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Rules of Purchasing Real Estate in Hawaii


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									                 Shifting Sands & Political Winds:
        The Maturation of Maui‟s Erosion-based Setback Rules
Thorne Abbott, Zoe Norcross-Nu’u, Charles Fletcher III, and Andrew Cooper.

Key Word: shoreline setbacks; coastal erosion; beach erosion; shoreline change; erosion
rates; shoreline hardening; shoreline armoring; oceanfront development; coastal hazards;
hazard mitigation; coastal construction; shoreline access; beach protection; beach
conservation; science based policy, mitigation banking, managed retreat.


“Aloha” brings visions of paradise and hospitality to mind. Clean, un-crowded beaches,
waves and surf, a diverse sunny tropical environment, and a warm friendly culture, have
earned Maui the “Best Island in the World” 13 of the past 14 years by the Conde Nast
Traveler Magazine (Brown, 2007). Maui‟s economy is booming with destination
development, as evidenced by a dramatic increase in coastal permits over the past several
years (Table 1). Many oceanfront resorts, condominiums and luxury homes are being
built or rebuilt along Maui‟s dynamic shoreline. But, the island‟s shoreline can change
rapidly in response to chronic coastal erosion and episodic erosion such as storms, high
winds and large surf. Maui has lost 25% of its beaches since the 1950‟s and those that
remain are, on average, 25% narrower (Fletcher et. al., 2003). Moreover, the island‟s
sandy shorelines are retreating inland an average of 1.1 foot/year (ibid.). Erosion of the
shoreline is further exacerbated when sand is lost from the littoral system either by
impoundment, scouring, or interruptions in transport processes. This reduction of sand
from the littoral budget is often created by inappropriately located shoreline hardening
structures such as seawalls, revetments, geo-textile sand bags and groins.

Table 1: Maui County SMA Permitting
Year       SMA           Major        Minor       Emergency           Permit             Total
        Assessments     Permits      Permits        Permits         Exemptions         permits
           SMX            SM1          SM2            SM3              SM5              issued
2007        522             16          59              4               342                   421
2006        586             35         106              3               143                   287
2005        659             40         172              1               172                   385
2004        892             27         132              3               144                   306
2003        793             24         195              1               134                   354
2002        724             23          59              1                35                   118
2001         98             15          60              0                 4                    79
            3413           180         783             13               974                  1950
        Source: Maui County Planning Dept., 6/26/2008.
        Note: The number of assessments may not equal the sum of all permits issued due to
        Lanai and Molokai Island permits, incomplete applications, and permit denials.

Unfortunately, inappropriate responses to site-specific erosion or flood inundation have
impinged on the public‟s shoreline assets, leading to lost shoreline access, lost beaches,

                                                                                    Page 1 of 23
and beach narrowing. Yet having usable and accessible beaches is a major factor in
residents‟ quality of life and a draw for tourism. Simply put, you can‟t fill expensive
hotel rooms and luxury vacation rentals without a beach. Decision-makers and the public
have realized that beach and sand resources are critical to Maui‟s continued development
as a destination. Past practices did not account for a site‟s substrate, the structure‟s
design, the materials used in construction, or the structures proximity to the shifting
shoreline. This resulted in many oceanfront property owners hardening the shoreline in
order to protect their investment and land, which in turn led to further losses of sandy
beach resources and created impediments to lateral shoreline access (Norcross-Nu‟u and
Abbott, 2005). Recognizing the imprudence of relying on a one-size fits all approach to
coastal development, Maui adopted shoreline rules that consider site specific factors to
determine building setbacks and construction methods on oceanfront properties. The
rules, adopted in 2003 and amended in 2006 and 2007, use previous shoreline positions
and site-specific erosion rates to determine acceptable locations for new homes, resorts
and oceanfront construction.

Norcross-Nu‟u and Abbott (2005) discuss the October 2003 adoption of erosion rate
based shoreline rules in Maui County. They recommended a number of rule amendments
and present issues raised by the public during the initial debate and implementation of the
rules. Since then, five separate rule amendments have corrected flaws in the original
policy. This paper builds upon their work and describes the underlying conflicts and
situations that led to the rule amendments. The lessons learned in Maui can help
practitioners and policy makers avoid pitfalls when considering oceanfront development
policies based on historic shoreline positions.


Geographic Location and Regulatory Regime

Maui County includes three islands; Maui, Lanai and Molokai, and is one of four
municipalities within the state of Hawaii. Located in the midst of the Pacific Ocean, the
Hawaiian Islands are the most isolated landform on Earth. Recognizing the inherent
connection between the land and the sea, the State legislature passed the Hawaii Coastal
Zone Management Act (CZMA) in 1977. The law provided an innovative set of goals,
objectives and policies intended to protect and conserve coastal amenities and regulate
the development of coastal resources and lands. The law also provided each municipal
(county) government with regulatory authority over oceanfront development through
designated Special Management Areas (SMA) and Shoreline Setback Areas (SSA). Any
proposed action within the SMA and/or SSA requires approval by the county. The SMA
is a geographic subset of the coastal zone and begins at the shoreline and extends inland
at least 300 feet or to the nearest State highway, whichever is greater (Figure 1).

The Maui County Planning Department (Department) achieves the objectives of the
CZMA law through a permitting process. Any development proposed in the SMA or
SSA requires an assessment by the Department to ensure that adverse impacts on coastal
resources are avoided, mitigated or minimized. Building permits may not be issued until

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the assessment process is completed and the corresponding SMA / SSA permit is
obtained. One of the ten objectives of the CZMA addressed through the SMA / SSA
permitting and assessment process is to reduce the risk of structures being damaged by
coastal hazards. The Department accomplishes this objective through planned avoidance
and/or designed fortification of buildings that are within the SMA and/or SSA.

       Figure 1: The Special Management Area of Maui Island is shown in red.

In Hawaii, coastal hazards include storm surge, coastal flooding, tsunami inundation,
high surf events, acute and episodic erosion events and chronic coastal erosion and beach
loss. The effect of these hazards on homes, resorts and other structures is related to four
factors: site topography and elevation above sea level, building materials and design, the
substrate on which a structure is built, and the structures proximity to the ocean and
shoreline. The United States Federal Emergency Management Agency (FEMA) provides
guidance to address the first two of these four factors, whereas Maui County‟s Shoreline
Setback Rules address the latter two.

