The Hawai‘i Supreme Court has ruled in favor of a North Shore group and a shoreline protection advocate in a lawsuit in which a Wainiha landowner sought to build closer to the ocean than allowed by the county. On July
The Hawai‘i Supreme Court has ruled in favor of a North Shore group and a shoreline protection advocate in a lawsuit in which a Wainiha landowner sought to build closer to the ocean than allowed by the county.
On July 12, the Hawai‘i Supreme Court vacated a 5th Circuit Court March 2005 decision that reversed a Kaua‘i Planning Commission decision in September 2003.
In that decision, the commission rejected a request by Wainiha property owner Joseph Brescia to modify a Special Management Area Use permit and to secure a variance to the SMA conditions for his lot within the Wainiha II subdivision.
The commission said it was not going to make exceptions, and denied Brescia’s request.
In its ruling, the Hawai‘i Supreme Court seemed to say a subdivision map gave validity to the open zone and the prohibition of buildings within it.
In an e-mail, Barbara Robeson, a spokeswoman for the North Shore ‘Ohana, one of the plaintiffs in the case against Brescia, also said the court felt the commission’s decision did not deny Brescia’s reasonable use of his land.
The decision will protect ocean views, and with the threat of erosion and possible tsunami, will position any home Brescia builds farther back from the shoreline, provided he seeks no other legal options.
Neither his attorney, Walter Hong, nor Brescia was available for comment yesterday.
During a county Planning Commission meeting set for Tuesday, Kaua‘i attorney Harold Bronstein, Robeson, a onetime Kaua‘i Planning Commission chairwoman, and Caren Diamond, a shoreline protection advocate from the North Shore, plan to formally ask the commission to require Brescia to move any home he builds farther back on his property, in line with the Hawai‘i Supreme Court decision.
That action is necessary because the Planning Commission gave Brescia the green light to go ahead with his plans pending the decision
Planning Commission Chairman Ted Daligdig III, said the court decision marched in step with his own sentiments on the matter.
“I always believed that nothing should be in the open zone area,” he said yesterday. “Open means open.”
Related to the subdivision in which Brescia’s lot is located, the county government established an open zone strip that varied between 40 to 75 feet and was based on the curvature of the coastline.
The open zone strip is privately owned, but was established by government to protect the coastline and ocean views.
In 2002, Brescia sought commission approval to amend permits to build within the open zone — about 31 feet from a state certified shoreline.
Partly based on a county setback of 61 to 71 feet for his property, the Planning Commission denied Brescia’s request.
Brescia appealed that decision to the 5th Circuit Court, which ruled in his favor.
North Shore ‘Ohana, Bronstein and Diamond filed an appeal that led to the Hawai‘i Supreme Court decision.
But prior to the ruling, the Planning Commission allowed Brescia’s home to be built within the open zone strip with a setback of 40 feet from the certified shoreline.
Robeson said the commission action now runs counter to the SMA permit for the Wainiha II subdivision and the Hawai‘i Supreme Court decision, and will ask the Commission to correct what she says is an illegal approval.
This was the second time the Wainiha II subdivision was involved in a lawsuit the Hawai‘i Supreme Court heard.
In 1978, the Planning Commission approved an SMA permit for the subdivision, but the North Shore ‘Ohana, citing the protection afforded by the open zone against the encroachment of buildings, had the decision overturned by the Hawai‘i Supreme Court.
Diamond was not involved with that decision, but she and Brontein prevailed in a lawsuit against the state in a recent shoreline controversy.
The Kaua‘i residents had vigorously opposed a practice by some North Shore owners of artificially expanding their coastline properties toward the ocean by planting vegetation.
In an October 2006 decision, the Hawai‘i Supreme Court agreed with them that as much of the shoreline should be set aside for public use. The high court also confirmed the shoreline was established by the high water mark, not by the planting of vegetation.
• Lester Chang, staff writer, can be reached at 245-3681 (ext. 225) or lchang@kauaipubco.com.
