ALIOMANU — The pending sale of a piece of property in Aliomanu is triggering the closure of a streamside path that people have been using to access the beach for years.
And while some property neighbors, community members and Native Hawaiians say they have a right to walk that path to the beach, lawyers representing the property owner say they have to stop using it for access.
The property in question is at 5032 C Aliomanu Road, and a group of those concerned citizens met April 1 at the location to talk about the situation after a neighbor received word the path was going to be shut down.
The topic was broached with a January letter from lawyer Jonathan Chun, representing property owners Ailomanu Beach Living Trust, to neighbor Gerald Crabtree.
Crabtree has been caretaking the path in question for years.
“We have been informed you claim a ‘prescriptive’ right to walk across our client’s property to get to the ocean,” the letter, dated Jan. 31, says. “The owner denies you have any prescriptive rights to walk across or use its property.”
The letter further indicates that Crabtree was given verbal permission to walk across the property nearly two decades ago, but that no permission was ever given to create a trail or pathway. He maintains that he and the owner worked together to clear that path. The landowner left for the mainland in 2007, according to the letter.
The letter goes on to detail a May encounter when Crabtree was seen by the owner’s Realtor Robb Wall trimming vegetation on the property. Wall informed Crabtree he wasn’t legally allowed to be there, according to the letter. That’s what kicked off the discussion to close the pathway.
Wall declined to comment on the issue Thursday.
Crabtree responded with a March letter from his own lawyer, Chuck Choi, claiming rights to an access way based on four legal theories — easement by estoppel, implied easement, unwritten grant of easement supported by reliance and performance and access by virtue of the shoreline access depicted on the official map.
“It’s fairly simple,” Crabtree said in a Thursday interview with The Garden Island. “Neighbors have been using the access from the road to the ocean for the 21 years I’ve owned the property, and I think before that.”
He says he sees half a dozen people walking down that path daily, and started clearing the path with the property owner and her husband before she moved back to the mainland.
Surfrider Kauai uses the access to clean the beach and is monitoring the situation, as is a group of Native Hawaiian advocates who are working to restore an ancient walking path that once circled the whole island.
A different access nearby
While there is much concern about community access to the beach in that spot, county Department of Planning Coastal Zone Management Enforcement Officer Les Milnes says that, looking at the tax maps, there isn’t a legal public-use accessway to the beach in that area.
“In my review of the legal property description, there is no pedestrian public beach-access easement that’s been granted,” Milnes said Friday.
That doesn’t preclude Native Hawaiian rights to access beaches for fishing and gathering.
Milnes explained families that need to access the beach using that path for limu gathering or fishing announce to the property owner that they’re going to exercise those rights, and they are granted.
People can also walk up the stream, at the highest level of stream flow, and be within legal rights to pass through that area, thanks to state laws.
There is a public-access point to that same beach, though, and it’s located just a quarter of a mile away, at 5114 Kukuna Road. It’s big enough to accommodate vehicles.
“It’s a 10-foot road right of way to the beach,” Milnes said. “It doubles as a driveway for a property, so it’s a legal vehicular access and pedestrian access.”
Property sale interventions
The property is in escrow. It’s a total of 1.393 acres and has an estimated total net taxable value of $1.2 million, according to documents obtained by The Garden Island.
In order to keep that pathway open, Crabtree says he’s prepared to pay that asking price.
From June 2017 to June 2018 the county considered buying the property through the county Public Access, Open Space &Natural Resources Preservation Fund Commission after it was brought to its attention by Agnes Marti-Kini, known as “Auntie Aggie” to residents.
“They made an offer after they assessed the value, but the owner didn’t accept it,” Marti-Kini said. “So, we didn’t get that, but we didn’t have any other issues come up, so we dropped the ball on it.”
According to Planning Department Director Kaaina Hull, the consideration fell through because of two things — the existence of that other beach access and the existence of a historical house on the property that would need to be maintained.
“There was a potential, but, ultimately, that’s why they passed on it,” Hull said. “Staff did a couple of complete reports and they considered it for some time.”
The area residents, neighbors and Native Hawaiians who use the path are keeping an eye on the sale, and say they intend to bring the matter to court if the access is closed.
“We’re putting pressure on them to pono pono and make this right, and then everybody comes out on top,” Marti-Kini said. “Keep our pathways open, not just for Hawaiians but for everybody. It’s a little slice of paradise that everybody can enjoy, not just these private landowners.”
Jessica Else, staff writer, can be reached at 245-0452 or firstname.lastname@example.org.