Designed Fortification for Flood Hazard Zones

Site topography and elevation above sea level indicate an area‟s potential for flood
inundation. FEMA has created Federal Insurance Rate Maps (FIRM) which delineate
flood zones and base flood elevation for the island of Maui. The FIRM illustrates flood
prone areas, areas in which flood waters have velocity or wave action (directed forces),
and stream way flooding. Any building proposed to be located in a flood zone must be
built to withstand flood inundation (break-away walls, sealed utilities, absence of living
areas, etc.) and/or allow flood waters to pass unimpeded below the first floor of the
building (post & pier). Otherwise, the property owner may not obtain insurance or a
bank loan for the building. A Flood Development or Flood Way permit may be required,
which influences the structures design and the materials used in building the structure.
When an applicant applies for a SMA permit, the Department confirms whether the site is
subject to flooding, the flood zone, and the base flood elevation. Site plans, building

                                                                               Page 3 of 23
design and materials must be altered to the Department‟s satisfaction to ensure
compliance with FEMA standards before a building permit can be issued.

Planned Avoidance of Erosion Prone Areas

In contrast to fortifying buildings against coastal hazards, locating inland based on future
shoreline position avoids coastal hazards altogether. Past locations of the shoreline can
be used to ascertain the shorelines future position. Based on this information, the
Department can determine where buildings can be constructed so that they avoid coastal
hazards and chronic erosion during their lifespan. This reduces the inherent risks of
building in harms way and is a prudent alternative in light of coastal erosion.

Coastal erosion is a natural process where shorelines retreat over long periods of time
from sea-level rise, wind and water, wave action, and storm episodes. While the
shoreline is retreating, the width of the beach is maintained from sand that is naturally
released from dunes and other sand reservoirs. The beach serves as a natural buffer that
dissipates wave energy and mitigates the potentially damaging effects of coastal hazards.
Further, the beach provides a valued natural amenity for recreational and passive use.
However inappropriately designed and located shoreline hardening structures such as
seawalls, revetments, and geo-textile bags can contribute to beach erosion. Beaches can
narrow or be lost when sand reservoirs are depleted, sand transport is hindered, or sand is
impounded behind man-made structures and can not be released to the littoral cell.
Shoreline hardening has in Maui has interfered with the sand budget on many beaches.
This in turn contributed significantly to beach erosion and has resulted in lost (lateral)
access along the shoreline. Unlike some mainland coastal areas, lateral shoreline access
is a public right in Hawaii that is protected under the public trust doctrine (Reed, 2008).

In general, seawalls tend to reflect wave energy laterally and vertically rather than
dissipate the wave‟s energy. This contributes to the scouring of sand from below and
behind the seawall and hinders accumulation of sand in front of the wall. Ongoing
scouring of sand can lead to the seawall‟s collapse if the wall is not properly designed
and tied into a rocky or solid substrate. Grouted or cemented rock revetments experience
scouring behind and underneath the top layer of stone. They may erode over time
becoming smaller and smaller eventually leaving gaps underneath the structures surface
until it collapses under its own weight. In contrast, the rocks of an un-grouted revetment
continually shift, settle and erode requiring the addition of new rocks to prevent wave run
up from inundating the area behind the revetment. Geo-textile sand bags reflect wave
energy laterally and can lead to scouring of sand on adjacent properties if not properly
tied-back. Another disadvantage of geo-textile bags is that they may shift during large
storm events and can create impediments to access along the shoreline. Submerged
and/or off-shore engineered structures such as tambala‟s and groins may be effective in
certain circumstances. Off-shore construction is regulated by the State of Hawaii and/or
federal government, although the county would be consulted in any near shore permitting
process. But the relatively deep water just offshore has constrained the use of submerged
shoreline protective structures to date.

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Given the aforementioned limitations, the Department supports beach nourishment, dune
restoration or „soft‟ responses to beach erosion and shoreline retreat. One viable
alternative is managed retreat, where post and pier buildings are relocated inland over
time. Managed retreat can also occur when a site is redeveloped by anticipating shoreline
change over time and locating buildings inland of erosion prone areas. Over the past four
years, several oceanfront homes and large resorts have incorporated managed retreat into
their redevelopment plans.

The Department also helps applicants correctly calculate and locate the shoreline setback
area on site and building plans and helps applicants bring illegal or „grandfathered‟
structures, such as old seawalls and revetments, into compliance with current rules and
design standards. The process helps oceanfront property owners respond to erosion crisis
and reduces reliance on shoreline hardening. This in turn minimizes the loss of beach
and sand resources and helps retain lateral access along the shoreline.


Shoreline Setback History

In 1970, the State of Hawaii established minimum setbacks from the ocean of twenty (20)
feet with the passage of Act 136, the State Shoreline Setback Law (SSL, 1970). In April
1973, Maui County adopted the law, but expanded the setback to forty (40) feet in cases
where a lot was more than one-hundred (100) feet deep. Act 258 passed in 1986, merged
the 1970 State Shoreline Setback Law into the 1977 Hawaii Coastal Zone Management
Act (CZMA). This consolidated the county‟s SMA and SSA permitting processes under
one law, with one set of penalties, and provided final discretionary authority to the
island‟s Planning Commission. The Maui Planning Commission (Commission) is
comprised of nine citizen volunteers who are nominated to four-year terms. The CZMA
also empowers each county to expand shoreline setbacks beyond the state‟s minimums
(Tom, 2005).

Shoreline Setbacks based on Lot Depth

Lot depth is determined by averaging the left, center, and right property lines of a parcel.
In September 1990, the Commission revised the setback requirements to be a minimum
of 25 feet for lots 100 feet in depth; 40 feet for lots 100 feet to 160 feet in depth; and 25%
of the lot‟s depth up to a maximum setback of 150 feet for larger lots. The average lot
depth (ALD) policy recognizes that construction of structures should occur inland when
there is room to move away from the ocean.

Ideally, shoreline lots should be created to be deep enough to allow a structure to be
relocated inland several times over its lifespan (Hwang, 2005). Such a policy
incorporates the idea of “managed retreat” where post & pier houses and other structures
can be moved out of harms way as coastal hazards submerge, inundate and/or erode
oceanfront property. But deep lots have to be created in the original subdivision process
and subsequent subdivision of individual lots into flag lots must be prohibited.

