Hawaii Appellate Court Holds that Legislative Reversal of Over 100 Years of Judicial Precedent Does Not Require the State to Compensate Oceanside Property Owners

The Hawaii Intermediate Court of Appeals ("ICA") issued an opinion in Maunalua Beach Ohana v. Hawaii on December 30, 2009.

In the ICA's own words:

The dispositive issue in this case is whether the circuit court correctly held that Act 73 "effected an uncompensated taking of, and injury to, (a) littoral owners' accreted land, and (b) littoral owners' right to ownership of future accreted land, insofar as Act 73 declared accreted land to be 'public land' and prohibited littoral owners from registering existing and future accretion [.]"

Before answering that question, the ICA reviewed various judicial precedent regarding littoral ownership of property, which it summarized as follows:

[U]nder Hawai'i Supreme Court precedent, (1) the "highest reach of the highest wash of the waves" delineates the boundary between private oceanfront property and public property for ownership purposes, as well as the baseline for measuring the shoreline setback line and determining the shoreline area, the so-called no-building zone, notwithstanding that the deed for the oceanfront property describes the property by "certain distances and azimuths" that put the seaward boundary of the property below the high-water mark; (2) land added to oceanfront property through avulsive lava extension belongs to the State; and (3) land added to oceanfront property through accretion belongs to the oceanfront property owner.

Citations omitted.

The ICA answered the questions before it as follows:

• Plaintiffs do not have vested property rights in future accretions. The ICA opined that common law can be changed by State legislative acts so long as such acts do not violate the constitution. In response to Plaintiffs' claim that Act 73 violated article I, section 20 of the Hawai'i State Constitution (i.e., "Private property shall not be taken or damaged for public use without just compensation"), the court opined that "any claims that Plaintiffs may have to future accretions are purely speculative, and other courts have held that a riparian owner has no vested right to future accretions." Consequently, "Plaintiffs have no vested right to future accretions that may never materialize and, therefore, Act 73 did not effectuate a taking of future accretions without just compensation."


• There is a taking of accreted land existing prior to the passage of Act 73. The ICA opined that "Act 73 permanently divested a littoral owner of his or her ownership rights to any existing accretions to oceanfront property that were unregistered or unrecorded as of the effective date of Act 73 or for which no application for registration or petition to quiet title was pending and, therefore, Act 73 effectuated a taking of such accretions." Emphasis added. However, the ICA observed, in this case "[n]otably absent from Plaintiffs' complaint is any allegation that Plaintiffs have ownership rights in accreted lands that existed at the time Act 73 was enacted."

Based on these conclusions, the ICA held that

(1) Plaintiffs and the class they represented had no vested property rights to future accretions to their oceanfront land and, therefore, Act 73 did not effect an uncompensated taking of future accretions; and (2) Act 73 effectuated a permanent taking of littoral owners' ownership rights to existing accretions to the owners' oceanfront properties that had not been registered or recorded or made the subject of a then-pending quiet-title lawsuit or petition to register the accretions.

Having upheld Act 73, littoral landowners may find themselves with larger beaches adjacent to their property that is owned by the State of Hawaii and open to the public. More than what is required by Hawaii's public trust doctrine, whereby the State of Hawaii holds all shoreline property in trust for the benefit of the public as delineated by 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." See Diamond v. State, Board of Land and Natural Resources, 112 Haw. 161 (2006).

The parties may file a writ of certiorari with the Hawaii Supreme Court for its further consideration.

For more on Shoreline issues see Shoreline.