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?”
Shoreline | CZMA
▪ Shifting Sands of Shoreline Definitions
By Robert H. Thomas on
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.
▪ Review of Maui Shoreline Setback Rules Underway
By Robert H. Thomas on
According to this story, the County of Maui is in the process of revising its shoreline setback rules.
The county’s shoreline setback rules determine where beachfront landowners can build on their property. The current formula to determine a setback is 20 feet, plus 50 times the annual erosion rate of the property. The minimum setback is 25 feet, while the maximum is 150 feet.
The proposed amendments include increasing the base used in the setback formula from 20 to 25 feet.
Abbott said the change was needed because some landowners whose properties had zero erosion have argued they should have a 20-foot setback based on the formula. He said the change would make the formula consistent with the minimum setback.
As I recently posted here, shoreline legal issues are a touchy subject, but in the rush to “protect” beaches, you cannot just blow by the property rights of owners. Government escapes liability for regulations imposing “no build” easements (setbacks being a classic example) only to the extent that the regulation is closely tailored. The reason advanced for Maui’s variable setback rules is the supposed history of beachfront erosion at particular locations, with a fixed “buffer zone” plus historical erosion rates added together to calculate the “no build zone” on a specific parcel. The major justification for setbacks is protecting the homeowner from building on property that may eventually be eroded.
If so, it seems odd that if a shoreline parcel has had “zero erosion” that the owner should be subject to a setback at all. What harm is caused by building where there has been no erosion, and what danger is being prevented?
Continue Reading ▪ Review of Maui Shoreline Setback Rules Underway
▪ Protecting Property Rights in Beachfront Land
By Robert H. Thomas on
Shoreline and beach issues in Hawaii are a sensitive and often heated topic. It is natural that in an island state with 1,052 miles of coastline, people get passionate about beaches, especially when the economy relies in large part on images of sandy shores and beautiful ocean.
But the very things that make Hawaii beautiful, just as naturally, also attract people who want to live near those beaches and ocean. A recent story in the Honolulu Advertiser, Erosion hasn’t slowed shoreline construction, highlights many of the competing concerns when the desire to protect the shoreline runs into people’s homes: on one hand, the public is concerned about the perceived “loss” of sandy beaches, while on the other, the existing homes of shoreline property owners may be in danger, while other owners may be prevented by restrictive regulations from building upon their undeveloped property.
That is not a recipe for compromise, or even reasoned discourse. What I said in the July 2006 ABA Journal — in a story about seawalls and property rights in Florida — is just as true in Hawaii:
“It’s hard to find a middle ground on this,” . . . “Every time someone sneezes on the shoreline, it’s front-page news.”
In Hawaii, all beaches are public up to the “high wash of the waves,” as usually evidenced by the vegetation line. This differs dramatically from the rule in other states, where the public beach ends at the mean high water mark.
Several years ago, the Hawaii Supreme Court revisited the long-standing rule and “reinterpreted” a phrase (“ma ke kai“) to mean upper reaches of the wash of the waves, not mean high water mark. The public-private boundary In Hawaii can therefore be much further mauka (inland) than in other states. And as shorelines erode, this public-private boundary can move and encroach further on private property. Note: as shorelines accrete, the public-private boundary should, conversely, move further makai (seaward). However, in 2003 the Hawaii Legislature enacted Act 73, which altered these age-old rules. For a related post on a circuit court’s striking down of Act 73, go here.
Shoreline legal issues, like the shorelines themselves, are in flux. The State Board of Land and Natural Resources recently revised its administrative rules regarding the definition of shoreline for certification and setback purposes to conform more closely to the common law definitions established by the courts. These rules and other proposed regulations have not yet been challenged in the courts.
My Damon Key colleague Sat Freedman has posted a very good primer on the subject of Shorelines, Setbacks, & Seawalls, detailing the different definitions of “shoreline” (setback vs public-private boundary), how Hawaii’s counties handle the administration of setbacks, and how seawall construction and other property protection measures may be impacted by restrictive regulation.
