Ruling sparks beach debate

A high court decision intensifies arguments over Hawaii seaside property setbacks

ENVIRONMENTALISTS have asserted that a Hawaii Supreme Court ruling this week opens public beach access and prevents private property owners from encroaching.

But private property advocates caution that the ruling should not be interpreted that broadly and does not affect beach access.

Tuesday's court ruling, which reversed a Kauai Circuit Court case, said the Department of Land and Natural Resources had been incorrectly making shoreline certifications for years.

DLNR workers, as a rule, previously used the vegetation line to determine the shoreline certifications. The certifications are used by landowners to determine how far from the beach a house should be set back.

But property owners from Kauai to the Big Island started planting naupaka and spider lilies, plants that survive on the beach, to push their property lines toward the ocean, make their houses closer to the ocean and cut off access, environmentalists said.

Land Board Chairman Peter Young said the department had already changed the way its experts certify shoreline properties, and had hired experts to accurately ensure the shoreline coincided with state law, which states that the shoreline starts at the highest wash of the waves at high tide during the high swell season of the year.

On the North Shore of Kauai, where the Supreme Court case originated, longtime resident Caren Diamond said vegetation grown by property owners has caused the public to lose access along the beach and dozens of feet of shoreline from Haena to Wainiha. Plantings have even caused some houses to be built so close to the ocean, they get wet during periods of high surf, she added.

Diamond and Kauai lawyer Harold Bronstein challenged a 2002 certification of Carl Stephens, a Haena property owner. Due to the plantings of naupaka and spider lilies by Stephens' landscapers, the high court stated that the shoreline had moved almost 11 feet in some areas, from shoreline certifications in 1990 and 2002. The certifications are only good for one year, and must be redone if building does not start in that year.

Bronstein and Diamond argued that DLNR rules did not follow state law by not using a debris line or where the waves wash in, but strictly determining certification by where the vegetation was planted.

The Supreme Court agreed.

In the unanimous opinion, the high court said that using "artificially planted vegetation in determining the certified shoreline encourages private landowners to plant and promote salt-tolerant vegetation to extend their land further makai, which is contrary to the objectives and policies of state law."

Commenting on the decision, Young said, "If we hadn't tried to do it smarter and better, it would've been a problem."

"I've instructed our guys when they go out to look at all the evidence" such as debris, vegetation and dunes, he added, to accurately determine where the shoreline begins, he said.

However, private property advocate Robert Thomas cautioned people from interpreting the decision too broadly.

The court's decision sticks only to shoreline certification and not where private property begins and the public beach ends, said Thomas, managing attorney for the Hawaii office of the Pacific Legal Foundation.

If the decision is used as "a determination for ownership purposes, then I think this case has severe constitutional problems."

Thomas said shoreline certification, which only lasts a year, and property lines are completely different. If the property lines are changed, then the land must be condemned and owners will have to be compensated, according to the U.S. Constitution.

But Earthjustice attorney Isaac Moriwake saw it differently.

The shoreline, either for certification or to determine property ownership, uses the same wording in state law -- the highest wash of the waves at the highest tide during the high swell season.

So Moriwake said that while the DLNR might have erred by using the vegetation line to determine the shoreline, it does not change the fact that the shoreline is where it has always been: the spot where the water pushes in during high tide.

"It was always the high water mark," he said. "The vegetation line was just an indicator."

Moriwake said he is sure the next time a property ownership case comes before a state court, this case will be used to determine the shoreline.

It is too late for Stephens' property, however. Diamond said the house, using the old certification, is already halfway finished.

Stephens' lawyer, Bernard Bays, did not return a call seeking comment.

Despite the decision, Diamond said she will continue to police DLNR workers when they certify shorefront properties on Kauai. She has been doing it for seven years on the Garden Isle and challenged about a half-dozen, she said.

The naupaka plantings "are causing us to lose all our beach," she said. "Landscapers say it's a native plant and therefore it's good."

The decision, she said, will benefit landowners as well, especially new buyers who do not know how far winter waves on the North Shore will push. "In the end it's the landowner who will suffer the most money loss and aggravation."

LINES IN THE SAND The issue: Where does the public beach end and private property begin? The ruling: The Hawaii Supreme Court said Tuesday the state cannot using vegetation alone to determine shoreline certifications, used to determine where a house is built. Environmentalists: The ruling will affect shorelines across the state. Property owners can no longer grow plants to extend their property lines onto public beaches. Private property advocates: The ruling only affects shoreline certifications and has no effect on private property ownership.