Shoreline | CZMA

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shorelineIn “New Kauai shoreline erosion bill among the nation’s most conservative,” Jan TenBruggencate summarizes the recently enacted Kauai ordinance adopting a variable shoreline setback:

Kaua’i County has adopted the most aggressive shoreline buildingsetback law in the state, a powerful policy that aims to protectcoastal structures against 70 to 100 years of erosion.
. . . .

Under the new legislation, there are two potential ways of calculating how close to the water a structure can be erected.
. . . .

The Kaua’i bill is considerably strongerthan the state’s first such legislation, Maui’s bill. The Maui setbacksare 25 feet plus 50 times the erosion rate.

Forcomparison, on a beach with one foot of erosion per year, a Maui homewould be set back 75 feet from the certified shoreline (25 feet plus50), while the same house on Kaua’i would be set 110 feet back (40 feetplus 70).

Read Jan’s…

Continue Reading Aggressive New Kauai Shoreline Setback Ordinance Adopted

In Brescia v. North Shore Ohana(No. 27211, July 12, 2007), the Hawaii Supreme Court held that a property owner was not entitled to rely upon a county planning commission’s determination of the location of a shoreline setback when the planning commission retained the authority to give official assurances.  The case involved Kauai property within the coastal “Special Management Area.”  The SMA is, generally speaking, the land nearest the shoreline, as defined in Hawaii’s Coastal Zone Management Act, Haw. Rev. Stat. ch. 205A. The CZMA established special controls for this strip of land, and thecounties have authority to regulate uses within the SMA, including thelocation of the “shoreline setback,” which is (like other setbacks) anunbuildable zone that “sets back” structures from the shoreline.  The statewide minimum setback is established by the CZMA, but the individual counties are permitted to establish greater setbacks, which vary from county-to-county.  Continue Reading 2007 Land Use in Review: Estoppel and Shoreline Setbacks

The Wall Street Journal posts “Whose Beach Is This Anyway,” a story about how shoreline erosion is resulting in legal disputes nationwide over ownership and building setbacks.

The story notes Hawaii’s Diamond v. Bd. of Land and Nat. Res., 112 Haw. 161, 145 P.3d 704 (Oct. 24, 2006), a case which I discussed here:

Property owners are battling in some states overso-called building setbacks, which dictate how far new structures mustbe built from the water. Hawaiian counties, for example, require thatnew construction be at least 20 feet and often up to 40 feet inland ofthe shoreline.

In recent years, some landowners planted salt-tolerantplants at their seaward property line, hoping the vegetation line wouldserve as the shoreline for setback purposes even if the tide sometimesextended past the plants. The state agreed in some cases, but concernedneighbors and environmental groups sued to have the issue clarified.Hawaii’s Supreme Court…

Continue Reading Wall St. Journal on Beach Erosion Issues (video)

In a case that may hold lessons for Hawaii land use law, the State of Washington Supreme Court recently invalidated under state law a series of moratoria on shorelinedevelopment permits because the city had no power under delegated statelaw to enact a moratorium.  Hat tip to Professor Patty Salkin’s Law of the Land blog for pointing out Biggers v. City of Bainbridge Island, No. 77150-2 (Oct. 11, 2007).  The court summarized its holding as follows:

Today, we review the Bainbridge Island City (City) Council’s adoption of rolling moratoria, which imposed a multi-year freeze on private property development in shoreline areas. The City denied the processing of permit applications for more than three years. There is no state statutory authority for the City’s moratoria or for these multiple extensions. Clearly, this usurpation of state power by the local government disregards article XVII, section 1 of the Washington Constitution, which expressly…

Continue Reading ▪ Washington (State) Supreme Court Strikes Down Shoreline Development Moratoria

The issues in the lawsuits about the Hawaii Superferry Environmental Assessment dwell on legal technicalities such as standing, the statute of repose, and the standard of review.  But the case seems to have touched a deeper nerve, serving as the crucible for wider issues not limited to the Superferry.  For a flavor, read the LA Times’ report of the Kauai Superferry protests here and the Honolulu Advertiser’s story here.

In that vein, I just revisited a Land Use Prof Blog post from earlier this year by Professor Paul Boudreaux entitled “From NIMBY to … ‘Drawbridge Protectionism’.”  The post, as its title suggests, discusses economic and land development versus environmental and cultural claims, and has become more topical in the wake of the Superferry case.  Professor Boudreaux makes some good points:

“NIMBY” is perhaps the most overused term in land use policydebates, even though the…

Continue Reading ▪ “Drawbridge Protectionism,” the Superferry EA / EIS, Raindrops, and Floods

Yesterday’s Honolulu Star-Bulletin ran an editorial “Access to Oahu’s shoreline is being blocked little by little,” spurred by a brewing controversy regarding access to public beaches across private property in Kailua.  The editorial calls for political leaders to make access to public beaches “a priority,” by establishing an “enforceable policy” to promote access:

So the recent conflict between public entitlement and private landowners about a right-of-way to Kailua Beach is a common episode, one that will be repeated until a sensible, enforceable policy is established to support the access law and existing standards for pathways are implemented.

The editorial does not suggest what this “policy” might be.  It acknowledges the obvious means of acquiring private property for public access: eminent domain, which requires that the government pay just compensation and damages to the property owner(s).  It also acknowledges, however, that there may be no money in the public…

Continue Reading ▪ Shoreline Access Across Private Property – A Shortcut to Paying for the Change?

The “Daily Dish” blog at the Honolulu Advertiser poses an intriguing question: “Should anyone own the beach?”  The issue, however, isn’t about beach ownership, but rather restriction of access to publicly-owned beaches via private roads:

This past August a group of homeowners in Kailua installed a 6-foottall gate — with a combination lock! — at the end of their private roadto stop people from using the right-of-way to the beach.

Naturally,this has infuriated a collection of Kailua residents, surfers andbeachgoers who are fed up with wealthy homeowners restricting access toa beach everyone should be able to enjoy.

The comments posted are worth reading, if only to get a feel for how the issue — and the law — is perceived — and often mistakenly applied.  Many beachfront property owners are not (contrary to common perception) “wealthy homeowners” intent on claiming public beaches as their own.  Many are…

Continue Reading ▪ Beach “Ownership” and Access Over Private Property

What purpose is served by the Legislature providing for an environmental assessment “exemption” if there are always exceptions to the exemption? 

That is the question raised by the Hawaii Supreme Court’s opinion in the “Hawaii Superferry EIS case,” Sierra Club v. State of Hawaii Dep’t of Trans., No. 27407 (Aug. 31, 2007).

This post looks at the substantive issue in the case — whether DOT erred when it determined that improvements to Maui’s Kahului Harbor were within the categorical administrative exemptions to the Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343, and therefore no Environmental Assessment was necessary. The Hawaii Supreme Court held DOT was wrong, and the improvements were not exempt.  The issue of “standing” took up a majority of the court’s opinion, and I deal with that issue in this post.

I won’t go into a blow-by-blow outline of the court’s reasoning, which…

Continue Reading ▪ Superferry EIS Case Summary pt. I: Do Statutory Exemptions Mean Anything?

The Honolulu Star-Bulletin has posted a story on the recent Hawaii Supreme Court decision in Brescia v. North Shore Ohana (No. 27211, July 12, 2007), entitled “Rocker’s plans for Kauai home blocked.”  According to the story, it turns out the decision in Brescia also impacts a neighboring property belonging to the lead singer of the Red Hot Chili Peppers.  My thoughts on the case, minus the rockstar references, here.Continue Reading ▪ More on Brescia — The Rockstar Angle