Advocates hail beach-access ruling

Critics question the effects on owners of beachfront homes

When Gwen Ilaban read about the landmark state Supreme Court ruling last week regarding public beach access, she decided to do something about a situation near her Kailua-Kona home.

Since April, a low stone wall that a nearby property owner built has blocked a public shoreline pathway that Ilaban has used for the 18 years she's lived there, she said.

The obstacle is the latest in a series of actions by that landowner that appear to be encroaching on the public shoreline, including growing naupaka and putting new sand on the public beach, Ilaban said.

The state Supreme Court affirmed Tuesday that the public shoreline extends to the highest wash of waves, at high tide during the highest surf season. The court emphasized that the presence of vegetation closer to the ocean should not be used to legally signify the shoreline.

The ruling inspired Ilaban late last week to ask both the state Department of Land and Natural Resources and Hawaii County if the actions of the landowner on public land had been approved. Ilaban said yesterday she hopes to get a response to her inquiries this week.

"My concern is what the owner has done has blocked off the public access," Ilaban said. "As far as I'm concerned, it's not OK."

Hawaii residents may be encouraged by the court ruling to insist that an eroding beach means the private landowner loses part of his property, as public property moves inland. But whether that's a good thing depends on one's point of view.

Dean Uchida, executive director of the Land Use Research Foundation of Hawaii, is worried that overzealous members of the public might try to claim public land if they see a debris line running through a back yard.

If that happens, a landowner is likely to challenge in court, said Uchida, whose foundation advocates for private property owners.

But if there is serious erosion, private land becomes public land, said Issac Moriwake, an attorney for Earthjustice, the nonprofit environmental law firm.

"It doesn't matter where the shoreline was a year ago or two years ago," Moriwake said. "The question is where is the shoreline now."

Both private-property and public-access advocates say the ruling (in Diamond and Bronstein v. Hawaii Board of Land and Natural Resources and Stephens) should end the practice of landowners seeking to extend their property line closer to the ocean by planting and watering plants on the public beach.

"It's fantastic that the Supreme Court is shining the spotlight on this issue," said Charles "Chip" Fletcher, a University of Hawaii geologist who measures beach erosion and is an advocate of stronger rules to stop development too close to the ocean.

The ruling "protects homeowners from building in very dangerous places and it's protecting the environment," Fletcher said.

In the past, state and city permitting authorities "have the inclination that protecting a home is more important than protecting the beach," Fletcher said. So if a home was built close to shore and the shore eroded, the homeowner would seek a special permit to build a seawall or other protections for the building.

"That is what has happened over the decades, property by property," Fletcher said.

Maui County revised its rules for how close to the shoreline people can build, based on historic erosion of beaches as determined by Fletcher's group of UH geologists. The team is now working on similar studies for Oahu and Kauai, he said, but how those counties use the information is up to them, Fletcher said.

Kauai County Councilwoman Joann Yukimura said she hopes her county will revise its shoreline setback rules to reflect the actual erosion of beaches even more conservatively than Maui County has done.

Yukimura said she wants any shoreline development on Kauai before Fletcher's study is ready to have to prove, with its own study, that it won't place buildings too close to the shoreline, she said.

Though last week's court ruling is significant, both private-property and public-access advocates agree it won't affect existing homes.

And the state DLNR's Office of Conservation and Coastal Lands has been following guidelines for two years now that mirror the court ruling, administrator Sam Lemmo said.

If members of the public believe that a private landowner is encroaching on the public beach, with vegetation, watering pipes or rock walls, they should contact his office, Lemmo said.

Between 1988 and 2005, an average of about 158 shoreline certifications were applied for in the state and 92 percent of those were approved. In only 21 cases was the state's decision appealed, according to statistics kept by the DLNR.

State surveyor Reid Siarot said he expects that last week's ruling may lead to greater caution on the part of county building departments, and that may increase the number of appeals.

Art Challacombe, customer services administrator for the Honolulu Department of Planning and Permitting, said: "We'll scrutinize building plans a lot more. We'll be asking for more shoreline certification."

The push and pull of the sea on Hawaii's shores is echoed in the ongoing dispute between the property rights of oceanfront landowners and access rights to public land.

"The decision on where the shoreline is needs to be based on a balance between public access and private property rights," Uchida said.