Cover Story

Image: Illustrations by Deitrich varez


Cover image for Dec 2, 2009

When the Hawaii Supreme Court ruled three years ago that the public shoreline extends to the seasonally highest wash of the waves, many saw it as a sign that wealthy coastal landowners would no longer be allowed to extend their yards onto the beach.

They were wrong. Despite the ruling, beachfront property owners across the state continue to install fences and landscaping that encroach onto the public part of the coastline. In some areas, the practice is contributing to beach erosion and impeding access both to and along the shore.

State officials say that while they investigate complaints, which come in frequently from Kailua, Kahala, Kauai and Maui, there’s often little they can do. “It’s not the easiest thing to enforce on,” said Sam Lemmo, administrator of the state’s Office of Conservation and Coastal Lands.

Caren Diamond, the North shore Kauai resident who brought the landmark Diamond v. State of Hawaii lawsuit against the state, has been monitoring the situation for more than a decade along the picturesque coast that runs between Wainiha and Haena. It’s a landscape that has been featured on countless tourism brochures and postcards, and in recent years it has become a haven for the wealthy. Some live there. Others purchase lots through investment consortiums and build palatial oceanfront mini-resorts that are shared by members and rented to vacationers at rates topping $3,500 per night.

On a recent visit to the area, Diamond recounted the history of the Wainiha subdivision, which includes the oceanfront house that California businessman Joe Brescia is building atop some 30 ancient Hawaiian burials at Naue. Most of the houses here are either new, under construction or recently remodeled in a grand style that bears little resemblance to their original modest incarnations.

Almost all of the houses had well-tended lawns fronting the beach. Nearly always, the lawns were bordered on two or three sides by dense, wide stands of cultivated naupaka, heliotrope trees and plants such as spider lily, that don’t naturally grow along the shore. In some places, the lush foliage had covered the dunes and was spilling onto the beach. In other spots, it was crowding into designated public accessways.

“That’s what made Hawaii famous, our broad, white sandy beaches,” she said. “Now our beaches are like Green Acres.”

Diamond doesn’t like the trend because it’s often happening at public expense, narrowing beaches along a coastline that is already eroding at the rate of one foot per year.

“How do we ever get this back?” she asked, gesturing at a 20-foot-wide strip of beach that had been co-opted through plantings into the well-tended grounds of a 7,000-square-foot house.

Lemmo doesn’t like it, either.

“I think it’s a big problem,” he said. “It really bothers me when I go to the beach and there’s a huge mansion sitting behind a fence with a sprinkler splashing over the fence and watering a big naupaka hedge that’s choking off the beach. That really bothers me.”

Both Diamond and Lemmo said that vegetative encroachment is typically done deliberately.

“They come here, they want their privacy and they don’t care about how we value our beaches,” Lemmo said. “Most of them know exactly what they’re doing.”

Diamond agreed. “It’s a new behavior, one based on greed.”

At the crux of the matter is the definition of shoreline–that nebulous point where public ends and private begins. It becomes an issue when a coastal landowner wants to build, because typically a structure must be set back a certain distance from the beach. The landowner pays for a shoreline survey, which is then certified by the state Department of Land and Natural Resources (DLNR).

In the past, the state tended to set the shoreline at the vegetation line, even if it had been artificially created by landowners seeking to expand their lots so they could build closer to the sea. Upon prodding from environmentalists, the DLNR changed its rules a few years back so that it no longer relied exclusively on the vegetation line.

Diamond v. State of Hawaii reinforced that shift by making it clear that the public beach extends to the seasonally highest wash of the waves. This is generally determined by the ocean debris line, which in heavily planted areas like Wainiha subdivision is often a good deal farther mauka than the vegetation line.

Kauai attorney Harold Bronstein, who successfully argued the case, noted after the ruling that the court had once again affirmed the Legislature’s intent that as much beach as possible should be available for public use. The question, he said then, is “will administrators follow the public policy? It’s been obvious there’s been resistance.”

Despite the court’s clear ruling, the resistance continues. The state is still failing to consistently certify shorelines based on the highest wash of the waves and protect the public beach from encroachment.

