More on the Supreme Court of Hawaii opinion in Brescia v. North Shore Ohana (No. 27211, July 12, 2007). The Court took up no less than seven points on appeal, but the most interesting to me was the analysis of the estoppel issue.
The case involved Kauai property within the coastal “Special Management Area.” The
Hawaii Business has posted an interesting article that’s worth a read: “The Line in the Sand.” Subtitled “How Maui Land & Pine and its eco-icon David Cole became the target for community outrage,” the article is a good insider’s look at the interplay between the various parties in Maui’s (and Hawaii’s)
The Hawaii Supreme Court has issued an opinion in Brescia v. North Shore Ohana (No. 27211, July 12, 2007), a case discussing shoreline setbacks, due process, and vested rights. I haven’t had a chance to read the majority opinion authored by Justice Acoba, or the concurring opinion by Justice Levinson, but will post more after
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
Hat tip to May it Please the Court for alerting us to a recent decision by the Second District Court of Appeals in California, LT-WR, L.L.C. v. California Coastal Comm’n (No. B187666, May 25, 2007).
In that case, the CCC denied a property owner’s request for a permit to allow it to maintain a fence
Last week was a busy one — quite a few local stories about land use and property law. Here’s a rundown:
The Garden Island reports that the Kauai County Council has passed a resolution purportedly designed to prevent the planting of “artificial” vegetation to expand private property onto the public beach:
The Kaua‘i County Council wants to halt the practice of beachfront owners to artificially expand their properties seaward with vegetation,
Through a resolution, five of
Today, I filed an amicus brief (750k pdf) in the appeal regarding “Act 73,” the state statute (codifed here and here) which declared that shoreline land naturally accreted belongs to the State of Hawaii and is public property.
Act 73 overturned the age-old rule of shoreline accretion and erosion, which held that beachfront owners
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
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