Tuesday, January 19, 2010

Musings: Every Picture Tells a Story

Every picture tells a story, so after seeing this one, and then taking my own visit, with tape measure in hand, to Wailua Beach yesterday, it appears that Mayor Carvalho didn’t actually “get smart” and move the bike path off the beach, as I asserted in my last post, but “got slick” instead.

Although the county press release states that “the proposed alignment for the Wailua Beach section will be shifted from the beach to the right-of-way on the makai side of Kuhio Highway,” it’s quite clear from this photo and my own observation that the path won’t actually run along the shoulder of the road, as most assumed — and The Garden Island headline proclaimed — but on the beach.

Yes, the route is a little bit farther mauka than the boardwalk was originally planned, but it’s still on the beach. In fact, now it’s right on the dunes, where most burials traditionally are. If you have any doubt that’s the beach, let’s remember that the rock wall was built to keep ocean debris from washing onto the road.

So nice try Bernard, right down to making the announcement on a Friday afternoon prior to a three-day weekend — the traditional time for putting a spin on news you don’t want followed too closely. Andy Parx, in his inimitable style, nails it with the title of his blog post on the subject: ANOTHER STEAMING PILE ON THE BIKE PATH.

That wasn’t the only steaming pile I encountered this weekend. When I went north, again with tape measure in hand, to the lovely shoreline of Wainiha, I discovered, much to my dismay, that Anthony Kiedis, lead singer of the Red Hot Chili Peppers, has installed his yard on our beach. See all the driftwood that the waves deposited on his manicured lawn?

Again, every picture tells a story, and this one, unfortunately, offers a tale that is repeated all along that stretch of coast where the state and county have allowed people to encroach onto our beach so they can build massive houses on relatively small lots and still have that de rigueur front lawn and thick naupaka hedge to provide them with the privacy they desire.

We measured debris on his lawn 36 feet in from his certified shoreline — a shoreline that is supposed to mark the highest seasonal wash of the waves, which represents the boundary of the public beach.

Now that he’s got a naupaka hedge and gate and lawn and landscape features on our beach, it raises the question: how do we, the people, ever get our 36 feet of beach back? Unless, of course, the state and county make him move back his plantings behind the true shoreline, which would cut his usable lawn in half and allow the riff raff to get uncomfortably close.

So I got to wondering, why is it that the government is always so worried about “taking” from private landowners, but thinks nothing of “taking” from the public? Why is that even as the experts warn against building too close to the shoreline, the county is approving oceanfront homes that would have virtually no setback if the shoreline certification wasn’t manipulated in the landowner’s favor?

Kiedis, of course, isn’t the only one. The same situation is occurring all along that shoreline, including right next door, where Joe Brescia is building atop a cemetery, and a few lots down, where the waves on Friday washed right under the house. And all along that coastline their gardeners are busy planting and irrigating to perpetuate the illusion that our beach is really part of their yards.


The county and state and Realtors and landowners can pretend that these certifications are legit, but the piles of ocean debris — and the pictures — tell quite a different story.

32 comments:

Stickler for the truth said...

Sorry, but recent debris lines don't mean squat. The beachfront title lines run along the upper annual reaches of the waves, excluding storm and tidal waves. This recent surge, according to the Honolulu Advertiser, "was generated by a powerful storm off Japan on Jan. 5 and gained strength last week." So scurrying out with a measuring tape after a major storm surge is a meaningless exercise.

Anonymous said...

The beachfront title lines run along the upper annual reaches of the waves, excluding storm and tidal waves.

Agreed. The proper boundary line is probably right where the certified shoreline says it is, and not 36 feet inland as marked by an unseasonably high storm surge. Anthony Kiedis is probably owed some sort of apology or retraction because he clearly didn't take 36 feet of "our beach."

My understanding is there is at least one property owner who has planted makai of the actual certified property line. Much better to go after real scofflaws, because trying to "grab" land for public use based on storm or tidal surge isn't going to win any sympathy for one's cause. Only makes you sound extreme and unreasonable. And by going after the real culprits you at least have the force of law on your side, instead of against your position.

