When a statute or ordinance states that an agency “shall” do something, but because of practical limitations or longstanding practice the agency does something else, what will a court do about it?
Leslie v. Board of Appeals, County of Hawaii, 109 Haw. 384, 126 P.3d 1071 (Jan. 25, 2006) involved the meaning of the…
What’s in a name? That which we call a rose
By any other word would smell as sweet– William Shakespeare, Romeo and Juliet
Or, to paraphrase Gertrude Stein, the shoreline is the shoreline is the shoreline, right?
Wrong. Under Hawaii law, the term “shoreline” has multiple meanings and a variety of applications, and defining the “shoreline” is not necessarily a one-size-fits-all proposition, applicable to all situations.
For example, the “shoreline” is the boundary between public beaches and private land as defined by Hawaii’s common law. However, “shoreline” can also mean the baseline from which statutory building setbacks (what my colleague Sat Freedman refers to as the “no build zone”) are measured.
In Diamond v. State Board of Land & Natural Resources, No. 26997 (Oct. 24, 2006), the Supreme Court of Hawaii addressed the latter application, the definition of “shoreline” for setback measurement purposes.
The court held that the State of Hawaii Board of Land and Natural Resources (the agency tasked with certifying the “shoreline” when an oceanfront property owner seeks to build on her land) must follow the language of the Coastal Zone Management Act (CZMA), which defines “shoreline” for setback purposes.
The CZMA defines the “shoreline” for certification and setback purposes only as:
[T]he upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves.
This statute does not define “shoreline” for purposes of the public/private boundary. Nor can it. The CZMA is concerned only with regulation of certain activities within the coastal zone. Were the statute to attempt to define the boundary between public and private land, or regulate away all beneficial use within the coastal zone (by declaring private property to be part of the public beach, for example), it would be an unconstitutional taking, along the lines of Lucas v. South Carolina Coastal Council.
Until a few months ago, BLNR’s regulations for how to apply this statute to a particular parcel defined “shoreline” differently than the CZMA:
[T]he upper reaches of the wash of the waves, other than storm or tidal waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or where there is no vegetation in the immediate vicinity, the upper limit of debris left by the wash of the waves.
Hawaii Admin. R. § 13-222-2 (1988). See the difference between that definition and the statutory definition? The regulation added the italicized phrase, enacting what appeared to be a preference for the vegetation line. The statute, on the other hand, showed no such preference. Indeed, under the statute, both the vegetation line or the debris line are simply evidence of the high wash of the waves, which remains the true benchmark.
Consequently, as I mentioned in this post, in May 2006, BLNR amended the regulation (effective June 2006) to conform the regulation precisely to the statutory language. The current regulation defines “shoreline” as:
[T]he upper reaches of the wash of the waves, other than storm or seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves.
(Note that the only difference between the statute and the current regulation is the “or” between “storm” and “seismic”).
In Diamond, neighbors challenged BLNR’s attempts to certify the shoreline on a parcel on Kauai, arguing that the prior language of BLNR’s regulations did not conform to the statutory language, and are invalid. However, between the time the trial court decided in favor of BLNR, and the time the supreme court considered the appeal, the regulations had changed as noted above. Thus, the challenge to the legal validity of BLNR’s former rule was moot.
The court nevertheless addressed the issue of whether BLNR’s alleged preference for the vegetation line conformed to the CZMA’s definition because the issue was capable of repetition, yet would evade review (shoreline certifications are only good for one year, and the litigation process cannot be completed during that time).
The court held the agency was not correctly applying the CZMA. The language in section 205A-1 is plain, and shows no preference for either the vegetation line or the debris line.
Applying the language of the statute to the Kauai parcel, the court held the debris line should have measured the “shoreline” for certification purposes.
The decision is limited. BLNR has no jurisdiction to define where public beaches start and end, and the certification process has nothing to do with the boundary between public beaches and private land. As the Chair of the BLNR wrote, in an op-ed entitled “Certified shorelines don’t determine ownership” —
The Hawaii Supreme Court has held that “according to ancient tradition, custom and usage, the location of a public and private boundary dividing private land and public beaches was along the upper reaches of the waves.”
Why, then, wouldn’t a certified shoreline be the property boundary line? Shouldn’t they be the same? The answer is that they are not necessarily the same because their purposes, the impacts and the processes for determining these lines are significantly different.
