An encampment of food trucks and picnic tables with grass-thatch umbrellas, portable generators and views of picturesque Sharks Cove might seem like just the kind of funky dining spot people expect to find on Oahu’s bucolic North Shore.

But a neighborhood conservation group says the makeshift village at the edge of one of the state’s most protected marine areas has brought more than a cool vibe to Pupukea.

The critics say it’s caused increased traffic and pollution — and that the Honolulu government isn’t adequately enforcing the environmental and land use laws designed to protect the fragile coastal area.

The food truck village is located across Kamehameha Highway from Sharks Cove, near Foodland.

In a petition filed earlier this month with the Honolulu Department of Planning and Permitting, the nonprofit organization Malama Pupukea-Waimea says the department erroneously granted a permit to allow the dining encampment and has let the landowner behind the project get away without paying fines.

The Spot lunch wagon at the Pupukea location across of Sharks Cove.

The Spot lunch wagon is one of five food trucks at Pupukea across from Sharks Cove.

Cory Lum/Civil Beat

Malama Pupukea-Waimea wants the planning department to require developer Hanapohaku to correct land use violations, pay outstanding fines and apply for the type of permit the owner needs to lawfully operate its food truck village in a specially protected area near the ocean.

The petition requests a contested case hearing, a sort of administrative judicial hearing before the agency, which is a necessary prelude to a court challenge.

“This poorly planned development and the irresponsible approach of the owners has imposed hardship on community,” said Denise Antolini, Malama Pupukea-Waimea’s president and the attorney who filed the petition. “For the past three years, weʻve seen a big spike in traffic, pedestrian hazards, runoff, and spillover litter and other impacts on the Pupukea beach park and the Sharks Cove marine protected area.”

Visitors enjoy swimming at Sharks Cove, Pupukea. North Shore.

Sharks Cove at Pupukea on Oahu’s iconic North Shore is popular with swimmers and snorkelers.

Cory Lum/Civil Beat

Antolini said the property owners allowed things to get out of control on the site and racked up nearly $150,000 in unpaid fines for violating city planning and permitting laws, letting as many as 10 food trucks operate without the type of permit needed for coastline development.

Although the property owner has scaled back to five food trucks from eight, Antolini said the city needs to take a harder look at the project.

“Only after community vigilance, monitoring, and complaints to regulatory agencies and elected officials did Developer make any effort to reduce the impact of its activities,” Malama Pupukea-Waimea’s petition says. “However, these significant problems persist.”

Andrew Yani, a partner in Hanapohaku, declined to comment.

Curtis Lum, a spokesman for the Honolulu Department of Planning and Permitting, declined to comment, citing the litigation.

Portable toilets sit in the parking lot across Sharks Cove in Pupukea.

Portable toilets sit in the parking lot across Sharks Cove in Pupukea.

Cory Lum/Civil Beat

Layers Of Regulation Protect Area

Sharks Cove is protected by multiple layers of laws. The ocean at Sharks Cove is protected as a state Marine Life Conservation District. And the whole area is governed by federal, state and local laws regulating development of coastal areas.

As University of Hawaii law professor David Callies describes in his treatise, “Regulating Paradise: Land Use Controls in Hawaii,” Congress passed the federal Coastal Zone Management Act in 1972 to help preserve the nation’s coastal areas from exactly the types of problems facing the North Shore: population growth and development that threaten the destruction of marine habitat, open spaces and other ecological and cultural resources.

The federal coastal zone law allows states to set up their own regulatory frameworks, as approved by the National Oceanic and Atmospheric Administration. The state Office of Planning administers Hawaii’s program under Hawaii’s coastal zone management statute.

Hawaii’s statute says special controls along Hawaii’s shoreline are needed to protect natural resources. And it sets guidelines under which the counties can allow development in the coastal areas, known as special management areas.

The dispute here involves Honolulu’s enforcement of its special management area ordinance.

Pupukea lunch wagon lot grass thatched eating area located across of Sharks Cove in Pupukea.

The Pupukea lunch wagon lot includes a grass-thatched eating area located across from Sharks Cove in Pupukea.

Cory Lum/Civil Beat

Under Honolulu’s ordinance, there are two types of development permits for the special areas: a standard use permit and an easier-to-obtain minor use permit. Minor permits are for developments valued at less than $500,000 and which have no substantial adverse environmental impacts. Use permits are for developments valued at more than $500,000, or which may have substantial adverse environmental impacts, when factoring in  cumulative impacts.

Unlike the minor permit granted to Hanapohaku, a use permit requires a public hearing and potentially other requirements, such as a traffic study and an environmental assessment.

Malama Pupukea-Waimea alleges the developer low-balled the development costs to keep the project cost below the $500,000 threshold so it could qualify for a minor permit. It also says Honolulu Hale didn’t consider the cumulative impacts of having what the developer estimates will be up to 730,00 people a year coming to the site to buy shrimp plates and tacos.

