Trial Court Agrees with State on Stopping Unauthorized Erosion Control Measures on the North Shore of Oahu

This case serves as a cautionary tale for littoral landowners in Hawai‘i. It underscores the importance of understanding shoreline boundaries, obtaining proper permits for erosion control, and respecting the public trust doctrine.  

On September 24, 2024, the State of Hawai‘i filed a complaint against Joshua VanEmmerik, the owner of two residential properties in Haleiwa, for alleged unauthorized erosion control measures that have caused significant debris to fall onto State-owned beach lands and into the ocean. On September 26, 2024, the court granted a Temporary Restraining Order (TRO) to prevent further harm to the environment and public resources.

Here are key takeaways for littoral landowners from this case:

1. Understand Shoreline Boundaries

The State of Hawai‘i owns all land seaward of the “upper reaches of the wash of the waves.” As confirmed in County of Hawai‘i v. Sotomura (1973), this boundary typically aligns with vegetation lines or debris marks left by waves. Littoral landowners must be aware that any construction or erosion control measures that extend seaward of this boundary encroach on State land within Hawaii's Conservation Districts.

2. Unauthorized Erosion Control Measures Can Lead to Legal Action

In this case, VanEmmerik installed erosion control measures, such as geotextile tubes and other solid materials, without obtaining the required permits from the Department of Land and Natural Resources (DLNR). The court found that these unauthorized actions violated the State’s regulations for conservation districts and posed immediate environmental hazards.

Littoral landowners should be aware that all land use activities within Hawaii's Conservation Districts, including erosion control measures, are regulated under Hawai‘i Revised Statutes (HRS) § 183C. Unauthorized actions can lead to enforcement actions, fines, and the need for costly removal of the materials.

3. Permitting Is Critical for Shoreline Management

The State regulates land uses within the Conservation District through a strict permitting process implemented by DLNR's Office of Conservation and Coastal Lands. As highlighted in this case, the owner had requested emergency permits to install erosion control devices but was denied due to prior violations. Littoral landowners must ensure compliance with permit requirements for any activities that may affect coastal lands and submerged lands. Failure to obtain proper permits may result in legal consequences and prevent future emergency approvals.

4. Public Trust Doctrine and Environmental Protection

Hawai‘i’s public trust doctrine ensures that shoreline areas, including beaches and submerged lands, remain open for public use and are protected from environmental harm. In this case, the debris from VanEmmerik’s property blocked public lateral access along the shoreline and created hazards for beachgoers and marine life. Littoral landowners should recognize that their property rights end where the public’s rights begin, and they are obligated to ensure their actions do not infringe on public trust resources.

5. Proactive Compliance Can Prevent Greater Liability

Proactively addressing shoreline erosion in a manner that complies with State regulations can prevent significant legal liability. In this case, the State is seeking declaratory relief, injunctive relief, and damages to restore the impacted shoreline. For landowners, this serves as a reminder that acting prudently to manage erosion and comply with legal requirements is essential to avoiding costly litigation and damage to natural resources.

Hawaii Appeals Court Sets Boundary on the Applicability of State EIS Law

The trend in Hawaii's appellate courts has been to expand the scope and applicability of Hawaii's environmental laws.  The courts have rarely deferred to agency expertise and discretion.

In Umberger v. Department of Land and Natural Resources ("DLNR"), the Hawaii Intermediate Court of Appeals defined the outer-limits of Hawaii's environmental impact statement law, commonly referred to as the Hawaii Environmental Policy Act ("HEPA").

Yellow Tangs, A Commonly Harvested Aquarium Fish

The case involved aquarium fish permits that allow permittees to collect fish for aquarium purposes from Hawaii's waters.  The Court defined the question before it as follows:

[W]hether a particular Hawaii statute, HEPA, is intended to apply so that each applicant for an aquarium fish permit must, at a minimum, prepare an EA [environmental assessment]—as well as engage in the related process of consultation, information gathering, and public review and comment—and DLNR must, with each application, undertake a HEPA review prior to issuing an aquarium fish permit.

