State told it cannot own newly grown beach land

Circuit Judge Hifo gives ownership of naturally extended properties to adjacent landowners

A 2003 law that says any natural growth of beachfront land becomes state property amounts to an "uncompensated taking" of beachfront property owners' land, a judge has ruled.

The law "represented a sudden change in the common law" by declaring any permanent growth of beaches is not claimable by adjacent private property owners, Circuit Judge Eden Elizabeth Hifo wrote in an order filed Sept. 1.

Hifo's ruling is on a lawsuit filed by several Maunalua Bay landowners protesting the law. Because Hifo approved the lawsuit earlier as a class-action lawsuit, it could affect any beachfront landowner in the state, plaintiffs' attorney Laura Couch said.

"We're very pleased because the court acknowledged that the state's law was basically an effort to do a land grab without paying for the land," Couch said.

All beaches in Hawaii are public, up to the winter surf high watermark.

However, before the 2003 change in state law, a property owner where the neighboring beach had grown on the ocean side could apply to add the same number of feet to their land ownership on the inland side of the beach, Couch said.

If granted, that could allow landowners to build more structures on their land because of the additional clearance from the ocean, Couch said.

"What's really important here is for property owners to be able to show that their parcel is larger (after beach growth), whether anything is built on it or not," she said.

Couch's co-counsel, Paul Alston, calculated that under the 3-year-old law the state "took" 250,000 square feet of land in Kailua that he valued at $50 million.

The new law did not change the fact that if a beachfront property owner lost land to erosion, there was no compensation, Couch said.

The state will appeal the ruling, based on "errors in the court's decision," Deputy Attorney General Sonia Faust said yesterday. The attorney handling the case for the state was on vacation and could not be reached for more detailed comment.

"The public's access to the beach is not affected," Couch said of the ruling, which she described as "protecting the rights of property owners."