Honolulu Weekly Article: Deja Vu

 

The Honolulu Weekly has another dispiriting update on shoreline setbacks and public beach access, related to oceanfront property owners who are using vegetation as a sneaky land grab method... which in effect, is being sanctioned by the State DLNR. As I've written before, because of split jurisdiction between the counties and State, there is no uniformity on building setbacks and zoning requirements to protect what's left of Hawaii's beaches.

On one hand, I applaud the persistence of Caren Diamond, a Kauai activist for beach access. And hats off to Joan Conrow for her continued reporting on this issue. On the other hand, it sickens me that we have to keep reliving these same battles year after year, decade after decade, while the State's largest -- and only -- daily newspaper and Honolulu TV news media give the subject cursory coverage. They've never really done an in depth series on possible solutions or even options that could address the growing concerns about preserving our shorelines and controlling commercial activities on our beaches, and in our ocean waters. Sigh.

For what it's worth, here is the link and some excerpts from the Honolulu Weekly piece. Read it and weep...

High Tide - A pending Supreme Court case pits public access against wealthy landowners and the State

By Joan Conrow

Environment / Caren Diamond thought the Hawaii Supreme Court had settled the issue when it ruled in her favor–the public beach extends to the highest seasonal wash of the waves.

The landmark case Diamond v. State of Hawaii was supposed to put a stop to the State’s use of planted vegetation to determine the shoreline, which becomes the starting line for a building setback. The practice tends to favor the landowner, especially when the plants have been cultivated.

But when the State continued to set shorelines that weren’t based on the highest wash of the waves, “We went back to the Supreme Court,” said Diamond, who lives on the North Shore of Kauai, not far from the coastline she has fought for decades to protect. The high court held oral arguments on April 4 and has not issued a decision.

Diamond is again challenging how the State Department of Land and Natural Resources (DLNR) sets the shoreline. This time she’s contesting its “single-year snapshot” approach, in which the state surveyor is guided solely by what’s visible the day of the site visit, even if historical photographs indicate differently.

“If there’s no history, then there’s no future,” Diamond said. “By manipulating the vegetation, landowners gain control, use and ownership of what rightfully are public trust resources.”

Stealing beauty

The case was brought by Kauai attorney Harold Bronstein on behalf of Diamond and Beau Blair, who have long argued that landowners are manipulating the shoreline by intentionally cultivating and irrigating naupaka and other vegetation, which impede the highest wash and hide the debris line. In this particular case, the State’s own survey had initially set the shoreline 20 feet farther mauka...

To read the rest of the article, click here.

 

Guest Blogger: Kauai Beach Access

Mahalo to Richard Spacer on Kauai for sending this commentary on the situation at Lepeuli -- more commonly known as Larsen's Beach -- and what he's trying to do about it. Please visit the website Free Larsen's Beach at the link to find out more about this issue.

From: Richard Spacer, Kauai

Aloha readers concerned about beach access. Over on Kauai we have problems too.



A lateral, coastal trail was fenced off with four foot high barbed wire fence on May 21, 2011 in the ahupua'a of Lepeuli, Kauai. This ahupua'a is entirely owned by Waioli Corporation, a non-profit that also owns historic missionary property in Hanalei, Kauai and a museum named Grove Farm, in Lihue, Kauai. Waioli has leased this Lepeuli property to a beef cattle rancher named Bruce Laymon, who has a business called Paradise Ranch at Lepeuli. The Lepeuli Tax Map Key (TMK) is (4)-5-1-003:003.

Many in the community, especially Native Hawaiians, believe this trail is a segment of an ancient, historic ala loa trail, a public trust feature, that circled each of the islands. HRS 264-1, which incorporated The Highways Act of 1892, should by law mean this trail must be public and open.

This trail has been used forever, most recently by the public to access Lepeuli Beach, also known as Larsen's Beach. There are three trails to this beach, and the one fenced off is the only safe, gradual trail that allows access for almost all users, people with small children, the elderly, etc. Mothers previously could access this beach on the lateral trail with a baby carriage or stroller. No longer.

