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Coastal Land Use Law Seminar

There is still time to sign up to attend an upcoming seminar, Coastal Engineering and Land Use Issues, in Honolulu.  It's being held on Thursday, August 14, 2008, at at Hilton Waikiki Prince Kuhio Hotel.  My colleagues and fellow law bloggers Mark Murakami and Jesse Souki are among the faculty.  Topics on the agenda include: Development and Land Use Issues in the Special Management Area, Construction and Land Use Issues in the Shoreline Area, and Managed Retreat Through the Redevelopment Process.  Go here for more information including the complete agenda and faculty list, and registration information. 

Shoreline Boundaries And Shoreline Setbacks

My colleague Mark Murakami posted a link to a recent newspaper article about lateral beach access; that article spurred the Star-Bulletin editorial "State upholding public policy in Kahala beach access issue."  It seems that vegetation growing on private property is moving -- either on its own or with help -- makai (towards the ocean), thus crowding onto the public beach.  The editorial rightly recognizes:

Sooner or later, vegetation and waves converge, preventing people from moving laterally along public land, which law defines as the highest wash of waves at high tide during the highest surf season, "usually evidenced by the edge of vegetation or by the line of debris left by the wash of the waves."

As I detailed in this post, the above is a correct statement of law; unlike jurisdictions that define the public-private boundary on beaches as the mean high water mark, Hawaii law says all beaches are public up to "the high wash of the waves," and the high wash can "usually" be shown by the vegetation line or the debris line.  So far, the editorial is on the mark.  But then it goes somewhat off-track:

In 2006, the Hawaii Supreme Court, reaffirming decisions made in the 1960s and 1970s, said the state, in determining shorelines certification, could not use vegetation strictly as the marker since that encouraged landowners to use plantings to extend their property further makai, contrary to objectives and policies of state law.

Yes, technically the Supreme Court did say that about "shorelines" in Diamond v. State, 112 Haw. 161, 145 P.3d 704 (2006), but the editorial mixes apples and oranges because that case did not involve the public-private shoreline boundary, only the definition of "shoreline" for purposes of measuring the shoreline setback (the no-build zone on beachfront property).  The court in Diamond relied on the legislative policies established in the Coastal Zone Management Act, Haw. Rev. Stat. ch. 205A to hold as it did, policies that the state is prohibited from exercising when it comes to actually acquiring property.

The shoreline certification process under the CZMA is not supposed to affect property rights or determine where the public may or may not access.  If it does, then it becomes a taking for which the property owner is owed compensation.  See Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), where the Court held a regulation which prevented an owner from building on his property was a taking when it wiped out economically beneficial use of the parcel.  For an example of a taking of beachfront property, see this post about Hawaii's Act 73, which purported to grab accreted land for the public without compensation.

Petition for Rehearing in Pratt Construction v. Cal. Coastal Comm'n

The property owner has filed a Petition for Rehearing asking the California Court of Appeal (2d District) to reconsider its decision in Charles A. Pratt Constr. Co., Inc. v. Cal. Coastal Comm'n, No. B190122 (May 8, 2008).  In that case, the court held the property owner's right to develop was not vested, and that a takings claim was not ripe since the owner could submit other plans for development.  The Land Use Law Blog details the case and provides commentary in "The Development Blues: Property Lies Undeveloped for 30 Years and Counting."

The opinion's opening paragraphs took a literary approach to the issue, citing "September Song," Einstein, and Heraclitus.  The Petition responds with flourishes of its own, quoting Stephen Hawking's "A Brief History of Time," and Jim Croce's "Time in a Bottle," arguing that the opinion overlooked or misstated the facts of the case, the controlling law, and reflects the court's failure to understand the coastal zone development process. 

It must be something about the law of vested rights that brings out the philosophical: in our article on Hawaii's vested rights law, Arrow of Time: Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii, my co-authors and I drew upon time theory to explain how vested rights law attempts to wrest order from chaos. 

Read the Pratt Petition here.

Two Recent Law Review Articles (Water Law and Shoreline Issues)

Two recent U. Hawaii Law Review articles worth mentioning.  Although neither is available free on the web, they can be obtained through legal research services such as Westlaw or Lexis, or through the U. Hawaii Law Review.  If you don't have a UHLR subscription, you should. It's only $30 per year for US addresses.