Joan Conrow said...

The "storm waves" that misinformed "Stickler" is citing are defined as named local storm events, such as Iniki, not waves generated by unnamed storms thousands of miles away. The waves that deposited the debris on the lots pictured are typical of the seasonal surf on the North Shore, and are not "unseasonably high storm surge" as the misinformed Anonymous asserts. They weren't even the largest we've had this winter. And finally, there is no such thing as a "tidal wave."

stickler said...

Actually, it seems to be Joan who is misinformed. I don't know where she gets her information, but contrary to what she says, "storm waves" are not defined as "named local storm events, such as Iniki and not waves generated by unnamed storms thousands of miles away." The fact that Joan doesn't make any reference to anything that actually defines storm waves in the way she suggests speaks volumes.

On the contrary. If it is a rise in coastal water level caused by a regional low pressure area pushed toward coastal shores by prolonged wind forces, it is a storm surge.

As for "tidal waves," you'll have to take that up with the Hawaii Supreme Court. They are the ones who used that term.

Anonymous said...

Why didn't you cite your reference Stickler?

Anonymous said...

"the upper reaches of the wash of waves during ordinary high tide during the winter season"

- the law of general application respecting beachfront title boundaries in Hawaii.

I would think "ordinary high tide" would exclude swells. But I don't know. Joan says it doesn't. Stickler says it does. Maybe the courts will have to decide if it does or not.

Anonymous said...

"Shoreline" means the upper reaches of the wash of the waves, other than storm or seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves. (HRS §205A-1)"


http://www.hawaii-county.com/planning/kss/Certified%20Shoreline%20Surveys_Dolan%20Eversole.pdf

-- not a half bad pdf review of things, for starters

anyways, the courts have either already ruled on the definition of "storm" and/or "seismic waves," or the administrative entity has internally defined it (or has some sort of operative definition)


dwps

Anonymous said...

"A powerful storm off of Japan"?Since when does "storm surge" mean storms thousands or even hundreds of miles away that send waves to Hawaii? If that's what storm surge means, then the annual reaches of the waves would be meaningless, since most winter waves in Hawaii are generated by "storms" that originate off of Japan.

Anonymous said...

If Joan were right, then the highest ever recorded wash of the waves that was not caused by a local, named storm, such as Iniki, would define the public shoreline. I'm sure she would love that, but it's a joke and nobody seriously believes that's the case.

Anonymous said...

Yeah, that doesn't make sense...if the highest swell in 100 years could suddenly redraw all new boundary lines for the public beach just because it wasn't a local named storm? And the new public beach would be across roads and include a whole row of houses that had been certified mauka of the shoreline? Doesn't seem reasonable. I don't think you're going to win that one.

Anonymous said...

"nobody seriously believes that's the case."

You mean the rich landowners, developers, real estate agents and government bureaucrats that do their bidding

Anonymous said...

Jaon said "
So I got to wondering, why is it that the government is always so worried about “taking” from private landowners, but thinks nothing of “taking” from the public?"

Here is why. The public by definition is an indefinite mass while private landowners are identifiable individuals. As such the government can assess the "economic vitality" when deciding the likelihood od successfully winning a lawsuit. A very wealthy individual can tie up resources literally for years in court, while typically "the public" does not have the "economic vitality" to prevail in protracted legal proceedings. Contrary to popular opinion (and that of former atty Gen Margery Bronster) the government does not see any nexus between "the peoples" interests and "government" interests which they narrowly interpret as the institutions of county, state, or national government. Brescia is a case in point. His economic vitality in protracted legal battles may be greater than the counties or perhaps even the state. Unless members of the public have a George Soros to fund their public interests lawsuits its tough luck citizen as far as the government is concerned.

Anonymous said...

"A powerful storm off of Japan"?Since when does "storm surge" mean storms thousands or even hundreds of miles away that send waves to Hawaii? If that's what storm surge means, then the annual reaches of the waves would be meaningless, since most winter waves in Hawaii are generated by "storms" that originate off of Japan.

