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▪ "High Wash of the 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.

 

▪ Trespassing on Shoreline Private Property

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 two cents on these points. 

The issue is whether the tops of these seawalls are public or private property.  I suppose the Legislature could declare that the public is allowed to walk atop all such seawalls.  However, unless that law provided for compensation for property owners, it would likely be unconstitutional as a regulatory taking.  The Legislature, you see, has no power to declare that private property is open to public access without the payment of just compensation.  The US Supreme Court held in Kaiser Aetna v. United States, 444 U.S. 164 (1979) -- the case arising out of the efforts to make Hawaii Kai marina a public waterway -- that just because the government has the power to regulate private property does not mean it has the power to force public access without condemning the property and paying just compensation. 

This rule would prohibit the Legislature from mandating public access to all seawalls under, for example, the Coastal Zone Management Act, which is a regulatory system, and contains no compensation mechanism.

Under Hawaii law, the boundary between public and private beachfront is defined by the "high wash of the waves."  See In re Ashford, 50 Haw. 314, 440 P.2d 76 (1968).  For existing permitted seawalls, the "high wash" presumably is somewhere below the top of the seawall, so there should be no public ability to walk across the top, and it is too late for government to retroactively require public access.  For future seawall permits, the government could not require access as a condition of building or repair, unless the government could also show that the seawall would impair existing lateral access along the public beach.  If not, access cannot be made a condition of a permit.

The final issue involves seawalls that are built on private land, but inhibit the "normal" wash of the waves.  Is the public/private boundary thus mauka (mountainwards) of the seawall because the "natural" high wash of the waves in presumably inland?  I'd suggest no. 

The Ashford rule is not based on the "natural" or "unimpeded" high wash of the waves, and ancient Hawaiian culture and traditions recognized that manmade structures inhibit wave action, the most well-known being the rock walls of loko kuapa fishponds, which resemble seawalls.  Under Hawaiian custom, these rock walls were not subject to public access, and were treated as the equivalent of private fast (dry) land.  For an example of their treatment under Hawaii and U.S. law, see Boone v. United States, 944 F.2d 1489 (9th Cir. 1989), a case I litigated a few years back.  Besides, any rule that is based on the "natural" flow of the waves is simply unworkable, for what is the baseline for "natural" and when is it measured, when the size and shape of beaches change all the time for a variety of causes?  Legal rules are supposed to provide a measure of certainty, and as the title of today's article rightly suggests, there are, unfortunately, no "easy answers," and the public and property owners are left guessing for the most part.

 

▪ Are Constitutional Property Rights "Cultural Practices" That Should be Considered?

We all know that in Public Access Shoreline Hawaii v. Hawaii Planning Comm’n, 79 Haw. 25, 903 P.2d 1246 (1995), the Hawaii Supreme Court held:

Our examination of the relevant legal developments in Hawaiian history leads us to the conclusion that the western concept of exclusivity is not universally applicable in Hawai’i.

The court also noted that "western concepts" of property include a certain bundle of rights:

The western doctrine of "property" has traditionally implied certain rights. Among these are the right to the use of the property, the right to exclude others[,] and the right to transfer the property with the consent of the "owner".

In 2000, the Hawaii Legislature amended the state’s environmental assessment/impact statement law, Haw. Rev. Stat. ch. 343 to require examination of cultural practices as well as environmental policies, economic welfare, and social welfare:

"Significant effect" means the sum of effects on the quality of the environment, including actions that irrevocably commit a natural resource, curtail the range of beneficial uses of the environment, are contrary to the State’s environmental policies or long-term environmental goals as established by law, or adversely affect the economic welfare, social welfare, or cultural practices of the community and State.

Haw. Rev. Stat. § 343-2.

In practice, the cultural impact statement required by this section has focused on the impacts of development on the traditional and customary native Hawaiian rights, including issues of burials. However, there is nothing in chapter 343 that further defines what is or is not a "cultural practice," or limits it to the above. Indeed, the Hawaii Supreme Court has expressly not limited the term "cultural resources," noting that native Hawaiian rights are but one subset of the term. Ka Paakai O Ka Aina v. Land Use Comm’n, 94 Haw. 31, 7 P.3d 106 (2000). This leaves open the possibility that the practices of other cultures must be analyzed (and presumably respected by the process and the result).