                                                                                 Page 5 of 23
Unfortunately, Maui‟s subdivision code has not been revised to fully consider coastal
hazards or managed retreat and the configurations of many oceanfront lots were
established well before 1990. Thus many homes, condominiums and resorts were built
only 20, 25 or 40 feet from the ocean.

Unfortunately, the ALD or lot depth policy obscures considerations of the type of
substrate that a new structure is built upon (sand verse rock), topography, elevation above
sea level, and historic shoreline position. As storms, high surf events and sea-level rise
erode coastal lands and beach areas, private landowners often respond by hardening the
shoreline in order to protect their land and buildings. Unfortunately, the lot depth setback
policy did not prevent shoreline hardening in Maui. Instead, reliance on the policy led to
substantial shoreline armoring on beaches and sandy shorelines that were experiencing
erosion. These seawalls interrupted sand transport and withheld sand located in
reservoirs behind the wall, leading to narrower beaches and the loss of some beaches

Moving to Erosion-Based Shoreline Setbacks

During the 1990‟s, a substantial amount of shoreline hardening was erected as emergency
protection of legally habitable structures in Maui. An inventory conducted in 2003,
identified 371 shoreline protective structures along 56 miles of Maui‟s shoreline (Feindel,
2003). The inventory determined that nearly two-thirds (66%) of these structures were
negatively impacting coastal processes or public access. Since the 1950‟s shoreline
hardening contributed to the loss of nearly 4.8 miles of beach and the narrowing of about
20% of those which remain (Fletcher et al., 2003). In recognition of the loss of valuable
beach resources and amenities, the Commission decided to augment the lot depth setback
policy with setbacks based on site-specific erosion rates. The new policy is a more
logical form of setback determination; one based on historic shoreline position rather than
an arbitrary number based on a lot‟s depth.

Establishing Shoreline Change

Fletcher, et. al. (2003) developed methods to estimate the annual erosion occurring along
Maui‟s shorelines. The peer-reviewed methodology provides site-specific rates of
erosion at sixty-six (66) feet intervals on most of Maui‟s beaches and sandy shores. The
resulting Maui Shoreline Atlas consists of shoreline erosion maps for south, west and the
north shore of the island. The maps can be reviewed online at or (Fletcher, et. al., 2003a). The annual erosion
hazard rates (AEHR) serve as the basis for calculating the shoreline setback based on a
50-year building lifespan.


Shoreline setbacks based on past shoreline positions are scientific and place-based rather
than an arbitrary, indiscriminate determination. The objective of shoreline setback rules
is to reduce risks to structures from coastal hazards, protect shoreline access and conserve

                                                                                Page 6 of 23
beach resources. A majority of municipalities use a one-size-fits-all approach to regulate
construction in shoreline areas by imposing a pre-set distance-based setback from the
ocean. Of 35 coastal states, only 14 incorporate the history of shoreline fluctuation over
time and/or building lifespan into shoreline setback determinations (Genz, 2006).

Maui uses the annual erosion rate for a site multiplied by fifty (50) years plus a buffer of
twenty-five (25) feet. The 50-year multiplier reflects the minimum expected lifespan for
a wood-frame house according to the Coastal Construction Guidebook (FEMA, 2000).
More recently, Hawaii’s Coastal Hazard Mitigation Guidebook recommends a 70-year
multiplier and a forty (40) foot buffer (Hwang, 2005). The 70-year multiplier represents
the average lifespan of a coastal residential structure according to research by the Federal
Insurance Administration, US Department of Housing and Urban Development and the
H.J. Heinz Center (Heinz Center, 2000 in Hwang, 2005.). The 40 foot buffer
compensates for variability in erosion rate data, high surf, episodic storm events, and the
risk of sea level rise.

One of the fundamental challenges in developing policy is to find a balance between
broad objectives and specific guidelines which best account for future unforeseen
circumstances (Norcross-Nu‟u and Abbott, 2005). Rules to implement policy often
follow one of two frameworks. One spells out prohibitions and allows all other activities
through discretionary permitting. This framework offers flexibility in light of future,
unusual or unforeseen circumstances. It is efficient because it is broad enough to capture
the future. But this framework can be ineffective when the discretionary authority‟s
decisions are inconsistent with the policy‟s intent and the authority is not held publicly
accountable. A second framework prohibits everything and allows only explicitly stated
items. Variances provide relief to the policy for unusual or unforeseen circumstances.
Although narrow, the framework ensures that the policy is strictly implemented. This
precautionary approach is useful when uncertainty, errors in judgment, or lack of
information could have a substantially adverse impact on the quality, quantity and/or
longevity of a resource. Maui‟s shoreline rules are precautionary in nature because they
apply to an area in close proximity to the ocean, coral reefs, beach and shoreline

Variances and the Public Decision Making Process

The Maui Planning Commission approves variances through a public hearing process. A
variance serves as regulatory relief when there are unusual, unforeseen, or unreasonable
circumstances. The variance process requires an environmental assessment, a state-
approved shoreline certification, adjacent landowner notification, and an advertised
public hearing. The applicant must prove that they have been denied reasonable use of
their property and/or have experienced a hardship (non-economic) as a result of the
restrictions within the shoreline rules. The variance process is lengthy, at least 150 days
with public notification requirements, and the outcome uncertain. Given that many
shoreline properties on Maui are developed for financial speculation, some owners might
choose to build now and risk being caught later and penalized. Although fines can be a
deterrent if fully enforced, the Department generally seeks compliance through

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remediation and after-the-fact permits rather than the imposition of stiff fines and the
outright removal of structures. Moreover, the act of removing some unauthorized
structures could cause more environmental harm than letting them stay in place. With the
value of oceanfront property being very high, a set of precautionary rules must have
strong enforcement, including the removal of structures and severe financial penalties, if
the policy is going to be effective.


