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 ruled in 2006 that the starting point forsetbacks 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.