The other two trails are steep, liability-laden trails owned by the county. One trail was sold to the County of Kauai in 1979 and at some point thereafter the county neglected the trail and allowed it to be overgrown with trees and other vegetation. It was fenced off! A public, county right-of-way fenced off. How is that even possible? Upon the request of members of the community, the fencing was removed from the entrance to this trail last year and it was surveyed. But the county to this day in an act of nonfeasance has not defined and improved the trail for public access. No duty of care here.

Incorrectly thinking it would solve the problem above, Waioli Corporation leased another, even steeper grade trail to the county in the immediate vicinity in 2010. In the legal document describing the easement signed by representatives of Waioli Corporation and Kauai County, the right is retained, among other things, to wall or fence off this 2010 trail!

I filed a petition dated April 18, 2011 with the County of Kauai Planning Commission to revoke the Special Management Area Minor Permit SMA-(M)-2009-6 of Paradise Ranch, issued September 1, 2009, for violating Condition 6 of said SMA permit. Paradise Ranch has authority to do fencing in the Agricultural District under this county permit, but NOT to block the lateral coastal trail. Condition 6 says:

"The location of the fence is subject to approval by the DLNR and Na Ala Hele to ensure
public access to and along the lateral coastal trail. Provide the department a location map as approved by those agencies prior to installation of the fence."

Instead, the lateral coastal trail is blocked by fencing, and neither DLNR or Na Ala Hele approved the location of the fence, according to a June 27, 2011 memo by William Aila, Jr., Chairperson of DLNR.

I also requested the Planning Commission to order the fencing removed and levy fines.

Additionally, a significant portion of the fencing, including that fencing blocking the lateral coastal trail, lies within the state Conservation District. In this part of Kauai, the state Land Use Commission says the boundary of the Conservation District lies 300 feet mauka of the certified shoreline. Paradise Ranch DID have a state Conservation District Use Permit (CDUP), but surrendered it in January 2011 due to mounting legal costs and pressure from those of us opposing this project. Consequently, that part of the fencing inside the Conservation District is illegal, and Paradise Ranch is potentially liable for fines of up to $15,000. per day levied by DLNR. $15,000. per day starting from May 21, 2011.

Paradise Ranch had received approval for $73,500. in federal Environmental Quality Incentive Program (EQIP) dollars (your tax dollars) to fund the fencing that keeps the public off the lateral coastal trail. This program is administered by the Natural Resources Conservation Service (NRCS), a part of the US Department of Agriculture. They have a regional office in the federal building at 300 Ala Moana Blvd. Paradise Ranch denied in their state and county permit applications that there was an archaeological feature on the property near the beach. When NRCS learned about this, they cut the funding. They don't fund projects with cultural resources on the property.

Richard Spacer
Kauai

Ko Olina Complaints Continue...

Here are excerpts from two recent emails we received:

"I am kama'aina in Hawaii and live in Ewa Beach. I took a friend of mine to Ko Olina lagoons. While we found a handicap parking spot, we were still harassed by the guard because I use an umbrella to protect me from UVB rays since I have melanoma. Even though I have doctor's orders they still told us to leave because of my umbrella. I have never been treated this way on any beach in Hawaii, and I'd like to see the law that allows them to push us off a public access beach. I suggest visitors should vote with their feet and pick another destination resort rather than this fascist organization."

That's a new one -- I've never heard of anyone being ejected because of an umbrella! But that's not fascism. That's capitalism. The resort negotiated with the State or county on how many public parking stalls they had to provide to meet beach access requirements, and the public has tacitly accepted that agreement because there have been no major protests at Ko Olina or the Neighborhood Board for that area.