Complexities in Calculating the Shoreline Setback Line

The Commission‟s erosion-rate based shoreline setback rules adopted in October 2003
had several shortcomings which were discovered through implementation. First, the
erosion-rate setback (AEHR) only applied to properties abutting the shoreline (i.e.
actually touching the ocean). This limited the erosion-rate setback to only those
properties which have already lost land to the sea. For sites that have a history of erosion
which has not yet reached the property, only the lot-depth (ALD) setback applied.
Some private properties are separated from the ocean by a government beach reserve.
The beach reserve protects the property and provides the public with lateral access along
the shoreline. Also, some properties have easements for utilities, view planes, roads, and
infrastructure between the property and the ocean. In many cases these reserves and
easements have narrowed to the point that high surf inundates the landward private
property. Yet the government reserve (or easement) is technically the property abutting
the shoreline. If erosion-based setbacks applied only to those properties abutting the
shoreline, then only those properties that have actually lost land to the sea would be
subject to the AEHR setback calculation. Clearly, the abutting term conflicts with the
pre-cautionary intent of the rules, which is to prevent construction in areas that will be
eroded in the future (i.e. 50 years). Thus, regardless of whether the property abuts the
shoreline or is separated from the ocean by some form of jurisdictional buffer, the
shoreline setback rules apply.

Second, the rules stated that the greater of the shoreline setback lines, as calculated using
the erosion-rate based method (AEHR) and the average lot-depth method (ALD) shall
form the shoreline setback line. But it is possible that both ALD and AEHR lines, in
terms of distance from the ocean, may be equal. Conversely, as measured by the two
methods above, some parcels may have setback lines that intersect with one another.

Third, the ALD method is problematic for lots that have already experienced erosion and
lost land to the ocean. Determining the ALD is difficult because the property lines used
to calculate lot‟s depth extend into the ocean. In Hawaii, submerged lands revert to the
state‟s jurisdiction and should not be included in the ALD calculation. In addition, the
lot-depth based setback is measured from, and runs parallel to, the shoreline. But parallel
can mean two lines drawn laterally to each other or two lines that are perpendicular to
one another. On a convex or concave shoreline, this can result in two lines which
intersect each other with neither necessarily being greater than the other (Figure 2).

                                                                                 Page 8 of 23
    Figure 2: Two setback lines of equal length drawn parallel to a convex shoreline

Fourth, many sites have more than one erosion rate transect within close proximity of
their property. The AEHR setback line should be determined by calculating and plotting
the erosion-based setback distance at each transect‟s location and connecting the plotted
points across the parcel (Figure 3). This method would ensure that erosion at
neighboring sites is considered when determining a location for building construction,
since scouring may occur at the end of hardened areas. Unfortunately, the rules did not
specify whether only transects on the subject property are to be considered, or if the
setback should account for erosion on adjacent properties.

        Figure 3:         Initially, erosion rates for four transects are plotted inland, then the
                          plotted points are connected by the AEHR setback line.
Fifth, if a site‟s established erosion rate is zero, the AEHR method of calculating the
setback (50 x 0 + 20) suggests a setback of 20 feet. Yet the minimum lot-depth setback
(ALD) is 25 feet. While the latter is the correct setback, the difference in the two
confuses the public and often results in an incorrect setback calculation being submitted
to the Department for review.

                                                                                     Page 9 of 23
To address these issues, the Commission passed rule amendments in January and
December 2007. The amendments removed the abutting term and expanded the setback
requirement to apply to all properties within 150 feet of the shoreline. The amendments
also increased the buffer in the erosion-based setback calculation (AEHR) from 20 feet to
25 feet to make the rules internally consistent with the minimum lot-depth (ALD)
setback. Both the ALD and AEHR setback calculations must be shown, both setback
lines drawn on the plans, and the more landward of the two lines (or the more landward
segments of each line if they intersect), forms the final shoreline setback line (Figure 4).
The Shoreline Setback Area (SSA) for a parcel begins at the state-certified shoreline, is
bounded on its sides by the parcels property lines, and extends inland to the final
shoreline setback line.

       Figure 4:       Final shoreline setback line (shown in red), consisting of the most
                       inland segments of each of the calculated (2-ALD, 1-AEHR)
                       setback lines.

Irregularly Shaped Parcels

Norcross-Nu‟u and Abbott (2005) note that the calculation of a shoreline setback line can
be difficult for parcels that are not rectangular in shape, have shoreline on more than one

                                                                               Page 10 of 23
side such as peninsulas or spits, or have only a small portion of the parcel abutting the
shoreline such as “L” or “flagpole lots” (Figures 5 and 6).

   Figure 5: Two irregularly-shaped parcels; a peninsula (left), and a „flag‟ lot (right).

       Figure 6:       Two irregularly shaped lots with similar ALD setback calculations
                       House location on Lot “A” is at risk from coastal hazards given
                       prevailing wave direction. Lot “B” shows low-risk house location.

For instance, Figure 6 illustrates two parcels with similar average lot depth and similar
ALD setback lines. But the two properties have significantly different exposure to
coastal hazards. Property (“A”) could build outside of the setback area as marked, yet the
structure would be at risk of wave inundation that crosses the neighboring property (“B”).
Over time the shoreline may retreat across property B into property A, mitigating the
effectiveness of a shoreline setback based on the lot‟s depth. In the January, 2007, after
publicizing rule amendments in the newspaper and conducting a public hearing, public
testimony was in support of providing discretionary authority to the Director for

                                                                               Page 11 of 23
irregularly shaped lots. Any determination is reported to the Commission at its next
regular meeting in order to ensure the intent of the rules is being followed and the process
is transparent to the public.

Shoreline Setbacks on Cliffs and Bluffs

As noted by Norcross-Nu‟u and Abbott (2005) the erosion based setback rules address
beach erosion but not bluff erosion. Many of Maui‟s shorelines consist of clay banks or
volcanic bluffs which may erode rapidly or slump due to soils being saturated with water
from over-irrigation, sumps, and heavy rainfall. Delineating where the ocean meets the
land (i.e. the shoreline) would be dangerous and even impossible in some locations such
as sheer cliffs, rocky overhangs, and eroding banks. Yet the state-certified shoreline
serves as the base-line for measuring the shoreline setback. Where bluffs rise up from the
shoreline, a survey may determine the shoreline‟s location but not a safe setback distance
given the sites curvilinear topography. Maui also has sea cliffs and sea caves where the
land overhangs the ocean. Catastrophic cliff failures during the October 2007 earthquake
led to road closures and property damage in the Kaupo section of the island, suggesting
the setback rules required adjustment for these unique situations.