The planning department simply took the developer’s cost statements at face value, even when the developer inexplicably lowered costs for certain items, Malama Pupukea-Waimea alleges.

UH Law school Associate Dean Denise Antolini during press conference. Environmental law. 26 june 2015. photograph Cory Lum/Civil Beat

Denise Antolini, president of Malama Pupukea-Waimea, says the city rubber stamped the project’s permit approval.

Cory Lum/Civil Beat

For instance, in one example cited in the petition, Hanapohaku in April said the cost of erosion control measures already in place was $9,500. But in May the developer reduced that by 61 percent, to $3,696.

Scott Jennings, of SJ Construction Consulting, who prepared the cost documents, referred questions about the unexplained changes to his client, G70 (formerly called Group 70 International Inc.), a Honolulu planning and architecture firm that is advising Hanapohaku on the project. Jeff Overton, a G70 principal working on the project, did not return calls.

In addition, the planning department appears to have done a U-turn on whether the value of the food trucks should be included in development costs.

In April, the planning department denied the permit because it found the application was incomplete. One issue was the question of whether the trucks stayed in place, in which case their value would be considered part of the development cost.

“ln site visits last year, we were led to believe that the trucks do not move on a daily basis, and in fact rarely move at all,” Kathy Sukogawa, the acting planning director wrote. “lf this is the case, the application should clearly say so. lf the new proposal involves daily movement of the trucks, the application should indicate where they will be parked every evening.”

Planning Acting Deputy Director Kathy Sokugawa during Board of Education meeting held at Farrington HS. 2 nov 2016

Department of Planning and Permitting Acting Deputy Director Kathy Sokugawa initially questioned whether food trucks moved on a daily basis, or at all.

Cory Lum/Civil Beat

But Sokugawa reached a different conclusion on the issue in August.

“The food trucks are mobile, but because they will be present at the site each day and will be conducting commercial activities on the site, their use as eating and drinking establishments is considered ‘development,’” Sokugawa determined. “However, the trucks themselves are mobile and will regularly leave the site. Therefore, estimates of the value of the food trucks were not included in the valuation of the Project.”

How the planning department determined the trucks regularly leave the site is not clear from the order approving the permit. Nor is there any mention of where the trucks will park at night.

In any case, not counting the food trucks, the planning department found the development costs to be just less than $352,000.

In its petition, Malama Pupukea-Waimea said the department should have done an independent evaluation.

“The city’s review appears to have rubber stamped the plans without exercising adequate oversight,” Antolini said.

In addition, she said, the Department of Planning and Permitting has waived 90 percent of the fines imposed for some violations.

Lum, the DPP spokesman, confirmed the DPP had reduced the fine amount. Hanapokaku paid an initial fine of $50, and a reduced daily fine of $3,825, he said; the original amount was $38,250.

“The primary objective of the Department of Planning and Permitting’s Civil Fine System is to obtain compliance,” he said. “The DPP may administratively reduce the fines.”

Visitors Like Food Trucks

At lunchtime last week, gravel crunched under the tires of cars pulling into the parking lot, the smell of tacos wafted from food trucks, and diners gathered under tented picnic areas. The space had the atmosphere of a ramshackle carnival — mismatched tents, motley food trucks – with a priceless view of the azure ocean.

Among the diners were Tom and Shoua Her of St. Paul, Minnesota. The honeymooners had come to Sharks Cove looking for the Elephant Truck, a popular Thai food establishment, only to discover it had moved.

“Our friends said its the best Thai food they’d ever had,” Tom said. “And we’ve been to Thailand.”

Tom and Shoua Her of Minnesota came to Sharks Cove looking for the Elephant Truck Thai food truck but settled for tacos.

Stewart Yerton/Civil Beat

Sutavee, Elephant Truck’s owner, said he had been forced to leave Sharks Cove but that everything had worked out because he immediately landed a permanent restaurant space in Haleiwa.

Workers approached at the food trucks declined to comment. Liam McNamara, who said he owns half of the businesses at the truck village, including a surf shop, declined to be interviewed unless he could review this article before it was published, which is against Civil Beat’s policy.

The latest dispute isn’t the first time Hanapohaku has faced an outcry from residents over permitting issues, according to the petition. Hanapohaku previously tried to develop the property by applying for three separate minor permits for the 2.7 site-acre site.

Facing backlash from residents, and a legal challenge from Malama Pupukea-Waimea, Hanapohaku withdrew the minor permits and promised to apply for a use permit.

Antolini said her group is simply trying to ensure that state and local governments follow the law when permitting development at Pupukea. This view was shared in an April 2016 joint statement by a coalition of community groups including the groups such as the Sierra Club, Surfrider Foundation, Hawaii’s Thousand Friends, Life of the Land and Keep the North Shore Country.

“This site is one of the last commercially developable lots along the ocean in our community,” said Antolini, a University of Hawaii law professor and Pupukea resident. “Any development on this site should be held to the highest standards for legality, not the lowest.”

Read Malama Pupukea-Waimea’s petition:

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