Cover Story

4800 block of Kāhala Road, above, after naupaka removal and before, far right.
Image: lucinda pyles

Oceanfront property owners use vegetation--and deception--to thwart rightful public access

Fisherman Lance Laney believed he was in the right, so stood his ground when three Kauai cops told him to leave, although by that time they really couldn’t make him, because he was standing on a public beach. But to get there, he had walked across a vacant blufftop parcel where billionaire Pierre Omidyar wants to develop an ultra-luxury “eco-resort” and 34 house lots overlooking Hanalei Bay.

It was not the first time Laney had used that route to reach a shoreline fishing spot, and he was certain it was a legal easement. So he kept on walking that day in early June when a security guard told him the pathway was private land. The guard called the cops, who threatened to arrest Laney for trespassing. Tempers cooled when one of the officers finally placed him: Laney, a longtime Hanalei contractor, is married to Public Utilities Commission Chair Hermina Morita, who championed access and shoreline protection issues during her tenure as a state representative.

Laney says the cops informed him they’d been advised the easement was closed. “I told them, if you’re right, I won’t return,” he recalls. “But if you’re wrong, I’m going to keep coming back.”

Calling their bluff

Although he was new to searching public records, Laney tracked down county maps that showed a public easement across the land, and consulted an attorney. He made copies of the documents to carry with him, in case he is challenged again.

“It’s just one piece of property after another that the developers buy up and close,” Laney says. “I’ve been here all my life. I’ve been watching this happen and I’ve never said a word, because I’ve been too busy with my business. But I did my homework on this one, and I’m going to exercise my right to use it.”

By phone and email with this reporter, Michelle Swartman, the landowner’s Kauai representative, claimed “the property has always been accessible” during the 18 months she’s been involved with the project. She said the police were called on Laney because “we have not closed the loop with our security.” Swartman said she was trying to determine who left the citation on Laney’s car, noting, “We don’t have any parking policy. We have no rules.” She later said the landowner’s policy allows parking along the road outside of the gate.

The community-based Hanalei Bay Coalition, however, maintains that the access had been blocked since Ohana Hanalei, an affiliate of Omidyar-owned Montage Resorts, bought the land five years ago.

The runaround

Conflict over beach access seems as perpetual, in Hawaii, as the murmur of surf on sand, but it rarely erupts into open defiance. More often, the wrangling goes on in neighborhood meetings, planning department conclaves, legislative chambers and courtrooms. It’s a slow, cumbersome process, and one that isn’t particularly user-friendly for the public. “Everyone gives you the runaround, ” says Rich Figel, a Kailua beach access advocate, “and part of it stems from split jurisdiction.” The state, he explains, oversees the seaward side of the shoreline up to the highest seasonal wash of the waves, while counties have authority above that line. Figel says he’d like to see the establishment of a centralized Coastal Commission to manage shorelines across the state.

Also discouraging, Figel adds, is the government’s piecemeal approach to addressing some of the root causes of blocked access: landscaping encroachment, building too close to the water and a proliferation of vacation rentals, which have driven up property values and changed neighborhood dynamics.

“Definitely, that political will has been lacking, mainly because there are so many other overwhelming issues,” Morita concurs. “We’ve lost so much already. “

Blocked & locked

Shoreline access has been blocked at Lanikai by seawalls erected to protect large homes built dangerously close to an eroding shoreline, and conservationists fear a similar scenario if Kyo-ya’s new Surfrider tower is allowed to proceed as planned at Waikiki. Tensions have also flared at Portlock, Diamond Head and Kahala as locked gates are installed at access ways that are privately owned, but were previously left open to the public. Figel watched that happen along Kalaheo Avenue in Kailua, where 19 of the 20 beach lanes now sport gates or “no trespassing” signs.

While such closures may be technically legal, they breed ill will and have “turned neighbor against neighbor,” Figel points out. And some of the oceanfront properties don’t feel much like “neighbors” anymore because they’re owned by off-islanders, and rented out to vacationers–including President Obama. “You have people who live right across the street from the beach, but they have to drive to the public access,” he says. “Instead, a person who doesn’t even live here has a private access.”

