Commission turns down permit change

The Kauai County Planning Commission yesterday denied a request from a property owner to amend county permits to build a multi-million dollar home closer to the beach by YMCA’s Camp Naue in Haena.

Property owner Joseph Brescia contended he was legally allowed to build two parts of his home between 20 and 31 feet inland from the shoreline, and proposed to build the rest behind a 40-foot setback.

Brescia and his attorneys and Kauai attorney Harold Bronstein, North Shore Ohana and North Shore resident Caren Diamond were involved in a contested case hearing held at the Lihue Civic Center.

The intervenors argued a county planning commission’s approval of a Special Management Area Use permit in 1983 prescribed a protective open zone of between 40 to 75 feet mauka of the shoreline to protect the environment and views.

The dispute focused on efforts by Brescia to make the best use of a small, pie-shaped lot versus efforts by the intervenors and the county calling on Brescia to comply with county rules for the larger protective zone.

As a compromise, Brescia’s legal representatives, Kauai attorney Walton Hong and Honolulu attorney A. Bernard Bays, proposed a 40-foot setback, but it was rejected by the commission.

Commissioner Lawrence Chaffin Jr. was the only commissioner who supported Brescia’s proposal.

He said three other homes that were developed by the one Brescia had hoped to build have less restrictive setbacks. Those homes have setbacks of 35, 40 and 45 feet.

Hong said it was very likely Brescia’s case will go to civil court if his client’s request was denied.

Brescia had sought an amendment to the conditions of the Special Management Area Use permit and a subdivision matter approved by a planning commission in 1983 for a 15-lot subdivision, which includes two lots owned by Brescia.

Commissioner Randal Nishimura said he voted against Brescia’s proposal partly because he agreed with a commission decision in 1983 that “referenced” a setback of 40 to 75 feet for the subdivision.

Voting against Brescia’s proposal, commission chairwoman Sandi Kato-Klutke said she has taken her children to the Haena beach and would like to bring her grandchildren to the beach one day without having to worry about intrusive homes or the loss of beach access.

Commissioner Theodore Daligdig III said past commissions approved the larger setbacks to protect views and the environment, and that he was inclined to do the same.

“I can’t help but go in that direction, but I know it will be challenged (in court),” Daligdig said.

Commissioner Mike Cockett said he saw both sides of the issue, agreeing with Hong that Brescia would face many development obstacles for his pie-shaped lot without the amendment of the SMA.

But Cockett said denial of Brescia’s proposal would protect the beach for use by future generations, and prevent huge homes from dominating the coastline. “It is fair to people of Kauai,” Cockett said.

He said that while the decision may seem unfair to Brescia, the developer “is a grown-up” and “Let the buyer beware.”

Councilman Jay Furfaro, a former planing commissioner who voted on permits for another home by Brescia’s proposed project, said he was concerned about protecting the rural nature of the area and the size of the homes and their placement on lots.

In arguing against granting Brescia’s proposal, Bronstein noted:

• The 1983 approval of the Special Management Area Use permit protected a very sensitive environment in accordance with the government’s Coastal Zone Management Act.
• A government-designated open zone exists for the subdivision lots and ranges between 40 to 75 feet.
• Certification of the shoreline by the state Department of Land and Natural Resources is being appealed, and that a decision is not likely to be made before July. The certification of the shoreline would be critical in setting the shoreline setbacks.
• The county’s setback for the area was established in 1971.
• The SMA permit approved by the commission in 1983 prohibits any structure into the open zone area.
• Movie actor Sylvester Stallone once owned the subdivision, and in 1992 recorded covenants and restrictions with the state Bureau of Conveyance. Documents acknowledged the intent of an SMA condition prohibiting building within the open zone.
• A legal case pushed the county to establish larger setbacks.

  In defense of Brescia’s proposal, Hong noted:

• The SMA permit approved in 1983 applied to a 15-lot subdivision and not to an initial 22-lot subdivision for which Bronstein cites the need for the larger protective zone.

  The original owner, Dr. Alex Ferreira, proposed the 22-lot subdivision, then a 20-lot and then a 19-lot subdivision, but all didn’t fly. The property was later sold to Stallone and lots have been sold individually.

• While a setback line appears on an original map, an alternative map and a preliminary map for the 15-lot subdivision doesn’t appear in the final subdivision map for the property.
• Failure to note any setback line on the final subdivision map precludes the county from imposing a setback.
• From 1984 to late 2001, county officials took the position that a 20-foot setback existed. County officials told other property owners that the 20-foot setback was being used.
• It wasn’t until December 2001, when another project came up within the subdivision, that the county wrongfully reconsidered the 20-foot setback and stipulated a 45-foot setback for the project.

  The county cannot impose the new setback line 16 years “after the fact” on the grounds that it is “correcting an error,” Hong wrote in documents sent to the commission.

• The larger setback can’t be used on a number of “legal or equitable grounds,” and the setback line is either the open zone boundary line or the 20 feet as required under the county’s shoreline setback rules.

  Hong said Brescia bought the property under the assumption the 20-foot setback existed, and his client only wants the “law to be fairly applied to him.”

• The 1983 SMA approval failed to establish any setbacks other than to refer to a open zone strip.
• The use of a open zone ranging between 40 to 75 feet would severely restrict Brescia’s use of his property.
• Approval of Brescia’s request would result in only a small percentage of his home to intrude on a 40-foot setback, if that restriction were to be use. Some 90 percent of the home would be located behind that line, Hong added.
• Approval of a 40-foot setback would work for Brescia, as he could make adjustments to the design of his home to fit it onto a smaller lot.

TGI Staff writer Lester Chang can be reached at 245-3681 Ext. 225 or mailto:lchang@pulitzer.net.