Wednesday | February 22, 2017
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Ninole resident sues over shoreline setback

An East Hawaii resident is suing Hawaii County over a shoreline setback for homes at Pepeekeo Point.

Scott Watson of Ninole is seeking to have the setback requirement reduced, arguing that the county erred by designating the shoreline at the top of a bluff above the waves.

Watson filed the lawsuit May 2 in 3rd Circuit Court after being fined for building within the setback.

He told the Tribune-Herald in January that he is not in violation of the 40-foot setback if it is measured from the shoreline below the bluff. That’s where he believes the setback should begin.

The setback was established under a Special Management Area permit for the mostly undeveloped subdivision about a decade ago, according to the county Planning Department.

The subdivision includes about a dozen lots, most of which border the shore.

If the court sides with Watson, it would mean that homes on other lots could be built closer to the edge of the bluff, which is about 30 to 50 feet above the water, said April Surprenant, county long range planning manager.

That’s too close for comfort for the county.

“We don’t want to have homes built too close,” Surprenant said.

Watson’s lawsuit notes that the state Department of Land and Natural Resources has defined shoreline as the upper reaches of the waves.

DLNR allows for setbacks of between 20 and 40 feet, according to the lawsuit.

Surprenant said the waves fall a little short of the bluff in that location but added the state has given counties leeway with establishing more stringent setbacks.

The state also approved the shoreline certification, she said.

Surprenant said the county is concerned about erosion and possible environmental impacts of building too close to the edge.

Steven Strauss, Watson’s attorney, said there is room for debate over where the shoreline should begin.

“The county may think they have some leeway but that’s one of the issues to be determined,” he said.

Strauss said the shoreline should be designated below the bluff since it is accessible.

Watson has also been fined for other building violations at the location, including not having a silt barrier in place, changing the location of a pool onto a former sugar mill building foundation, and not allowing for enough open space.

In total, the fines reached $20,000 and came with a stop-work order in November.

Watson appealed the fines.

The county Board of Appeals is withholding action while the lawsuit is considered.

As defendants, the lawsuit has named former Planning Director Bobby Jean Leithead Todd; the Planning Department; Windward Planning Commission and its chairman, Dean Au; and the county.

Watson has also been fined for building what the county considers to be an unauthorized heliport on top of his home.

That fine hasn’t been paid or appealed. It stands at $23,700.

Strauss said he is still talking with the county’s Corporation Counsel about resolving the issue.