Musings: A Legacy of "Aloha"

Orange-edged clouds floated above a burnt-orange disc that was edging its way over the horizon into an otherwise gray sky when Koko and I went out walking this morning. The streets were wet, thanks to a recent shower, and I noticed that the guava trees are fruiting.

We passed a neighbor, whose dog still bore the wounds of a recent backyard encounter with a pig, and stopped to chat with one of the men who works at the end of the road. I see him going to and from work, at the bookends of the day, and we always exchange friendly waves, or in his case, a toot of his truck horn.

“You sure do put in long hours,” I said. “Like 12 hours a day, six days a week.”

“And sometimes more,” he said. “I gotta.”

As local people, regular people, work long hard hours to survive on Kauai, others come in and skim the cream off the top through activities that, when not downright illegal, are nefarious, questionable.

I’m not talking about the ice dealers, but the land dealers, and today, one couple in particular, Justin and Michele Hughes. (Click on the about MHC link for a photo).

As their own website proclaims:

With conscience and sensitivity to time, place and legacy, The Michele Hughes Company successfully embodies the unprecedented vision for design and build experiences while consistently adding generous value to real estate projects in high end resort areas such as Kauai, Aspen, Tiburon and Cabo San Lucas.

Here on Kauai, part of their “legacy” is Kealia Kai, former sugar land that they and Thomas McCloskey bought for a song and then spun into a gated luxury “agricultural subdivision,” with the kind assistance of then-Mayor Maryanne Kusaka and then-Councilman (and later, the late mayor) Bryan Baptiste. I can still recall seeing Kusaka’s top aide, Wally Rezentes Sr., sheepishly retrieving Michele’s purse from the Council Chambers during a public hearing on the project.

Like so many other “ag” subdivisions on Kauai, Kealia Kai has been chopped up into CPR lots, and these are now for sale at prices far out of reach of any but coca and marijuana farmers. Perhaps that explains why there is no true farming on the land, only lines of palms planted for the lower ag property tax rate.

But that is not the only example of “conscience and sensitivity to time, place and legacy” that mark the Hughes’ lucrative tenure on Kauai. They also have developed agricultural land into an LLC of high-end transient vacation rentals — their website calls them “farm dwellings” — above Kauapea, which they refer to by the bastardized name of “Secret Beach.”

To quote again from their website:

Every tree and flower on the lushly landscaped and very steep terrain has been planted by the owners, Michele and Justin Hughes. Despite the adversarial conditions, they have made, at considerable expense, a concerted effort to irrigate, add steps and trails for access, and plant the hillsides and whatever small flat areas available.

On March 11th of this year, those efforts came before the state Board of Land and Natural Resources (BLNR) as an enforcement action after the Office of Conservation and Coastal lands (OCCL) conducted an investigation “that led us to conclude that the landowner has engaged in unauthorized landscaping in violation of Conservation District Rules,” according to the staff submittal to the Board.

The document then goes on to recount complaints dating back to March 2007 that ironwood trees had been cut on the Hughes’ property and dumped over the pali toward the beach. Although evidence of the violation was found, Justin claimed he had not authorized the work and was unaware of it. A neighboring landowner, Mr. Hass, claimed he had contracted with an unknown man who happened to be walking down the street with a chainsaw to do the work, and was unaware of either the man's name, or his property lines.

As a result, OCCL decided not to pursue enforcement at that time and left the case open pending removal of debris. But it did review conservation district rules with representatives of both landowners.

From September 2008 to July 2009, OOCL received more complaints about tree removal on the Hughes’ property and construction of a lateral trail to the beach.

OCCL re-opened its investigation which “revealed the Hughes or their contractors had begun construction of a modern trail traversing most of the property. Community members state that they had witnessed the Hughes leading prospective buyers along the new trail.”

Attorney Lorna Nishimitsu, who represents the Hughes' Secret Beach Properties LLC, claimed in a Sept. 15, 2008 letter that her clients had contracted with Paradise Grounds Care, which had opened the trail only to reach dumped greenwaste, extended the trail only after additional greenwaste was discovered further down the pali and installed “safety fencing” along the trail only out of liability concerns.

As an aside, Paradise Grounds Care is owned by Bruce Laymon, the same man who is attempting to install a cattle fence on Waioli’s land at Larsen’s (Lepeuli/Ka`aka`aniu) Beach and last year was cited by OCCL for unauthorized clearing in the conservation district there.

Returning to our story, OCCL termed Nishimitsu’s argument “disingenuous,” as evidenced by the fact that healthy trees had been removed, and the trail had been cut and graded, with PVC drainage pipes laid beneath it and fencing and trail borders installed. “We take this as evidence that the trail was intended to be a permanent feature of the land, and not a temporary measure designed for the one-time clean-up of debris.”

