Shoreline | CZMA

For those of you who attended the Hawaii Land Use Law Conference, thank you.  Here are the materials I mentioned in my session on Water, Water, Everywhere: Coastal Zone Management Permits; Hawaii’s Floodway, Floodplain and Coastal Inundation Zone Requirements, plus a few others I did not have time to cover:

  • Summary of Diamond case and commentary – 2006’s second “big case” about the CZMA; the “shoreline” issue determined in that case was about the baseline for setbacks, not ownership.
  • Kaiser Aetna v. United States, 444 U.S. 164 (1979) – government’s ability to regulate does not equal the ability to affect ownership rights without just compensation.
  • Boone v. United States, 944 F.2d 1489 (9th Cir. 1989) – guess what, Kaiser Aetna meant what it said.
  • Alameda Gateway, Ltd. v. United States, 45 Fed. Cl. 757 (1999) – Kaiser Aetna really meant what it said – just because a navigable ship repair facility in San Francisco Bay is subject to regulation does not mean property rights are affected.
  • Items I didn’t have time to talk about, but are worth mentioning:

        
    Continue Reading ▪ Land Use Law Conference Materials

    As a way of saying “aloha” to 2006, I’ve summarized the land use lawhighlights (orlowlights, depending on your point of view) from the Hawaii SupremeCourt, the Ninth Circuit, and the U.S. Supreme Court, roughly inchronological order.  Topics include shorelines, eminent domain,environmental impact statements, RLUIPA, vested rights, and land uselitigation procedures.

    If you think I missed any key cases or events, please email me.

        
    Continue Reading ▪ 2006 Land Use in Review

    The “public trust” doctrine got a further boost in Kelly v. 1250 Oceanside Partners, 111 Haw. 205, 140 P.3d 985 (July 28, 2006). 

    The public trust doctrine in its original form under Hawaii law was that the Crown or government owns title to all land below the high water mark, which is held in…

    If Robert Frost’s poetic adage is true, is the inverse also correct?  Do bad fences make bad neighbors? 

    Perhaps so, if this story (yet another article about the Diamond decision conflating the legal definition of “shoreline” for setback purposes with the public/private boundary “shoreline,” which I posted about here, here, and here) is accurate:

    Hawaii residents may be encouraged by the court ruling to insist that an eroding beach means the private landowner loses part of his property, as public property moves inland. But whether that’s a good thing depends on one’s point of view.

    Dean Uchida, executive director of the Land Use Research Foundation of Hawaii, is worried that overzealous members of the public might try to claim public land if they see a debris line running through a back yard.

    What does it say about the ability of the legal “fence” — the defining line between public beaches and private property — to provide certainty if some may think the law sanctions this type of behavior?  Not much.  Yet, the formulation of the boundary as an inchoate line seems to invite just this sort of action, since it inherently moves: the “upper reaches of the wash of the waves.”

    Another issue highlighted by the article is the erosion/accretion debate:

    But if there is serious erosion, private land becomes public land, said Issac Moriwake, an attorney for Earthjustice, the nonprofit environmental law firm.

    “It doesn’t matter where the shoreline was a year ago or two years ago,” Moriwake said. “The question is where is the shoreline now.”

    That might be correct, if the law — and the ocean — worked one way only.  But beachfront land accretes as well as erodes.  Age old legal traditions reconized this reality, and a shoreline property owner took the bitter (erosion) with the sweet (accretion), losing property when it eroded, but gaining it when accreted. 

    But as I posted here, the Hawaii Legislature in Act 73 attempted to overthrow that tradition, instead legislating that a shoreline property owner could not gain land by accretion, and leaving untouched the rule that the owner lost eroded property.  The circuit court invalidated the legislation as unconstitutional, and an appeal is pending, so it looks like Diamond won’t be the last case about shorelines in the headlines.

        Continue Reading ▪ Good Fences Make Good Neighbors

    The Diamond shoreline decision is considered in this piece on the Advertiser’s op-ed pages.  It does a very good job of explaining the historical context of the legal definitions of shoreline:

    The court essentially endorsed a concept originally created by the court led by Chief Justice William Richardson in the late 1960s and 1970s. Richardson, part Hawaiian, believed that the law in areas such as shoreline access or use of natural resources should look to Hawaiian tradition and practice as well as western law.