The Court disagreed, and held as follows:

We conclude that to interpret "program or project" so sweepingly as to require individual aquarium fish permit applicants to undertake the EA process is not a "rational, sensible and practicable interpretation" of HEPA and would create an unreasonable, impractical, and absurd result. Accordingly, we hold that aquarium collection under an aquarium fish permit issued by DLNR pursuant to HRS § 188-31 is not an "applicant action" under HEPA.

Citations omitted.

Although not essential to its decision, the Court provided a rare statement of agency deference when it stated that, "There is no question that the DLNR shares Appellants' concerns about the health of Hawaii's reefs and its marine inhabitants and seeks to appropriately manage and administer the aquatic life and aquatic resources of the State in accordance with all applicable laws."  The U.S. Supreme Court recognized that judicial deference to agency expertise is one of the most important principals in administrative law, due in part to an agency's intense familiarity with the history and purposes of the legislation at issue and their practical knowledge of what will best effectuate those purposes.

Read the entire opinion at https://scholar.google.com/scholar_case?case=9667698222799409226.

Land Use Cases to Watch: Hawaii Supreme Court

Kilakila `O Haleakala v. Board of Land and Natural Resources, was heard by the Hawaii Supreme Court on Thursday, April 2, 2015.  This appeal arises from BLNR’s granting of a conservation district use permit (“CDUP”) to the University of Hawaii (“UH”) on December 1, 2010.  The CDUP allows the construction of the Advanced Technology Solar Telescope (“ATST”) project atop the summit of Haleakala on Maui. 

Kilakila `O Haleakala and others challenge the CDUP on several grounds.  In response, UH and BLNR argue that its findings (1) were not "clearly erroneous" (the standard of judicial review), and (2) complied with the CDUP criteria the board must consider.  UH and BLNR ask the court to affirm the ICA and circuit court’s decisions upholding the CDUP.

Questions from the court primarily related to (1) connection between impacts and proposed mitigation to address those impacts, (2) potential impact of political pressure on due process, and (3) measuring cumulative impacts.

Surfrider Foundation v. Zoning Board of Appeals, City & County of Honolulu, was heard by the Hawaii Supreme Court on Thursday, February 19, 2015.  This appeal arises from the City’s granting of a zoning variance from Revised Ordinances of Honolulu (“ROH”) § 21-9.80-4(g)(2), in 2010. 

ROH § 21-9.80-4(g)(2), provides  that “no structure shall be permitted” within 100 feet of the certified shoreline and that “[b]eyond the 100-foot line there shall be a building height setback of 1:1 (45 degrees) measured from the certified shoreline.”  The City variance allows the structure to be taller and closer to the certified shoreline based on its assessment of variance factors under the City Charter.

Sierra Club v. Castle and Cooke Homes Hawaii, will be heard by the Hawaii Supreme Court on Thursday, May 21, 2015.  This appeal arises from the State Land Use Commission’s (“LUC”) granting of a land use district boundary amendment to Castle and Cooke that would allow the Koa Ridge Makai and Waiawa commercial/residential developments.  Sierra Club argues that the reclassification violated Article XI, Section 3 of the Hawaii State Constitution, which provides that the “State shall conserve and protect agricultural lands,” and that “[t]he legislature shall provide standards and criteria,” to implement this provision.  They also argue that the Commission violated Hawaii Revised Statutes §§ 205-41 through -52, which implements said constitutional provision.

Is the Federal Government's Ambitious Proposal to Expand the Whale Sanctuary the Right Answer?

There are many iconic images of Hawaii, and near the top of that list is the endangered Humpback whale breaching in Hawaii's waters during its seasonal migration.