My question: are western concepts and "traditions" of property such as exclusive use, alienability, reasonable use, and not allowing the "dead hand" to control land use "cultural practices" that must be considered during the EA/EIS process under chapter 343?

It might be argued that those notions are already well-considered, but proof to support that argument often eludes me, and rarely do I see discussion or a hard consideration of the property owner’s constitutional right to make reasonable use of her property. As the US Supreme Court reminded us:

the right to build on one’s own property - even though its exercise can be subjected to legitimate permitting requirements - cannot remotely be described as a "governmental benefit."

Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987).

▪ Hawaii Land Use Conference Summary

I had the pleasure and honor to participate as faculty in this year's Hawaii Land Use Conference, which wrapped up yesterday. 

The two-day conference covered the spectrum of topics relating to land use, including eminent domain, regulatory takings, endangered species act and federal Corps of Engineers permits, the treatment of agricultural land under Hawaii's unique regulatory system, zoning and subdivision rules, RLUIPA, vested rights and development agreements, and cultural impact statements.  All presented by the leaders in their respective fields.  I presented a session of shoreline law and regulation (materials posted here), and spent the remainder of the time listening. 

Great stuff.  If you didn't have the chance to attend this year, you should consider it for next.

▪ Land Use Law Conference Materials

For those of you who attended the Hawaii Land Use Law Conference, thank you.  Here are the materials I mentioned in my session on Water, Water, Everywhere: Coastal Zone Management Permits; Hawaii's Floodway, Floodplain and Coastal Inundation Zone Requirements, plus a few others I did not have time to cover:

• Hawaii Coastal Zone Management Act (CZMA)

• Summary of the Leslie case and commentary - one of last year's "big cases" applying the CZMA, and what is "development" under Haw. Rev. Stat. § 205A-22.  My amicus brief in that case can be downloaded here.

• Summary of Diamond case and commentary - 2006's second "big case" about the CZMA; the "shoreline" issue determined in that case was about the baseline for setbacks, not ownership.

• The three most important administrative law 2006 HAWSCT opinions (standing, "property," and what is a "contested case").

• Kaiser Aetna v. United States, 444 U.S. 164 (1979) - government's ability to regulate does not equal the ability to affect ownership rights without just compensation.

• Boone v. United States, 944 F.2d 1489 (9th Cir. 1989) - guess what, Kaiser Aetna meant what it said.

• Alameda Gateway, Ltd. v. United States, 45 Fed. Cl. 757 (1999) - Kaiser Aetna really meant what it said - just because a navigable ship repair facility in San Francisco Bay is subject to regulation does not mean property rights are affected.

• State of Hawaii Office of State Planning; Guide to State Permits and Approvals for Land and Water Use and Development (Draft 1995) (600kb pdf) - detailing the 55 or more permits that may be applicable to Hawaii property (at least circa 1995). 

• The "permit register" statute, Haw. Rev. Stat. § 46-18(a)

• Items I didn't have time to talk about, but are worth mentioning:

• Sandy Beach Defense Fund v. City Council, 70 Haw. 361, 773 P.2d 250 (1989) - intervenors in SMA permit applications don't get a contested case in Honolulu.
• County of Kauai v. Pacific Standard Life Ins. Co., 65 Haw. 318, 653 P.2d 766 (1982) (Nukolii) - under the regulatory scheme applicable to the Nukolii parcel, the SMA permit would have been the "last discretionary act" (and therefore the official assurances on which the landowner had a right to rely) if the election had not been certified. Because it had been certified pre-SMA permit approval, the election was the "official assurance," so any reliance was premature.
• Participant's Guide to the SMA Permit (10mb pdf)
• Hawaii Hazard Mitigation Forum
• NOAA Hawaii Coastal Zone Evaluation report (2004) (pdf)

    

▪ Even More Eminent Domain Measures Introduced (Last Ones)

In addition to the bills mentioned earlier here and here, even more measures have been introduced in the Hawaii legislature to amend state eminent domain law.  I believe that these are it for the year, as the deadline to introduce bills has now passed. 

• HB 1592, "Relating to eminent domain"

Prohibits use of eminent domain for private purpose; defines private purpose; where condemned property is transferred to private entity, not a common carrier or public utility, burden is on condemning authority to prove public purpose.

