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The Honolulu Advertiser
Posted on: Friday, October 27, 2006

Factor for beachfront developers

By Jerry Burris
Public Affairs Editor

A recent state Supreme Court decision that affirms public over private property rights in beachfront land disputes will set into motion profound reverberations that will impact development options and the physical face of the shoreline in Hawai'i for decades to come.

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.

In the question of who owns beachfront property, the issue to Richardson was simple: Ancient Hawaiians would never turn over to private ownership land that could be used for fishing, recreation, gathering and beaching of canoes. Thus, the boundary between private and public land had to be mauka, far enough so that folks could use the beach safely and consistently.

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.

The problem was that the court tended to rule that the dividing line between public and private property could be measured by either the debris line or the vegetation line; the idea being that either sufficiently indicated the normal high wash of the waves.

This produced a situation in which landowners would plant salt-resistant plants along the oceanside boundary of their property, artificially extending the reach of their private property. In its most recent decision, (Diamond and Bronstein v. State of Hawai'i), the court said the boundary should be measured by whatever indication creates the greatest public access to the beach. The court reaffirmed the legal standard that the shoreline is represented by the highest wash of the waves during high tide in winter, no matter where the debris or vegetation line is found.

Why does this matter?

It's important as a principle defending the right of public access to the shoreline. But it is also important in managing and protecting our coastline. The counties set standards for what can be built, usually imposing a setback from the shoreline boundary. The more mauka the shoreline boundary, the deeper the setback on the oceanfront lot.

Those who have built close to the oceanfront already are unlikely to be affected by this ruling. But the case could set in motion serious legal disputes over land ownership, which is a separate issue from shoreline certification.

If the ruling produces decisions that effectively "take" land from private owners, will the state be required to compensate the owners? The counter-argument might be that since the property owner never actually "owned" that bit of shoreline land, it cannot be "taken" from him.

In any event, future development will have to take into account a new standard for where it can go. This could cause hardship, obviously. But in the end, an oceanfront property will always be an oceanfront property. The only issue will be how many steps it takes the owner to get to the sea.

Reach Jerry Burris at jburris@honoluluadvertiser.com.