2007

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

“Courts are required to be more than ‘rubber stamps’ in determining whether a taking furthers a public use.”

In a must-read opinion for eminent domain practitioners, the Appellate Division of the New York Supreme Court invalidated an attempted taking on public use grounds. 

In In the Matter of 49 Wb, LLC v. Village of …

Kauai’s newspaper, The Garden Island, has posted a story “Legal funds approved for Ohana Kauai battle.”  The appeal, summarized in the story, was argued in February 2007, and is awaiting a decision from the Supreme Court of Hawaii.

Ohana Kauai, a citizens group, helped put thetax relief measure on the November 2004 …

West Hawaii Today has posted a story on an ongoing eminent domain case:

Counsel for the developer William Meheula Jr. saidinverse condemnation can only be proven if the defendants admit thatthe government is taking possession of the private property for apublic purpose. The Coupe case claims the lack of public purpose fortaking the 3-acre strip …

Does a landowner challenging the public use of a taking of property need to utilize state compensation procedures before seeking relief in federal court?  In Rumber v. District of Columbia (No. 06-7004, D.C. Cir. May 25, 2007), the U.S. Court of Appeals for the District of Columbia joined the majority of federal circuits and held…

The Missouri Supreme Court, in in Mint Properties v. Centene Plaza Redev. Corp. (SC88487, Jun. 12, 2007), clarified that state’s meaning of the term “blight” as a justification for taking property by eminent domain:

(1) The evidence presented was insufficient to showthe social liability necessary to support a finding of blight. Section353.020 defines “blighted area”…

In MiPro Homes, LLC v. Mount Laurel Township (No. 06-1345) (docket listing here), the US Supreme Court is being asked to consider the following question:

Whether the Takings Clause of the Fifth Amendment to the Constitution prohibits a municipality from taking private property for “public use” when the municipality’s public use determination is ad…