Source: Pacific Whale Foundation

The Hawaiian Islands Humpback Whale National Marine Sanctuary, was created by Congress in 1992, and approved by Hawaii's governor.  The purpose of the Sanctuary is to protect humpback whales in Hawaii.  It is administered by the National Oceanic and Atmospheric Administration (NOAA), under the U.S. Department of Commerce.  The Sanctuary currently encompasses 1,400 square miles, including the channel between the populated islands of Maui, Lanai, and Molokai.

The current Sanctuary model seems to be working. NOAA research finds that “Humpbacks are increasing in abundance in much of their range.”  Even with its success, the Sanctuary remains relevant.  As the population of whales increases, human-whale interactions increase.

NOAA is proposing an expansion of the Sanctuary. The proposal includes expanding the federal government’s regulatory oversight of uses and activities (e.g., fishing, energy, recreation, commerce, etc.) within the expanded Sanctuary boundaries. The proposal departs from the Sanctuary’s purpose of protecting humpback whales that seasonally migrate to Hawaii and expands to regulating all species and habitat within its boundaries.

This additional regulatory oversight would add to existing federal regulatory requirements such as the Marine Mammal Protection Act, Migratory Bird Treaty Act, Endangered Species Act, Magnuson–Stevens Fishery Conservation and Management Act, Clean Water Act, and Coastal Zone Management Act, just to name a few. The proposed expansion also contemplates including state waters, which are currently managed under existing local and state regulations administered by state agencies such as the Department of Land and Natural Resources, Office of Planning, and Department of Health.

Source: Hawaii Humpback Whale Sanctuary

Depending on the kind of activity proposed in Hawaii’s waters, additional regulation by the Bureau of Ocean Energy Management (BOEM) and the Federal Energy Regulatory Commission (FERC) might also come into play. Most all of these existing regulations require an environmental assessment, and in most cases, an environmental impact statement under the National Environmental Policy Act (NEPA) and the Hawaii Environmental Policy Act (HEPA).

On January 18, 2011, President Obama released Executive Order 13563, Improving Regulation and Regulatory Review.  The “general principles” of the regulation sums up the policy best,

Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation. It must be based on the best available science. It must allow for public participation and an open exchange of ideas. It must promote predictability and reduce uncertainty. It must identify and use the best, most innovative, and least burdensome tools for achieving regulatory ends. It must take into account benefits and costs, both quantitative and qualitative. It must ensure that regulations are accessible, consistent, written in plain language, and easy to understand. It must measure, and seek to improve, the actual results of regulatory requirements.

Is the Sanctuary proposal consistent with the President’s executive order?  Some might argue that adding another layer of federal regulations over proposed ocean uses in Hawaii waters does not promote “economic growth, innovation, competitiveness, and job creation.”

Given the Sanctuary’s success and existing state and federal environmental regulations, does the Sanctuary’s expansive proposal apply the “least burdensome tools for achieving regulatory ends”?  Section 4 of the President’s Executive Order, entitled “Flexible Approaches,” provides:

Where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, each agency shall identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. These approaches include warnings, appropriate default rules, and disclosure requirements as well as provision of information to the public in a form that is clear and intelligible.

Besides the expanded jurisdiction and regulatory authority proposed, are there other "regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public"?

The Sanctuary’s proposal is in the last stages of the federal approval process. NOAA is accepting comments on its proposal. The deadline for public comments is June 19, 2015. Several public hearings will be scheduled in Hawaii starting on April 27, 2015. The full schedule is available at  http://www.regulations.gov/index.jsp#!documentDetail;D=NOAA-NOS-2015-0028-0002.

Ultimately, any expansion into state waters must be approved by the governor.

Columbia Law School Holds Island Nations Climate Change Conference

On May 23, 2011, the Columbia Law School Center for Climate Change Law held a conference entitled, "Threatened Island Nations: Legal Implications of a Changing Climate."

Topics discussed included: statehood and statelessness, resettlement and migration, international and diplomatic options, legal remedies, and adaptation and domestic options.  Papers, research, and other information from the conference can be found at www.law.columbia.edu/centers/climatechange/resources/threatened-island-nations.