No-pass naupaka

On the north shore of Kaua’i, Caren Diamond has witnessed a similar shift as large, expensive homes, many of them vacation rentals, have been developed along the coastline between Wainiha and Haena. She saw one gardener after another plant naupaka, spider lilies and heliotrope trees directly on the beach. As the vegetation grows in, “it creates a thick, impenetrable maze,” Diamond says. “It looks like you’re on private property. You can’t even see the beach anymore, much less use it. Our public trust was sold or given away.”

Lucinda Pyles, who has lived in Kahala for 40 years, tells a comparable story. In the past, she says, oceanfront owners typically had just a lawn, maybe a few coconut trees, because they enjoyed the openness, and knew their neighbors. But as land prices rose, the houses increasingly came to be owned by non-residents, who fortressed themselves behind a dense tangle of naupaka. “The beach slopes down, so if you plant naupaka on it, you can see over it, but it prevents people from coming up to your yard. It keeps people away.”

At Kahala, as at Wainiha, it became difficult to use the beach during high tide as the greenery grew ever seaward. Walkers were forced to wade into thigh-high water in some places. Pyles looked at some old family photos and was shocked to realize that vegetation had grown 20 to 30 feet makai of property lines. Though landowners may have initially installed the plants on their own property, she says, they encouraged the sprawl through cultivation. “We’ve watched people put irrigation lines on the beach.”

Breaking the beach

If unchecked, the plantings have an even more insidious effect than the effective privatization of a public resource–they promote its disappearance. . “Excessive vegetation on a beach can lock up sand just like a seawall, [causing] vertical scarps (small cliffs) to develop, preventing public access and negatively impacting natural beach processes,” Chip Fletcher, professor of geology at University of Hawaii-Manoa, wrote in an email. Severe sloping contributes to erosion. Vegetation extending below the high-tide mark inhibits the formation of dunes that protect beaches, especially on windy coasts. “The beach depends on sand moving, and once you lock it up, you spell disaster, says Diamond, who has seen North Shore Kaua’i’s already narrow beaches shrink even more, and grow steeper, due to the plantings. As a result, she says, it’s virtually impossible to traverse the coastline in some spots, especially during times of high surf.

“That’s where this whole disconnect comes in,” says Diamond, who was plaintiff in Diamond vs. State of Hawaii Board of Land and Natural Resources, a landmark Hawaii Supreme Court decision in 2006 that defined the boundaries of the public beach. “The law allows us access to the highest [seasonal] wash of the waves, but the beach has been artificially landscaped to such a high degree that the public can’t use it.”

On a recent visit to the area, Diamond pointed out one house after another–including residences owned by actor Pierce Brosnan and musician Anthony Kiedis of the Red Hot Chili Peppers–where the plantings extend well onto the public beach. “Once they’ve accomplished this, it’s essentially theirs, so that’s why the DLNR has to get off its butt and do something,” Diamond said.

Legal remedy

Vegetation can really mess up access, and it’s still a huge problem,” acknowledged Sam Lemmo, administrator of the DLNR’s Office of Conservation and Coastal Lands (OCCL). “Our beaches are very narrow, so anything that causes a lateral block creates a significant issue.”

Lemmo’s staff had recently taken a site visit to the same Kauai coastline this writer had walked with Diamond, and now he was preparing to issue letters directing landowners to remove plants that encroach on the public beach.

He was using an enforcement tool that only recently became available, when Act 160 was signed into law in June 2010. Morita introduced the bill after walking the shorelines at Wainiha and Kahala and witnessing the blockage firsthand. “It looked like DLNR didn’t have a quick way of responding,” she says. “An officer would actually have to see someone planting.” The bill provided “a mechanism for enforcement” that had been missing, although “the policy of defining and protecting the shoreline had long been in place,” Pyles says.