Correct. It wis a mistake to read this case too broadly, and view it as the court extending public beaches inland. That is not what the court did. As one story put it incorrectly:
“The Hawaii Supreme Court on Wednesday defined the boundary between public beach and private property.”
No it didn’t. Diamond involved only the location of the shoreline for setback purposes, not the shoreline for defining the public/private boundary. Further, the plaintiff challenged only the agency’s interpretation of a statute, not the boundary between private property and the public beach. The difference in the legal consequences, and the process of determination of the location between the certified shoreline and the boundary shoreline is critical, as the BLNR Chair recognized:
When property boundaries and ownership are in question, the state does not rely on shoreline certifications, but instead takes a more rigorous approach to locating the property’s seaward boundary.
When shorefront property owners bring quiet title actions (lawsuits seeking the court’s determination of ownership,) the state enters the action to preserve all of its rights and title to its coastal property.
Certified shorelines do not determine ownership. Ultimately, the court decides ownership of the property and the boundary line dividing private and public lands. Because the certified shoreline serves a purpose different from ownership, the certified shoreline may be at a different location than the property’s seaward boundary line.
If the decision is viewed as moving the public/private boundary more inland (mauka), rather than only addressing the setback baseline, and if the court is viewed as further extending the public beach further inland that the rule in Sotomura and Ashford, the decision may suffer from severe constitutional defects. Granted, the definitions used to define shoreline for ownership purposes and setback purposes sure look the same (the legislature derived the CZMA definintion from the Sotomura and Ashford decisions, so to say that Diamond defines ownership is a case of the tail wagging the dog).
The bottom line is that the court in Diamond made no ruling on what is public beach and what is private property. That issue simply was not before it, and the court did not address it.
One of the more interesting aspects of the Diamond opinion is the court’s decision to create a legal distinction between “artificial” and “natural” vegetation. That issue is discussed separately here.
“When all else fails, read the instructions.”
That old adage is the first lesson to be taken from the Supreme Court of Hawaii’s decision earlier this year in Leslie v. Board of Appeals, 109 Haw. 384, 126 P.3d 1071 (2006). Disclosure: I filed an amicus brief in that case, supporting one the arguments of the property owner and the county on a different issue.
The case began when Kiilae Estates asked the County of Hawaii to approve a subdivision of its land. The county subdivision code contains a long list of information that “shall” be submitted with preliminary subdivision plats. The long-standing practice of the county Planning Department, however, was to defer submission of these materials until after the review of the preliminary subdivision plans. It made more sense, the Department claimed, to wait until later in the process when the developer’s plans are more complete, and thus the information would be more useful to planners. Continue Reading ▪ Court to Government: Read the Statute
The Hawaii Supreme Court recently decided a case that provides some guidance to those who practice in the often ill-defined space between executive agencies and the courts, a place land use lawyers and their clients frequently find themselves.
In Hui Kakoo Aina Hoopulapula v. Board of Land and Natural Resources (Sep. 21, 2006), the court confirmed that in order to properly demand a “contested case” (a trial-like administrative hearing) and thus preserve a right to judicial review of agency action, the party demanding the hearing must follow the agency’s rules to request it, even if it appears futile to do so.
In that case, the electric company asked the State Board of Land and Natural Resources for a long-term lease of brackish water from a Big Island aquifer for “industrial use and fire suppression” for a generating plant.
Parties who have long objected to the generating plant objected to the proposed lease and orally asked the Board for a contested case at a public hearing the Board scheduled on the electric company’s request. The Board rejected the oral request for a contested case and issued the lease after a public auction. The objectors did not file a written request for a contested case with the Board, as required by the Board’s rules of procedure.
The objectors then sought judicial review in circuit court of the issuance of the lease, and the denial of the contested case. Circuit court review of administrative agency action is limited to appellate review of the administrative record produced after a contested case. Thus, if no contested case is held in the agency, the circuit courts lack subject matter jurisdiction.
The circuit court, finding that no contested case was conducted by the Board, determined it lacked jurisdiction, and the supreme court affirmed, never reaching the substantive issues raised by the objectors. Lack of jurisdiction prevented the courts from considering the case at all.
The key holding of the case is that a proper written demand for a contested case is a jurisdictional prerequisite to judicial review. Even when the agency has denied an oral demand. The court held that the agency’s “no” may not have really meant “no,” and the objectors may have been able to change the agency’s mind with a written demand for a contested case.
No demand for a contested case means no contested case is conducted, and no contested case means that a party disappointed with the result of agency action cannot run to court and seek reversal.