The entire conference was recorded and is online at www.law.columbia.edu/centers/climatechange/resources/threatened-island-nations/livestream.

National Ocean Council Holds Public Listening Sessions in Hawaii

The National Ocean Council will hold a public listening session in the Pacific Islands Region on June 16, 2011, to solicit input to develop the strategic action plans that will implement the National Ocean Policy.

The event will be held at the Neal Blaisdell Center in Honolulu from 1:00 - 4:00 pm. Hawaii Satellite locations will be held at the locations below.

• Maui Community College (Ka’a’ike 103), 310 Ka'ahumanu Ave, Kahului, HI 96732-1617, June 16, 1:00-4:00 pm
• Kauai Community College (LRC 121), 3-1901 Kaumuali´i Highway, Lihue, HI 96766, June 16, 1:00-4:00 pm
• UH-Hilo (LRC 344), 200 W. Kawili St., Hilo, HI 96720-4091, June 16, 1:00-4:00 pm

The public is encouraged to attend and provide comments at all locations.

National Coastal and Marine Spatial Planning Workshop

Last year, I wrote about the Final Recommendations of the Interagency Ocean Policy Task Force that President Obama adopted by Executive Order on July 19, 2010.

The Final Recommendations included the creation of a Policy Coordination Framework and Implementation Strategy.  Under the Framework, the United States is subdivided into nine regional planning areas.  Hawaii is part of the Pacific Islands Region, which includes Guam, the Commonwealth of the Northern Mariana
Islands, and American Samoa.  The Implementation Strategy identifies priority objectives that our Nation will pursue to address pressing challenges facing the ocean, our coasts, and the Great Lakes.  One of those nine strategies is Coastal and Marine Spatial Planning (CMSP) to implement comprehensive, integrated, ecosystem based coastal and marine spatial planning and management in the United States.  Each regional planning area is tasked with developing a CMSP for its region.

The National Ocean Council (NOC) will hold a National CMSP Workshop in Washington, DC, on June 21-23.  The first day of the Workshop will be a dedicated public and stakeholder session.  This public session will take place on Tuesday, June 21, 2011, from 9:00 am to 5:30 pm, in the Yates Auditorium at the U.S. Department of the Interior, located at 1849 C Street, NW Washington, DC.  For those who cannot attend the session in person or if interest exceeds capacity, it will also be available to the public through a live webcast on June 21, 2011 at www.doi.gov/live.

For more about this initiative, visit the NOC website at www.whitehouse.gov/administration/eop/oceans.

An Informal Poll on Sea Level Rise

According the U.S. Environmental Protection Agency, sea level is rising along most of the U.S. coast, and around the world. In the last century, sea level rose 5 to 6 inches more than the global average along the Mid-Atlantic and Gulf Coasts, because coastal lands there are subsiding.  Land within a few feet above the tides could be inundated by rising sea level.  According to some researchers, sea level may exceed 3 feet above the 1990 level by the end of the 21st century.  How will you respond?

Obama Administration Establishes National Ocean Council

On July 19, 2010, President Obama signed an Executive Order entitled, National Policy for the Stewardship of the Ocean, Coasts, and Great Lakes ("National Policy"). The Order sets forth the first of its kind National Policy and creates a National Ocean Council ("NOC") to strengthen ocean governance and coordination.

The Order is based on final recommendations of the Ocean Policy Task Force ("Final Recommendations"). The Final Recommendations prioritize actions for the NOC to pursue, and it calls for a flexible framework for coastal and marine spatial planning to address conservation, economic activity, user conflict, and sustainable use of the ocean, coasts, and the Great Lakes.

