Ha’ena home setback is point of contention

The Kaua’i County Planning Commission Tuesday heard opposing and supporting testimony on a proposal by a property owner to reduce the shoreline setback to develop a multi-million dollar beachfront home by the YMCA Camp Naue.

On one side of the issue, property owner Joseph Brescia contends he has the legal right to build parts of his home within 31 feet of the shoreline.

On the other side, county officials and critics, including the North Shore ‘Ohana, contend the proposal, if approved, could thwart efforts to preserve the rural flavor of the area.

About a dozen people had intended to testify at the meeting held at the Lihu’e Civic Center on Tuesday.

The hearing was anticipated to remain open after the commission granted intervenor status to the North Shore ‘Ohana, Kaua’i attorney Harold Bronstein and Caren Diamond.

Before the commission granted intervenor status, the parties agreed to be represented by a single representative.

In the late 1970s, the North Shore ‘Ohana first obtained intervenor status when it challenged a higher density for the subdivision in which Brescia’s property is located.

Because the organization was a party to that action, the group continues to have intervenor status and no action was required by the commission, said Barbara Robeson, a group member and a one-time member of the Kaua’i Planning Commission.

A hearing dealing with the intervention by the group is to be scheduled by the Kaua’i County Planning Department.

Brescia is seeking an amendment of a Special Management Area Use permit for his 18,106 square-foot lot, which is part of the 5.5-acre Wainiha Subdivision II. Approval of the amendment would mean a 45-to-75-foot setback would not apply to his property. Brescia also is seeking a use permit for the same project.

He reportedly bought the property for more than $3 million, and it is one of two he owns in the subdivision.

Brescia wants to construct 3,600-square-foot single-story home consisting of four bedrooms and 3 1/2 baths.

Kaua’i attorney Walton Hong, representing Brescia, said his client has the right to build parts of his home 31 feet from the shoreline because a subdivision map approved by the county planning commission doesn’t show a setback line or a protective open zone ranging between 45 to 75 feet.

Anyone like Brescia who wanted to buy a lot in the subdivision would have discovered a restriction prohibiting development within the open zone, Hong said.

However, the same buyer would have discovered the official map had no setbacks, leaving open the question of their size, Hong said.

Yet, the county planning department contends the original SMA permit conditions for the subdivision called for an open zone setback of 45 to 75 feet.

In explaining why he felt the county’s interpretation was flawed, Hong said that from 1985 to 2001, it was commonly understood the setback for the subdivision was 20 feet, with a setback for the subdivision previously set at 45-75 feet, Hong said.

A real estate agent representing Brescia was told by county planning employees, but was not given written documentation, that the setback was 20 feet, Hong said.

While the real estate agent didn’t get confirmation of the 20-foot setback in writing from the county, another property owner did for his project, Hong said.

That confirmation should show that his client has the same right to build within 20 feet of the shoreline, Hong contended.

The confusion, Hong contends, may be tied to maps previously applied to the subdivision.

The developer of the subdivision, Dr. Alex Ferreira, proposed a 22-lot and a 19-lot subdivision with setbacks of 35 to 75 feet. However, both proposals were rejected by the county, Hong said.

But somewhere along the way, the commission concluded the setback lines proposed in those two plans were valid, Hong said.

The law, Hong said, requires that all setbacks be put on final subdivision maps, and the state Land Court requires that setback lines be shown by “metes and bounds.”

“It is our contention that the approval of the final subdivision map, without the setbacks…was not according to law,” Hong wrote in a letter to the commission.

So the setback line of up to 75 feet that applied to the project developed before Brescia’s is not applicable, Hong said.

Hong also said a state law allows his client to build closer to the shoreline than the county would like.

The state law is embodied in the county’s rules on setbacks and says that a 40-foot setback exists for shoreline areas on Kaua’i, Hong said.

But a 20-foot setback would kick in if the buildable area on a property is less than 50 percent after a 40-foot setback, Hong said.

The county maintains the lot is about 18,000 square feet, but Hong says his client’s property is actually 16,968 square feet.

With a 40-foot setback and a minimum of 10-foot setbacks on the sides of the building, the remaining buildable area would be 6,929 feet, representing only 40.8 percent of the lot size, Hong said.

Hong also said his client could build up to 20 feet of the shoreline, but chose instead a 31-foot setback because Brescia doesn’t; want to obstruct the use of the beach by the public.

“This is reasonable ground for him to build it as it,” Hong said. The larger setback, the triangular shape of the lot and the one-story height limitation for the subdivision would deprive the owner of “a reasonable use of the lot,” Hong said in his letter to the commission.

But opposition came from Linda Goodman, who, with her husband, owns a property next to Brescia’s proposed home. Goodman said she knew what was she getting into when she bought her property from another landowner, movie actor Sylvester Stallone.

“I knew I had to build a home that would fit the building envelop,” she said. “I knew what my setbacks were.”

She said they were clearly stated in the covenants for the subdivision, although Steven Moody, a real estate agent involved in the matter, said later that is not the case.

Goodman also said granting the variance would “punish those property owners who have followed the rules and the law, and would reward those who want to change the rules in their best interest.”

As an intervenor, Bronstein said he and Diamond are appealing the shoreline certification for Brescia’s property and that Brescia’s request is not consistent with previous planning commission action on a setback for another home in the subdivision.

Robeson, meanwhile, said the North Shore ‘Ohana in the late 1970s appealed a county planning commission decision on the subdivision and took the matter to court.

In the early 1980s, the Hawai’i Supreme court overturned the commission’s decision and referred the matter back to the commission for an alternate decision, which allowed for a 15-lot subdivision.

Staff writer Lester Chang can be reached at 245-3681 (ext. 225) and mailto:lchang@pulitzer.net

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