LIHU‘E — The next chapter in a dispute on whether to keep an extra access to Lepe‘uli Beach open began Tuesday before the county Planning Commission with a permit revocation request and last-minute input from two state agencies.
Kaua‘i resident Richard Spacer on April 18 filed a petition asking the commission to revoke Paradise Ranch’s permit to build a fence blocking the lateral access to Lepe‘uli, commonly called Larsen’s Beach.
County Planning Director Michael Dahilig had prepared a report recommending the commission deny Spacer’s request. But a letter to the county Planning Department sent Monday from the state Department of Land and Natural Resources threw a wrench in his plan.
“I request the commission defer any action on my director’s report indefinitely until such time that either myself or the county attorney may advise the commission on the matter,” Dahilig said in a letter to the seven commissioners.
The planning director had prepared an eight-page report and recommendations as an answer to Spacer’s request for the commission to revoke the fence permit that it issued to land lessee and Paradise Ranch owner Bruce Laymon on Sept. 1, 2009.
“Given an evaluation of the petitioner’s allegations, the director recommends to the commission to decline issuing an order to show cause on the ground there is no reasonable cause to believe there is a failure to perform according to the conditions imposed in Special Management Area minor permit,” Dahilig said in the report signed June 20.
But Monday the department received a letter “at the 11th hour” from the DLNR concerning the Lepe‘uli trail, Dahilig said in a letter addressed to the commission.
In the letter, signed by DLNR Chair William Aila and Deputy Attorneys General Donna Kalama and William Wynhoff, the DLNR states that a memorandum dated Sept. 9, 2009 from Na Ala Hele, Hawai‘i trail and access system, does not represent the DLNR’s position as to ownership of trails and roads over registered land, nor the Department of the Attorney General’s analysis of applicable law.
As to the county SMA permit given to Paradise Ranch to build the fence, “DLNR and Na Ala Hele have not approved the current location of the fence as apparently required by the permit.”
The letter apparently lighted the ire of the planning director.
Dahilig called it unfortunate that the state waited until “the last minute” before the commission’s meeting to provide the letter.
“It is frankly disruptive to county business especially in light of previous comments provided by DLNR that the county has relied upon, and their desire to flip-flop on comments they provide to our department,” Dahilig said in the letter.
Dahilig said he had concerns over the reliability of any correspondence from DLNR, and the county would be consulting with its attorneys about appropriate measures to protect its interests and reliance on correspondence from DLNR.
Dahilig said that, in light of the statements made by Aila and the deputy attorney general, he was requesting the commission to defer any action on his report.
Property rights versus permit violation
Several stakeholders attended Tuesday’s commission meeting at the Mo‘ikeha Building in Lihu‘e.
Steve Frailey, who lives near Lepe‘uli, displayed several aerial pictures that he said show the lateral trail did not exist prior to 1987, and therefore cannot be the Ala Loa.
Moloa‘a farmer Hope Kallai contested Frailey’s pictures, saying there are maps dating far before 1987 that show the lateral trail.
Testimony from about a dozen speakers straddled both sides of the fence.
On one side Laymon and others supporting Paradise Ranch said it was a matter of private property rights, and that a safe access has been secured by the county.
Those who opposed the fence see it as a violation of the county permit, for not complying with condition number six on the permit, which has been the gripping point for their opposition and the pivot of DLNR’s letter Monday.
Others testified that a fence should be installed because without it cattle will make their way down the beach, walk on the reef and defecate everywhere.
History
The lateral access is claimed by some residents to be part of the Ala Loa, an ancient Hawaiian coastal trail believed to have once connected the entire island.
Laymon originally planned to build the fence on state conservation land, which would have blocked the lateral access to Lepe‘uli. But in January, after months of legal battles and a threat of a contested case over a state permit, landowner Waioli Corporation withdrew the permit request.
While fence opponents were still doing their victory lap, Paradise Ranch announced it would still erect a fence, but outside the conservation lands, thereby skirting the need for a state permit.
What opponents of the fence didn’t know is that even outside the conservation district, the
fence would still block the lateral trail.
Licensed professional surveyor Alan Hiranaka on Jan. 19 placed the conservation district just shy of the oceanside edge of the lateral trail.
On May 21 Laymon and a crew built a fence that effectively blocked beachgoers from using the lateral trail to access Lepe‘uli, while apparently still complying with state and county law.
Attorney Don Wilson on Tuesday said Paradise Ranch does not need a state permit because the fence was built outside the conservation lands.
There’s a county easement on the south end of the beach, but some residents say it is more difficult and dangerous, plus the lateral access is a historic trail which should be open to everyone.
Other residents, including former County Council Chair Kaipo Asing, have said the county easement is safe and accessible.
Go to www.kauai.gov for more information.
• Léo Azambuja, staff writer, can be reached at 245-3681 (ext. 252) or lazambuja@ thegardenisland.com.