Section 1 of the Order lays out its purpose as follows:

• establish a national policy to ensure the protection, maintenance, and restoration of the health of ocean, coastal, and Great Lakes ecosystems and resources,
• enhance the sustainability of ocean and coastal economies,
• preserve our maritime heritage,
• support sustainable uses and access,
• provide for adaptive management to enhance our understanding of and capacity to respond to climate change and ocean acidification,
• coordinate with our national security and foreign policy interests, and
• provide for the development of coastal and marine spatial plans that build upon and improve existing Federal, State, tribal, local, and regional decisionmaking and planning processes.

Under Section 2 of the Order, ten policy objectives are identified as follows:

1. protect, maintain, and restore the health and biological diversity of ocean, coastal, and Great Lakes ecosystems and resources;
2. improve the resiliency of ocean, coastal, and Great Lakes ecosystems, communities, and economies;
3. bolster the conservation and sustainable uses of land in ways that will improve the health of ocean, coastal, and Great Lakes ecosystems;
4. use the best available science and knowledge to inform decisions affecting the ocean, our coasts, and the Great Lakes, and enhance humanity's capacity to understand, respond, and adapt to a changing global environment;
5. support sustainable, safe, secure, and productive access to, and uses of the ocean, our coasts, and the Great Lakes;
6. respect and preserve our Nation's maritime heritage, including our social, cultural, recreational, and historical values;
7. exercise rights and jurisdiction and perform duties in accordance with applicable international law, including respect for and preservation of navigational rights and freedoms, which are essential for the global economy and international peace and security;
8. increase scientific understanding of ocean, coastal, and Great Lakes ecosystems as part of the global interconnected systems of air, land, ice, and water, including their relationships to humans and their activities;
9. improve our understanding and awareness of changing environmental conditions, trends, and their causes, and of human activities taking place in ocean, coastal, and Great Lakes waters; and
10. foster a public understanding of the value of the ocean, our coasts, and the Great Lakes to build a foundation for improved stewardship.

The Order directs all executive departments, agencies, and offices that are members of the NOC to implement the policies set forth in section 2 of the Order, to participate in the process for coastal and marine spatial planning, and to comply with NOC certified coastal and marine spatial plans.

The NOC plans to hold its first meeting later this summer to begin implementing the National Policy.

SCOTUS Hears Oral Arguments in Florida Shoreline Case

In October, Hawaii Land Use Law previewed Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection, wherein the US Supreme Court will consider placing constitutional limits on Florida’s authority to restore storm-eroded beaches along the ocean or lakeshores, when such action modifies private property boundary lines.  The case was heard today and audio of the oral arguments will be posted on the Oyez website.

This case is similar to Maunalua Beach Ohana v. Hawaii, which was recenlty heard by Hawaii's Intermediate Court of Appeals as discussed in Oral Argument in Shoreline Ownership Case Posted.  In Maunalua, similar to Stop the Beach Renourishment, littoral landowners challenge state laws which take away their common law right to gain land by accretion.  Among other things, both cases are based on regulatory takings for the state's failure to compensate property owners for taking private property through regulation.

For more on shoreline issue, see Shoreline.

Oral Argument in Shoreline Ownership Case Posted

In On Appeal, Hawaii Land Use Law previewed Maunalua Beach Ohana v. Hawaii where a shoreline property owner challenged Act 73 (2003).

Act 73 changed ownership rights of littoral property owners to adjacent, accreted land by providing that (1) owners of oceanfront lands could no longer register or quiet title to accreted lands unless the accretion restored previously eroded land, (2) only the State could register or quiet title to land accreted along the ocean, and (3) accreted lands not otherwise awarded would be "public lands."  The Plaintiff, landowners, filed an inverse condemnation lawsuit challenging the state's regulatory taking of private property without compensation under the 5th Amendment of the U.S. Constitution.

In Hawaii, any property that is below the certified shoreline is public lands.  The certified shoreline is determined by the state, which considers the "upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves."  See HRS § 205A-1, Diamond v. State, Board of Land and Natural Resources, 112 Haw. 161 (2006).  Consequently, as shore area is added to a property through accretion, the shoreline moves toward the ocean creating additional land above the shoreline.  Prior to Act 73, a littoral property owner could claim this land if it could show, among other things, that the adjoining land formed by accretion was permanent.

