Kaua‘i County Council members JoAnn Yukimura and Mel Rapozo on Wednesday hammered county Planning Director Ian Costa for an agreement his department made with a private landowner to permit nonconforming structures without requiring a state-certified shoreline survey to determine the setback zone.
Four years after issuing notices of violation to the Burmeister Family Trust and making it clear in 2006 that a shoreline setback must be determined before special management area permits would be considered, the Planning Department retreated and in January signed a “Memorandum of enforcement and settlement agreement” that brings the Ha‘ena property into full compliance.
Rapozo said the biggest issue for him is where the county found the authority to enter into an agreement that apparently circumvents the law.
“So all the landowner has to do is resist complying and the county Planning Department will back off?” Yukimura asked Costa during the morning session at the Historic County Building.
The council approved a motion to ask the state attorney general and county Planning Commission to review the legality of the agreement.
Councilman Ron Kouchi said if the attorney general, Mark Bennett, finds the agreement to be “incorrect,” the county charter would immediately void the action.
“Hopefully, we’ll get a chance to respond when the attorney general gets around to it,” local attorney Walton Hong, who represents the California-based landowner, said yesterday.
Hong said he was unfamiliar with the discussion that ensued in council chambers and therefore was unable to comment further on the matter.
The Burmeister’s coastal parcel on the North Shore contains four single-family residences built before the county’s Comprehensive Zoning Ordinance, which limits the property’s density to three residences, went into effect in 1972.
The four cottages have been used as transient vacation rentals since before 1980, qualifying them to be grandfathered, but must obtain a non-conforming use certificate to legally continue operating as such, county documents show.
The Burmeister Family Trust in June 2002 acquired the property, which sits next to Hanalei Colony Resort, according to county documents.
A zoning compliance notice was issued June 24, 2004, for structures and additions without the necessary permits, county documents show. Another was issued Sept. 16, 2004, for shoreline violations involving the planting and placement of fill material within the shoreline.
A third violation notice, dated Nov. 10, 2004, was for the placement of a wooden fence across the Oneone Road right of way and for the continued placement of fill material within the shoreline. A requirement of this notice was to provide vehicular access to the properties, according to county documents.
A Dec. 1, 2006, letter from Costa to the Trust addresses after-the-fact requests for construction without permits relating to the fence and expansion of the four residences and an accessory structure.
In the written communication, the planning director says processing the landowner’s requests “must be held in abeyance since the property is a shoreline parcel within the special management area of the County of Kaua‘i, and subject to the Shoreline Setback Rules and Regulations.
“Any development on such properties must comply with the Rules and Regulations, which requires the submittal of a shoreline survey certified by the state. Upon receipt of this survey, we can then determine if your proposals are located within the 40-foot shoreline setback zone.
“Until we receive a shoreline survey prepared by a registered surveyor, and as submitted to the state Department of Land and Natural Resources for certification regarding the location of the shoreline, your requests cannot be considered,” Costa states in the letter.
The enforcement and settlement agreement, signed Jan. 7 by trustees Klaus and Ulrike Burmeister along with a deputy county attorney and Costa, acknowledges one of the four residences on the property is less than 40 feet from the shoreline.
The agreement says the county is willing to permit this apparent violation to remain without reconfiguration or enlargement until such time that the crest of the active beach berm fronting the residence reaches any portion of it. At such time, the residence is to be removed or relocated.
The agreement defines “crest of the active beach berm” as the top of the slope of the beach as affected by natural erosion processes.
On Feb. 15, the Planning Department issued an after-the-fact special management area minor permit recognizing the agreement and authorizing the previous construction of fences around the property, removal of a portion of the laundry building and enlargement of the three pre-existing residences.
Rapozo questioned why the department’s position changed. He said he feared this could set a precedent where if a landowner is resistant, he just gets whatever he wants.
“It defeats the purpose of the law,” he added.
Costa said the department wanted to assure a permanent resolution was in place to avoid a case, such as with an Aliomanu home, where the structure ends up on the beach while the county waits for compliance.
He added that three of the four residences on the Burmeister property are clearly outside of the required minimum setback, as shown in a stamped survey done Aug. 13, 2007, by Wagner Engineering Services. The survey marks the shoreline along the “edge of vegetation.”
North Shore resident Caren Diamond, who won a state Supreme Court case in 2006 concerning setbacks, said the law defines the shoreline as the highest wash of the waves.
Yukimura, who chairs the Planning Committee, asked how the department was able to arrive at its determination without a state-certified shoreline setback.
“I guess at the time it was a judgment call in the interest of moving forward and seeking a permanent resolution,” Costa said.
“Why would not a good resolution have been to deny the permits? … Let them sue us,” Yukimura said. “Wouldn’t that have protected the public interest in a better way?”
Costa said this was “somewhat speculative,” adding that a denial would not have expanded the beach.
“It just seems we were looking at the interest of the landowner and not the public,” Rapozo said, noting that setback laws are made to preserve beach access and preservation in addition to protecting structures.
Costa, born and raised on Kaua‘i, took issue with these claims. He said the department does not have the power to issue administrative fines and the only alternative to working toward compliance is pursuing civil remedies in court.
The planning director said the agreement was made in part because some of the unpermitted improvements were made by a previous landowner. But this was later discounted because the landowner is responsible for the property he buys.
The council, which passed a resolution in 2006 in accordance with a DLNR “zero tolerance” policy for after-the-fact permits, said denying the permits and letting the landowner take the issue up with the previous property owner and those parties involved in the sale would have been a better option.
Rapozo and Yukimura, who were the only council members at the table for a portion of the meeting, also took issue with the Planning Department’s determination that a SMA minor permit was called for as opposed to a more stringent regular SMA permit which requires a public hearing.
On the Burmeister Family Trust’s March 14, 2005, SMA permit application, the estimated cost of the project is $96,500. Such projects costing more than $125,000 require a regular SMA permit.
Rapozo questioned the calculation, saying it seemed low.
He also took issue with a “pathetic” response to a question on the application asking if the proposed development will provide public access to and/or along the shoreline.
The Trust marked yes, but then wrote “Although no public access to the shoreline will be provided, continued public access along the shoreline below the upper reaches of the waves will remain.”
Yukimura called the department’s failure to find the project needs a regular SMA permit “egregious and disappointing.”
It is really a “non-enforcement agreement,” Rapozo said.
“I would bet my small little paycheck that this was written by the landowner’s attorney,” he added.
The agreement also missed a chance for the county to acquire another public beach access, Yukimura said.
“It grieves me that we missed a huge opportunity to settle this issue that has been identified as a priority by the Open Space Commission,” she said.
Residents who testified on the matter called the agreement “shameful.”
“Someone has to be held responsible for this misconduct,” said Ken Taylor of Kapa‘a.
• Nathan Eagle, staff writer, can be reached at 245-3681 (ext. 224) or neagle@kauaipubco.com