I then got this email from a member of the military who notes he has served his country, and yet can't use the beach at Ko Olina because of their restrictive policies:

"... I'm a local boy who was raised on the Island of Oahu, a Kapolei Knolls home owner, tax payer, and Army service member for the past 18 years. I'm emailing you because I'm really interested in how I can support public beach access to Ko Olina. I was turned around today because the parking lots were full. I then made a u-turn and said I'd like to go to the ice cream parlor there, and was allowed to enter the Ko Olina grounds. After parking in the commercial business parking lot near the ice cream shop, where there were many unused parking stalls available I noticed the shop was closed. I decided to go to the lagoons and see if parking may be available and was sent away by security personnel, who apparently were given my license plate number from guards at the gate entrance. I was also told that if I were to park at the commercial business parking lot and walked to the lagoons for a swim that they would have towed my vehicle away. I was escorted off the Ko Olina grounds shortly thereafter. Please let me know what my rights are to public beach access, or point me in the right direction and tell me how I can give my support to public beach access. I was very disappointed that I couldn't use the beach and felt like my rights were not important at all. This was very hard for me to accept being that I've served three combat tours fighting for my country and my beloved Hawaii ..."

My advice to him and anyone else who has encountered problems with Ko Olina is to write Letters to the Editor of the Honolulu Star-Advertiser and MidWeek. Even if they don't publish your letters, it might prod them to do a story on that situation. It's going to come up again I think when Disney opens their resort out there.

I also suggest residents go to their next Neighborhood Board meeting and bring up this issue. Ask who came up with the agreement that Ko Olina only has to provide eight public parking stalls per lagoon. Ask what needs to be done to add more public parking.

Call the local TV news stations and tell them your stories of being denied entry. If you have a compact video recorder like a Flip camera or phone camera, try to get shots of Ko Olina security guards turning you away. Put those video clips on YouTube -- I'll post links here as well.

The bottom line is it's up to you to take action and do something. You should also contact the Surfrider Foundation and Sierra Club, since they both have paid staff that might be able to help publicize your complaints.

Lt. Governor candidate on beach access

State Sen. Gary Hooser has a good blog post on shoreline access and preservation. To my knowledge, he's the first and only candidate for Lt. Governor who has publicly made this part of his campaign platform.

Moreover, he's actually tried to get laws passed that would help protect public access. And Kauai, Gary's home island, has the most forward-thinking shoreline setback rules of all the counties. Oahu and the other islands should follow their lead.

Here's a link to his post and excerpt:

On shoreline protection and the right to public access
Protecting and preserving our shorelines requires effective and strict integrated shoreline management policies that reach all islands statewide. Presently, Kaua‘i proudly holds the strongest and most prudent shoreline setback for structures, 110 feet from the watermark during a full moon high tide. DLNR officials, working in coordination with the UH Sea Grant Program, estimate the annual shoreline erosion rate at roughly one foot per year. Most homes are rated at a lifetime of 70 years, which under the current state standard setback of only 40 feet means they are likely to be threatened by erosion in coming decades. Though variances are available, our state would be wise to follow Kauai’s lead on this issue and improve shoreline setback distances in all counties...

To read his complete post, please go here:

http://garyhooser.livejournal.com/37609.html

Shoreline Vegetation Gets Attention

While I'm glad the issue of oceanfront property owners using plants to grab more beach land is getting attention, I wish the State Legislature would address a bigger matter: we still do NOT have any state law for public beach access minimum standards. All we have for Oahu are "suggested guidelines" by the City Council, which are unenforceable.

Anyhow, if you want to put a stop to overgrown beachfront vegetation by homeowners, there is a bill you can submit testimony in support of: HB1808.

Date/Time/Place: Thursday, Feb. 4th, 2:20 PM, State Capitol Room 325

Please submit testimony online at: http://www.capitol.hawaii.gov/emailtestimony

Type in HB1808 where you're asked to enter the measure for the latest hearing info. If the bill advances there will be more hearings, so save your testimony to resend later!

Also, you can view an Olelo program about this subject or watch it on YouTube. Here's more info below:

Rep. Barbara Marumoto discusses Kahala Beach with long-time resident Lucinda Pyles and Dolan Eversole, Coastal Geology Extension Agent, UH Sea Grant College Program. The show identifies the problem of obstruction of lateral access, recreational use and natural beach processes. It provides a historical reference as to why this needs to be addressed now -- before more beaches are lost forever.

