STATE OF HAWAI‘I

DEPARTMENT OF LAND AND NATURAL RESOURCES

OFFICE OF CONSERVATION AND COASTAL LANDS
Honolulu, Hawai‘i

April 23, 2021

Board of Land and

Natural Resources
State of Hawaii
Honolulu, Hawaii

REGARDING: Conservation District Enforcement OA 19-42 Alleged

Unauthorized Land Use [Pier] Located in the Conservation District

BY: David X Pham, Jennifer P V Pham, Deandrea P V Pham

LANDOWNER: State of Hawai‘i (submerged land)

LOCATION: Makai of 45-030 Springer Place, Kāneʻohe, Koʻolau Poko, Oʻahu

Tax Map Key: (1) 4-5-047:118 [landward and adjacent to site]

SUBZONE: Resource

DESCRIPTION OF AREA (Exhibit A)

The site of the alleged unauthorized land use within the Conservation District is upon
submerged land of Kāneʻohe Bay. The site is adjacent to the coastal private property
noted as TMK: (1) 4-5-047:118 owned by the Phams.

BACKGROUND (Exhibits B &C)

A nonconforming pier (constructed prior to Oct. 1964) existed makai and adjacent to the
private property. The former landowner did not have a general lease nor did the former
landowner take advantage of the Pier Amnesty program that was approved by the Board
of Land and Natural Resources on July 13, 2001. The property was purchased by the
Pham’s in 2017.

ALLEGED UNAUTHORIZED LAND USES:

A nonconforming pier was removed, and a new pier was constructed without review or
authorization by the Department within the Resource subzone of the Conservation
District.

The following chronological documentation discusses the matter and provides evidence
of the alleged unauthorized land use and actions taken regarding the matter:

February 9, 2018 The Office of Conservation and Coastal Lands is in receipt of a

Shoreline Encroachment Information Sheet from the Phams
regarding the nonconforming pier adjacent to their property. The

ITEM K-1
Board of Land and Enforcement OA 19-42
Natural Resources

Encroachment Information Sheet is utilized by the OCCL to make

a recommendation to the Land Division to assist in the land
disposition of the encroachment. A certified shoreline survey from
October 7. 1977 and photos dated 12/17/17 were included. The
OCCL’s evaluation of the nonconforming encroaching pier
supported the disposition request. 1 (Exhibits D & E)

April 26, 2018 In response to the Land Division’s request for comments for a
proposed grant of term, non-exclusive easement for the
encroaching pier and steps, the City and County’s Planning
Department provides comments that improvements located within
the shoreline setback area were built without the necessary
approvals and that a Notice of Violation was issued by the DPP.
(Exhibit F)

May 7, 2018 The Land Division sends notification to the Phams that due to the
outstanding violation with the City, the Department was not able to
move forward with the processing of the easement. (Exhibit G)

February 13, 2019 It was brought to the Department’s attention that work was being
done in the Conservation District as it appeared the pier was being
rebuilt with new footings and a small structure was constructed on
the mauka end of the pier. Notice of an alleged violation in the
Conservation District was issued. (Exhibit H)

February 28, 2019 Email received from Deandrea Pham stating that because of the
dilapidated conditions of the pier, repair work was conducted. Ms.
Pham also noted that the small structure was taken down. (Exhibit
I)

July 9, 2020 The OCCL requests a status update and also notes the removal of
the small structure but that it appeared that the pier had been
rebuilt. (Exhibit J)

September 10, 2020 Correspondence from Jennifer Pham received by the OCCL in
response to the February 13, 2019 Notice and the July 9, 2020
request for a status update. The correspondence states:
“Our repair works of the pier were necessitated due to the
dilapidated condition of the pier and the supporting structures.
At the time the repair was made, we believed that our repair
qualified as “Minor Repair” meaning routine work done to an
existing structure, a rotten wood to be replaced with the same,
or like-to-like replacement of component parts, and results in
negligible change to or impact to land or natural and cultural
resources. If we had misinterpreted the rules set forth in HAR

1
STAFF NOTES: The nonconforming pier that was the subject of the Encroachment Information Sheet was
replaced with another pier without authorization.
2
Board of Land and Enforcement OA 19-42
Natural Resources

13-5, we sincerely apologize for the misinterpretation and

herein wish to apply for an after the fact permit.
Due to the unique location of our pier, right in front of our land,
we had no other means to access to our boat without the pier,
there is also no public access to get to our boat, therefore: the
removal of the pier would be an undue hardship.” (Exhibit K)

Conservation District
The Hawai‘i Revised Statutes (HRS), Chapter 183C, and the Hawai‘i Administrative Rules
(HAR), Chapter 13-5, regulate land uses in the Conservation District by identifying land
uses that may be allowed by Conservation District Use Permit (CDUP). §13-5-2, HAR
defines “land use” as:
(1) The placement or erection of any solid material on land if that material remains
on the land more than thirty days, or which causes a permanent change in the
land area on which it occurs;
(2) The grading, removing, harvesting, dredging, mining, or extraction of any
material or natural resource on land;
(3) The subdivision of land; or
(4) The construction, reconstruction, demolition, or alteration of any structure,
building, or facility on land.