In December 2007, the Commission amended the shoreline rules to provide the Director
with the authority to waive the required state-certified shoreline survey in situations
where safety is of concern. The Director also has the authority to determine the extent,
location and correct setback calculation at sites with ocean side cliffs or bluffs. The
Director‟s determination is reported to the Commission to ensure transparency and
compliance with the rules intent.

Regulatory Takings and Guaranteed Building Envelopes

In the United States, when new rules take away an individual‟s right to develop property,
the government is obligated to financially compensate the landowner. For example,
implementing shoreline setback restrictions on small parcels could leave a property with
insufficient area to build upon (Norcross-Nu‟u and Abbott, 2005). To avoid this
circumstance, the shoreline rules guarantee a 35 foot minimum buildable depth for any
property (ibid). Front yard and side yard setbacks may be adjusted, followed by reducing
the shoreline setback to 25 feet in order to provide a 35 foot deep building envelope (as
measured from the shoreline. While there have been no situations over the past four
years where this clause was needed (ibid.), its eventual use may be necessary should sea
level rise as predicted. Although not included in the rules, providing for a minimum
building size rather than a minimum buildable depth is a worthy alternative. This would
allow adjustments to building height or configuration in order to accommodate a
reasonably sized structure or home.

Repairs to Non-Conforming Seawalls

The shoreline rules allow legal structures to be repaired. Repairs are limited to 50% of
the structure‟s current replacement cost and can not expand, enlarge or intensify the use

                                                                              Page 12 of 23
of the structure. In contrast, non-conforming structures can be repaired without financial
limitation, so long as the structure was not damaged by coastal hazards. Non-conforming
structures are those that legally existed and were built in their present form prior to 1970.
However, the rules passed in 2003 did not provide a clear indication of whether a
„permitted‟ structure referred to structures permissible at the time of their construction, or
structures permitted by a government agency in the form of written consent. For
example, seawalls were „permissible‟ before the enactment of the State Shoreline Setback
Law in 1970 because there were no laws regulating seawall construction. The
Department‟s interpretation was permissible implied a government approval that included
a design that met engineering standards. Thus, seawalls built prior to 1970 should be
allowed to naturally deteriorate without repair (i.e. planned obsolescence). The
dilapidated wall could then be replaced through the variance process with a seawall built
to engineering standards using current technology. An alternative interpretation was that
repairs to old seawalls are permissible, even when damaged by coastal hazards, because
they were „legal‟ at the time of their creation. A third interpretation is that property
owners who modified or repaired a pre-1970 seawall during the last 37 years should be
allowed to remove the modification or repair, and thus return the wall to its previous non-
conforming status. However, logic would dictate that if repairs were necessary in the
past, the seawall is not providing sufficient protection from coastal hazards and should be
replaced using current technology (Figure 7). The replacement seawall would require the
property owner to obtain a variance, which is approved through the Commission‟s public
hearing process. Rule amendments enacted in December 2007 clarified that the planned
obsolescence of non-conforming seawalls was the correct interpretation of „permissible‟
structures, thereby negating alternative interpretations.

               Figure 7:     Two examples of non-conforming failed seawalls
               Note: Scouring under the seawall (left) and wave over-topping (right) as
               evidenced by a fallen coconut tree has jeopardized the structures integrity.

Repairs to Non-Conforming Structures

Structures that already exist within the shoreline setback, such as single family homes,
may be repaired up to 50% of their current value but can not be expanded, enlarged, or

                                                                                Page 13 of 23
their use intensified. The rules intentionally encourage rebuilding inland of the shoreline
setback area and away from coastal hazards. This planned obsolescence objective is
prudent since many of Maui‟s oceanfront properties are undergoing redevelopment.
However, many homes are situated with only a portion of the structure located within the
shoreline setback area. Maui‟s zoning and building code allows these non-conforming
structures to be renovated, enlarged and expanded so long as the non-conformity is not
increased. For example, many non-conforming homes are single-story and new owners
want to add a second story to the portion of the house located outside of the shoreline
setback area. Zoning code allows this since it does not expand the non-conformity
(Cerizo, 2007). But in the event of wave inundation, storm surge, or shoreline erosion,
both stories of the house would be subject to stress and structural failure. Cleary, zoning
code and shoreline rules are in conflict. It is imprudent to allow expansion of a structure
that is already at risk to coastal hazards, even if only a portion of the structure is
expanded. Since the inception of the erosion-based shoreline rules in 2003,
approximately half of the requests to expand non-conforming homes have been denied
based on FEMA regulations, whereas the other half have been denied based on the
shoreline rules. These latter denials have been strengthened by amendments to the
shoreline rules enacted in December 2007.

Restoration of Structures Not Damaged By Coastal Hazards

Prohibiting repairs or reconstruction to structures located in the shoreline setback area
requires a rational nexus with risks from coastal hazards. For structures damaged by fire,
termites or failure of building materials, denying a request to repair or rebuild the
structure could result in a government „taking‟ unless it can be shown the structures were
at a clear risk from coastal hazards. As a result, the Commission‟s 2003 rules allow a
structure or home to be restored to its original size and footprint if it was destroyed by
factors unrelated to coastal hazards (Norcross-Nu‟u and Abbott, 2005). Given the rules
intent of „managed‟ or „strategic retreat‟ from the ocean through the „planned
obsolescence‟ of structures, it is debatable whether allowing a dilapidated structure to be
rebuilt in the setback area is responsible. But without a „nexus‟ to a coastal hazard, the
government can not deny rebuilding at the site. As such, shoreline policies should
provide an incentive to move inland and out of harms way. For example, allowing an
incremental expansion of the replacement structure‟s building footprint could serve as an
incentive to rebuild further inland. Hwang (2006) recommends that a replacement
structure could be enlarged 100 square feet for every 10 feet the replacement structure is
moved inland from its original location. The policy encourages landowners to move
homes and structures inland over time, regardless of the actual risk or coastal hazards
experienced at the site. This incentive policy is precautionary rather than a reaction to a
coastal hazard already experienced and reduces the risks associated with building near the

Qualified Demolitions

Some property owners want to remove or demolish antiquated structures that are located
within the shoreline setback area (Figure 7, left). While the stated purpose of the rules is

                                                                               Page 14 of 23
to regulate development within the shoreline area, the rules were silent on the concept of
reducing intensity of use (Norcross-Nu‟u and Abbott, 2005). Demolition of existing
structures in the setback area requires a variance. The variance process is costly, time-
consuming and its outcome very uncertain which caused applicants to leave the structures
in place, A December 2007 rule amendment corrected the policy by providing the
Director with discretion in approving “Qualified Demolitions” subject to certain
evaluative criteria that is consistent with the planned obsolescence intent of the rules.

