Shoreline | CZMA

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More on the Supreme Court of Hawaii opinion in Brescia v. North Shore Ohana (No. 27211, July 12, 2007).  The Court took up no less than seven points on appeal, but the most interesting to me was the analysis of the estoppel issue.

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 the counties have authority to regulate uses within the SMA, including the location of the “shoreline setback,” which is (like other setbacks) an unbuildable 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.

“Estoppel” means that…

Continue Reading ▪ HAWSCT: Estoppel and Shoreline Setbacks

The Hawaii Supreme Court has issued an opinion in Brescia v. North Shore Ohana (No. 27211, July 12, 2007), a case discussing shoreline setbacks, due process, and vested rights.  I haven’t had a chance to read the majority opinion authored by Justice Acoba, or the concurring opinion by Justice Levinson, but will post more after I review them.Continue Reading ▪ HAWSCT: Shoreline Setbacks, Due Process and Vested Rights

The above-the-fold headline story in today’s Honolulu Advertiser screams “Public denied access to some Oahu beaches.”  The only thing missing is a string of exclamation points following the headline.  The story details the relatively rare situation where the public is not permitted to cross private land to access a beach, but you wouldn’t know that from the lede:

The clean, white sandy beach along Iroquois Point offers a stunning view of downtown Honolulu, Waikiki and Diamond Head.

But unless you live there, this beach is off limits. Iroquois Point Island Club, the civilian subdivision that has replaced what was once the Pu’uloa Naval Housing complex, does not allow public access to its beach.

“It’s private property, the roads are private, they’re not city and county,” said Steve Colon, president of Hunt Development’s Hawai’i division, which operates the property.

Other private, oceanfront developments on O’ahu — including Ko Olina and Turtle Bay — offer beach access to the public.

State law requires all beaches remain accessible to the public, and counties must make sure the public can reach the beach in areas where private property dominates.

But the Iroquois Point Island Club, which rents homes to the public, can refuse access to its beach because it is on land belonging to the Navy. Military property is exempt from the state and county beach access rules. The Navy leased Iroquois Point to a private developer for 65 years.

It takes six paragraphs to get to the crux of the issue — its federal land, so naturally, state and local law does not govern what the property owners (or its lessees) can and can’t do with it.  That principle alone should not be controversial, as it is based in the US Constitution’s Supremacy Clause and the doctrine of federal preemption.  But if a few of the comments on the story are any indication, the legal niceties matter little. 

That seems to be more the norm than the exception when shoreline ownership and access are concerned, as anything even touching upon our beaches becomes a highly charged issue, not just in Hawaii, but as I mentioned in the July 2006 ABA Journal in a story about seawalls and property rights in Florida:

“It’s hard to find a middle ground on this,” . . . “Every time someone sneezes on the shoreline, it’s front-page news.”

That’s literally true, today.Continue Reading ▪ Shoreline Public Access on Federally Owned Land

Keepout Hat tip to May it Please the Court for alerting us to a recent decision by the Second District Court of Appeals in California, LT-WR, L.L.C. v. California Coastal Comm’n (No. B187666, May 25, 2007).

In that case, the CCC denied a property owner’s request for a permit to allow it to maintain a fence around its property and post “no trespassing” signs, among other things.  The Coastal Commission’s rationale was stunning in its audacity:

The Commission also denied the gates and signs by finding that there are ‘potential’ public prescriptive rights, that the gates are not ‘necessary’, and that the gates and signs are akin to a ‘gated community.’

Slip op. at 37.  (“Public prescriptive rights” is another way of saying that if an ownerdoes not prevent the public from traversing property for a fixed periodof time, the public may gain a permanent right to “adverse possession”of…

Continue Reading ▪ Upholding The Right to Exclude: Rare Judicial Smackdown of California Coastal Commission

Last week was a busy one — quite a few local stories about land use and property law.  Here’s a rundown:

  • “It’s a tale of 2 ridges – and 17,500 homes” — The Advertiser reports on, and contrasts, two large-scale residential projects in Central Oahu.  One of the projects, Koa Ridge, resulted in a Hawaii Supreme Court decision on the trigger points to an Environmental Impact Statement, Sierra Club v. State of Hawaii Office of Planning, 109 Haw. 411, 126 P.3d 1089 (2006), which I blogged about here. Compare this story to the next one, from Kauai, and there is the same dynamic at play: we all complain about the lack of “affordable” housing, but often complain when new housing is built because it isn’t going in the “right” place, will increase traffic, and on and on.

…
Continue Reading ▪ Hawaii Land Use Roundup

Vegline The Garden Island reports that the Kauai County Council has passed a resolution purportedly designed to prevent the planting of “artificial” vegetation to expand private property onto the public beach:

The Kaua‘i County Council wants to halt the practice of beachfront owners to artificially expand their properties seaward with vegetation,

Through a resolution, five of seven council members threw their support behind a “weed-the-beach” program to remove “artificially induced vegetation.”

The council and its supporters view the legislation as a way to protect public access, but some beachfront owners have said the plantings would help deter erosion of the beach in front of their properties.

An official version of the resolution has not yet been posted on the County’s web site, but the fact that the term “artificially induced vegetation” is in quotes leads me to believe that’s the language used in the reso.  There are a couple of troubling …

Continue Reading ▪ “Artificial” Vegetation and the Shoreline Boundary

Waves

Today, I filed an amicus brief (750k pdf) in the appeal regarding “Act 73,” the state statute (codifed here and here) which declared that shoreline land naturally accreted belongs to the State of Hawaii and is public property.

Act 73 overturned the age-old rule of shoreline accretion and erosion, which held that beachfront owners lose ownership of land when it erodes, but gain it when it accretes.  Instead of these balanced rules, Act 73 made the erosion/accretion equation one-sided: the State wins every time.

The trial court held that Act 73 was unconstitutional and violated the Hawaii takings clause, article I, § 20 of the Hawaii Constitution.  The court enjoined enforcement of the Act, and the State appealed to the Hawaii Intermediate Court of Appeals.  My brief deals with two points:

First, the right to future accretions is property protected by the Hawaii and U.S. Constitutions from…

Continue Reading ▪ Amicus Brief in Accretion Appeal: Heads, the State Wins; Tails You Lose

Waves KITV reports that “Waves Wash Debris Onto North Shore Roadways” during winter high surf on Oahu’s famed North Shore. 

What does this mean when the boundary between public property and private land on the shoreline is the upper reaches of the wash of the waves, as evidenced by the vegetation or the debris line?  Would a single rogue wave that washes far up past the usual high wash move the property line?

This question may seem far-fetched, but under the present standard for measuring the line between private property and the public beach, there is little standing in the way of a claim that wave action moves property lines.  Good thing Maverick’s, with its 100-footers, isn’t nearby.

Continue Reading ▪ “High Wash of the Waves?”

Seawall_1 No easy answers on seawalls, a column in today’s Advertiser, poses an interesting question.  Is it legal to walk on seawalls where there is no beach makai (seaward) of the wall:

Q. In Kane’ohe Bay on O’ahu, there are numerous stretches of the coastline that do not have a beach but rather, the ‘aina ends abruptly with a seawall that is about 2 to 5 feet high. Walking along the makai side of the seawall is not possible due to the depth of the ocean, so is it OK to walk on top of the seawall?  Would this be considered the high water mark?

A. There’s no easy answer, and this might be something for the Legislature to address.

The article then goes on to discuss the possibilities: the legislature can address the issue, or perhaps such seawalls are already subject to public use.  Let me add my…

Continue Reading ▪ Trespassing on Shoreline Private Property