Part 1 Click here.
http://www.youtube.com/watch?v=YqerUoevrrw

Part 2 Click here.
http://www.youtube.com/watch?v=WP7fL9ghBHc

Part 3 Click here.
http://www.youtube.com/watch?v=vTDvb1QRlas

The program will also run on Channel 54:
2/28/10 Sun. 7:00 pm
3/1/10 Mon. 9:00 am
3/2/10 Tue. 8:30 am
3/3/10 Wed. 6:00 pm

Op-Ed Piece on State Gov Reform

NOTE: THIS IS THE LAST POST ON WWW.BEACHACCESSHAWAII.ORG... NEW POSTS ARE NOW ON:
http://beachaccesshawaii.blogspot.com/

Hawaii's system of government is broken. One only has to look at the way our State legislature dickers over every issue and gets little done each session to see the proof. The bicameral Senate/House of Representatives structure for such a small state makes no sense. It's inefficient and redundant to have so many reps, who all have staffs and cost taxpayers extra money to perform the same tasks!

It allows our elected officials an easy out: oh, don't blame us for inaction -- the other committee killed it... not my fault -- the chairperson didn't schedule your bill for a hearing... blame the House/Senate -- they didn't act when the bill crossed over.

Those are some of the excuses we've heard for the past two years from legislators on why public beach access bills died in committee, despite strong support we had. Here's the link to my op-ed column in Sunday's Star-Bulletin on this topic... please feel free to add your comments on the Star-Bulletin site below my piece!

Excerpt:

Hawaii should adopt unicameral legislature

As the 2010 state Legislature gets under way, it's hard not to have a sense of deja vu. Thousands of bills will be introduced — many of them resurrected from last year, or the session before that. Most will die in committee. About 10 percent of those bills will cross the finish line, amid great cheering or hand-wringing. But the vast majority of citizens who get involved because they care about a particular issue will walk away disappointed or disillusioned...

To read the rest, go here: http://tinyurl.com/yckyokj

My New Venture...

Although I will continue to do what I can to promote the beach access cause, the reality is I need to make a living too! But times are tough... which is why I came up with the concept for a local TV show called Career Changers TV. Our first program began airing on OC16 last month. It's geared to people who are looking for jobs or thinking about pursuing new careers. If that's you, check out the CCTV web site for details!

www.CareerChangers.tv

I'm also writing a blog for the site, called Squashed Gecko. It's all about me! Well, not entirely... it's more about all the things I've learned from failing at various endeavors. If you're interested in the entertainment biz, especially screenwriting or writing in general, please drop by and post comments here.

As for the current State Legislature session and our prospects of seeing any significant action in regards to shoreline setbacks or beach access, all I can say is don't hold your breath. It's all about money this go-round -- meaning "non-essential" matters will get short shrift.

Kauai Addressing Access Concerns

Unlike Honolulu's City Council, Kauai is actually DOING something to acquire more beach rights of way through their county's Public Access, Open Space and Natural Resources Preservation Fund Commission. Here's an excerpt from today's Honolulu Advertiser:

A draft of the board's priorities for land acquisition that, once approved, will be sent to Mayor Bernard Carvalho Jr. and the Kaua'i County Council reveals the board's concern about diminishing beach access routes.

In addition to recommending attempts to acquire land to expand the county Black Pot Park on Hanalei Bay and Salt Pond Beach Park in Hanapēpē, the commission is poised to recommend county officials use real-property-tax incentives or other means to acquire beach-access routes to Kauapea Beach (Secret Beach) near Kīlauea, Ka'aka'aniu Beach (Larsen's Beach) near Moloa'a, and Papa'a Bay between Anahola and Moloa'a. The draft priority list also contains mauka accesses to Waita Reservoir near Kōloa and Alexander Dam mauka of Kalāheo.

The same article says they have also been discussing the ongoing problems with oceanfront homeowners growing vegetation in blatant attempts to grab more beach land for themselves. Click here to read the full article.
http://www.honoluluadvertiser.com/article/20100105/NEWS0102/1050318/Kaua+i+beach+access+a+concern