Wednesday, September 17, 2014

Musings: Bright Line = Green Light

The Kauai County Council planning committee will continue wrestling today with a coastal development bill that fails to protect rocky shorelines popular with fishermen and used by nesting seabirds.

Draft Bill 2461 would allow much of the island's remaining undeveloped coastline to skip an important process known as shoreline determination. This determination is used to establish building setbacks from the shoreline and public trust area.

A working group convened by former Councilwoman Nadine Nakamura, and including councilwoman JoAnn Yukimura, Planning Director Mike Dahilig, planner Kaaina Hull, deputy county attorney Ian Jung and coastal advocates Barbara Robeson and Caren Diamond, worked on the bill for more than a year. But nine months ago, landowner representatives joined the discussion, which was upended by the addition of a sticky little floor amendment that is a developer's dream.

The amendment exempts landowners from needing a shoreline determination if the parcel is outside the most strict V or VE flood zone, the proposed structure or subdivision is 30 feet or more above mean sea level, and/or the applicant can demonstrate to the satisfaction of the Planning Director that the property is clearly adjacent to a rocky shoreline such that it will not affect or be affected by coastal erosion or hazards.

Here's the rub: Maps prepared by University of Hawaii Sea Grant consultant Ruby Pap show nearly the entire coastline would qualify for the so-called “bright line” exemptions.
A TMK list identifies some 545 parcels that could be covered by the exemption, including 1,077 acres owned by the Robinsons, more than 3,500 acres owned by A&B/McBryde, 2,000 acres at Mahaulepu, 40-plus acres at Kealia Kai, more than 100 acres at Aliomanu (Anahola), 200 acres at Moloaa Bay, 408 acres at Waikoko (Hanalei) and nearly 4,500 acres owned by Bruce Robinson.

The amendment is troubling for a number of reasons. By leaving the requirement for determinations up to the discretion of the planning director, it opens the door to back-room dealings that exclude the public. It also greatly increasing the director's work load by requiring him to make a site visit for each application.

What's more, the most recent shoreline study erosion maps considered only sandy shorelines. The rocky shorelines have not been studied, which means there's no scientific basis for determining if they will be affected by coastal erosion or hazards. It's strictly the planning director's call.

The amendment places too much emphasis on a single factor — erosion — rather than considering the full range of coastal hazards, especially those linked to climate change, such as sea level rise and intense coastal storms.

It's also unclear whether exempting landowners from the shoreline determination will eliminate the need for a state shoreline certification, a key mechanism for giving citizens a voice in delineating the public beach.  Is it the county's intent to start waiving shoreline certifications? 

If the shoreline determination is eliminated, how will the county calculate setbacks? When houses are allowed to hover at the edge of the pali, it seriously intrudes on the seclusion and privacy of rocky shorelines favored by fishermen and beachgoers, impacts nesting seabirds and ruins the view from the beach.

Thorne Abbott, a former Maui coastal planner and shoreline expert, weighed in with a sensible Sept. 16 email to JoAnn, and sent along compelling images of shoreline setback failures. He wrote:

I don't think any property should be exempt from the shoreline setback requirements….

Even with a rocky shoreline and being 30 feet above the ocean, a setback should be required. Sunset Beach [Oahu] lots are well above flood zone. Also, on sheer cliffs the wind is magnified and roof's and eaves more susceptible to damage and failure from high winds. Thus, a good reason to move back a little bit from the pali's edge.

Bottom line is people want to be as close to the ocean as possible. But this puts them and their investment at high risk of damage. Moving back is a good long-term strategy to ensure the investment is sound and the asset (the beach or shoreline) is protected. Plus, it offers public benefits in terms of views and access. 

Maui recently allowed construction of a 6000-8000 sf  'farm house' overlooking Honolua Bay, a marine conservation district and high-use, highly attractive, very popular tourist site for snorkeling and diving. The house isn't subject to any coastal hazards being at an elevation of probably 60 or 70 feet above the bay. But it is an omnipresent oppressive injury to the mountain views while snorkeling, and significantly degrades the experience of ocean users (numerous complaints nowadays). The view from inside the house probably can't capture the popular portions of the bay. But from these parts of the bay, the building is quite obvious. This is just because the house wasn't setback a few more feet so that its roofline would be hidden from view. Its setback is 15 feet because it is not a 'shoreline property'.

