Court Rules on newly formed Beach Land in Hawaii Kai
New, naturally formed beach land above the high-water mark in Hawaii belongs to the public, not adjoining property owners, the Intermediate Court of Appeals has concluded. The court upheld provisions of a 2003 law that declared that future land formed through accretion belonged to the state. The judges said, however, that oceanfront private property owners could claim land formed before the law took effect on May 19, 2003 (Act 73).
In Hawaii the public beach is defined as the shoreline to the highest wash of the waves. Before Act 73 was passed, oceanfront property owners in Hawaii could register ownership of accreted land above that high-water mark if they proved it had existed for 20 years. The new law changed that, declaring that such land belonged to the state unless it was private property that had previously eroded.
Portlock oceanfront homeowners in Hawaii Kai sued the state in 2005, claiming the law represented an unconstitutional "taking" of their property. The case, Maunalua Bay Beach Ohana 28 et al. v. the State of Hawaii, was brought by three nonprofit corporations formed by the homeowners as a class-action suit on behalf of all oceanfront private property owners.
The homeowners prevailed at Circuit Court, and the state then took the case to the Intermediate Court of Appeals. The appeals court, in its ruling, said that "any claims that plaintiffs may have to future accretions are purely speculative" and do not constitute a vested right. But the judges said the law did take away private landowners' rights to existing accreted land and that the state could owe damages.
The appeals court sent the case back to Circuit Court to determine whether plaintiffs had accreted lands that existed when Act 73 was enacted, and if so, what damages they incurred. Paul Alston, attorney for the landowners, said the plaintiffs had substantial amounts of accreted land, and because it is a class-action suit, the ruling applies to all oceanfront property owners.
In its ruling, the appeals court cited a state Supreme Court decision that held that new land created by volcanic eruption belonged to the people of Hawaii, to be held in public trust by the government. It also noted that the state Constitution provides that "all public natural resources are held in trust by the state for the benefit of the people."
Barbara Abe, Realtor
808-226-2537
barbara@barbarashawaii.com