Photographic evidence and aerial images indicate the former pier has been replaced by
a shorter, wider pier with a small mauka deck similar to the previous pier.(Exhibit L&M)

HRS, §183C-7 Penalty for violation notes (a) The department shall prescribe
administrative procedures as it deems necessary for the enforcement of this chapter and
(b) Any person violating this chapter or any rule adopted in accordance with this chapter
shall be fined not more than $15,000 per violation in addition to administrative costs, costs
associated with land or habitat restoration, and damages to public land or natural
resources, or any combination thereof. After written or verbal notification from the
department, willful violation of this chapter or any rule adopted in accordance with this
chapter may incur and additional fine of up to $15,000 per day per violation for each day
in which the violation persists.

The board may set, charge, and collect the fine based on the value of the natural resource
that is damaged, the market value of the natural resource damaged, and any other factor
it deems appropriate, such as the loss of the natural resource to its natural habitat and
environment and the cost of restoration or replacement. The remedies provided for in
this subsection are cumulative and in addition to any other remedies allowed by law.

While HAR, §13-5-7 allows for the repair of nonconforming land uses, once a
nonconforming land use is destroyed including voluntary demolition to an extent of more
than 50% of its replacement cost at the time of destruction, it shall not be reconstructed
except in conformity with the provision of HAR, Chapter 13-5.

Regarding the new pier, staff has assessed the closest identified land use that the alleged
unauthorized action appears to conform to and it is HAR, §13-5-24 R-5 Marine
Construction (D-1) Dredging, filling, or construction on submerged lands, including

3
Board of Land and Enforcement OA 19-42
Natural Resources

construction of harbors, piers, marinas and artificial reefs. This would require a Board
permit.

Pursuant to HAR, §13-5-6 Penalty. (a) Any person, firm, government agency, or
corporation violating any of the provision of Chapter 13-5 or permits issued pursuant
thereto shall be punished as provided in chapter 183C, HRS; and (f) for the purposes of
providing guidance in the assessment of administrative sanctions and promoting
consistency within the department, there shall be adopted by the board an administrative
sanctions schedule.

Based on the Conservation District Violation Penalties Schedule Guidelines and

Assessment of Damages to Public Land or Natural Resources, the unauthorized land use
is considered a “Major” unauthorized land use since the closest identified land use
appears to require a Board permit. This violation follows a penalty range of $10,000 to
$15,000.

The unauthorized land use occurred in the Conservation District without approval and
therefore allegedly violated the above referenced chapters and rules.

DISCUSSION
Rather than removing the pier, the Phams would like to file an after the fact Conservation
District Use Application to hopefully obtain the Board’s authorization for the pier.
However, there appears to be matters that need to be attended to in the Urban District
prior to the Phams applying for the Conservation District land use and the land disposition
for the use of State land. Therefore, the Phams must resolve matters with the City within
a timely manner prior to applying for the after the fact CDUA.

FINDINGS

1. That the Phams caused:

• The unauthorized removal/demolition of a nonconforming pier; and
• The unauthorized construction of a pier.

2. That the unauthorized land uses occurred within the State Land Use Conservation
District upon submerged lands within the Resource Subzone.

AS SUCH, STAFF RECOMMENDS AS FOLLOWS:

That, pursuant to HRS, §183C-7, the Board of Land and Natural Resources finds David
X Pham, Jennifer P V Pham, Deandrea P V Pham [the Phams] in violation of HAR, §13-
5-24, and subject to the following:

1. The Phams are fined $15,000 for violating the provisions of HAR, §13-5-24 for the
demolition and alteration of an existing pier and the construction of a new pier
within the Conservation District, Resource subzone prior to obtaining the
appropriate approvals within the Conservation District;

2. The Phams are fined an additional $1,000.00 for administrative costs associated
with the subject violations;
4
D-1
D-2
D-3
D-4
D-5
D-6
D-7
D-8
D-9
D-10
EXHIBIT F
H-1
H-2
H-3
H-4
H-5
From: Deandrea Pham
Sent: Thursday, February 28, 2019 2:02 PM
To: Saluga, Salvatore J <[email protected]>
Subject: Re: Test

Hi Sal,

Thanks for the all your help over the phone the other day, and sorry for the delay.

On behalf of my parents and myself, I’m really sorry for the inconvenience. But, I would like to say that
because of the dilapidating conditions, we felt it was necessary to do the repairs as there was an
accident walking out on the old pier since it was a safety hazard. I will attach photos of the pre-existing
pier to show you the condition it was in, these photos were taken January 2018.

EXHIBIT I
As for the storage room, we had a pre-existing post where the storage room was located, and we also
thought since our neighbor has a storage room located on his dock, it was ok to renovate ours.

Please see below for the neighbors storage room.

I-1
We would like to again apologize for our actions in not getting permission to renovate our dock, and we
were fast to take down the storage room once we found out about the violation, please see the photos
below that shows our compliance with taking down the storage structure.

I-2
Please let me know what the next step is and if there is anything I can do to amend the situation. Have a
great day.
Mahalo,
Deandrea Pham
Pham & Associates LLC I-3
EXHIBIT K
https://www.vrbo.com/1434949 2020/2021

EXHIBIT M