When sea level rises, a new legal opinion says, public land follows the shoreline and the state can charge property owners to access their own places.
Rising seas and eroding shorelines are expected to put coastal homes, hotels and condos at increasing risk of falling into disrepair — or even falling into the ocean itself — as the effects of climate change intensify.
But as that process plays out, property lines are moving as well. Private land becomes public when it falls under the highest wash of the waves, according to a new legal opinion from the Hawaii Attorney General’s office.
And with that loss of property may come a bill from the government charging the owner for an easement to access their own home or other structure that now sits on state land, further complicating an already challenging situation.
Sam Lemmo, state Office of Conservation and Coastal Lands administrator, said solutions have been scarce.
“How does a free market, capitalistic country deal with the ravages of sea level rise on our coastlines?” he said. “It’s a monster of a dilemma for everybody. There’s all these complex sorts of legal and psychological elements churning here that make it difficult.”
Some argue that these people knowingly assumed this risk when they bought coastal property. Others say government policies and decisions have encouraged this practice for decades and the property owners should have a right to expect a fair return on their investment.
There’s often little sympathy for the property owner as it’s often assumed to be a wealthy person or company that likely doesn’t even live in Hawaii. But in fact, many local residents own beachfront homes that have been passed down through the generations.
“It’s not enough to say the property owners are stupid,” said Greg Kugle, who has been defending property owners’ interests for 20 years in Hawaii. “We have a long history of encouraging exactly the type of development that we’re talking about.”
Kugle served on a legal and policy panel earlier this month at the Managed Retreat Symposium in Honolulu where a group of experts from Hawaii and the mainland spent the day assessing the feasibility and implications of various strategies to retreat from vulnerable coastal areas.
In California, for instance, Surfrider Foundation worked with the Ventura community to move a road and parking lot inland at Surfers’ Point. Dunes were created and native grasses were planted to help keep it in place, even during storm surges.
A new 300-page sea level rise report, approved last month by the state climate commission, shows how a conservative 3.2-foot increase in the ocean level by 2100 would result in more than $19 billion in flood damage to 25,800 acres of land and buildings.
Board of Land and Natural Resources Chair Suzanne Case requested the AG opinion, which Deputy Attorney General William Wynhoff provided last month.
He concluded that the state owns additional public land when the shoreline migrates mauka, or landward, due to erosion or sea level rise.
He said this does not give rise to a constitutional claim by the owner and that the land board “can and should charge former owners fair market value in return for an easement interest in the land.”
Attorney General Doug Chin, who approved the opinion, said in a statement that “global warming and sea level rise are scientific fact. This opinion emphasizes that Hawaii law plainly states that beaches and shoreline features remain our common heritage as part of the public trust when the shoreline moves.”
Doug Codiga, who founded Hawaii’s first climate and sustainability law group in 2007, said the new AG opinion is “fairly well reasoned” but that it’s too early to say what its ultimate impact will be because it’s going to get litigated.
“It matters tremendously to the work on the policy side,” he said. “It’s a line in the sand. It really is.”
Kugle said the AG opinion is just that, an opinion of one person.
“It doesn’t have the force of law,” he said. “The courts might agree, they might not. We don’t know.”
Kugle said the policy sounds fair — that a property line can ebb and flow on the coast — until one considers a 2005 bill passed the Legislature.
That law, which was appealed in court, made it so the government would take ownership of the land as the property line shifted mauka but if it moved toward the sea the private owner would not obtain additional property.
“It’s ironic as a property owner that you can suffer the loss but you can’t gain the benefit,” Kugle said.
He also questioned how the state charges for the easement.
“It seems somewhat unfair to make someone pay for what they have already built,” he said.
Lemmo, the state land administrator, said the Department of Land and Natural Resources plans to again push for the Legislature to pass a “stopgap measure” that would give the land board discretion in how much it can charge for the easement.
Instead of having to charge market rates, which could mean $50,000 for a 55-year lease for a 500-square-foot easement, the legislation would let the board charge less while still maneuvering out of the liability problem via the easement.
The bill stalled in its first committee hearing last year but is still alive this session, which ends in May. It was deferred last session by the Ocean, Marine Resources and Hawaiian Affairs Committee, chaired by Rep. Kaniela Ing.
A companion measure in the Senate is also alive, and has been re-referred to the Water and Land Committee, chaired by Sen. Karl Rhoads, and the Judiciary and Labor Committee, chaired by Sen. Brian Taniguchi.
“The problem is the people come to us, they say, ‘This is our private property, paid my taxes on it, and now you’re asking us to pay you to be here,’” Lemmo said. “It’s a little difficult for people to handle.”
Leo Asuncion, state planning director, raised concerns about the bill last year in his testimony to lawmakers.
He said it “opens a door to private property owners” to maintain their existing shoreline structures, which aren’t necessarily good from a public standpoint, and that the measure establishes a policy where seawalls currently located within private lands will be granted shoreline encroachment easements in the future from the state.
Condo owners on Kauai have told lawmakers that significant erosion is threatening their properties and the beach there but that flexibility in the cost of an easement would make it easier for them to replace a groin that would protect them in the future.
Chip Fletcher, associate dean at the University of Hawaii’s School of Ocean and Earth Science and Technology, said at first blush the AG’s opinion seems consistent with state aspirations and laws, in that beach protection, public access, preservation of open space and conservation of the environment are the primary goals of coastal land use decisions.
“It is consistent with the best science and has the public interest at heart,” he said. “However, the reality of beach management historically is quite apart from what this opinion reaches for.”
Fletcher questioned how the opinion will square with the fact that state special management area rules allow for construction and expansion of single family homes in locations that are threatened by sea level rise and coastal erosion.
He also wonders how it squares with setback policies that allow for construction of “beach-killing seawalls” when homes and roads and parks are threatened by erosion.
“If this opinion provides for state conservation land to expand mauka with sea level rise and erosion, will the state stand quietly by when counties issue permits for seawalls that will restrict this same expansion and in fact cause loss of this same land?” he said.
“And in the category of irony, will the state permit future seawalls that would do the same thing?”
Fletcher highlighted Sunset Beach, on the North Shore of Oahu, which is rapidly eroding and leaving a sizable cliff in the shoreline, threatening the sidewalk, road and nearby homes — some of whom are Kugle’s clients.
“I believe we need a new revenue source to assist homeowners with leaving their erosion-threatened homes,” he said, adding that “the land valuation needs to recognize the actual value of the land, not the market value.”
Source: Honolulu Civil Beat