▪ Shoreline Access Across Private Property - A Shortcut to Paying for the Change?

Yesterday's Honolulu Star-Bulletin ran an editorial "Access to Oahu’s shoreline is being blocked little by little," spurred by a brewing controversy regarding access to public beaches across private property in Kailua.  The editorial calls for political leaders to make access to public beaches "a priority," by establishing an "enforceable policy" to promote access:

So the recent conflict between public entitlement and private landowners about a right-of-way to Kailua Beach is a common episode, one that will be repeated until a sensible, enforceable policy is established to support the access law and existing standards for pathways are implemented.

The editorial does not suggest what this "policy" might be.  It acknowledges the obvious means of acquiring private property for public access: eminent domain, which requires that the government pay just compensation and damages to the property owner(s).  It also acknowledges, however, that there may be no money in the public coffers to meet the compensation obligation:

In the late 1990s, the city's attempt to condemn Portlock beach lanes to maintain public access was entangled by a landowner's successful lawsuit. Though the Portlock community said it would continue to allow access, private property and trespassing signs and video surveillance remain and as property changes hands, there are no guarantees the paths will stay open.

While the city has standards for access points at every quarter-mile, there are few areas where that has been achieved. Revenue shortages and priorities clearly prohibit new land acquisitions. Nonetheless, the public's right to get to the beach is fast becoming a privilege for the few.

That may be so, and the editorial comes awfully close to suggesting that the exigency of tight budgets would justify the imposition of an access "policy" that could guarantee access without payment of compensation.  But the U.S. and Hawaii Constitutions forbid focusing public problems, and the obligation to shoulder the burden of paying for public benefits, on a few, even if they happen to be beachfront property owners.  If access to beaches is truly a public benefit, then the public -- not particular property owners -- should be willing (and required) to pay for it.  This is not a new principle, as Justice Oliver Wendell Holmes reminded nearly a century ago:

We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.

Pennsylvania Coal Co. v. Mahon, 250 U.S. 393, 415-16 (1922).