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
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:
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.
One of 2006’s bigger cases was Diamond v. Bd. of Land and Nat. Res., 112 Haw. 161, 145 P.3d 704 (Oct. 24, 2006), involving the location of the “shoreline” for purposes of determining the buildable area on an oceanfront parcel.
There was news coverage a-plenty, and I posted more than a few comments on
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
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
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.
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.