Old Pacts With Waikiki Hotels Confound Enforcement of Ban on Commercial Use

posted in: September 2014 | 0

For the more than a year, Douglas Meller has been complaining to the state Department of Land and Natural Resources about the dozens – and sometimes hundreds – of unoccupied beach chairs he regularly sees on the beaches fronting Fort DeRussy, the Royal Hawaiian Hotel, the Outrigger Hotel, and the Moana Surfrider Hotel during his frequent morning walks.

In all of his emails to the DLNR, Meller asks the department to issue citations to these “scofflaws” who he claims are illegally storing commercial equipment on public beaches.

The department is working on the issue of unauthorized storage of equipment on Waikiki beach, but clarifying the department’s jurisdiction over some portions of Waikiki beach has taken some time, DLNR staff have said. While the state normally owns all land seaward of the high wash of the waves, the question of who owns the part of Waikiki beach fronting the hotels owned by Kyo-ya Hotels and Resorts – including the Royal Hawaiian and the Moana Surfrider – has become complicated by agreements made decades ago.

Under a 1928 Waikiki Beach Reclamation Agreement, the Territory of Hawai`i committed to widening Waikiki beach. In exchange for being allowed to undertake the project, the territory agreed to grant the title to that land to the abutting landowner, according to a 2013 OCCL report on the most recent Royal Hawaiian beach nourishment project.

“Land was granted with the understanding that the landowner would refrain from building new structures on the beach and allow 75 ft. of public beach access measured from the mean high water make of the newly replenished beach,” the report stated.

Decades later, when the U.S. Army Corps of Engineers proposed another beach widening project, the state of Hawai`i entered into an agreement with the owners of the Moana Surfrider and Royal Hawaiian that superseded the 1928 agreement.

In an email to Environment Hawai`i, Meller says that the state “was able to convince some but not all Waikiki coastal property owners to amend the 1928 agreement to relinquish their movable coastal property rights. (The Corps did not want to widen the beach if the wider beach ended up becoming de facto private property.)”

Under the Surfrider-Royal Hawaiian Sector Beach Agreement, signed in May 1965, except for a narrow strip fronting their properties, the owners would give the state their respective estate, right, title and interest in and to the Surfrider-Royal Hawaiian sector of Waikiki Beach. The agreement further stated that the narrow strip, even though private, would be subject to the same public easement terms included in the 1928 agreement until a beach at least 75 feet wide is created seaward of the strip. And so long as the easement was in place, the agreement prohibited the state and the owners from conducing any commercial activity in the strip.

In February, Meller stated, Sam Lemmo, head of the DLNR’s Office of Conservation and Coastal Lands, confirmed that the DLNR has jurisdiction over the area being used to store commercial equipment. But not only has Lemmo not issued any citations to the hotels, “he has not even issued citations for commercial recreational equipment stored on the public beach in front of Fort DeRussy,” Meller wrote. “None of the public beach in front of Fort DeRussy is encumbered under some kind of confused/confusing agreement between abutting private property owners and the Territory of Hawai`i.”

Volume 25, Number 3 September 2014

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