Musings: Developer Friendly

The Kauai County Council's planning committee will resume hammering and polishing the shoreline setback bill today — which means they still have a chance to transform it from a developers' bill into one that serves the public.

Two big questions remain unanswered.

First, why is the Council making it easier to build along rocky coastlines, if not to give developers an unearned prize?

Especially when it remains unclear just how much of the coastline, particularly seabird habitat, will be impacted. Or how that exemption will play out with actual buildings on the ground.

Second, shouldn't all lots that abut the shoreline follow the same set of regulations? Particularly in this era of increasing coastal hazards due to erosion and climate change.

The primary sticking point is Councilwoman JoAnn Yukimura's so-called “bright line" exemption, which excuses landowners from seeking a shoreline determination on land that's 30 feet above sea level and adjacent to a rocky shoreline.

As you can see from this graphic, much of the coastline potentially could qualify for this exemption:

Sam Lemmo, director of the state Office of Conservation and Coastal Lands, expressed concern about the exemption in a Nov. 3 letter to the Council (emphasis added):

Overall, it is unclear how a structure would be cited on a property if the application meets criteria in (1) and (2). This may not provide safe setback for other serious hazards such as failure of rocky bluffs.

Sam isn't the only one voicing objections. The Council received 49 pieces of testimony in opposition to some aspect of the bill, primarily the "bright line" exemption. Just three were submitted in support. They came from the Kauai Chamber of Commerce, the Westin and the Land Use Research Foundation, a developer advocacy group.

The Chamber wrote, in endorsing the “bright line” exemption:

The Shoreline Setback Ordinance should only be used for its intended purpose, which is to protect life, property and coastal resources from coastal hazards. It should not be misused for the purpose of creating buffers along the shoreline to establish recreational, access, view plane and aesthetic setbacks. Matters relating to view planes should instead be addressed by the SMA Permit process or by the application of the provisions in the Comprehensive Zoning Ordinance relating to the establishment of scenic corridors.

But from Sam's letter, it's clear his agency is indeed concerned the exemption won't adequately protect life, property and resources from coastal hazards.

The circumstances that drove the original shoreline setback bill are no less relevant today than they were in 1971:

Growing population and expanding population have brought about numerous cases of encroachment of structures upon the shoreline. Many of these structures have disturbed the natural shorelines processes and caused erosion of the shoreline. Concrete masses along the shoreline are contrary to the policy for the preservation of the natural shoreline and the open space.

So why do anything to weaken that bill, when the only thing that's changed is it's more hazardous than ever to develop along the coast?

Which leads to another question: Why delete “activities” from the bill? Shouldn't activities within the shoreline setback area be subject to regulations under the Coastal Zone Management law? We've seen time and again that people are always trying to push the envelope. We need to ensure that mechanisms exist for dealing with whatever sketchy stuff folks dream up.

This isn't the best time to act on such an important bill, what with two Councilmen getting the boot and two others celebrating big wins. But it seems the Council is bound and determined to move this bill out of committee today, so it can be approved by the full Council next week.

Which means that now, today, is the time to remove that “bright line” exemption entirely. There's absolutely no justification for that arbitrary exemption other than to please developers. And they really don't need any special treatment, especially when it comes at the public's expense.