Since such work requires a Conservation District Use Permit, which the Hugheses did not have, OCCL sent them a notice of violation. According to its report to the BLNR:

OCCL’s main concern with this case is the willful nature of the alleged violations, rather than with any significant resource damage. The design and durability of the trail indicates that this was intended to be a permanent addition to the land, and one which would increase it’s [sic] value to prospective investors for the subject and neighboring parcels.

State rules allow for a maximum fine of $15,000 in such cases. OCCL recommended a minimum fine of $7,500, along with assessing administrative fees of $1,500, saying that “OCCL is concerned that a lower fine would establish a potentially dangerous precedence that Conservation District Rules can be violated at will.” OCCL further recommended that the Hughes must restore the land to its original state or apply for an after-the-fact CDUP within 60 days of the Board’s action, with any further unauthorized work garnering fines of $2,000 per day.

If you go to the link for the staff submittal and scroll down to page 26, you will see a copy of the real estate ad for a 3.55-acre portion of the property we’re discussing. For $6.25 million, it offers an ocean bluff home site and “rare Secret Beach vehicular and pedestrian access:”

The only private road on Kauai down to a very Secret Beach runs parallel to one side of the property providing exclusive, quick and easy vehicular access to the stunning beach below. A walking trail can also be easily created from home-site through property to the beach.

I can recall when that “private road” was cut down to the beach for a previous landowner, who later went and got an after-the-fact permit for the unauthorized access. It was granted with the condition that it was to be used only for maintenance and security purposes. Yet Bruce Laymon, who managed the property, frequently opened it to his friends, especially during fishing contests. And now, it seems, the Hugheses have packaged it as a private beach road for a luxury home site.

There’s also an ad for another portion of the property a question, a 4.02-acre parcel with a 3,104-square-foot home that includes, for the $8.7 million asking price, “a coveted beach access on a private manicured trail leading to world renowned Secret Beach.”

So what ever happened to the Hugheses — I mean, aside from the fact that Michele recently appeared before the County Council and claimed she has so much aloha for this place and developed her vacation rentals on ag land under the assurance from her attorneys that they were totally legal and is now trying to sell her 40-acre “Secret Beach” holdings for $40 million, according to an ad that a friend spotted this past weekend in the Springfield, Ill., newspaper?

Well, according to a PDF of the March 11 BLNR minutes, which I don’t know how to post, but would be happy to email to anyone interested, Lorna was there, along with Justin and Michele. Lorna repeated the tale of how the Hugheses hadn’t cut the trees that launched the initial investigation and “old hippy [sic] trails from the 1960Ss or 1970s” were fixed up so workers could remove the trees that had been thrown over the edge and when more dead trees were spotted further along the pali, the Hugheses had “created a horizontal trail to see what was there" and it is used only for maintenance purposes and so the owners can fully ccess their property to ensure no one is cutting down trees illegally.

Lorna further stated that “she doesn’t think there was disingenuous behavior on the part of her clients to violate rules” and the $7,500 is “excessive” and they want to “continue the clean-up work to protect them and the State from any injuries and welcome DOCARE’s involvement,” and they need four months rather than 60 days to apply for an after-the-fact-permit “because of the mapping of the trails on a 24-acre parcel.”

Michele then got up and testified that they needed the trails to protect their land from trespassers and from adjacent property owners “who had opened up the Hugheses property for their own use, having discovered sod, irrigation, rock walls, etc.,” and that since they control access to the beach, “there may be some ill will by the owners on the bluff.”

This was followed by the representative of adjacent landowners Bill and Sandi Strong, who pointed out that the Hugheses are developers and so should know the rules and be required to take out the trail, which they had built to increase the value of the property, and remediate the land and further, that "trespassing has increased" because of the trail.

And then Ron Agor, Kauai’s representative on the BLNR, made a motion to cut the fine to $3,500 and give the Hugheses four months to apply for a permit, saying they never would have needed to go into that part of their property if other neighbors hadn’t cut trees that then required removal. But members Rob Pacheco and Sam Gon weren’t buying it, saying the trail was way too flash to be temporary in nature, and even though Ron and two other members voted for it, the motion failed.

Another motion was made leaving the fine at $7,500, and requiring the Hugheses to either remediate the trail or apply for an after-the-fact CDUP within 120 days. It was approved, with only Ron Agor opposed.

We’ve now passed the 120-day mark. I sent an email to OCCL asking if the Hugheses had submitted an application for the permit, and forwarded a copy of their most recent real estate ad.

I have not yet received a reply.