Water Regulation, Land Use and the Environment
David L. Callies and Calvert G. Chipchase; 30 U. Haw. L. Rev. 49 (Winter 2007)

In this article, the authors assert that the "public trust" doctrine, as misconstrued by the Hawaii Supreme Court, has distorted water law and the land use process:

Problems arise in the planning process when water and non-economic uses of water are given a sacrosanct status that abjures private use for the benefit of "the public." This is increasingly happening under flawed interpretations of the public trust doctrine.

p. 49 (citing In re Water Use Permit Applications (Waiahole), 84 Haw. 97, 9 P.3d 409 (2000); In re Water Use Permit Applications, 105 Haw. 1, 93 P.3d 643 (2004); In re Water Use Permit Applications, 113 Haw. 52, 147 P.3d 836 (2006)). The article continues:

Many courts have forgotten that the jus privatem is as much a part of the public trust doctrine as the jus publicum. Certainly water should be available for future use, but is also should be readily available for current use. When the balance between current private and abstract or future public needs is distorted, water use and availability of water becomes the primary, or even sole, consideration in the process. This leads to the preservation of water for such uses as "minimum stream flows" and non-beneficial use by selected segments of the public and, ultimately, an elitist, communitarian regime that bears no relationship to either traditional notions of water rights or constitutionally protected rights in property.

Id. The authors analyze the multi-layered land use planning laws in Hawaii, the state Water Code (Haw. Rev. Stat. ch. 174C), and the Hawaii Supreme Court's extension of the public trust doctrine beyond navigation and commerce to the promotion of reasonable and beneficial use of water resources in Waiahole.  p. 70.  The article also discusses how Arizona, Colorado, and New Mexico regulate their water resources, and what lessons these jurisdictions may provide for Hawaii.  pp. 77-92.

More Than a Line in the Sand: Defining the Shoreline in Hawai'i After Diamond v. State
Simeon L. Vance and Richard J. Wallsgrove; 29 U. Haw. L. Rev. 521 (Summer 2007)

In this article, the authors analyze the differences in the various definitions of the "shoreline" under Hawaii law, and the Hawaii Supreme Court decision in Diamond v. State, 112 Haw. 161, 145 P.3d 704 (2006) .  As detailed in this post about the Diamond case, the term "shoreline" is used to define both the boundary between public and private property as well as the baseline for measuring the shoreline setback (a no-build zone on beachfront property).

The difference between a  certified shoreline  and a  seaward boundary line  has become a confusing and potentially divisive issue. Confusion is predictable because the definition of  shoreline  for certification purposes is essentially identical to the definition Hawai'i courts have used to determine property boundary lines. Despite their similarity, however, the two lines  are not necessarily the same because their purposes, the impacts and the processes for determining these  lines' are uniquely and significantly different.

The most critical of these differences is that shoreline certifications are not designed to determine ownership.  Instead, the line of ownership dividing public and private coastal property is the seaward boundary. Markedly different from the shoreline certification process outlined above, determinations of seaward boundary lines often take the form of quiet title actions, eminent domain actions, or land court petition actions.  The state's responsibility to uphold the public trust and preserve its interest in property triggers the need for  a more rigorous and cautious approach.  In these situations, the state does not rely on shoreline certifications, but conducts its own survey in recognition of the "importance of lateral [shoreline] access over state-owned lands for recreation, native gathering practices and other purposes."

p. 532 (footnotes omitted).  The article is a good introduction to Hawaii's unique approach to shoreline law, and a worthy read.  And I'm not just saying that because it cites several posts from this blog as authority (See, e.g., notes 92, 146, 179, and 180, and accompanying text).

