Environmental Law Program

Doug Cole ’10 – Keeping Turtle Bay Lands in Conservation

Doug Cole Face Shot
At an earlier stage in his working life, Doug Cole (’10) had a real estate license and learned more about development law while he was studying to be an attorney. So he knows all about blueprints.

But in his current position as executive director of the North Shore Community Land Trust, Cole, 36, concerns himself more with “greenprints.” The trust, a nonprofit organization now in the midst of talks about conserving part of the Turtle Bay resort expansion site, devised a “greenprint” plan in consultation with the community.

“We heard loud and clear through that process from the community, that conserving coastal lands and agricultural lands are high priorities,” said Cole, looking out at Kawela Bay, part of the resort site.

The trust pursues various strategies but most recently has put its focus on a tool known as a conservation easement, a permanent restriction a landowner agrees to accept in exchange for assets including a tax benefit. Negotiations that are underway also seek an agreement on cash compensation for waiving development rights.

Cole, a Kahuku High School graduate, grew up in a family deeply involved in community affairs. He went to the University of California at San Diego for his undergraduate degree, but 10 years later was in law school at the University of Hawaii. He lives near campus with his wife, who coaches water polo at UH, and their 3-year-old son. He acknowledged that living in town and commuting to the country is a switch.

“I definitely miss it, but I appreciate it in a new way,” he said. “It’s that much more important to me.

“We have bumper stickers that say ‘We love country’ and it says ‘we’ because it’s all of us. No matter where you’re from, there’s something about the North Shore you can instantly appreciate and see that it’s special.”

QUESTION: What are conservation easements, and could they be used more frequently as a tool for land preservation?

ANSWER: The thing with a conservation easement, it’s a voluntary agreement, legally binding, that runs with the land, so future successors and interests are going to be subject to it.

So it takes a willing landowner, who’s willing to place this perpetual restriction on their land. … That limits the instances, right there, that it’s going to be used, because not all landowners want to do that. When they do, you have a variety of land trusts that will work with landowners to negotiate and structure these agreements.

There’s no one-size-fits-all; you can accomplish a lot of different things with a conservation easement.

Q: It’s used in agriculture, too?

A: We’re doing the ag easement on the (Turtle Bay) mauka ag land. There’s a lot of agricultural conservation easements throughout the state.

It’s probably more common. On resort-zoned land, I’m not sure there’s any examples of conservation easements. This is breaking new ground, in some ways.

But it’s a really practical tool in this instance because I think both the landowner and the state can accomplish their goals through a conservation easement. The landowner still wants to be able to manage and take care of the land.

I think the state has a lot of properties to manage and take care of now, so I think what’s great about this situation is you accomplish the goals of conserving the property and the resource that it serves while not taking on the tremendous expense of land management and liability.

Q: Is there a reason it particularly (would work) in the Turtle Bay case?

A: These trails that we’re walking on now are tremendous recreational resources. They can offer a resort experience and vacation experience to their guests that no other hotel on the island can offer. I think it puts them in a category of their own. The current management has been really successful in realizing the value of this land around them, and so they have incorporated that into the visitor experience.

To continue their position in the marketplace, so to speak, they stand to benefit by conserving all of this. … If you talk to people who work at the resort and interact with the guests, they hear that time and time again, that this is what makes staying here worth it. …

Q: Would the easement stop them from doing anything here? Even landscaping?

A: They could do some landscaping, I’m sure. If they have indigenous, endangered species and things like that, there’s always going to be rules, regulations, both without the easement and through the easement that probably protect those resources. So there’s a limit to the type of landscaping, potentially, that’s done. …

And certainly from the community perspective, a lot of people would love to see this remain a natural area.

We shouldn’t take it for granted that the trails we’re walking on right now — we’re on private property, there’s absolutely no legal requirement that Turtle Bay continue to let us walk on these. So, at any given point in time they could say, “Sorry, resort guests only.”