Minor Structures

The Commission delegates the authority to approve construction of minor structures in
the setback area to the Department‟s Director. The Director is also authorized to make
determinations as to the location, extent and proper calculation of the shoreline setback
area. This framework ensures maximum regulatory control over what structures and/or
activities are allowed within the shoreline area. However, minor structures consist of a
short list of allowable structures as defined in the rules. By specifying what structures are
permissible, the Director has no ability to address new and unforeseen circumstances. A
more prudent approach would be for the Commission to provide the Director with
criteria, rather than an explicit pre-defined list of allowable structures and activities
within the shoreline setback area. In December 2007, the Commission amended the
definition of “Minor Structure” to include permissible and prohibited structures, as well
as performance criteria for evaluating structures proposed to be located in the setback
area. Structures that do not harden the shoreline, hinder sand transport, interrupt lateral
shoreline access or impound sand resources are acceptable in the setback area with the
Director‟s approval. This reduces the burden on the applicant to undertake the variance
process for minor structures and/or activities that are unlikely to contribute to shoreline
erosion or adversely impact coastal resources.

Emergency Response

Both the state and county allow property owners to harden their shoreline in order to
protect an imminently-threatened, legally habitable structure. An imminent threat occurs
when the shoreline is less than twenty (20) feet away from the structure, which is the
state‟s minimum setback distance. But such a policy has inherent flaws since a home
located on a dynamically shifting shoreline may have only a few days to respond to
erosion crisis compared with a home located on a rocky shoreline that may not change for
years (Figure 8). Second, installing shoreline armoring to respond to a site-specific
temporary erosion crisis often leads to hardening that is never removed and becomes
permanent. Third, shoreline hardening at sites where the beach erodes and recovers
seasonally can interrupt sand transport mechanisms leading to lost beach width and the
permanent loss of beach sand from the littoral system. Temporary measures such as
coconut fiber sand bags and beach nourishment may be a more appropriate response to
site-specific, temporary erosion from acute, seasonal or episodic events. Usually,
oceanfront property owners want to save as much of their land as possible given its high
real estate value, even if their actions sacrifice the beach which initially attracted them to
the site and added value to their property.

                                                                                Page 15 of 23
Clearly an equitable trigger for emergency response should be included in shoreline
setback policy. The use of a trigger is predicated on the fact that both state and county
jurisdictions may become involved in any response to erosion once the minimum twenty
foot setback distance is surpassed. Figure 8 illustrates that both state and county permits
are required when a structure or erosion response extends across the shoreline.

     State                          County           State                    County

            Figure 8: Both state and county permitting is required along the shoreline
              (Photographs courtesy of Dolan Eversole, Sea Grant / DLNR-OCCL)

In recognition of the issues surrounding emergency responses to erosion crisis, the
Commission amended its rules in December 2007. The rules now require that any
emergency response to erosion crisis is temporary and removed within six months. The
amended rules also require the Department‟s determination that given the significance of
the emergency, the type of protection is the best management alternative in relation to
beach, shoreline, and coastal resource conservation. The amendment also clarified that
the “best” alternative was to be considered relative to the public‟s interest and not the
private landowner‟s. Oceanfront property owners can still seek approval for shoreline
hardening through the variance process. However, environmental impacts associated
with shoreline hardening must be fully considered, negative impacts avoided, minimized
or mitigated, lateral beach access retained, and the property owner must indemnify the
county from future liability.


Beach Nourishment & Replenishment

The Department promotes „soft‟ responses to erosion crisis including beach nourishment,
dune restoration, and the use of biodegradable coconut fiber sand bags for small scale
episodic responses. Small Scale Beach Nourishment (SSBN) projects are authorized by
the State Department of Land and Natural Resources (DLNR), Office of Conservation
and Coastal Lands (OCCL). The SSBN permit expedites both environmental and multi-
agency review processes by streamlining a variety of federal, state, and county
requirements. SSBN permits require that only Maui inland sands be used for beach
nourishment and that a sieve analysis be conducted to ensure that the sand is of suitable

                                                                               Page 16 of 23
quality, lacks clay and fines, and is of sufficient grain size to be effective. Furthermore,
beach nourishment is a long-term commitment and can not be done haphazardly or
sporadically (Figure 9). Unfortunately, as oceanfront properties are sold, new owners
may be less receptive to an inherent long-term beach maintenance and nourishment costs.

       Figure 9:       Beach nourishment (center house) offers a beneficial alternative in
                       terms of resale value and beach access versus shoreline hardening
                       (Photograph courtesy of Patti Cadiz)

Currently, dredging or pumping submerged sand reservoirs from offshore is either cost-
prohibitive or technically infeasible in Maui due to offshore depths. However, the idea is
being investigated (Hanazawa, 2006), in part, because Maui inland sands are being
rapidly depleted. Sand supplies of sufficient size for mining and excavation purposes are
estimated to be depleted by 2011 (ibid.). Fortunately, exports of sand to Oahu were
recently diminished by the Commission as part of a discretionary approval, but there
authority to regulate mining is very limited. New housing tracts have also covered much
of Maui‟s inland sand dunes. Moreover, Hawaiian‟s historically used sand dunes as
burial sites for ewi’ (the deceased) who must be treated with respect, including a burial
treatment plan, and often the cessation of all further excavation at the site (Solamillo,

Managed Retreat

Building along the ocean has inherent risks and many rewards. Unfortunately in Maui,
few options exist to respond to the dynamics of a shifting shoreline. This is particularly

                                                                               Page 17 of 23
true when a shifting shoreline threatens fixed structures such as homes or high-rise
buildings. Throughout the island, appropriate shoreline protection measures vary
significantly from one beach or littoral cell to the next because of differing location-
specific factors and seasonal storm exposure. What might be prudent as a response to
winter storms on the north shore may be inappropriate for storm protection on the south
shore. Ideally, interference with natural shoreline processes should be minimized. As
such, when a significant and valued building or structure is threatened by a retreating or
shifting shoreline, the first consideration should be whether the structure is capable of
being removed or relocated. For applicants pursuing shoreline hardening, the shoreline
rules require an analysis of alternatives including relocation of the threatened structure.