Cases and Links From Today's Seminar

To all those who attended today's seminar, thank you.  Here are the links to the cases I mentioned.  From the morning session on Case Law Update:

• Wilkie - Government Gone Wild! - no comprehensive federal remedy for federal interference with property
• My Advertiser op-ed on Wilkie
• Crown Point - Ninth Circuit abandons Armendariz doctrine
• Cine SK8 - one way to prove a substantive due process case
• Post-Kelo claims of pretext:

• Franco - District of Columbia Court of Appeals - allegations of pretext cannot be summarily dismissed

• Goldstein v. Pataki - Second Circuit - government's claim of public use trump claims of pretext - cert. petition filed March 31, 2008

• Brescia - shoreline setback and equitable estoppel - HAWSCT holds you gotta get your "official assurances" from the right party
• Private agreements and public process - development and settlement agreements not a substitute for zoning process

From the afternoon session on Appealing an Administrative Zoning Decision:

• Hawaii Home Infusion - venue in administrative declaratory actions under § 91-7
• CARD - can a § 91-8 declaratory action substitute for an appeal?
• Colony Surf - nonconforming uses and reliance on administrative procedures
  
• E & J Lounge - what is a "contested case?"  See also Aha Hui Malama v. Kaniakapupu v. Land Use Comm'n (July 24, 2006)
• Rees v. Carlisle - private rights of action
• Silva v. City and County of Honolulu - the basis for rational basis equal protection arguments must be in the record

Questions?  Want a copy of the vested rights/zoning estoppel law review article? Drop me an email.

Aggressive New Kauai Shoreline Setback Ordinance Adopted

In "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 building setback law in the state, a powerful policy that aims to protect coastal 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 stronger than the state's first such legislation, Maui's bill. The Maui setbacks are 25 feet plus 50 times the erosion rate.

For comparison, on a beach with one foot of erosion per year, a Maui home would be set back 75 feet from the certified shoreline (25 feet plus 50), while the same house on Kaua'i would be set 110 feet back (40 feet plus 70).

Read Jan's entire summary here on his Raising Islands blog.  One of his more interesting observations is:

One of the interesting features of the maps is that they indicate that on many shorelines, land is actually building up. Accretion and erosion both are features of Hawaiian shorelines, and some shores have some of both, depending on where along the coast you look.

As a result of this, on many coastlines, the dramatic Kaua'i setback legislation would not take effect. If there's no documented erosion, then the issue doesn't come into play.

The Garden Island newspaper earlier reported on the legislation here. 

Shoreline "setbacks" and other no-build zones must be applied carefully to avoid constitutional takings and due process problems.  After all, it was a shoreline development ban -- also based on erosion -- that resulted in the Lucas decision (Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).   That case confirmed that a regulation takes property when it deprives a property owner of "economically beneficial or productive use of land," even if the government's reasons for enacting the legislation are valid.

2007 Land Use in Review: Estoppel and Shoreline Setbacks

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 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.  More here.

Wall St. Journal on Beach Erosion Issues (video)

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 over so-called building setbacks, which dictate how far new structures must be built from the water. Hawaiian counties, for example, require that new construction be at least 20 feet and often up to 40 feet inland of the shoreline.

In recent years, some landowners planted salt-tolerant plants at their seaward property line, hoping the vegetation line would serve as the shoreline for setback purposes even if the tide sometimes extended past the plants. The state agreed in some cases, but concerned neighbors and environmental groups sued to have the issue clarified. Hawaii's Supreme Court ruled in 2006 that the starting point for setbacks is the highest wash of the waves at high tide, regardless of vegetation.

In addition to the setback issue, another question regarding Hawaii beaches is being litigated in Maunalua Bay Beach Ohana 28 v. State of Hawaii, an appeal now pending in the Intermediate Court of Appeals.  The issue in that case is whether the state or littoral landowners are entitled to ownership of accreted land. In "Act 73," the legislature declared that shoreline land naturally accreted belongs to the State of Hawaii and is public property.  The act 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.  I filed an amicus brief in the appeal, a copy of which is available here.

Hat tip to PLF on Eminent Domain for alerting us to the WSJ article.

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

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 shoreline development permits because the city had no power under delegated state law 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 provides that shorelines are owned by the state, subject only to state regulation. The City is not authorized to adopt moratoria on shoreline development arising out of its police powers under article XI, section 11 of the Washington Constitution, which limits local government to regulation “not in conflict with general laws.” Thus, we affirm both the trial court and the unanimous Court of Appeals decision invalidating the ordinances.

Professor Salkin details the facts of the case here, and the court's opinion can be accessed here.

