Hawaiioceanlaw.com

Engineering a Solution to Governmental Concerns with Seawalls - Maui Resident's Solution

The Maui News has a good article recounting one owner's experience with coming up with a solution to the erosion of his oceanfront land that would accomplish his objective (i.e. land preservation) and be palatable to governmental officials.

Seawalls, and efforts to address the often competing interests of property owners and governmental regulators, are controversial and present thorny issues of Constitutional law, ocean engineering and intergovernmental relations/authorities.

Stay tuned.

Supreme Court to Hear Shoreline Property Case

The U.S. Supreme Court will hear an apeal from the Florida Supreme Court regarding the uncompensated taking of beach lands.  My partner, and fellow blogger, Robert Thomas, has created a resource page that is more comprehensive than any internet resource on Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009).  Professor Kanter's take on Robert's posts is quite laudatory, here.

I'll leave the Constitutional and property rights issues to Robert.  From the practice standpoint, this case will certainly impact all local governments and oceanfront property owners. 

In a nutshell, Florida's Walton County has pursued an effort to renourish beaches devastated by Gulf Coast hurricanes.

Property owners along the beaches to be renourished challenged the project.  The property owners asserted that the efforts to renourish the beach would alter their property boundaries and access, thereby constituting a taking requiring compensation.  

The Florida Supreme Court disagreed and found no compensable taking.  The U.S. Supreme Court will hear the case in the Fall.  As governmental interests in beaches increase, it is perhaps inevitable that those interests will conflict with the property rights of impacted owners.  Whether those conflicts constitute compensable takings will certainly guide governmental actions in shoreline regulations for decades to come.

Stay tuned. 

Speaking Event: Zoning, Subdivision and Land Development Law in Hawaii

On February 20, 2009, I will be speaking at our annual presentation on Zoning, Subdivision and Land Development Law in Hawaii.  You can register here.

Joining me are my Damon Key colleagues, Robert Thomas, Gregory Kugle, Noelle Catalan and Robert Harris (Damon Key alum).  I will be presenting on current issues involving the various counties in Hawaii, specifically addressing affordable housing exactions, condemnation, vacation rentals.  Shoreline issues typically come up in questioning.

If you attend, please introduce yourself.

Hawaii Legislature Mulls Increased Protections for Kailua Shoreline

Last week, a bill was introduced (H.B. 593) to address concerns about the erosion of Kailua Beach, perhaps Hawaii's most cherished beaches.  Recently, the beach has been subject to unusual erosion leaving shoreline experts puzzled.

This bill directs the Board of Land and Natural Resources to adopt rules relating to the shoreline setback area and mauka (or landward in this case) extent of the conservation zone boundary.

Per the bill:

Accreted beach land, in the form of coastal dunes and dry beach area, is still an integral portion of the  each system.  Accreted land holds the fragile carbonate sands, which the active beach relies upon during periods of episodic erosion.  These same lands will once again transition back into active beach area as the chronic erosion present at the south end of Kailua beach migrates north and as sea-level rises.  As the shoreline migrates through accretion and erosion, so too does the conservation district boundary, where all submerged lands are zoned as resource sub-zone.  The accreted lands, originally within the conservation district, will not only return to the conservation district with subsequent erosion, but also have a significant impact on the function and health of the beach resource to be conserved and protected within the existing conservation district boundaries.  From a management perspective, it is more effective for one agency to steward the entire resource.  As such, the State has a clear interest, as it already manages the existing conservation district and it owns all the lands makai of private property boundaries, including a portion of the accreted lands.  As there are currently no shoreline structures on Kailua beach, with the exception of the boat ramp and ancillary structure at the south end of the beach, there is a significant opportunity for the State to proactively and comprehensively manage the coastal sediment and environmental systems from the nearshore waters to the mauka extent of the shoreline setback area in the best interest of the public, the resource, and the State.  This management scheme will not affect ownership of private property nor dictate the issuance of building permits from the city and county of Honolulu's department of planning and permitting, in conformance with special management area ordinances.

The purpose of this Act is to preserve the existing Kailua beach for the use and enjoyment of future generations.

Lorman Seminar on Land Use Issues in the Shoreline Area

Today, I lectured at the Lorman Seminar entitled, "Coastal Engineering and Land Use Issues in Hawaii."

These are the slides from my presentation (3MB in PDF).

Beach Valuation - Exactions for Beach Loss Projected After Seawall Construction

Real Estate and Construction Law Blog has an interesting post on the estimated value of a beach, projected to be lost after the construction of a sea wall in Monterey Bay.

The case, Ocean Harbor House v. California Coastal Commission (opinion here), involves a condominum project seeking a permit from the Commission to build a seawall.  Erosion threatened the structure of the condos and a seawall was necessary to protect it.  Using a lost recreational value model for a 50 year period, the Commission required a mitigation fee of $5.3 million. 

In upholding the fee, the California Court of Appeals discussed the constitutional issues relating to this "exactions" and found the fee to be constitutionally proportional to the property taken:  "It is beyond dispute that California has a legitimate interest in protecting and maintaining its beaches as recreational resources."

More on Kahala Shoreline Controversy

Further to the discussion of the shoreline controversy with the State of Hawaii and the oceanfront landowners in Kahala.  The Star Bulletin wrote an editorial which my partner Robert Thomas comprehensively analyzed at his blog at: www.inversecondemnation.com. 

I commented on the newspaper story here.

State of Hawaii Pushes Shoreline Owners on Vegetation

The Department of Land and Natural Resources is pressing Kahala oceanfront landowners on the vegetation growing onto the beach from their lots.  There is a brewing conflict between landowners who use naupaka to stabilize their property from the ocean and lateral beach access for the public.  The State owns the beach and so the vegetation is encroaching on its "land".  This conflict presents squarely the issues of a oceanfront landowner's right to preserve his or her property, with the State's sometimes competing interest in maintaining its land while allowing for beach access.

The State seems to be taking an educational outreach approach for now.

This is sure to be a hot topic of discussion at our upcoming Lorman seminar on "Construction and Land Use Issues in the Shoreline Area" later this summer, see my earlier post here.

Upcoming Seminar on Coastal Engineering and Land Use Issues in Hawaii

Shoreline construction and land use will be the topic of an upcoming seminar entitled, "Coastal Engineering and Land Use Issues in Hawaii".  The date is August 14, 2008.  I will specifically present materials and information on construction in the shoreline area.

The seminar reservation information is available here.

Let me know if you can attend - hope to see you there.

Mow Back the Naupaka - So Say Kahala Beachgoers

On the shoreline front, KITV did an investigative piece about a growing dispute between Kahala oceanfront lot owners who are said to use vegetation to curtail access laterally at the beach.