Is it really worth it to ruin everyone's experience just because one person wants to be extremely close to the ocean. And what happens when that person's home becomes rubble from a hurricane? Who pays?

Setbacks should be easy to implement, not require legal assistance, and follow common sense.

Indeed. At a time when governments are being warned to move development away from the coast and take additional steps to protect coastal structures, the county needs to be erring of the side of caution. Before voting, the Council should remove the “bright line” exemptions from the draft bill.


Anonymous said...

The Maui expert and his safety issue argument is shibai.
Call this what it is. This is a view easement. An easement that gets determined by everyone except the land owner. Landowners with money will build anywhere, risk be damned, to gain views.
Again, big land is getting pinched by a bunch of Commie types. First they tell big Ag what and how to farm, make big ag appear as heartless killers with any pesticide use, condemn big ag for being rich and NOW they want to tell big ag how to build structures.
Someday, the County and State will NEED big ag for any road, school, water etc the past big ag has been a real friend to the island.
Someday Big ag may just tell the County, you have been a hatin' us for a long time, we ain't a goin' to accommodate you in your expansion for your road (or bypass roads)etc.
By the way...the ONLY Views that have been blemished are on the Northshore where all them hippie Realtors and Anti-GMO types build as they please....whether ocean front estates like the biggest antiGMO guys around (JoAnn Y, Bynum and Hooser biggest supporters) Neal Norman.and John the way, Neal, John and their many friends at Bali Hai Realty and Hawaii Life Realty are the biggest culprits in building giant ag houses, taking out the veiws and running TVRS.
But they are against big ag , so it is OK....Big ag hasn't created any view obstructions, except some tall sunflower plants.
Leave big ag alone.....

Anonymous said...

Those pictures are shocking, especially the first one.

Anonymous said...

Oh to the first commenter, this is all about not leaving big ag alone but getting ready for it to be developed.
Agriculture is not being regulated in this, development is.

Anonymous said...

blithering the best interest of the setback head fakes...back room dealings have and are and always will be. planning is inept in regards to shoreline access, public trust concerns and now the setback attempts. Rub one more out boys. And screw the publics concerns. Honolua is a sad example yet perfect profile of what Ohana realty wants to fishbowl us in hanalei, the newest owners of Papa'a bay, the new owners of Pila'a/Moloa'a ranch shoreline...they will get what they want squeaking in their intent

Anonymous said...

I actually think we have a great planning department team that does have Kauai's best interest in mind and wouldn't so easily be swayed (not being sarcastic). I'm sure the developers that joined the conversation with the planning department think they've got the planning department wrapped around their fat finger but I'm sure that's not the case. I'm sure the council will make the right decision with regards to the environment since they are all such ethical environmental activists now. I'm sure they will be efficient and strong in their ability to execute a decision and not sit around shaking their jowls and fists for the camera and throwing pencils like frustrated toddlers while doing nothing meaningful. Im sure they will intelligently see this as an opportunity to do the right thing and earn back some credibility. I'm sure the council doesnt want to continue to appear like they are whores for high end development with terrible foresight and I'm sure that no one wants the cliffs of Kauai to resemble the cliffs of Southern California except the Californians who are trying to build them and buy them. I'm sure our council and planning department ain't gonna let that fly. Right?!

Anonymous said...

most of the mediterranean coasts have been completely developed (beautifully may I add) for hundreds of years with no issues of erosion and blah blah blah. What's the issue here?

Anonymous said...

