
Shoreline Certifications – Some Interesting Issues

by Peter T Young Leave a Comment
by Peter T Young Leave a Comment
Shorelines are “certified” for County setback purposes. Local building and planning departments require that improvements are not placed too close to the coast, so setbacks from the certified shoreline are imposed on improvements.
Certified shorelines do not determine ownership; they serve as reference points in determining where improvements may be placed on a waterfront property.
The intent of shoreline setbacks include:
“Shoreline” means 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, usually evidenced by the edge of vegetation growth or the upper limit of debris left by the wash of the waves. (HRS §205A-1)
To certify a shoreline, typically, a coastal property owner will hire a private surveyor to prepare a survey map and provide photos of the shoreline area of the property. The State land surveyor then reviews the map, photographs and other appropriate documents.
When I was at DLNR, we started the practice of having someone from DLNR’s Office of Conservation and Coastal Lands assist in shoreline site inspections. Through a partnership with DAGS and UH SeaGrant, we had a SeaGrant agent staged in the OCCL office who conducted shoreline inspections.
When the State surveyor is satisfied with the location of the shoreline, after reviewing the public comments, the maps and photos prepared by the private surveyor and site inspection, he will forward the shoreline maps to the Chairperson of DLNR, for final review and approval.
A notice is posted through OEQC (Environmental Notice) telling the public of the proposed shoreline certification – members of the public have 15-days to appeal the certification.
As Chairperson of the Land Board, I signed the map and certified the shoreline of the coastal property. The certification is valid for only 12-months. (Shorelines can change over time, due to natural coastal processes, so certifications are effective for a limited time.)
Remember, the State does not rely on the “certification” line as the property’s “boundary” line.
When property boundaries and ownership are at issue, the State of Hawai’i does not rely on shoreline certifications, but instead takes a more rigorous approach to locating the property’s seaward boundary.
The State has the responsibility to protect and preserve the State’s (the public’s) interest in its property. It vigorously defends ownership and these rights on behalf of the people of the State of Hawai’i.
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.
In all such cases, the State Surveyor will conduct an actual on-site survey of the boundary line and not rely on certified shorelines or surveys done by private surveyors.
Ultimately, in title actions, the court decides ownership of the property and the boundary line dividing ownership between private and public lands.
State law says that the right of access to Hawaii’s shorelines includes the right of transit along the shorelines; the public right of transit along the shoreline exists below the private property line.
Some people inadvertently (and, unfortunately, some covertly) do things in the shoreline area without a permit; permits are required for work in this area. A prior owner may have done something, but the liability and responsibility to correct it ends up with the present owner.
Some of our consulting work has included helping people correct (eliminate and/or subsequently permit) encroachments (walls, rocks, docks, vegetation, etc) beyond the shoreline and private property owner’s boundary line.
The photo shows possible issues with seawalls; other issues of concern are the obvious purposeful-placement of rocks within the wash of the waves – vegetation encroaching beyond a property line is a related concern. Each of these requires a permit.
We feel strongly that it is important to correct past errors, not ignore them (even if they were pre-existing when an owner bought the property.) Likewise, people should get a permit for any work near the shoreline area.
We are willing to work people through the process of getting a permit to do something new or to correct prior mistakes. If you think we can be of help, please give us a call.
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by Peter T Young Leave a Comment
State law states that the right of access to Hawaii’s shorelines includes the right of transit along the shorelines. (HRS §115-4)
The right of transit along the shoreline exists below (seaward of) the private property line (generally referred to as the “upper reaches of the wash of waves, usually evidenced by the edge of vegetation or by the debris left by the wash of waves.”) (HRS §115-5)
However, in areas of cliffs or areas where the nature of the topography is such that there is no reasonably safe transit for the public along the shoreline below the private property lines, the counties by condemnation may establish along the makai boundaries of the property lines public transit corridors (not less than six feet wide.) (HRS §115-5)
Generally, the Counties have the primary authority and duty to develop and maintain public access to and along the shorelines. (HRS Secs 46-6.5, 115-5 & 115-7)
The State’s primary role in the shoreline area is to preserve and protect coastal resources within the conservation district and support public access along and below the shoreline. (HRS Chap. 205A)
When the shoreline erodes, lateral access is not lost; instead, the State’s acquires title to the newly eroded lands. (Application of Sanborn, 57 Haw. 585, 562 P.2d 771 (1997)) In other words, the public continues to have access along the shoreline to the upper reaches of the wash of the waves.
There is a specific situation related to ownership of beach areas; it is a special circumstance in Waikiki that dates back to 1928.
Waikiki is a ‘built’ beach. Over the last 100-years it has been built primarily in two ways, (1) construction of walls and groins in the nearshore waters and (2) beach nourishment/replenishment (adding sand to the beach.)
Between 1913-1919, the majority of Waikiki had seawalls; they were placed to protect roadways and new buildings. The beach was lost fronting Kūhiō and Queen’s Beach.
In 1927, the Territorial Legislature authorized Act 273 allowing the Board of Harbor Commissioners to rebuild the eroded beach at Waikiki.
In 1928, the Territory of Hawaiʻi entered into a “Waikiki Beach Reclamation” agreement with several of the beachfront property owners.
Effectively, the agreement authorized the Territory to build a beach from the existing high water mark fronting the shoreline from the Ala Wai to the Elks Club.
The new beach was “deemed to be natural accretion attached to the abutting property, and title thereto shall immediately vest in the owner or owners of the property abutting thereon”.
In exchange, the property owners agreed not to build anything “within seventy-five (75) feet of mean highwater mark of said beach” and “at no time prevent such beach in front of their respective premises from being kept open for the use of the public as a bathing beach and for passing over”.
As part of the 1928 Beach Agreement, eleven groins composed of hollow tongue and concrete blocks were built along Waikiki Beach with the intent of capturing sand. (SOEST)
A lot of the sand to build the beach was brought in to Waikiki Beach, via ship and barge, from Manhattan Beach, California in the 1920s and 1930s.
As the Manhattan Beach community was developing, it found that excess sand in the beach dunes and it was getting in the way of development there. At the same time, folks in Hawai‘i were in need for sand to cover the rock and coral beach at Waikiki.
Kuhn Bros. Construction Co supplied the sand; they would haul the sand up from Manhattan Beach, load it onto railroad cars, have it transported to the harbor in San Pedro and shipped by barge or ship to Hawai‘i. (Dalton)
Since 1929, about 616,500 cubic yards of sand have been used to enlarge and replenish Waikiki Beach between Fort DeRussy and Kuhio Beach, but every year more erodes away. Little new sand has been added since the 1970s. (DLNR)
When I was at DLNR, we initiated a demonstration project to move nearshore sand back on to the beach. In 2006, DLNR spent $500,000 to siphon 10,000 cubic yards of offshore sand – this was the largest replenishment effort of Waikiki’s beaches in more than 30 years.
It worked; then, a larger project was implemented. Early in 2012, a larger-scale replenishment project pumped sand from 2,000 feet off Waikiki to fill in the shrinking beach.
The 2006 demonstration project and the 2012 larger scale replenishment were really recycling projects, because the sand now settled offshore was brought in years ago to fill out the beach.
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