    As the court said in the 1995 PASH decision, certain “western concepts” of property are “not universally applicable in Hawaii.”  The piece continues:

    In three famous decisions, the Richardson case affirmed that theory: Ashford (1968), Sotomura (1973) and Zimring (1977). While the facts and details of the three cases were different, the basic principle was the same: In contested cases, control of beachfront property tilts toward the public rather than the private landowner.

    This was not an entirely popular position. Justices such as Masaji Marumoto argued that basing legal opinions on theories about Hawaiian practices and oral history was a dangerous and haphazard approach.

    But the philosophy held.

    Where this analysis goes slightly off-track is the conflation of of the Ashford-Sotomura-Zimring definition of “shoreline” for boundary purposes with the CZMA definition of “shoreline” for setback purposes.  The boundary issue was not before the court in Diamond, and the court held only that the agency was not following the CZMA mandates (the language of which was derived from Ashford, hence the confusion).  This rule of decision is not precedent for any furture boundary case, which will be decided on its own facts and the common law, not the CZMA.

         Continue Reading ▪ Shoreline Definition History in a Nutshell

    Honolulu’s two major dailies have produced front page stories about the Diamond shoreline opinion (detailed posting here). 

    The first — “Ruling sparks beach debate” — understands the difference between defining “shoreline” for certification purposes under the CZMA, and the “shoreline” for ownership purposes:

    ENVIRONMENTALISTS have asserted that a Hawaii Supreme Court ruling this week opens public beach access and prevents private property owners from encroaching.

    But private property advocates caution that the ruling should not be interpreted that broadly and does not affect beach access.

    But the other article — “Ruling upholds shoreline access” — does not distinguish between shoreline definition for setback certification purposes, and the definition for the public/private boundary purposes:

    The Hawai’i Supreme Court, in a landmark ruling that resolves three decades of conflict over shoreline property, has clearly ruled that the public beach must be established as wide as is reasonably possible.

    As I mentioned yesterday, although the language of the certification statute tracks the language of the common law boundary cases, the court in Diamond could not and did not consider the issue of boundary or public access.  Any application of this case to boundary issues is what lawyers call “dicta.”  That’s a fancy way of saying that any discussion about access is only an aside by the court, not a rule of precedent that must be followed in future cases.

    Future cases could contrast, for example, the differences between the policies underlying the CZMA’s shoreline definition, with the common law traditions and history of the term “ma ke kai” that on many parcels defines the boundary between private property and the public beach.  The CZMA, after all, cannot be a tool to “expand” the public beach without compensation.

          Continue Reading ▪ More on Shoreline Definitions

    Continuing this post on the Diamond shoreline certification case, one of the most interesting aspect of the opinion is the court’s attempt to distinguish “artificial” from “natural” vegetation:

    The utilization of artificially planted vegetation in determining the certified shoreline encourages private land owners to plant and promote salt-tolerant vegetation to extend their land further makai, which is contrary to the objectives and policies of HRS chapter 205A as well as the public policy we set forth in Sotomura.  Merely because artificially planted vegetation survives more than one year does not deem it “naturally rooted and growing” such that it can be utilized to determine the shoreline.  We therefore reconfirm the public policy set forth in Sotomura and HRS chapter 205A and reject attempts by landowners to evade this policy by artificial extensions of the vegetation lines on their properties.      

    Aside from the obvious issues of proof, any rule attempting to distinguish “artificiallly” planted and grown vegetation from “natural” vegetation seems nearly impossible to apply.  Will the mere touch of man anywhere in the planting or growing process be sufficient to qualify vegetation as “artificial” under the court’s new rule? 

    Does this mean all the veggies in my dinner salad are now “artificial?”

        Continue Reading ▪ What is ‘Artificial’ Vegetation?

    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.

    Haw. Rev. Stat. 205A-1. 

    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.

         Continue Reading ▪ Shifting Sands of Shoreline Definitions