Managed retreat, where post & pier buildings are relocated over time or site
redevelopment moves inland, is one mechanism that allows the landowner to capitalize
on the resource which created the sites initial value (i.e. the beach) and simultaneously
avoid coastal hazards and their associated maintenance and repair costs. Many homes
could be designed with post & pier construction so that as the shoreline moves inland, the
house can be relocated inland. The practice is relatively common-place on the eastern
seaboard of the United States and along the Gulf of Mexico. Moreover, many residential
dwellings along the coastline of Asian countries are designed with relocation in mind. In
Cambodia, adjacent to Angkor Wat, whole communities move in conjunction with the
seasonal expansion and contraction of Siem Reap Lake. Of course, post & pier
construction limits building size, which may not be preferable to the landowner.
Furthermore, lot configurations must be deep enough to accommodate relocation over
decadal scales. Planning for coastal hazards and relocation must be done early in the land
development and subdivision process. Hwang‟s (2005) illustrates that subdivisions can
be configured to maintain residential housing densities using deeper, narrower lots rather
than wider, shorter oceanfront lots. The configurations support relocation and retreat
from eroding shorelines, and may improve the municipal tax base since more property
owners can be taxed at oceanfront rates.

If demolition or relocation is not feasible, beach or dune replenishment can offer
temporary relief from wave damage by establishing a buffer between the ocean and the
land (Figure 9). However, sand must be continually added until the deficit in the sand
budget has been accommodated. For instance, Sugar Cove Condominium‟s on Maui‟s
north shore has succeeded through consecutive sand applications in reestablishing and
stabilizing the beach and erosion is not apparent (Guild, 1999). As a result of beach
nourishment, home prices have increased substantially with the increases in home values
far outweighing the cost of the beach nourishment project (ibid.). But on many of Maui‟s
shorelines, sand replenishment may not be feasible over the long-term, especially if sand
supplies have been exhausted as predicted (Hanazawa, 2006). In such a circumstance,
protective structures such as seawalls, revetments or groins or a combination of structures
with sand fill may need to be considered as a last resort. In the case of a chronically
retreating sandy shoreline, building a seawall or revetment will result in beach narrowing
and loss. Hence, this management option values retention of land over conservation of
the natural resource. The consequence is that the value of the structure will invariably be
reduced because it is no longer in proximity to a valued environmental resource: the

                                                                               Page 18 of 23
beach (Figure 10). When contemplating shoreline hardening, it seems prudent to
consider the economic value of beach retention. Contingent valuation methodologies can
be employed to assess values associated with beach-less beach parks, ocean side
condominiums without safe, clean waters to swim, or a resort where direct beach access
can no longer be readily accommodated (Figure 10).

       Figure 10:     Contingent Valuation may capture opportunity costs forgone when
                      beach chairs become lawn and roof chairs as illustrated above.

In 2008, the Maui Lu Resort received Commission approval for a new 400-unit Time
Share development in north Kihei, Maui. The project included the removal of oceanfront
condominiums in recognition that revetments and geo-textile bags had interrupted public
lateral access and hindered sand transport which led to beach erosion and a 6,500 cubic
yard beach nourishment program (Figure 11). By retaining a high quality beach resource,
the resort is more likely to attract high-value sales of its units. Moreover, combining
public benefits with private facility improvements helped generate the necessary support
for the project when it was presented to the Commission. Improvements in lateral and
perpendicular shoreline access, dedicated public parking, beach nourishment, outdoor
showers and new or improved comfort facilities can substantially enhance a project‟s
likelihood of approval by decision-makers. Both the SMA and Shoreline rules
necessitate that the Commission must weigh private development rights against the costs
(increased traffic, water and wastewater use, lost aesthetics and open space, etc.) and
benefits borne by the public.

A number of tourist accommodations in Maui are dated and/or slated for renovation.
Bigger rooms, spacious views, loftier ceilings, greater energy efficiency, and more
attractive materials are part of the trend in resort facility upgrades, renovations and
building replacement. Hotels, condominiums and resorts contemplating large capital
investments in their facilities offer an opportunity to capitalize on the benefits, both
environmental and financial, of managed retreat. Contravening the argument of lost
development rights along the shoreline are various incentive programs that encourage
dedication of shoreline areas to mixed public and private use and open space.
Conservation easements, rolling shoreline easements, beach mitigation banks, land
banking and special federally-funded programs such as the Hawaii Coastal and Estuarine
Lands Conservation Program can provide financially sound options for retiring
oceanfront areas that are subject to coastal hazards and inundation. Thus, managed

                                                                            Page 19 of 23
retreat should be one alternative that is analyzed in conjunction with other responses to
coastal hazards, beach and coastal erosion, and shoreline retreat.

       Figure 10:      “Managed Retreat” allowed older buildings at the Maui Lu to be
                       removed and new structures erected inland during the SMA and
                       Shoreline permitting process providing public/private benefits.


Dune Protection

Dunes are particularly unique given that their dynamic nature makes their boundary
difficult to delineate. Writing a long-standing policy to protect a system that is migratory
in nature presents challenges and could make dunes susceptible to degradation if they
move. Currently, the shoreline rules do not address dune systems and/or their restoration
when they are outside of the shoreline setback area. However, the Department revised its
grading regulations to require that primary coastal dunes are delineated by a professional
Coastal Engineer and can not be graded or altered. In contrast to limitations only within
the shoreline setback area, any grading of a primary dune and any grading of dunes
within the Special Management Area is now prohibited.

Enforcement: Education, Outreach and Political Will

A policy is only as effective as its enforcement. Enforcement requires sufficient penalties
to foster compliance and the political will to penalize violators. In a destination
development economy, institutionalized responses such as After-The-Fact permits, and
reduced fines for developers, contravenes good policy. In Maui, enforcement consists of
permitting and inspections resulting in penalties and project delays; peer and neighbor
vigilance resulting in litigation and interventions; corporate image; and enhancing
awareness through outreach and education. When compliance is viewed as an asset
which assures structures will not be damaged or destroyed by coastal hazards, it adds to
the viability of a development and the project‟s long term economic feasibility.
Landowners are less likely to violate rules when they recognize compliance reduces the

                                                                               Page 20 of 23
risk of damage and structural failures, reduces repairs and maintenance costs, and reduces
insurance rates. The Department has created a coastal management program website for
public education, revised its permit applications to explain the purpose of the shoreline
setback area, and distributes a tri-fold brochure which graphically illustrates erosion-
based shoreline setback information. Sea Grant has contributed by developing a Beach
Management Plan (Norcross-Nu‟u and Abbott, 2008) and published a guide for
purchasing coastal real estate in Hawaii (Eversole and Norcross-Nu‟u, 2006) a useful
guide to realtors and offshore investors. In addition, the State Office of Planning has
published a Special Management Area Guidebook to support the Department‟s efforts.


