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John Saunders fondly remembers family gatherings at his condo along Napili coast in West Maui. He loved to watch his kids learning to swim and snorkel with sea turtles in Keonenui Bay, a crescent-shaped cove just a short walk from the 1970s-era Kahana Sunset complex.

The Orange County, California, coin collector and real estate investor hoped his three grandkids would also enjoy the pool and ocean there. But the Saunders’ family condo is off-limits.

An engineer hired by the condo association deemed Building F — one of Kahana Sunset’s six buildings housing 79 units — unsafe in March 2021. During storms, waves sometimes break over the building’s roof and blast sand across the lanais. The ocean has undermined the foundation and created sinkholes under the adjacent Building A.

Public debate over what to do with the vulnerable buildings is coming to a head.

The Maui Planning Commission is set to consider later this year whether to allow Kahana Sunset to make emergency repairs to Building F, something it has greenlit for decades over the objections of shoreline advocates who want both buildings moved inland or demolished and the seawall removed so the shrinking beach can rebuild itself. They also point out that once a building enters the high wash of a wave, it’s encroaching on state land and a public beach.

But condo owners see it differently. In their mind, the building should be fixed.

“The idea that we can’t repair it and we have to watch it fall into the sea is just devastating,” Saunders said in a recent interview.

Seawalls are . They accelerate erosion by preventing wave energy from dissipating naturally. But they have been deployed for decades to protect private property.

Hawaii has outlawed new seawalls, but Kahana Sunset says its geriatric one should be allowed some much-needed care.

“The engineering to fix our problem is simple and the county says you’re not allowed to do it,” said Eric Roberts, president of the Kahana Sunset condo association.

Maui County will allow foundation repairs but reinforcing the seawall is a no-go. Repairing the foundation without reinforcing the seawall makes little sense though, Roberts said.

“We couldn’t get excited about spending millions of dollars to do something that wasn’t going to fix the problem,” he said.

The county’s decision last year to approve building stabilization is in line with the association’s that envisions the buildings’ eventual removal along with the seawall, according to an emailed statement from Maui County’s Corporation Counsel.

That decision is under by local shoreline advocates, cultural practitioners and , a national group that promotes beach preservation, clean water and ocean access. The West Maui community groups involved with the appeal are and . They want no further emergency repairs authorized.

How the Planning Commission rules on the Kahana Sunset matter could be a test case for how Maui County balances private property rights and public spaces like beaches, and could end up having statewide significance if the decision ends up appealed in court.

“The county needs to get serious about protecting public trust resources,” said Bianca Isaki, an attorney representing some of the appellants.

A Longstanding Problem

What’s happening at Kahana Bay is playing out throughout Hawaii and other coastal communities around the world. As global temperatures and sea levels rise, buildings and infrastructure along coastlines face increasing threats of being destroyed by the ocean.

Kahana Sunset is believed to be the first condo association in the state to have prepared a managed retreat plan, a blueprint of sorts for preparing to eventually move inland out of harm’s way. The plan lays out various scenarios and pathways for the future but it doesn’t set a hard date for moving or demolishing the buildings. It’s more a living strategic plan that will be revised every three years and submitted to the county.

The condo owners knew as far back as 1975 that the ocean’s advance was a looming problem.

The Maui Planning Department that year approved Kahana Bay’s request to build a seawall in front of the property. The planning director at the time, Howard Nakamura, noted that a seawall “would not be a satisfactory and permanent solution,” according to documents cited in the appeal.

Since then, Maui County has repeatedly approved Kahana Sunset’s requests to make emergency repairs to the foundations of Buildings F and A and the seawall, according to a review of the permit history.

Disappearing Beaches

The state is starting to clamp down on seawalls given the climate crisis and Hawaii’s disappearing beaches.

In 2020, the Legislature passed a bill that updated the state’s Coastal Zone Management Act to protect beaches and coastal ecosystems from sea level rise and erosion. The legislation bars seawalls and other types of shoreline armoring, like sand burritos and revetments, unless a variance is granted.

The restrictions follow a by the U.S. Geological Survey and the University of Hawaii that found 70% of Hawaii’s beaches are disappearing because of chronic sand loss and shoreline retreat. In 2020, a separate UH forecast that 40% of Hawaii’s beaches could be gone by 2050.

The state has estimated that more than 13 miles of Hawaii’s beaches have already disappeared due to erosion and seawalls.

In the four years since the seawall ban was adopted, ocean advocates and their cultural supporters have stepped up organizing efforts against shoreline armoring. As far as Kahana Sunset is concerned, they say enough is enough — the county should allow no more shoreline hardening or emergency repairs for sinkholes or weakened foundations.

“Why should the desires of a few who made known risky investments trump the health of our marine resources and the ability of the general public to access our beaches and shoreline in perpetuity?” said Kai Nishiki, a West Maui ocean advocate and appellant, by email.

