2008 Land Use In Review: Shoreline Law

2008 saw no blockbuster court decisions on shoreline law, just a continuation of existing trends.

Setbacks

Shoreline setback are a "no build" zone on private beachfront property, measured from a "setback line."  Hawaii state law establishes a minimum shoreline setback, and the four counties are allowed to establish their own (greater) setback standards. In 2008, Kauai enacted what one commentator described as the nation's "most conservative" shoreline setback regulations (more here), continuing the trend of variable shoreline setbacks measured by historical erosion and accretion rates. For more, check out a U. Hawaii Law Review article on shoreline setbacks, published last year.

Public Access

Shoreline setback lines do not concern ownership, or the boundary between public beaches and private property. The shoreline certification process under the state Coastal Zone Management Act is not supposed to affect property rights or determine where the public may or may not access.  However, the two concepts continue to be conflated, as reflected in this newspaper article, which we discussed in this post.

Taking Without Compensation

In addition to the setback issue, another question regarding Hawaii beaches remains pending in a Hawaii appellate court. The issue in Maunalua Bay Beach Ohana 28 v. State of Hawaii, which is being considered by the Hawaii Intermediate Court of Appeals, is whether the state or littoral landowners are entitled to ownership of accreted land. In "Act 73," the legislature declared that shoreline land naturally accreted belongs to the State of Hawaii and is public property.  The act overturned the age-old rule of shoreline accretion and erosion, which held that beachfront owners lose ownership of land when it erodes, but gain it when it accretes.  Instead of these balanced rules, Act 73 made the erosion/accretion equation one-sided: the State wins every time.  We filed an amicus brief in the appeal, a copy of which is available here.