Kauai, from page 1
shoreline erosion protection. One month later, the Commission granted them a permit to construct a rock revetment subject to nine conditions. Instead of building a rock revetment, the seawall owners constructed a seawall and even made unauthorized additions to the seawall at a later date. In 1986, an adjacent landowner filed a lawsuit against the seawall owners alleging that negligent construction and maintenance of the seawall damaged her property. The circuit court entered judgment in favor of the adjacent landowner and ordered compensation of $128,000. By 1996, two property owners south of the seawall contacted state agencies to express concern about the damage to their property caused by the seawall and demand action. Consequently, the Planning Department filed a petition to revoke, amend or modify the SMA Use permit, alleging that (1) the seawall was not constructed according to approved plans; (2) the seawall owners failed to
Photo of a beach on Kauai courtesy of NOAA Photographer is Dr. James P. McVey, NOAA Sea Grant Program
obtain permits for additional development in connection with the permitted project; and (3) the seawall owners failed to comply with the SMA Use permit condition. After several public hearings, the Commission concluded that the seawall did not conform to the Page 18
various conditions of the SMA Use permit. The Commission ordered the seawall owners to (1) conduct a sand replenishment program for the area immediately fronting the seawall, (2) alter the southern portion of the seawall to limit flanking erosion by providing a sloped, curved return rock revetment, (3) offer the two southern property owners a one-time sand replenishment program for the area immediately fronting their properties, and (4) repair the seawall and its surrounding areas. In August 1997, the seawall owners appealed the Commission’s decision to the circuit court, which held that the Commission lacked authority (1) to modify a condition of the SMA Use permit, and (2) to order injunctive relief. The Planning Department and Commission appealed the circuit court’s ruling. Modification of an Existing SMA Use Permit The CZMA is a comprehensive State regulatory scheme to protect the coastal environment of Hawai‘i. The Supreme Court explained that the State legislature is dedicated to the preservation, protection and, when feasible, the restoration of the natural resources within the coastal zone of Hawai‘i. The legislature authorizes counties to establish SMAs. The Court concluded that the CZMA mandates that “the designated authority seek to minimize, where reasonable . . . any development which would reduce the size of any beach or other area usable for public recreation.”2 The primary issue in this case is whether the Commission had the authority to modify the SMA Use permit previously issued to the seawall owners. Morgan, one of the seawall owners, argued that the circuit court properly held that the Commission did not have the authority to amend a SMA Use permit issued many years ago. Since the Commission’s enabling statute did not expressly allow reconsideration, Morgan argued that the Commission could not modify the permit. The Commission countered that because it must administer the objectives and policies of the CZMA, the Commission possesses continuing authority over SMA Use permits to ensure compliance with the CZMA. The Commission also raised two other arguments regarding its authority to reconsider a SMA Use permit. First, it maintained that the circuit court’s interpretation of HRS § 205A-29 would lead Volume 3, No. 2 The SandBar