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Peter T. Young

Thursday, November 13, 2003


Certified shorelines
don’t determine
ownership


As chairman of the Board of Land and Natural Resources, I certify shorelines on coastal properties in the state of Hawaii. Certified shorelines have been the subject of discussions lately, and in those discussions I have noted several misconceptions.

Owners of coastal property must receive certification of their shorelines before applying for building permits for improvements on their properties. In large part, there is confusion because the statutory definition of "shoreline" for certification purposes is nearly identical to what the Hawaii courts have determined to be the line for property boundary and ownership purposes.

Under the Coastal Zone Management Act, in which the shoreline certification program is included, "shoreline" is defined as "the upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs."

The Hawaii Supreme Court has held that "according to ancient tradition, custom and usage, the location of a public and private boundary dividing private land and public beaches was along the upper reaches of the waves."

Why, then, wouldn't a certified shoreline be the property boundary line? Shouldn't they be the same? The answer is that they are not necessarily the same because their purposes, the impacts and the processes for determining these lines are significantly different.

The BLNR is responsible for determining the location of the certified shoreline. The counties are generally responsible for establishing the width of the setback.

The BLNR rules associated with this law on shoreline certification state that their purpose is "to standardize the application procedure for shoreline certifications for purposes of implementing the shoreline setback law and other related laws."

The Department of Health's Office of Environmental Quality Control notes: "State law requires that Hawaii shorelines be surveyed and certified when necessary to clearly establish the regulatory building setback (usually 40 feet inland from the shoreline)."

Shorelines are "certified" for county setback purposes. Certified shorelines serve as points of reference in determining where improvements may be placed on coastal property.

Certified shorelines also serve as managerial and jurisdictional dividing lines. Issues mauka of the certified shoreline fall under the jurisdiction of the counties. Lands makai of the line are automatically "conservation" and are under control of the state. Shoreline certification is valid for only 12 months.

When property boundaries and ownership are in question, the state does not rely on shoreline certifications, but instead takes a more rigorous approach to locating the property's seaward boundary.

When shorefront property owners bring quiet title actions (lawsuits seeking the court's determination of ownership,) the state enters the action to preserve all of its rights and title to its coastal property.

Certified shorelines do not determine ownership. Ultimately, the court decides ownership of the property and the boundary line dividing private and public lands. Because the certified shoreline serves a purpose different from ownership, the certified shoreline may be at a different location than the property's seaward boundary line.

Certified shorelines also do not define placement of public access.

The shoreline certification process is a partnership between the state and counties addressing the respective jurisdictions and obligations relative to coastal lands.

The laws and rules are clear: Certified shorelines deal with governance, not ownership.

The public land trust, access and the state's ownership of land are other matters.


Peter T. Young is chairman of the state Department of Land and Natural Resources.

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