Most of the lands are in Ag zoning.
Ag Sub-divisons can be done quickly.
The Ag sub-divisons usually have strict view plane conditions, but these can be overturned if a "farmer" needs a windscreen to protect his product or he really wants a pig farm etc. Not many million dollar pig farms, but there can be. Ag CC&Rs can not over ride the State law regarding ag use.
So far JoAnn Y's many friends on the Northshore have been pretty good on house color and height. But as the Malibuization of Kauai continues there will be some less than considerate people.
The State and County have to decide if the setbacks are for SAFETY or for view planes...
The most glaring example of a manipulated height ( a real sore thumb) property is in Poipu. This design was created and by one of Tim Bynum's dearest friends and a big time Tim supporter. A perfect example of do as I say, not as I do. A loophole was found and he used it. The County has now closed this loophole.
The more Tim, Gary, Mason and JoAnn pick on Big Ag, the more pressure will be on Big land to develop.
Cash will always be king and tho' our Council has no real concept of land management or budgets, they also have forgotten the essence of government, to serve the needs of the people.
As long as Gary, Tim, Mason and Joann have the control of the Council, Kauai will continue to be dawdling on ineffective complex tax issues, unenforceable ag laws and no housing for the regular folks. Social division prevails, road get potholes, Kauai's bond rating dives and we the peasants are f*cked. Raise taxes and no improved services.
These 4 understand that every law on land they make, makes it more difficult and expensive to own land. Consequently, their many friends with the big bucks buy up what remains.
Look at their main supporters IE. rich Realtors and rich Ag CPR owners.
On the side, look at the few Kauai people in Power and look at the results...Mina-illegal TVRs, JoAnn Y- develops Ag CPRs at Kalihiwai, Timmy Bynum- lawsuit over his own Ag CPR - Gary, Develops several Wailua Homesteads projects and publicly fought against Sanchez Homestead Store...hypocrites? or criminals?
Small town politics or strong Kool-Aid?

Anonymous said...

So now that the county is going to appeal 2491, some questions

If it is sent back to the court, is it possible that the court will find that it still is not valid based on the many other issues brought up by the seed company's that the court did not even address?

I figure that the additional money deals with this one issue on appeal, not the many more issues that would need to be address by the court.

If the county looses the appeal then there is a chance the county will be on the hook for attorney fees for the seed company's

$ 12,500 will not be the final cost

Anonymous said...

A shoreline setback is just that. If the setback is set at 40 feet than 40 feet it is. There should be no leveraging involved in a shoreline setback whether it be height, rock or otherwise. If we add any loophole to the setback laws it encourages the developers to work the system. It needs to be cut and dry.

Anonymous said...

Council just went from really irresponsible to downright negligent. They just approved spending the remaining $12K for an appeal on the preemption issue. While their legal counsel assured them chances were good for winning the appeal and that he'd do it for the remaining budgeted amount, the buck doesn't stop there. There were massive legal costs accrued by the seed companies, who will now likely seek reimbursement of the fees. Additionally, even if David Minkins is successful in his appeal on preemption, kicking it back to the state courts to ajudicate all the other issues could take years. Did David Minkins agree to cover those costs or indemnify the county from other potential costs associated with this? I highly doubt it. Let's be realistic, this appeal could set the taxpayers back millions. I see another round of tax increases just to pay the legal tab.

Anonymous said...

Most of the Mediterranean coasts aren't subject to big summer and winter swells, tsunamis or hurricanes. Most on Kauai like the natural beauty of our coasts.

Anonymous said...

if you like the appeal of the mediterranean or laguna beach, please enjoy being there. Kauai , our heritage and lineage, deserves better. yet the continual working of the system will continue to dispose of all those concerns.

Anonymous said...

What's under those beautiful coastal homes on the Mediterranean? Ugly, barren cliffs? No wonder they covered them up.

Anonymous said...

the council is inept

Anonymous said...

I agree with you on this…it's disgusting how they are illegally placing boulders on the beaches in a preemptive move to deal with erosion from the development…i came across a lot of illegally placed boulders put up in the middle of the night in order to build…beaches have been disappearing as have the's disgusting how mike dahilig just kinda looks the other he doesn't have the resources, yet hands out building permits like candy..
blame mayor carvahlo, grove farm, aryl kaneshiro, etc etc…it's all about bringing more mansions to the island..before you know it, there'll be no beaches anywhere. just a few token beaches…disgusting….this is why i'm not voting for carvalho..this is why it's time for rapozer kagawa, and fur faro have got to go…please we don't need no aryl kaneshiro or arthur bruhn either..