Now, landowners can face criminal penalties–minimum fines of $1,000 for a second conviction, and $2,000 for a third–if they fail to cut back vegetation after receiving a notice from the state. Lemmo says people are generally complying, and Pyles agrees. In 2007, only two of 12 Kahala property owners responded to a request to voluntarily trim their beach landscaping, she says, but all of them cleaned up when they faced a fine under the new law.

“I was just wowed at how much more beach there was, and how much better it was for everybody,” she says.

OCCL has used the law quite a bit to spur cleanups at Kahala, Diamond Head and Portlock, Lemmo confirms. “We went to the hot spots. We don’t have the manpower to do massive bombardment on this. A lot of it is complaint-driven. I was worried about us getting a plethora of complaints that overwhelmed us, but to this point, it’s been manageable.”

The law is set to sunset in 2013, and both Pyles and Lemmo believe it should be extended. Lemmo says vegetation encroachment is a problem throughout the state, and homeowners aren’t the only culprits. “The resorts are doing the same thing. ”

Some have suggested using volunteers to strengthen OCCL’s reach, but Lemmo says he is leery of this, and not just because of liability concerns. “In theory, it sounds like a neat thing to go and have a beach cleanup,” he says. “In practice, it kind of worries me because it could result in some conflicts. Even though government can be cumbersome, it may be better left to government to deal with a landowner than citizens going out and taking matters into their own hands.”

However, Lemmo notes, “it’s not illegal to trim and prune stuff.”

Which is exactly what Ku’ualoha Ho’omanawanui does when she visits Wainini, where her family has owned land for at least six generations. “I carry large garbage bags, pruning shears, and tabis at all times in my truck, and will bring along a hacksaw for special occasions as needed,” says Ho’omanawanui, who regularly whacks back plants that are encroaching onto the public beach. Ho’omanawanui, an associate professor of Hawaiian Literature at UH-Manoa, was inspired to “start taking proactive steps” by one of her former students, whose dad and a bunch of “uncles” began to actively malama Waimanalo Beach. “If it is ‘public’ access, then why can’t the public, especially those of us with specific, ancestral ties to specific places, help care for it?” she asks.

Pyles says she would like to see landowners take proactive steps. “If the seasonal highest wash of the waves is in your plants, it’s illegal.”

The City of Honolulu also adopted a bill that requires people to maintain vegetation above the high water mark as a condition of their special management area permits.

“Hopefully, people will be educated,” Lemmo says. “It’s going to take years of changing mentality, but at least we’ve got a start.”

And it’s apparently not a moment too soon. Seventy percent of beaches on Kauai, Oahu and Maui are already eroding, Fletcher says. It’s “highly likely,” he says, that the erosion rate will increase with sea level rise due to climate change. “Add inappropriate management, such as excessive vegetation, sea wall building, and dune removal, and you have a potent formula for destroying a beach.”

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Know Your Rights (of Way)

Faced with spreading vegetation, shrinking sands and obfuscated easements, beachgoers need to be informed as to our inalienable rights of passage. Enter an indispensable new book, Oahu Beach Access: A Guide to Oahu’s Beaches Through Public Rights of Way (Mutual Publishing, $9.95) by Katherine Garner and Carol Kettner.

There are 89 public rights of way (who knew?) to the shores of this, our most populous island, which the authors have organized by district and chronological number running from Waikiki eastward around the island. Tables display features of each beach (surfing, fishing, kid-friendliness), and chapters are replete with history, maps and photos, and nearest parking and bus stops.

Between these 89 accesses lie unnumbered, but clearly identified paths, such as the crucial alleyway “sandwiched between the Outrigger Reef Hotel” and the Halekulani from which surfers paddle out to “Three’s.” Detailed directions get you to areas where “the access sign has been removed” or hidden, such as at “Kaikoo” at Black Point or Kahala Ave. at Elepaio St., respectively. In addition to its beach parks, Waimanalo has nine accesses at the end of streets; Kailua, 10. And so on around the island it usefully goes.