"The Hawaii supreme court, in a previous decision, Hawaii Housing Authority v. Lyman, 68 Haw. 55, 704 P.2d 888 (1985), indicated that it would not interpret the "public use" provisions of article I, section 20, of the Hawaii state constitution as broadly as the United States Supreme Court has interpreted the corresponding provisions of the fifth amendment.  Nevertheless, the Hawaii supreme court in that opinion afforded deference to the governmental right to take property that was almost as great as that set forth in Kelo."

• HB 1591, "Relating to eminent domain"

Establishes that the just condemnation price for agricultural land shall be 125% of value assessed pursuant to section 101-23, HRS, plus loss to business, plus relocation costs; for primary residence, 150%, plus loss to business or trade, plus relocation cost; for other property, 100%, plus loss to business or trade, plus cost of relocation.

• HB 1590, "Relating to eminent domain"

Requires plaintiff to offer to resell property to defendant for current appraised value or condemnation price plus and cost of environmental remediation or cleanup or other improvements if property taken in eminent domain is not used for the purpose for which it was condemned.

   

▪ State of the Judiciary

The Chief Justice of the Supreme Court of Hawaii has given his State of the Judiciary address, available here.  Here's an excerpt:

Legislators, as you well know, enact laws in accordance with what they understand to be the popular will and in the public interest.  Judges, however, apply the law that is the result of longstanding common law traditions and legislative processes to the evidence in individual cases; judges do so even when the loudest voices at the time may have other conceptions about what the law or result should be in a particular case.  In short, a judge's first and foremost duty is to fairly and impartially apply the constitution and the law to the facts of the case.  A judge's personal feelings about what the law "should be" has no place in his or her deliberations.

    

▪ More Eminent Domain Measures Introduced

In addition to the bills I mentioned earlier, more measures have been introduced in the Hawaii legislature to amend state eminent domain law.

• SB 1278, "Relating to eminent domain"

Prohibits use of eminent domain for private purpose; defines private purpose; where condemned property is transferred to private entity, not a common carrier or public utility, burden is on condemning authority to prove public purpose.

"However, the legislature finds that other takings of private property for transfer to private entities may be susceptible to abuse.  Even under Kelo, the taking of property from one person simply to benefit another private person violates the protections of the public use clause.  Similarly, a taking that is intended to favor a private party, with only incidental or pretextual public benefits, would not be sustained.  Likewise, a taking that is simply for the purpose of providing economic benefits without remedying any harm or public nuisance is not within the meaning of "public use" envisioned by the framers of article I, section 20, of the Hawaii state constitution."

• SB 1277, "Relating to eminent domain"

Establishes that the just condemnation price for agricultural land shall be 125% of value assessed pursuant to section 101-23, HRS, plus loss to business, plus relocation costs; for primary residence, 150%, plus loss to business or trade, plus relocation cost; for other property, 100%, plus loss to business or trade, plus cost of relocation.

• SB 1279, "Relating to eminent domain"

Requires plaintiff to offer to resell property to defendant for current appraised value or condemnation price plus and cost of environmental remediation or cleanup or other improvements if property taken in eminent domain is not used for the purpose for which it was condemned.

• SB 1280, "Relating to eminent domain"

Requires condemning authority to make offer of settlement.  Makes condemning authority liable for defendant's litigation expenses if offer rejected and court award is greater than offer.

    

▪ Honolulu Street Widening Halted

It's being reported that the Hawaii Community Development Authority has backed off its plans to widen Queen Street in Honolulu because of delays and increasing costs.  The plans would have used the power of eminent domain to take the property of businesses on both sides of the street.  More stories posted here and here (video).  Update (2/8/2007) - the Star-Bulletin reports that the ID 11 project was killed by a unanimous vote by HDCA.

The widening project was thought by many to be a "done deal," believing there was no way to stop the taking.  But this just shows that even in a jurisdiction with fairly weak protections for owners whose property is targeted for acquisition by the government, there are ways to object and protect your property.

    

▪ No Jury Trial on "Constitutionality" of Land Use Laws

According to one U.S. District Court (N.D. Iowa), there is no right to a jury trial on the issue of whether a land use ordinance is constitutional.  The decision applies City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999).  In Doctor John's Inc., v. City of Sioux City, a case involving the regulation of the plaintiff's "adult" store, the district court held that the  City has no Seventh Amendment right to trial by jury on the issue of whether its ordinances are constitutional.

The court's decision can be found here (pdf).