Seismic waves come all the way from hundreds and even thousands of miles away. Are you saying that when the law says seismic waves don't count as the normal high wash of the waves that it means only seismic waves from "local" earthquakes? Obviously not.

Storm waves, like seismic waves, come from far away sometimes. The law says they don't count when determining shoreline. That's reasonable and it makes sense. Hardly a conspiracy of landowners, realtors, and politicians.

Dawson said...

"Hardly a conspiracy of landowners, realtors, and politicians."

Conspiracy is a strawman.

Beach property is not snatched by clandestine meetings of backroom lawbreakers. It is eroded over time by a slide in attitude.

Anonymous said...

"So I got to wondering, why is it that the government is always so worried about “taking” from private landowners, but thinks nothing of “taking” from the public?"
...
"Here is why"

Another reason - the private owners like the ones discussed above typically have deep enough pockets to 'directly influence' the local politicians - and even the entire country's political process. Witness today's senate 'race' in MA.

Anonymous said...

No need worry. The tsunami will give back to the ocean what has been taken.

Anonymous said...

all I can say is God Bless Joan…. : )

Anonymous said...

"Another reason - the private owners like the ones discussed above typically have deep enough pockets to 'directly influence' the local politicians - and even the entire country's political process. Witness today's senate 'race' in MA."

Yes they start with that, aand if "direct influence fails" they use their deep pockets in the courts, and of course against those politicians that could not be bought to make sure they are not re-elected - and once again the public sucks wind.

Brad Parsons said...

Great work and pictures, Joan!

Shame! on the Mayor re: The Path Spin!

And Shame! on the Planning Commission re: setback!

Anonymous said...

Brad, do you really think Joan is correct that the county is manipulating shoreline certifications in the landowners' favor? Or is it entirely possible that the people who do shoreline certifications have a different working definition of "shoreline" than the one Joan is assuming. It seems reasonable that "ordinary high tide during the winter" might not be thought to include such things as the recent swells and that shoreline certifications that rely on "ordinary high tide" rather than swell high tide are not necessary "manipulated" in any way. It seems entirely possible, even probable, that those doing shoreline certifications are just following the law.

David H said...

It doesn't take an Einstein to see that the direction that we are headed and have been headed for some time on Kauai is toward loss of beach access and beachfront by developers/homeowners. If our political leaders are not overtly dishonest, then they are negligent for failing to protect the public interest in this and many other areas of Kauai. I can't imagine that anyone who has been even marginally aware of the political climate here can deny that. Unfortunately, it will not change until we encourage good candidates to run for office and vote for them when they run.

Anonymous said...

"Or is it entirely possible that the people who do shoreline certifications have a different working definition of "shoreline" than the one Joan is assuming."

You people are idiots - the State does the Certification - please read the laws of the land before ASSuming you know Something.

Joannie isn't a lawyer, maybe shes a wantabe.

Joan Conrow said...

No, as John Lennon said: "I don't wanna be a lawyer, Mama, I don't wanna lie."

Anonymous said...

From Diamond v. State of Hawaii:

Indeed, the statute utilizes such language as "the upper reaches of the wash of the waves" and "at high tide during the season of the year in which the highest wash of the waves occurs."


The legislative history of HRS § 205A-1 also supports the interpretation that the shoreline should be certified at the highest reach of the highest wash of the waves. In 1986, the legislature amended the definition of shoreline,(fn8) adding the following emphasized language that is currently in the statute: "the upper reaches of the wash of the waves, other than storm or tidal waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves." 1986 Haw. Sess. L. Act 258, § 2 at 469 (added language emphasized). Regarding this added language, House Standing Committee Report No. 550-86 states:


[Y]our Committees have incorporated the suggested amendments to this bill by:

. . . .

