View Point

Saturday, December 27, 1997

Beach access is a
question for the courts

Law says developers must dedicate land
for access, but is that constitutional?

By James K. Mee

Current disagreements over shoreline access in Portlock and other recreational areas point out a simmering area of dispute in Hawaii. It is clear that all beaches in Hawaii are public property. Whether there is any public right to reach the beach through private property is another question.

State laws covering beach access recognize the potential conflict with existing property rights. One portion of our state statutes provides that beach access routes shall be purchased or condemned, implicitly conceding that public access through private property must be paid for under the just compensation requirements of the federal and state constitutions.

Many argue that the public already possesses a right to pass through private property to the shoreline. Their arguments are based on theories that the public is entitled to access under Hawaiian custom, or has passed over private land for a long enough period to have acquired a legal right ( "prescriptive easement") to do so in the future.

No court has yet ruled that the public has such rights as a general matter. To reach such a conclusion, the courts, among other things, would have to distinguish a state law which provides that no person shall gain any rights in private land or rights-of-way because he or she has used them for recreational purposes such as fishing, swimming or boating.

Nevertheless, the lack of clarity of the law puts beachfront owners in a quandary. If they permit access without objection, they later may be held to have granted perpetual rights to the public. If they prevent access, they may find themselves in lawsuits claiming the public has been illegally blocked from the beach.

Beachfront owners are also concerned about potential liability and security. Although Hawaii's "recreational use" law supposedly protects landowners from liability, most lawyers will tell you that the scope of the law's protection is uncertain. Also, Hawaii is not the safe place it once was, and landowners understandably may feel uncomfortable about strangers crossing through their property.

State and county laws now require developers of new projects to dedicate public rights-of-way to mountain and shoreline areas as a condition of subdivision approval. A bill recently introduced in the Honolulu City Council would, in certain cases, also require dedication of vehicular access and paved public parking areas.

Thus far, developers have not challenged the legality of such dedication requirements. Nevertheless, the U. S. Supreme Court has indicated such laws are unconstitutional if there is no "nexus" between the dedication requirement and the nature of the project.

In other words, if the proposed development reduces existing public access, dedication of substitute rights-of-way can be required. This would not be true, however, if there were no public access initially.

As Hawaii's population continues to grow and more development occurs, there will be increased pressure for access to the ocean and other recreational areas. In 1973, the Hawaii Supreme Court stated that "public policy favors extending to public use and ownership as much of Hawaii's shoreline as is reasonably possible."

The U.S. Supreme Court has held, however, 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."

At some point, our courts will have to make a decision whether beach access is public right, or instead can be obtained only upon formal condemnation and payment of compensation to the property owner.

James K. Mee is a partner with the law firm of
Ashford & Wriston, concentrating in the area of real property.