Chip Fletcher, a professor with the University of Hawaii Department of Geology and Geophysics said he likes to remind people that the state and counties have “made huge strides” in dealing with shoreline encroachment issues, although he also acknowledged that “there’s a legitimate impatience on the part of the public in regard to this.”

Diamond is plenty impatient. “Year after year, people keep planting and things keep growing and no one is there to enforce, to say, ‘get your vegetation off the public beach,’” Diamond said. “DLNR should’ve put out a letter to let people know it’s not OK to vegetate the beach, it’s not OK to irrigate it.”

Diamond also objects to the state’s adoption of the “single year snapshot” approach to certifying shorelines, which does not take historical data–including DLNR’s own records–into account. As a result, she said, some shorelines have been set too far seaward because the certification is done in times when the surf is uncharacteristically low. She’s also seen landowners work the system, withdrawing applications when the state recommends certifications that are farther mauka than they would prefer. Owners then establish thick stands of vegetation to block waves, thus preventing the “observation of the true evidence of the debris line created by the upper wash of the waves,” according to documents filed in an appeal of one shoreline certification.

As a result, the state often recommends certifying the shoreline farther makai than it had previously, and wide stretches of beach are lost to the public, Diamond said. “People are sensitive not to walk on plants,” she said, and landowners frequently post “no trespassing” signs on the landscaped areas that lie between their property lines and the certified shorelines.

Other problems arise when landowners treat the certification line, which is valid for just one year, as a defacto permanent property line. The County of Kauai exacerbates the situation by allowing some owners to landscape right up to the certified shoreline, Diamond said.

An example of this is the Brescia property, where the shoreline expired in January 2008. Yet a fence and no trespassing sign still remain along the certification line, and the county recently approved a landscaping plan that allows plantings up to that point. This past year, Diamond said, the waves washed into the fenced area, which encompasses a large, triangular-shaped swatch of sand. “So how does the public reclaim that section of beach?” she asked. “The county treats the shoreline like a permanent boundary. People want to build too close to the shoreline, and then they ask for vegetative seawalls to protect them. Once you have a seawall, the public shoreline stops. That’s one way they privatize our beaches.”

In a recent public hearing on a development permit for a new home in the Wainiha subdivision, Kauai attorney Walton Hong, representing a landowner, said that anyone who removed vegetative encroachment from the public beach would be held liable if his client’s home was damaged by waves as a result.

When asked if the public could legitimately walk on or remove vegetation and fencing that extends onto the beach beyond the obvious high wash of the waves, Lemmo demurred. But he did say: “If something looks questionable to somebody, we will investigate it. There’s a perception out there that we’re not doing our job. That’s fine, but basically, my hands are tied.”

Even when the evidence of encroachment is strong, it can take years to correct the violation, Lemmo said, offering as an example the investigation that just concluded into a fence that intruded on the public beach at Haena.

“This is like three years later, on a crummy fence,” he said. “It’s very, very difficult to get these things finished. It’s a very frustrating area, and unfortunately, we’re at a disadvantage. Sprinklers are a very clear evidence of encroachment. Vegetation is a little more sketchy. It’s very hard to prove it didn’t get there by itself. I have to think about what we can successfully argue against a lawyer in a three-piece suit.”

Lemmo said he did push through an administrative rule change that prohibits landowners from securing a shoreline certification “when an unauthorized land use is being committed,” such as an unlawful structure or encroachments onto the beach.

Diamond said that Kauai planners have found a way around this rule by unilaterally waiving the shoreline certification requirement on some projects, and so the encroachment remains.

Lemmo said a new law is needed, similar to the ordinance that allows the City and County of Honolulu to cite property owners who allow their vegetation to encroach onto public sidewalks and remove the offending plants and charge owners for the expense.

“Last year, we talked about taking that same approach with the shoreline process, but it didn’t get any traction in the Legislature,” he said. “Other than that, we can manage stuff on a case by case basis, but it’s not going to be very effective because a lot of it is very hard to prove.”

Robert Harris, director of the of the Sierra Club, Hawaii Chapter, agreed that a new law–which he says a consortium of environmental groups, lawmakers and DLNR staff are working to craft for the next legislative session–would be useful: “It’s just smart, logical solution to a problem that impacts everyone.”