(2) Amending the definition of shoreline, to further clarify the manner in which the shoreline is determined to protect the public's interest[.]
1986 Hse. Stand. Com. Rep. No. 550-86, in House Journal, at 1244 (emphasis added). This clarification, which requires the shoreline to be determined at the time when the upper reaches of the wash of the waves would be at their highest, evinces the legislature's intent to reserve as much of the shore as possible to the public. Accordingly, the "upper reaches of the wash of the waves" is the highest reach of the highest wash of the waves in non-storm or tidal conditions.

Anonymous said...

Diamond and Bronstien argued (and won) that shoreline should be defined at "the annually recurring highest reach of the highest wash of the waves." In a 1977 case that has never been overturned and which was cited by the court as recently as last year, the Hawaii Supreme Court approved the lower court’s designation of the shoreline "the upper reaches of the wash of waves during ordinary high tide during the winter season."

"Annually reccurring highest reach of the waves." "Upper reaches of the waves during ordinary high tide." If a huge low pressure area forms over the Pacific a thousand miles away, then blows to Kauai causing the surf to invade beachside houses, I seriously doubt the state supreme court will pronounce that as newly acquired public property. Nor would that be reasonable. The annually recurring, ordinary high tide upper reaches of the waves in winter is a reasonable definition of shoreline.

David H said...

I believe that when one person in a discussion, becomes so invested in their own viewpoint that he/she calls the other people in the discussion "idiots", any chance of an honest and forthright exchange of information and opinion has flown out the window. The facts become ammunition to win a position.
It might be helpful here for everyone to take a second here to set their positions to the side and examine what their interests are. My interest is to explore a way to protect our shoreline and beach access and encourage people to vote intelligently. What is your interest Anonymous?

Anonymous said...

"You people are idiots - the State does the Certification - please read the laws of the land before ASSuming you know Something."

In the Diamond case, the state did the certifying and the court told them they were doing it improperly. That happens sometimes when the state fails to follow its own laws.

Anonymous said...

"What is your interest Anonymous?"

The $ilence $peak$ volume$

Anonymous said...

My interest is in protecting public beaches to the extent the law requires, and in protecting the rights of private property owners the the extent the law requires. The interests of neither side trumps those of the other - both are equally important to me. Nor is there any contradiction whatsoever in supporting public rights to public beaches and private rights to adjacent private property. Where a private land owner plants vegetation onto the public beach, the land owner is in the wrong. If someone tries to claim for the public land that is mauka of the normal, annually recurring high wash of the winter waves, then that person is in the wrong. I can't speak for other anaymouses, but there is no $ in my interest.

Anonymous said...

"If a huge low pressure area forms over the Pacific a thousand miles away, then blows to Kauai causing the surf to invade beachside houses, I seriously doubt the state supreme court will pronounce that as newly acquired public property.

A huge low pressure area a thousand miles away may cause giant surf (30 plus faces) on Kauai without blowing here. Check out the weather observations during the past thirty days, when we've had huge swell after huge swell with clear skies and very little wind. All of these swell events were generated by storms originating off the coast of Japan and then curving up into the North Pacific and away from Hawaii. This is not merely an "annually recurring" event, but something that generally happens several times a month during the north swell season.

Anonymous said...

"What is your interest Anonymous?"

-- somewhat accurate statutory interpretation, for starters


dwps

Kolea said...

Joan did not make up the distinction between "named storms" and unnamed storms. I was given the same information by a coastal zone expert with DLNR.

Let's think about this for a minute. Most waves are generated by storm activity out at sea. The winter swell which hits the North shores of our islands are generated by storms. So how do we interpret the passage about the "the upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs"?

Is someone really proposing we factor out waves generated by distant "storms" in applying this definition?

Won't we be left with having to do shoreline certifications during totally malia, kona days at high tide?

Which is why a lot hinges on the definition of a "storm." DLNR appears to distinguish between storms which rise up to the status of getting names in order to be recognized as storms. Perhaps that solution is not satisfactory, but there has to be SOME qway of determining which waves are generated by ABNORMAL "storm" behavior, and which are the ordinary and frequent action of the sea.