Oceanfront properties owners recognize that a properly located building, whose location
is determined scientifically, is more likely to be protected from coastal hazards and
therefore retain its value and function over time. Properly located structures can help
preserve beach and sand resources and retain lateral access along the shoreline.
Scientifically established erosion rates have assisted the county in preventing
development in areas that are likely to be at risk in the future and during a building‟s
lifespan. Hoteliers and resort developers have recognized the inherent value in
conserving valued coastal amenities such as beaches and access to ocean waters. The
science of locating based on historic shoreline position can be used to locate buildings
sufficiently inland to assure marketability of resort facilities and coastal amenities over
long periods of time. This assurance can be expressed in higher return on investment, as
seen in a number of case examples on Maui‟s shoreline. Clean, wide beaches attract
tourists, which fills hotel rooms and keeps room rates and demand high. Beautiful,
accessible shoreline resources and ease of access to ocean waters for recreation ensures
that oceanfront properties maintain high value. Income from employment, elevated tax
base, and expenditures by developers on infrastructure and public goods contributes to an
economy built on destination development. Thus, by preserving the beach, one can
preserve profits for today and the future, and simultaneously offer the children of
tomorrow an attractive place to build their own castles.

Except where noted otherwise, all figures and photographs are courtesy of Zoe Norcross-
Nu‟u and/or T. Abbott. Special thanks to Ms. Norcross-Nu‟u for her assistance in peer-
review and dedication to coastal conservation. Lorman is authorized to reproduce and
distribute this draft manuscript; however the author retains both intellectual property
rights and the right to seek peer-reviewed publication in a journal of his/her choosing.
Special thanks to Dr. Charles “Chip” Fletcher, University of Hawaii and Dr. Andrew
Cooper, University of Ulster, Ireland for their support and continued input on the
preparation of a final manuscript for publication in appropriate peer-reviewed journal(s).
Contact: Thorne Abbott at or
Coastal Resources and Shoreline Planner, Maui County Planning Department, or


                                                                              Page 21 of 23
Brown, Keli‟i, 2007. Maui Recaptures “Best Island in the World” in 20th Annual
CONDE NAST TRAVELER Readers Choice Awards Poll. Maui Visitors Bureau Press
Release by the Director of Public Relations on October 11, 2007.

Cerizo, Francis, 2007. The Planning Framework, Flood Hazard Zones. Orientation
Workshop for the Maui Planning Commission held April 11 2006.

CZMA, 1997. The Hawaii Coastal Zone Management Act of 1977, Hawaii Revised
Statutes, Chapter 205A.

Everson, Dolan and Norcross-Nu‟u, Zoe, 2006. Natural Hazard Considerations for
Purchasing Coastal Real Estate in Hawaii: A Practical Guide of Common Questions and
Answers. University of Hawaii Sea Grant College Program, Honolulu, Hawaii, August

Federal Emergency Management Agency, 2000. Coastal Construction Manual:
Principles and practices of Planning, Siting, Designing, Constructing, and Maintaining
Residential Buildings in Coastal Areas. Volume I, P. 7-53.

Feindel, Kristin, 2003. An inventory of shoreline hardening structures on Maui Island.
An unpublished study conducted from June to August 2003, on behalf of the Maui
County Planning Department.

Fletcher, et. al., 2003 (Fetcher, C.H., Rooney, J., Barbee, M., Lim, S.-C., and Richmond,
B.). Mapping Shoreline Change Using Digital Orthophotogrammetry on Maui, HI.
Journal of Coastal Research Special Issue #38, P. 106-124.

Fletcher et. al., 2003a. The Maui Shoreline Atlas, Maui County Planning Department.

Genz, Ayseha, 2006. CZM practices by other states -a compilation of shoreline setback
methods of other states prepared for Dr. Chip Fletcher. University of Hawaii, School of
Ocean & Earth Sciences, Honolulu, HI. September 22, 2006.

Guild, Barbara, 1999. Sugar Cove Beach Replenishment, Shore and Beach Volume 67,
Number 2 and 3, Special Double Issue, April and July, 1999.

Hanazawa, 2006. Maui Inland Sand Resource Quantification Study. Prepared for the
County of Maui Department of Public Works & Enviornmental Management. Prepared
by SSFM International, Inc., 2006.

Hwang, Dennis, 2005. Hawaii Coastal Mitigation Guidebook. A publication of the
Hawaii Coastal Zone Management Program, Office of Planning, Department of Business,
Economic Development & Tourism, State of Hawaii, January 2005.

                                                                             Page 22 of 23
Norcross-Nu‟u, Zoe and Abbott, Thorne, 2005. Adoption of Erosion Rate-Based
Setbacks in Maui, Hawaii: Observations and Lessons Learned. American Society of
Civil Engineers, Annual Conference Proceedings, July 2005.

Norcross-Nu‟u, Zoe and Abbott, Thorne, 2008. Beach Management Plan for Maui, 2nd
edition, Sea Grant Extension Service, University of Hawaii, June 2008.

Reed, Madeline 2008. Seawalls and the jus publicum: Navigating the tensions between
private property and public beach access in the face of shoreline erosion. Draft paper for
Professor Callies, University of Hawaii Law School, March 13, 2008.

Solamillo, Stanley, 2007. Cultural Heritage Resources Element in support of the Maui
Island Plan Update. Maui County Planning Department, Long Range Division,
November 2007.

Tom, Doug, 2005. The Hawaii Ocean Resource Management Plan Workshop.
Honolulu, Hawaii, October 26, 2005.

SSL, 1970. The Hawaii Shoreline Setback Law of 1970, Hawaii Revised Statutes,
Chapter 205.

                                                                              Page 23 of 23

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