Attorney General: Landowners must pay for use of their own land once sea rises

HILO — Oceanfront property owners who once were well shy of the protected state shoreline could find themselves having to purchase easements for their existing homes and structures such as seawalls as the sea creeps inland.

That’s according to Hawaii Attorney General Doug Chin, who earlier this month issued a formal opinion at the request of the state Board of Land and Natural Resources.

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“Global warming and sea level rise are scientific fact,” Chin said in a statement. “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.”

The opinion states that the Land Board should charge former owners fair market value in return for an easement interest in the land that once was private property but automatically reverts to the state when the sea level rises.

Land Board Chairwoman Suzanne Case said she asked for the opinion because the agency didn’t want to charge property owners fair market value — often tens of thousands of dollars — for the use of land they once owned.

“There have been a number of situations recently where the Board of Land and Natural Resources feels it is unfair to charge the landowner a fee for using property that they once owned, but is required to do so under the statute,” Case said in a statement. “We wanted to be sure that there is no alternative we’ve missed, so again appreciate the Attorney General’s thoughtful analysis to confirm this.”

The administration has proposed HB 1120, which would give the Land Board the discretion to grant the easement at below fair market value under certain circumstances. It was deferred by a House committee and carried over to the new legislative session that begins Jan. 17.

“Sometimes coastal landowners have long-standing, perfectly legal structures like walls or ramps or steps or other structures that were legal permitted or non-conforming structures previously on private property, that end up on new public property through coastal erosion,” Case said.

State planning officials are less than enthusiastic about the measure. The state needs to deal with a rising sea by retreating back from the shoreline, they say.

“HB 1120 encourages the preservation of the existing shoreline structures, which is opposite to the increasing efforts to deal with the threats of coastal hazards on Hawaii’s coasts,” state Planning Director Leo Asuncion said in testimony.

The state owns all lands makai of “the upper reaches of the wash of waves, usually evidenced by the edge of vegetation or by the line of debris left by the wash of waves,” the attorney general’s opinion states. The shoreline defines the dividing line between public and private property.

The Hawaii County Planning Department is still sifting through the 18-page opinion that was released to the public Dec. 13.

Of interest to Deputy Planning Director Daryn Arai is the relationship of the shoreline to the certified shoreline used by planning agencies to determine where development can occur. The attorney general’s opinion says the shoreline is “closely related to but not exactly the same as” the certified shoreline.

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The county has rules about how close to the shoreline new construction can happen. The planning department requires a certified shoreline to be drawn on a map, good for one year, to determine where coastal development can occur, Arai said.

“I don’t see any significant effect on us,” Arai said of the attorney general’s opinion.