Their efforts appear to be gaining traction.

On June 10, after considering objections to the latest county approval for emergency repairs at Kahana Sunset, the Maui Planning Commission agreed to hold a contested case hearing on the matter.

At its quasi-judicial hearing scheduled for Dec. 10, the commission is expected to act as a hearing officer, consider evidence and issue a ruling.

However the commission decides the matter, the ruling will signal how serious Maui County is in enforcing the federal and the state’s , according to ocean advocates and their lawyers.

They note how state shoreline policy says hardening should be considered an erosion management option of last resort. And that when a structure finds itself amid the high wash of a wave it is by definition on state property and therefore an encroachment on the public trust. It must either be removed or receive a variance from the state to lease those lands according to state coastal protection laws.

Kahana Sunset’s plans are “effectively new shoreline hardening, reinforcing the existing, failing seawall that is attached to and directly in front of Building F,” which violates the law, said Staley Prom, an attorney for Surfrider Foundation.

Evacuations And Stabilizations

When Building A and Building F were built, they stood 15 feet and 50 feet from the beach, respectively. The construction took place decades before climate change and sea level rise became household terms. But just four years after Kahana Sunset’s construction in 1971, the ocean was noticeably encroaching and shoreline armoring was already needed.

The Office of Conservation and Coastal Lands noted in 2012 that shoreline erosion around Building F was happening at a rate of 1.15 feet a year.

Since 1975, dozens of shoreline setback variances, special management area exemptions, grading permits and other permissions have allowed buildings F and A to remain standing.

The buildings were in danger of collapse after fierce wave action during a December 2009 storm. The condos were evacuated and the county authorized the foundations to be stabilized, according to the managed retreat plan.

As recently as June and July 2023, Maui County’s then-Planning Director Kathleen Aoki issued emergency permits so the condo association could repair both buildings, including filling a sinkhole with concrete and sandbags under Building A.

Building A’s seawall and support columns were reinforced in 2018 but were being undermined yet again. If the seawall wasn’t repaired and the building collapsed, occupants and beachgoers could face serious injury, according to Aoki’s approval letter.

Just a year earlier, Maui County seemed to be rethinking its approach to Kahana Sunset. Aoki’s predecessor, Michele McLean, had testified before the Maui County Council’s Planning and Sustainable Land Use Committee that “we don’t think it’s responsible for Building F to be rebuilt or repaired,” according to meeting minutes.   

Headed To Court?

Roberts predicts that the matter will ultimately be resolved not by the Maui Planning Commission but by a court. Building F is owned by 10 separate families, not the condo association, he noted.

“The county thinks they can deal with Kahana Sunset and make us do things but we have no more legal right to take somebody’s property than we honestly believe the county has without compensation,” Roberts said. “It’s unfortunately all going to devolve to where it’s all going to get solved by the lawyers. There’s too much money involved.”

Roberts doubts wave action that has undermined the buildings and shrunk the beach is all due to climate change. He notes that polluted runoff from the highway, agriculture, pesticides, sediment and other factors have killed much of reef, intensifying the wave energy. Technologies are available to restore the reef and help build back the beach and that could buy Kahana Sunset more time, he said.

Saunders, the Building F condo owner, thinks he and others would be willing to come up with funds to help restore the reef if they knew they could repair their homes and live there longer. But why invest in coral restoration if there’s no future for them at Kahana Sunset?

He agrees with Roberts that it’ll likely end up in court.

“It’s probably at some point a constitutional issue of whether refusing to condemn it but not allowing you to fix it is a taking,” Saunders said, using a legal term that refers to the government’s use of eminent domain.

It’s not a fight he’s angling to have.

“It’s a hard road to go,” Saunders said, and it’s expensive for condo owners and taxpayers alike.

Michael Cain, who heads OCCL, said property owners assume the risk of developing near the shoreline and environmental regulations in Hawaii have changed significantly since the 1970s when Kahana Sunset was built.

Nishiki said people need to consider what they want Hawaii’s shorelines to look like down the road.

“Management decisions made now will determine if our children and grandchildren, our future generations, will have a healthy shoreline or one destroyed by seawalls built by extractive investors for short-term profits,” she said.

Many of the condo owners are people in their 60s who have been coming to Maui for decades, Roberts said. They know the waves will eventually overtake the two buildings unless they’re moved or demolished. They just want more repairs so they can enjoy their properties in their remaining years, he said.  

Civil Beat’s coverage of Maui County is supported in part by a grant from the Nuestro Futuro Foundation.

Civil Beat’s coverage of environmental issues on Maui is supported by grants from the Center for Disaster Philanthropy and the Hawaii Wildfires Recovery Fund, the Knight Foundation and the Doris Duke Foundation.  

Civil Beat’s coverage of climate change is supported by The Healy Foundation, Marisla Fund of the Hawaii Community Foundation and the Frost Family Foundation.