Musings: Abuse Chronicles 12

It's unclear how Banana Beach House got its name, considering the real name of that particular stretch of sand is Naue, and bananas are decidedly absent. It's also unclear how it got its vacation rental certificate, considering it failed to provide the required documentation. But when your company name is B&S Beach Club, it's apparently easy to fudge facts — and steal the public beach while you're at it.

Because this is a story not just about a questionable TVR, but the blatant theft of our public beach. Not just any beach, mind you, but the one that served as the basis for Diamond vs State of Hawaii — the landmark Hawaii Supreme Court decision that determined the public shoreline extends to the highest seasonal wash of the waves.

Here's how that coastline looked in 2000, before the Banana Beach blight struck. See how beautifully broad and open it is?

Here's how it looks now, with the beach eroding away beneath a wall of cultivated vegetation that armors the shoreline.

During the years in between, a big house got built ,and millions of dollars were made. Here's how it happened:

C.R. Stephens LLC bought the lot for $775,000 in December 1999. It's right next door to the lot where Joe Brescia built his first house, which also had burials, just like his second one. This lot contains burials, too, but that didn't stop the owner from sending in a crew with a backhoe to take out the all trees.

Then they started planting on the beach: naupaka, spider lilies, coconut palms.

This prompted then-state land manager Sam Lee to send Stephens a letter advising him that an inspection had discovered “unauthorized landscaping” in the form of newly planted vegetation and watering implements.

But the letter was not followed with any sort of enforcement, so the planting continued. In July 2003, Stephens applied for a $889,000 building permit to construct a 3,212-square-foot single family residence. The state surveyor used the newly planted vegetation to set the shoreline, which is the starting line for the building setback. Caren Diamond, knowing the vegetation was planted and the waves washed much further makai, filed suit to challenge the state's use of vegetation to establish the shoreline.

In September 2004, as the lawsuit was moving through the courts, the county issued Stephens a building permit. The following month, the planning commission amended Condition #9 of the permit to state “No construction until the Hawaii Supreme Court renders its decision.”

In May 2005, Stephens sold the still vacant lot to B&S Beach Club — a group of San Diego investors who play Monopoly with Kauai properties (see Abuse Chronicles 10). He was paid $1.8 million, more than doubling his money. The Club's agent, Matt Hunter, trotted right down to the county and re-opened Stephens' building permit. Construction began immediately. The house was completed in December 2006 — seven weeks after the high court ruled in favor of Diamond. So much for adhering to Condition #9.

Meanwhile, B&S continued to intensively plant the beach, and irrigate it, too, with the assistance of landscaper Mark Soppeland.

On April 15, 2008, B&S applied for the county's very first vacation rental certificate. The application included none of the required documentation to prove prior TVR use or general excise and transient accommodation tax payment.

Yet in August 2008, the county issued the TVR certificate. The next month B&S sold the property for $5 million to AK DACHA LLC, a foreign limited liability corporation that lists a San Diego address. Neal Norman was the Realtor.  Matt Hunter is still listed as the agent.

The house, which is advertised to sleep 10-12, was clearly never intended to be a single family residence as was presented to the Planning Commission during the design review process. But to build a resort, which it is, would have required a different type of permit, one it likely could never have gotten under the county Special Management Area (SMA) requirements that stemmed from a 1982 Supreme Court ruling, Mahuiki vs Planning Commission. The SMA conditions determined only residential uses were allowed in that particular subdivision. So much for SMA conditions.

In May 2010, AK DACHA applied for a permit to remodel, enclose and enlarge the two-car garage by 325 square feet. The county's shoreline planner sent the request to the Department of Health, which stated the expansion would not maintain the required setback from the honkin' big septic system, so she required a current certified shoreline.

Building inspector Mario Antonio noted the property was a coastal high hazard area and ordered an elevation certificate to be done upon completion of work

A month later, the county allowed Matt Hunter to reopen an old building permit and somehow skirt the elevation and shoreline requirements. Final building approval was granted in December 2010, with real property records showing a basement area of 1,248 feet. By then, however, the diligent shoreline planner was no longer working at the county, and no mention was made of the septic setback.

The TVR certificate was not renewed in 2011, at which time the use should have been considered abandoned. Under the county zoning ordinance, any non-conforming use that ceases for a year is no longer valid. However, the planning department inexplicably processed the 2012 renewal as if there had been no break.

And so it continues today, with advertisements boldly touting the house, which rents for $1,500 a night, as "on the sand." Indeed it is. In fact, you can see from the dead fish in the plant roots and debris line left on the lawn by the highest wash of the waves that the yard of Banana Beach House has encroached onto the public beach by at least 40 feet, making it hard to walk the shoreline, even when the surf isn't big. 

But then, exclusion is exactly the intent of those who steal and privatize the public beach for the benefit of their private resorts.