The circuit court granted Plaintiffs' motion for partial summary judgment on Plaintiffs' claim for injunctive relief to bar enforcement of Act 73 "unless and until the State of Hawai`i acknowledges that it must provide just compensation to the class members and undertakes to do so in conjunction with these proceedings."  The State appealed.  The Intermediate Court of Appeals heard argument on November 10, 2009, which is posted here.  An opinion from the ICA should be published soon.

For more on shoreline issues, see Shoreline.

Hawaii Land Board Approves 247 Acre Tuna Farm off the Big Island Coast

On October 23, 2009, the Hawaii Board of Land and Natural Resources approved Hawaii Oceanic Technology, Inc.'s ("HOT") conservation district use application for an open ocean yellowfin and bigeye tuna fish farm located 3 miles due west of Malae Point, North Kohala, Island of Hawaii.

According to HOT's final environmental impact statement ("EIS"), the project is described as follows:

Hawaii Oceanic Technology proposes to culture yellowfin and bigeye tuna using a closed loop aquaculture process, in which the fingerlings are grown from hatchery spawn of captured broodstock. The company proposes to grow out the tuna to market size in offshore submerged cages, segregated by species, that are self-powered un-tethered 54m diameter “Oceanspheres.” The proposed ocean lease site is a one square kilometer (247-acre) site, 1,320-feet deep, located 2.6 nautical-miles offshore Malae Point, North Kohala. Twelve Oceanspheres will be deployed incrementally over four years, culminating with an annual production capacity of 6,000 tons.

Fingerlings will be grown in land-based tanks at the Pacific Aquaculture and Coastal Resource Center in Hilo and/ or a future Natural Energy Laboratory Hawaii Authority tuna hatchery in Kona from eggs collected from locally-caught broodstock. About seven additional ahi would be caught each year in local waters to freshen the gene pool of the captured broodstock. The 12-inch, 5-pound fingerlings will be transferred by vessel to the Oceanspheres, and grown to 100-pound harvest size using dry fish feed through automated feed dispensers.

The land base for operations and maintenance equipment, vessels, and staff will be Kawaihae Commercial Harbor. Tuna will be harvested at sea for transshipping through Kawaihae or Hilo Harbor to existing processing and packaging vendors for air-freight to US mainland, Japan, and Hawaii markets.

Here is what the Oceanspheres will look like, according to the final EIS:


Various concerns were raised during the draft EIS comment period including impacts on wild fisheries, water quality, disease from farmed fish, and possible entanglement of wildlife. HOT prepared a thorough response to comments section in its final EIS, and will mitigate environmental impacts through a design that does not use anchors or loose nets. It will also develop a Marine Mammal Management Plan, Shark Management Plan, and Endangered Species Management Plan and Emergency Management Plan.

HOT's project is the nation's first tuna farm.

Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, et al.

The US Supreme Court will consider putting constitutional limits on Florida’s authority to restore storm-eroded beaches along the ocean or lakeshores, when such action modifies private property boundary lines in Stop the Beach Renourishment v. Florida (08-1151).

The Court granted certiorari on June 15, 2009, with the following questions presented:

The Florida Supreme Court invoked “nonexistent rules of state substantive law" to reverse 100 years of uniform holdings that littoral rights are constitutionally protected. In doing so, did the Florida Court's decision cause a ''judicial taking" proscribed by the Fifth and Fourteenth Amendments to the United States Constitution?

Is the Florida Supreme Court's approval of a legislative scheme that eliminates constitutional littoral rights and replaces them with statutory rights a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

Is the Florida Supreme Court's approval of a legislative scheme that allows an executive agency to unilaterally modify a private landowner's property boundary without a judicial hearing or the payment of just compensation a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

The opinion issued by the Florida Supreme Court, which is the subject of the appeal, is an excellent primer for littoral property rights, some of which may apply to Hawaii.

