Diamond v. State, Bd. of Land and Nat. Res.

• Citation: 145 P.3d 704
• Decision Date: 24 October 2006
• Docket Number: No. 26997.,26997.
• Parties: Caren DIAMOND and Harold Bronstein, Plaintiffs-Appellants, v. STATE of Hawai`i, BOARD OF LAND AND NATURAL RESOURCES, and Carl Stephens, Defendants-Appellees.
• Court: Supreme Court of Hawai'i

145 P.3d 704

Caren DIAMOND and Harold Bronstein, Plaintiffs-Appellants, v. STATE of Hawai`i, BOARD OF LAND AND NATURAL RESOURCES, and Carl Stephens, Defendants-Appellees.

No. 26997.

Supreme Court of Hawai`i.

October 24, 2006.

As Corrected October 25, 2006.

COPYRIGHT MATERIAL OMITTED

Harold Bronstein, on the briefs, Lihue, for plaintiffs-appellants Caren Diamond and Harold Bronstein.

Sonia Faust and Linda L.W. Chow, Deputy Attorneys General, on the briefs, for defendant-appellee State of Hawai`i, Board of Land and Natural Resources.

A. Bernard Bays and Michael C. Carroll (of Bays, Deaver, Lung, Rose & Baba), on the briefs, Honolulu, for defendant-appellee Carl Stephens.

Isaac H. Moriwake and D. Kapua`ala Sproat, for amici curiae Public Access Shoreline Hawai`i and Sierra Club.

MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, and DUFFY, JJ.

Opinion of the Court by DUFFY, J.

Plaintiffs-Appellants Caren Diamond and Harold Bronstein [hereinafter, collectively Plaintiffs]¹ appeal from the Circuit Court of the Fifth Circuit's January 11, 2005 judgment² affirming the March 5, 2004 Order Denying Appeal of the Chairperson of the State of Hawai`i Department of Land and Natural Resources (DLNR) and Defendant-Appellee the State of Hawai`i Board of Land and Natural Resources (BLNR) [hereinafter, Order Denying Appeal]. Plaintiffs assert the following points of error: (1) the conclusion of law in the Order Denying Appeal rejecting Plaintiffs' contention that "the certified shoreline must be located at the annually recurring highest reach of the highest wash of the waves, and, if that point is mauka of the stable vegetation line, then the stable vegetation line is not the appropriate location for the certified shoreline" is in violation of the statutory definition of "shoreline" contained in HRS § 205A-1 (2001);³ (2) the conclusion of law in the Order Denying Appeal that the proposed certified shoreline is properly located at the stable vegetation line is in violation of the statutory definition of "shoreline"; (3) the definition of "shoreline" contained in Hawai`i Administrative Rules (HAR) § 13-222-2 conflicts with the statutory definition of "shoreline" contained in HRS § 205A-1; and (4) the Order Denying Appeal "is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record."

The BLNR responds that: (1) HAR § 13-222-2 is not inconsistent with HRS § 205A-1; and (2) the DLNR was correct in setting the shoreline based on the stable vegetation line. Defendant-Appellee Carl Stephens's [hereinafter, collectively with the BLNR, Defendants] answering brief echoes the assertions of the BLNR.

Based on the following, we hold that: (1) the issue of whether the HRS and HAR conflict is moot; and (2) the circuit court erred as a matter of law in affirming the Order Denying Appeal. Accordingly, the judgment below is reversed.

I. BACKGROUND

By warranty deed recorded on December 8, 1999, Stephens purchased the subject property, an ocean-front parcel in the Wainiha Subdivision on the North Shore of Kaua`i [hereinafter, Lot 2]. At the time of the purchase, Stephens did not obtain a certified shoreline survey of Lot 2, and the most recent certified shoreline for Lot 2, dated December 11, 1990, was no longer valid.

In July 2000, Stephens hired a contractor to cut the trees on Lot 2, including the large false kamani trees in the area of the shoreline. After the trees were cut, Stephens hired a landscaper to plant vegetation in the shoreline area of the lot. In or around July and August 2000, spider lilies and naupaka were planted along the "seaward property line" and the public right of way bordering Lot 2's western boundary. An irrigation line was installed to water the newly planted vegetation.

A. The First Survey — July 2001

On or about July 27, 2001, Ronald J. Wagner, P.E., L.S., of Wagner Engineering Services, Inc., on behalf of Stephens, submitted to the DLNR a shoreline survey for Lot 2 based upon a field survey done on July 17, 2001. The following text appeared on the shoreline survey prepared by Wagner: "Shoreline Follows along highwater mark. The vegetation/debris line July 17, 2001 (10:30 a.m.)[.]"