So what an easement will do is ensure that in perpetuity the public can use these trails. … These trails are great. You could go for a run here, and the trails go all the way from Kawela Bay out to Kahuku Point. So you’ve got about five miles of coastline and a trail network all along that that’s on private property that the public would have access to forever.

It would be a huge public benefit that I’m not sure people are grasping right now. It’s not just stopping the development. … It’s creating a perpetual right for the people to enjoy.

Q: Who would enforce the easement rules?

A: It depends who holds the easement, who has the right to enforce it. But I think it’s very likely that if the state is investing a large amount of money in it, that it would want to hold that easement. The land trust can hold that with the state.

There are examples of conservation easements where you have both public and nonprofit ownership of the easement, in which case each entity has the right to enforce the easement. …

Say, North Shore Community Land Trust, if we held it, we’d have an annual responsibility to monitor the easement and make sure it’s not being violated. So, yeah, if you saw someone constructing in the protected area, the easement outlines the protocol for how you address violations.

Q: So that’s all going to be laid out?

A: It’s mapped out in the easement. So usually, there’s a notice to the landowner. You give them an opportunity to respond. You try to resolve it, and if you didn’t, you could take them to court.

You never want to end up in that situation. And I think it’s very rare that that happens. And it usually stems from misunderstanding as to what the easement allows and doesn’t allow.

Q: Isn’t the assumption that the parties are willing to comply?

A: Yeah. And you have attorneys on all sides advising both the owner of the easement and the proposed holder of the easement, … so you understand what you’re getting into.

And sometimes it’s more if the subsequent owner purchases a property that’s already been conserved through an easement, they might not have that clear of an understanding. So you have to educate the new owners on what the easement does and doesn’t allow. …

Q: Is there any shielding of the landowner from liability?

A: I’m reluctant to say something that’s too legal (laughs). …

Because it’s private property, the landowner does have probably the bulk of the liability.

If it’s a public easement, then there could be some liability for the state, but I think the most of the liability would fall on the landowner.

I think that’s one of the benefits of the conservation easement in this instance. You’re not taking on as much liability as the landowner for the state.

And really, what we’re looking at right now, this beach, this natural area bordering the beach, the ocean right here, this is the public park. It’s experiencing the coastline in this way.

If you’re out there paddling in the ocean and looking in at this coastline, it’s a different experience than looking in at Waikiki and other parts of the island. And a lot of people really value that.

For someone who likes to go fishing, being able to come here and stand on these rocks and cast out is a very different experience than sitting in the harbor on a jetty and casting out.

So I think by conserving this land, you’re allowing these experiences to be perpetuated for future generations. And that’s really what makes the quality of life so high on Oahu, is that we have so many wonderful places to go to. And also, a metropolitan city and the conveniences and the quality of life that provides. Oahu really has the best of all worlds. …

Conserving land in the rural part of Oahu benefits everybody that lives here. …

Q: What’s the ultimate goal of the land trust, concerning this property? To bar all expansion of the hotel?

A: We see value in preserving all of the undeveloped lands. But we’re only going to be able to pursue the conservation of the land the landowner is willing to conserve. So that sort of set the parameters. …

We would love to conserve Phase 3 of our conservation plan. And I like to think that the door’s not closed to that discussion.

But they’ve made it very clear that they’re willing to conserve Phases 1 and 2, and they’d prefer to develop Phase 3. And so, as a voluntary land conservation organization we have to respect that decision that the land-owner has made.

Q: Does the land trust’s area extend to where development is being proposed in Laie?

A: We define our mission area as the ahupuaa from Kahuku Point to Kaena. So basically the northwest tip to the northeast tip of the island.

I don’t view our mission area as having a strong black line that we can’t cross. … It’s not to say we wouldn’t take on a role in helping preserve something outside of that mission area. …

A bigger restriction to getting involved with a discussion in Laie is just the fact that the landowner does not appear to be willing to conserve it at this point in time. As a voluntary land conservation organization, that’s a deal-breaker for us.

The article can be accessed on the Star Advertiser: http://www.staradvertiser.com/editorialspremium/20140124__Doug_Cole.html?id=241775451