Other related documents and pleadings are posted courtesy of SCOTUS Wiki.

Hawaii Wave Project has Positive Impact on Ocean Power Technologies' Bottom Line

London paper, City A.M. reports that Ocean Power Technologies ("OPT") saw full-year revenues increase 89% to $4.8m, though losses increased to $14.7m, compared to a net loss of $9.6m in the prior year. "OPT continued to make good progress during fiscal year 2008, as evidenced by our strong revenue growth mainly due to projects in Hawaii, Spain and Scotland," it said.

Read more about the Hawaii wave energy project at www.oceanpowertechnologies.com/projects.htm.

Waves Making Energy for Maui County

The Renewable Energy Development blog reports that an Australian company plans to develop renewable energy from wave action off the coast of Maui:

A recent announcement has confirmed that Oceanlinx Limited, an Australia-based high-tech company, will provide electricity to Maui Electric Company from Hawaii’s first wave energy project. The project aims to provide up to 2.7 megawatts using 3 Oceanlinx wave energy converters (WECs) that will be located about a kilometre due north of Pauwela Point on the northeast coast of Maui.

. . .

[The project]. . . could be operational by the end of 2009. The cost, to be borne by Oceanlinx and its investors, is estimated at $20 million. Oceanlinx has signed a Memorandum of Understanding with Renewable Hawaii, Inc., an unregulated subsidiary of Hawaiian Electric Company, for possible passive investment in the project.

See the full story tiled Wave Power Maui. Next, since the project is likely to be located in the state conservation district, a Conservation District Use Application (CDUA) Permit and environmental assessemnt will be prepared.

Permitting Fiasco, Maui Style

What happens when the County gives a landowner the go ahead for a proposed project, a neighbor complains, and then the County decides to revoke issued land use approvals after the landowner invests money in the property? The County buys it at up to 30 times the purchase price of course. That's what happened recently concerning two separate Maui properties: one in Lahaina and one at Montana Beach. See Harry Eagar, Condemnation of Maui beach lot given a go, Honolulu Adveriser, July 6, 2007; Harry Eagar, County steeles, pays $1.5 million for shoreline lot, Maui News, July 5, 2007.

Both cases involve special management area (SMA) exemptions granted by the Director of the Maui County Planning Department. The SMA is an area designated by the County as a special management area under the coastal zone management act; therefore, development requires additional permits approved after scrutiny by the Maui Planning Commission. However, in both cases, the Planning Department granted SMA exemptions. Exemptions by the Director are allowed under the statute for certain enumerated projects that do not have a cumulative impact, or a significant environmental or ecological effect on a special management area.

In both cases, after the SMA exemptions were issued and the landowners started building, area residents complained. In answer, the Director decided to revoke the permits. The landowners appealed to the Maui Planning Commission. After years of haggling between the land owners and the County, the County has agreed to pay $1.5 million for the Lahaina property (originally bought for $40,000), and $6 million for 5.6 acres Montana Beach shoreline property. These monies include attorney's fees and costs.

The facts of these cases provided a strong argument for the landowner under the doctrine of equitable estoppel. Equitable estoppel prevents the government from taking away land use entitlements where: (1) the land owner has relied in 'good faith'; (2) the land owner has expended substantial sums; (3) assurances where made by officials; and (4) the landowner relied on such assurances. In both cases, the county granted permits based on county information that its zoning and community plan allowed for the proposed uses, monies were spent on developing the properties, permits were issued, and the landowner's relied on those permits by starting construction.

Having satisfied the elements of equitable estoppel, the landowner's remedy usually is monetary damages. Here, the landowner wins with a settlement, but he never got the home he intended to build, and he suffered a year or more of contested case hearings before the Planning Commission. And the residents lose, because the County's poor decision to revoke permits leads inevitably to a drain on its coffers.