shoreline is determined to be behind or partway up the structure. In those cases, the Land Division usually seeks Land Board approval for non-exclusive easements for the structures, so long as they were legally built.<\/p>\n

Although the shoreline certification process was never intended to also determine property boundaries, court decisions over the years seem to have led the department to use the information gathered through that process to assert state ownership of lands extending seaward of the shoreline.<\/p>\n

Vitousek testified to the Land Board earlier this year that the department\u2019s approach was flawed.<\/p>\n

\u201cThere is a process to determine a boundary. It\u2019s different from certifying a shoreline,\u201d he said, arguing that the state should have to prove that it owns the land below the shoreline in a land court proceeding or some other proceeding.<\/p>\n<\/div>\n

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\u201cRight now, when there\u2019s a sloped seawall, if the water splashes part-way up the wall, they require an easement for the part of the wall that\u2019s seaward. … The county doesn\u2019t like that,\u201d he said before urging the Land Board to address this situation.<\/p>\n<\/div>\n<\/div>\n<\/div>\n

To this, the Land Division\u2019s Tsuji reminded the board, \u201cthe shoreline certification rules are clear: if we can\u2019t resolve [an encroachment], we can\u2019t move the shoreline certification process forward.\u201d<\/p>\n

Board member Chris Yuen acknowledged that some type of legal action may be required to change property boundaries, but added, \u201cfrom staff\u2019s position, they feel obligated to do something about [encroachments]. The path of least resistance is to agree to settle this encroachment. … It would be possible for the state to turn its back on this encroachment. It\u2019s not what they want to do.\u201d<\/p>\n

Vitousek wasn\u2019t buying it.<\/p>\n

\u201cIf you use an easement, you\u2019re conceding someone else owns the land, … that their boundary has been surrendered just based on a shoreline certification. … There\u2019s tremendous creep of how far shorelines go,\u201d he said. Perhaps alluding to his clients\u2019 situation, he then suggested that if the state can certify a shoreline at the bottom of a wall (or the toe of a revetment, in this case), the state could enter into an encroachment agreement with the landowner, rather than require an easement.<\/p>\n

\u201cGenerally, if you have a boundary dispute with your neighbor, you have to go to court,\u201d he said.<\/p>\n

Over the past several years, the DLNR has charged landowners thousands of dollars \u2014 sometimes tens or hundreds of thousands of dollars \u2014 for shoreline encroachment easements. For a structure the size of the sandbag revetment in Ha\u2018ena, the market value of an easement could easily be hundreds of thousands of dollars, given that the five abutting properties have a total market value of nearly $12 million. Despite Vitousek\u2019s suggestions to the Land Board, it seems doubtful that the state can simply choose to revert to past practice and set the shoreline at the toe given the physical evidence that the high wash of the waves extends past it.<\/p>\n

Diamond says that at the state\u2019s site visit to the structure in March 2016, there were signs of \u201ca really large swell that had just washed to the top of that. … It was really clear.\u201d<\/p>\n

She added that surfers and lifeguards have reported seeing loose sandbags in the water and that she has photos of that as well.<\/p>\n

In an April 2015 letter, Diamond and Ha\u2018ena resident Chipper Wichman pleaded with the DLNR to have the revetment removed, as \u201cit was never intended to be a structure that would be kept in place for nearly two decades.\u201d They claimed that the sandbags were compromising the integrity of the beach dune, the nearshore marine environment and the county\u2019s nearby beach park, and they included photos of the revetment blocking lateral public access. They also argued that all of the current owners were aware of the erosion problem when they bought their properties.<\/p>\n<\/div>\n

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The two homes built on shoreline setbacks that were based on shorelines set at the top of the revetment sit far enough away from the ocean that they shouldn\u2019t experience any problems if the revetment is removed, Diamond told Environment Hawai\u2018i.<\/em> She added that at least one of the older homes is \u201creally small\u201d and could be moved inland. \u201cThings can be moved back, as long as it\u2019s done before an emergency,\u201d she said.<\/p>\n

\u201cThe one house that has been there since 1958, it\u2019s a concrete house. … I don\u2019t see it going anywhere,\u201d she said, suggesting that the state could condemn it.<\/p>\n

\u201cPay people fair market value. It shouldn\u2019t be that high if there\u2019s such an erosion problem,\u201d she said.<\/p>\n

She added that the DLNR\u2019s Office of Conservation and Coastal Land has indicated that it would support some sand pushing to protect the properties if the revetment is removed.<\/p>\n

\u201cIt gives them a little protection. That seems like some middle ground,\u201d she said.<\/p>\n

Whatever path the landowners or government agencies take will depend in large part on where the shoreline is ultimately determined to be. It\u2019s been more than a year since Vitousek appealed the rejection of his shoreline certification application. Land Division staff has said there is no deadline by which the DLNR must respond. The agency\u2019s rules only state that once the Land Board chairperson determines that the appellant has standing, a briefing schedule must be set. Once all briefs are received, the board or chairperson must make a decision within 60 days. If that doesn\u2019t happen, the appeal is deemed denied.<\/p>\n

The Land Division\u2019s Ian Hirokawa said that given his department\u2019s backlog of appeals, he had no idea when an order might go out to determine standing and a briefing schedule.<\/p>\n

(For more on this, see our August 2015<\/a> issue and our November 2017<\/a> follow-up, available at www.environment-hawaii. org.) \u2014 Teresa Dawson<\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

In short, it’s still there, blanketed in naupaka, just as the abutting landowners want it to be. Efforts to clean up the legal morass surrounding its existence are in limbo. In August 2015, Environment Hawai‘i published a cover story on … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":9997,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[427],"tags":[3],"class_list":["post-9996","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-october-2017","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/9996","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=9996"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/9996\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/9997"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=9996"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=9996"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=9996"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}