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Want some free public land on Diamond Head with a million-dollar view?
Multi-millionaire Angus Mitchell has apparently used state land beside his house on Diamond Head’s southeastern slopes rent-free for nearly a decade, according to state Department of Land and Natural Resources documents.
State records show Mitchell’s property boundaries at 3703 Poka Place were pushed out to take over public conservation land belonging to the Diamond Head State Monument.
And the Mitchell property may not be the only one on the flanks of Diamond Head with such encroachments.
State Parks Administrator Dan Quinn says at least two other properties will be reviewed soon for possibly the same violation: commandeering public land for private use.
“The landowner has created a private nature preserve on public land in his backyard.” — Martin Hsia, neighbor
Mitchell, a California resident, is the heir and only child of the late superstar hairdresser Paul Mitchell.
State documents show Angus Mitchell’s 11,000-square-foot lot was expanded by almost 3,000 square feet when adjacent conservation land was cleared of kiawe trees to install retaining walls, walled garden terraces, an artificial waterfall, two streams, a pond, irrigated non-native plant landscaping and a garden pathway — all on public land.
Homeless people often get rousted when they illegally erect their tents and ramshackle structures on public land.
But Mitchell’s unauthorized “improvements” in the Diamond Head conservation district have been allowed to remain in place more than two years after a state notice was first issued to remove them.
Clark Hatch, a board member of the Diamond Head Citizen’s Advisory Committee, says the state should get serious about forcing Mitchell to get rid of the encroachments and return the conservation land to its natural state.
“If one property owner gets away with it, you can imagine that many other neighbors might want to do the same thing, saying, ‘Hey, let’s add a little more garden to our property.’ The state should be moving faster to enforce its own rules.”
Edmund Saffery, the Honolulu attorney representing Mitchell, says many of the encroachments were already in place when Mitchell took over the property in 2005. Before that, the property had been owned since 1983 by the Paul Mitchell Trust.
“This is definitely not a land grab,” says Saffery. “We are cooperating with the state to try to reach compliance.”
Asked why it is taking so long, Saffery says, “It is not a process that happens overnight.”
Saffery says many permits and government approvals are needed to both remove and retain some of the structures, and smaller details have to be worked out, such as which native plants to plant to replace the unauthorized landscaping that the state has ordered removed.
Saffery says Mitchell is not the kind of person to abuse Hawaii’s conservation lands and has shown his interest in preservation.
Mitchell increased land in Hawaii under protection in 2011 when he donated seven acres of family property valued at $6.5 million at Kiholo Bay on the North Kona Coast to the Nature Conservancy.
DLNR chairwoman Suzanne Case was the executive director of the Nature Conservancy of Hawaii when Mitchell donated the land.
Case says Mitchell’s land gift to the Nature Conservancy had no influence on the Land Board’s decision to delay enforcement against Mitchell.
In an emailed statement, Case writes that the board is following staff recommendations to give Mitchell’s company more time to apply for after-the-fact permits.
“This decision was not a conflict of interest as defined by the ethics code (HRS 84-14-a),” Case writes. “At the time of the Poka Place decision I had no financial interest in The Nature Conservancy.”
Attorney Martin Hsia, Mitchell’s neighbor, alerted the DLNR to encroachments on the Diamond Head property in 2013.
“The landowner has created a private nature preserve on public land in his backyard,” says Hsia,
The Land Board sent Mitchell’s company, Poka Place LLC, which is the official owner of the property, a notice of violation in July 2013.
“It’s not in anybody’s interest to make their own decisions on how to use our conservation lands.” — Sam Lemmo, state conservation land administrator
In the notice, Mitchell was told to remove the illegal structures and return the land to its natural state in 120 days. The notice also warned of fines of up to $15,000 a day per violation.
Mitchell’s company has since paid a $14,000 fine and agreed to remove some of the illegal landscaping.
But the company has asked the Land Board for more time to keep many of the other improvements while it seeks after-the-fact approval for the encroachments.
In a Jan. 7, 2014, letter to the Land Board, Saffery begins to lay out a legal case for retaining most of the property’s constructed features.
Saffery justifies the walls and some terracing on Diamond Head conservation land as critical to improve drainage, halt erosion and prevent falling rocks from damaging the Mitchell residence and injuring the people living there.
Saffery’s letter says, “from a safety and liability standpoint allowing these retaining walls to remain in place is in the interest of both Poka Place and the State of Hawaii.”
State Conservation Land administrator Sam Lemmo confirms Mitchell’s representatives are at the earliest stage of requesting after-the-fact permits.
“That doesn’t mean the Land Board will give them permission to retain the structures. It is not a given,” says Lemmo. “Nobody is tougher than we are on applications for after-the-fact permits.”
Quinn says, “It is not good to reward bad behavior, but if the retaining walls and other structures serve some public benefit then they are worth considering.”
State documents show Mitchell’s Poka Place LLC also allegedly built an unpermitted gate in 2008, blocking off access to his neighbor Hsia on part of an easement they share over Diamond Head state conservation land to get to their properties.
Hisa alerted the DLNR to Mitchell’s encroachment on the easement after one of Mitchell’s employees left a note on a vehicle parked in front of Hsia’s house saying, “Please don’t park in front of my driveway.”
He says he tried for months to work with Mitchell to resolve the dispute over ownership of the easement amicably, but when that didn’t work he filed the complaint.
DLNR staff on June 14, 2013, recommended that the board give Hsia approval to remove Mitchell’s gate that blocked his access to about half of their shared easement and also the authority to remove all of Mitchell’s alleged encroachments on the easement.
Hsia says Mitchell has tried to turn their shared easement on state conservation land into a fancy gated driveway for his exclusive use.
“I don’t think anyone should be allowed to privatize Diamond Head,” says Hsia.
But the DLNR delayed all state action on the Mitchell driveway easement issue after Mitchell’s company sued Hsia and the state on June 30, 2013.
The suit alleges that Hsia, by not objecting to the gate and other improvements in the past, has abandoned his right to the back half of the easement.
Meanwhile on the issue of other possible encroachments on Diamond Head conservation land, Quinn says he hiked up to the rim of Diamond Head recently to investigate after residents complained that two other properties were expanding their private gardens into public land.
Quinn says he has not yet confirmed the addresses of the landowners in possible violation. Site visits will be made behind the properties with maps to verify if there has been encroachment, he says.
In his 31 years with the DLNR, Quinn says he has seen several other cases of encroachment on state conservation lands.
“Folks do it in areas where it is difficult to see,” says Quinn. “And they usually do it to capture more yard space. It is rare to see people build actual structures on conservation land. The most common violation we see is people dumping rubbish on park land.”
Lemmo has this advice for anyone thinking of encroaching on conservation land: “Don’t do it.”
Lemmo says the laws are there for a reason.
“It’s not in anybody’s interest to make their own decisions on how to use our conservation lands. That’s what the Land Board is for.”