Hawaii shoreline and zoning laws are also state-centric, and although counties may have latitude in their regulation in these areas, that authority is not plenary and is subject to the scope of the powers delegated from the state.  For example, several state statutes delegate zoning and other regulatory powers to the counties.  See, e.g., the Hawaii State Planning Act, Haw. Rev. Stat. ch. 226; the statute governing county zoning, Haw. Rev. Stat. §  46-4, and the Coastal Zone Management Act, Haw. Rev. Stat. § 205A.  These statutes require the counties to exercise the delegated authority only within the scope of the power delegated from the state.  See Kaiser Hawaii Kai Dev. Co. v. City & County of Honolulu, 70 Haw. 480, 777 P.2d 244 (1989) (county charter provision was not superior to conflicting state planning and zoning statutes).

▪ "Drawbridge Protectionism," the Superferry EA / EIS, Raindrops, and Floods

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 policy debates, even though the term itself is only a few decades old.  It makes sense to complain of a "€œnot in my backyard"€ syndrome to snicker at objections over LULUs ("€œlocally unwanted land uses"€) such as a factory, a bus station, or a halfway house.  One might say that it'€™s human nature not to want such distinct land uses near one'€™s back yard.

But the broader phenomenon of objections to development in general raises more serious policy issues.  The desire to preserve the quiet "€œcharacter"€ of a town deserves a term that is distinct from NIMBY.  Alternative acronyms (here's a list) might include BANANA ("build absolutely nothing near anyone"€) and CAVE people ("citizens against virtually everything"), but these imply nutty extremism.   

The more nuanced nature of the topic justifies a divergence from the practice of cute acronyms.  One term that comes close is the "raise the drawbridge"€ phenomenon, used to refer to citizens who are already inside a preferred area (those who have already, say, built their A-frame on the Oregon coast) and who now want to raise a legal drawbridge to keep others out.  But, to me, even this term focuses on an implication of individual selfishness that fails to capture the larger social effects of the anti-development phenomenon.  For example, one town's rejection of new housing development is likely to push the pressure for development elsewhere (just as localities jostle with their neighbors to discourage the homeless).

Read the entire post here.  His points resonate because the public debate about the Superferry -- including issues of traffic, invasive species, and access to local fishing and surf spots -- seems to embody the drawbridge phenomenon.  Residents of the neighbor islands,  whether born there or late-comers, like their communities just the way they are.  Or at least they don't want them to get any "worse." And "drawbridge protectionism" is certainly more palatable than "I got mine."   

As anyone who has been involved in the land-use process in Hawaii knows, this phenomenon is not new, or limited to the Superferry.  For an example, read this earlier report in USA Today, "Land-use debate ugly in paradise" about a proposed development on Molokai.  One irony-filled quote sums it up nicely:

"There is trouble in paradise," says Annie Van Eps, 59, an art gallery manager who moved from California five years ago. "This has split our island. Can't we have one island that's not developed?"

And the raindrop never thinks it is responsible for the flood.  This thinking is not limited to Hawaii, and it is common to every desirable locale (see this story from California's Sierra foothills).  I don't know about you, but I live in a house built by a "developer," on land that was once pristine.

Putting fortune-cookie philosophy aside, however, the Hawaii Supreme Court's utilization of a low standing threshold, and a nondeferential standard of review, coupled with a legal standard for secondary effects that turns the inquiry from what the development entails to why it is being undertaken, has effectively shifted the Legislature's delegation of exemption determinations from agencies accountable to the public (at least in theory), to any group that can demonstrate standing.  Thus, it appears it is now up to the Legislature to determine whether Hawaii's EA/EIS statute (Haw. Rev. Stat. ch. 343) will serve as the lever of the drawbridge to be pulled up at the command of anyone with standing, or has a more balanced role in the weighing of development versus protectionism. 

While in an island state we can't push LULU's off on neighboring but politically-distinct municipalities as suggested by Professor Boudreaux, we can push them off on other local communities.  We are beginning to see some of that on Oahu where there are disputes about landfill locations, and the placement of proposed transit stations for Honolulu's proposed $4 billion-plus rail system.  One thing is for sure: without some legislative guidance, the raw "us-versus-them" phenomenon we're witnessing in the Superferry debate is not going to be limited to disputes between islands.   

Update 10/24/2007: Professor Boudreaux has posted "The San Francisco Bay area is now closed; please move elsewhere" with more on the phenomenon.