▪ SMA: The Line in the Sand

More on Leslie v. Board of Appeals, 109 Haw. 384, 126 P.3d 1071 (2006), discussed previously in this post.

The property owner’s subdivision application included a portion of its parcel within the shoreline Special Management Area (SMA), even though all of the construction was planned outside the SMA.

One of the major purposes of Hawaii’s Coastal Zone Management Act (CZMA) is to encourage development mauka (upland) of the SMA, the land closest to the ocean.  The SMA boundary is the critical line in the sand – a property owner need only seek a SMA permit for "development within the SMA" as required by the CZMA if it plans development makai (oceanward) of this boundary.  It appeared the property owner proposed development as contemplated by the CZMA -- all of it was mauka of the SMA line.

The county determined that the subdivision of Kiilae’s land was not “development within the SMA" since no actual construction was proposed within the SMA, and did not require the property owner to apply for a SMA permit.  However, a portion of the property being subdivided was within the SMA, even though no actual construction was planned on that parcel.

The issue before the supreme court was whether the subdivision of a parcel, a portion of which is within the SMA, requires a SMA permit.  The court held that because the owner sought subdivision of the entire parcel -- its application included a portion of that parcel which was within the SMA -- the impact of the entire proposed subdivision must be taken into account when determining whether a permit must be sought. 

This result, like the subdivision issue, was based on the language of the statute.  The property owner’s subdivision application included property within the SMA, and the statutory definition of "development" includes subdivision.  Once that fact was established, the result was consistent with the court's reliance on plain stautory language.  It would have been another matter entirely, however, if the SMA portion of the property had first been subdivided out, and no part of the subdivided property was within the SMA, even if the act of subdivision were to have some effects on property within the SMA.

Thus, the second lesson that can be taken from the Leslie case is that a property owner must pay close attention to what property is included in an application, because it will be held to it. 

Disclosure: I filed an amicus brief in this appeal, supporting the position of the property owner and the county.