In the back-and-forth on the issue, the question of the property rights of the owners of shoreline property should not get pushed aside. The Fifth Amendment to the U.S. Constitution and article I, section 20 of Hawaii’s Constitution provide that private property may not be taken for public use without just compensation. Property may be taken by overbearing regulation as well as outright confiscation (also known as a “regulatory taking” or “inverse condemnation” — so yes, you have reached the right blog), and the issue of whether the government has gone too far and crossed the line between permissible regulation and confiscation is sure to arise again. The public often clamors for expansion of the public beach, with little to no concern shown for the property owners who are called upon to sacrifice their property upon the altar of the “public good” usually with no compensation.
Those fortunate enough to own beachfront property — whether they are recent purchasers or long-time local residents (the law makes no distinction) — must vigorously protect their rights to insure they alone are not forced to bear the cost of a desired public benefit.Continue Reading ▪ Protecting Property Rights in Beachfront Land
▪ SMA: The Line in the Sand
By Robert H. Thomas on
More on Leslie v. Board of Appeals, 109 Haw. 384, 126 P.3d 1071 (2006), discussed previously in this post.
The property owner’s subdivision application included a portion of its parcel within the shoreline Special Management Area (SMA), even though all of the construction was planned outside the SMA.
One of the major purposes of Hawaii’s Coastal Zone Management Act (CZMA) is to encourage development mauka (upland) of the SMA, the land closest to the ocean. The SMA boundary is the critical line in the sand – a property owner need only seek a SMA permit for “development within the SMA” as required by the CZMA if it plans development makai (oceanward) of this boundary. It appeared the property owner proposed development as contemplated by the CZMA — all of it was mauka of the SMA line.
The county determined that the subdivision of Kiilae’s land was not “development within the SMA” since no actual construction was proposed within the SMA, and did not require the property owner to apply for a SMA permit. However, a portion of the property being subdivided was within the SMA, even though no actual construction was planned on that parcel.
The issue before the supreme court was whether the subdivision of a parcel, a portion of which is within the SMA, requires a SMA permit. The court held that because the owner sought subdivision of the entire parcel — its application included a portion of that parcel which was within the SMA — the impact of the entire proposed subdivision must be taken into account when determining whether a permit must be sought.
This result, like the subdivision issue, was based on the language of the statute. The property owner’s subdivision application included property within the SMA, and the statutory definition of “development” includes subdivision. Once that fact was established, the result was consistent with the court’s reliance on plain stautory language. It would have been another matter entirely, however, if the SMA portion of the property had first been subdivided out, and no part of the subdivided property was within the SMA, even if the act of subdivision were to have some effects on property within the SMA.
Thus, the second lesson that can be taken from the Leslie case is that a property owner must pay close attention to what property is included in an application, because it will be held to it.
Disclosure: I filed an amicus brief in this appeal, supporting the position of the property owner and the county.
▪ Regulatory Taking of Accreted Beachfront Land
By Robert H. Thomas on
A Hawaii circuit (trial) court, as reported here, has declared that “Act 73,” (codifed here and here) which determined that certain land “accreted” on Hawaii’s shorelines is “public land,” is an “uncompensated taking” of private property.
The court held that the Act was a “sudden change in the common law,” and prevented the littoral owner from registering the property or quieting title.
The common law doctrines of accretion and erosion were generally uniform, and the littoral property owner took the bitter (erosion) with the sweet (accretion): if her property naturally washed away, she lost it; but, conversely, if land naturally accreted on her property, it was hers. One of the incidentals of owning property next to the ocean or stream.
Act 73 radically altered that balance, determining as a matter of legislative fiat that the State owned accreted land, while not disturbing the usual rules of erosion. Under Act 73, the littoral owner could not secure title to accreted land, yet continued to lose title to eroded land.
In other words, “heads the State wins, tails you lose.”
Continue Reading ▪ Regulatory Taking of Accreted Beachfront Land