On October 10, 2001, the state surveyor, Randall Hashimoto, conducted a site visit of Lot 2. Hashimoto recommended certification of the shoreline based upon Wagner's July 17, 2001 field survey. At the time of the site visit, Hashimoto opined that the vegetation he observed below the shoreline established by the Wagner field survey was "either planted or induced" by human activity, so he did not use such vegetation in his location of the shoreline. As recommended by the state surveyor, the shoreline was certified for Lot 2 on October 25, 2001. The certification was valid for one year pursuant to HRS § 205A-42 (2001).⁴ However, Stephens's attempt to begin building within six months of the certification as required by County of Kaua`i Rules was frustrated by the inability of his architect to submit final plans in time. As such, Stephens was forced to redo the survey.

B. The Second Survey — May 2002

On May 15, 2002, Dennis M. Esaki, LPLS, of Esaki Surveying and Mapping, Inc., conducted a field survey of Lot 2. Hashimoto accompanied Esaki and advised him in the determination of the shoreline. In Hashimoto's opinion, according to his testimony at the contested case hearing, even if the upper wash of the waves was mauka of the vegetation line, the vegetation line would still be where he would place the shoreline:

[Plaintiffs' Attorney:] . . . [W]e are talking North Shore of Kauai —

[Hashimoto:] Yeah.

[Plaintiffs' Attorney:] — and we're talking about the surf reoccurs [sic] annually. In the same spot every year, the north swells come in and it goes over the vegetation line and sets a debris line and represents the upper wash of the waves, will you set that as the shoreline? And your answer is no, correct?

[Hashimoto:] No, I use the more stable evidence.

[Plaintiffs' Attorney:] Right, you want to use the vegetation line.

[Hashimoto:] More stable evidence, yeah.

[Plaintiffs' Attorney:] Yeah. Even if it's reoccurring annually? Meaning the upper wash of the waves beyond the vegetation line.

[Hashimoto:] Yes.

Additionally, Hashimoto testified that, in determining the shoreline, he utilized the naupaka that he had refused to utilize during the 2001 field survey. It was Hashimoto's opinion that: (1) even if the naupaka were planted or promoted by human activity, if they "withstood a complete yearly cycle or the high surf," that would establish the stable vegetation line by which Hashimoto would define the shoreline; and (2) "[t]he vegetation would have precedence over the debris line" because the vegetation line is "more stable" and the definition of "shoreline" in HAR § 13-222-2 means that "where there is a sandy beach the edge of vegetation growth is the preferred means for determining a location of a shoreline."

Based on this survey, Esaki submitted a new application to the DLNR on behalf of Stephens for the shoreline certification of Lot 2. The survey located the shoreline based upon the "vegetation line as located on May 15, 2002 (11:30 a.m.)[,]" and resulted in the shoreline moving makai by 10.82 feet on the eastern boundary and makai by 4.72 feet on the western boundary of Lot 2.

On July 23, 2002, Hashimoto conducted another site visit. Representatives of Stephens, Esaki, Diamond, and others were also present at this inspection. At the inspection, Diamond: (1) gave Hashimoto photographs that she represented as showing the upper wash of the waves of the winter surf; (2) informed Hashimoto that the owners of Lot 2 planted an "artificial" vegetation line; and (3) presented her position regarding the placement of the shoreline. Nevertheless, Hashimoto recommended for certification the shoreline submitted with Esaki's May 2002 application. On July 26, 2002, as recommended by Hashimoto, the shoreline was certified for Lot 2. The certified shoreline was valid for one year and expired on July 25, 2003. Public notice of the shoreline was published in the August 8, 2002 Environmental Notice.

On August 28, 2002, Plaintiffs filed an appeal to the BLNR asserting that the certified shoreline did not accurately reflect the upper wash of the waves as evidenced by the winter surf. Retired Judge Boyd Mossman was assigned to hear the contested case. On January 9, 2003, during the "winter wave season a few days after the highest waves of the season at high tide[,]" Judge Mossman conducted a site inspection of Lot 2. Also present were Hashimoto and representatives of the parties to the contested case hearing.

The contested case hearing commenced on March 31, 2003 and was completed on May 14, 2003. Judge Mossman issued a seventeen-page decision concluding that the shoreline was correctly determined.

On July 25, 2003, the BLNR entered its "Findings of Fact, Conclusions of Law, and Decision and Order" substantially adopting Judge Mossman's findings and conclusions and denying the appeal [hereinafter, BLNR's Order]. In relevant part, the BLNR entered the following findings of fact:

51. The location determined as the shoreline on May 15, 2002 was consistent with the adjoining properties and based on mature vegetation that predates the planting that occurred in July or August of 2000.

. . . .

53. On January 9, 2003, a site inspection of Lot 2 was held in conjunction with this contested case hearing. Present at the site inspection [were] Mr. Hashimoto, Hearing Officer Mossman, and representatives of the parties to this contested case hearing. The vegetation line used to locate the certified shoreline on Lot 2 was evidenced to be stable and well established despite the prior severe winter conditions. The stakes marking the certified shoreline were largely contained within vegetative cover.

54. Evidence of plantings of naupaka and spider lilies by persons hired by Mr. Stephens at Lot 2 in July or August...