It is well established in Hawaii that the high wash of the waves determines the boundary between public and private land. And given the ruling late last year by the state Intermediate Court of Appeals, it appears that the state, at least for now, can expand its ownership whether beaches are eroding or accreting.
But in instances where erosion causes legally built structures to cut into the high wash of the waves, it’s still a bit unclear how far the state will go to claim its property.
On January 8, the state Board of Land and Natural Resources granted two non-exclusive, 55-year easements to Brian Vinson to accommodate his seawall in `Ewa, O`ahu that recently had been found to be encroaching on nearly 500 square feet of state land.
The Department of Land and Natural Resources’ Land Division recommended that the board approve the easements and impose a fine of $2,000 ($1,000 for each of the two lots on which the wall sits) for the unauthorized encroachment.
In his testimony to the board, Vinson complained about the Land Division’s additional recommendation that he post “public property” signs on the wall. He said endangered Hawaiian monk seals sometimes leaned against the wall and he worried that the signs might somehow injure the seals. He also objected to the fine.
“These improvements were built in 1962 or 1964, long before I was even born. The shoreline high-water mark was set in 1967. There was no violation noted at that point. These properties were built with permits. No violation was picked up until this point when the shoreline inspector went out. I don’t think it’s fair to fine me since I owned the property for little more than a year,” he said.
With regard to the signage requirement, Land Division administrator Morris Atta explained that it is a standard requirement for shoreline easements, meant to inform members of the public that they can use that portion of the wall that lies on public property.
Regarding the fine, at-large Land Board member David Goode explained that the amount is also standard for encroachments and because two properties are involved, the fine was doubled. He added that for Vinson, as a shoreline property owner, “it’s probably something you weren’t aware of, but should have been. It should have been disclosed. It’s a possibility with any shoreline property with seawalls. The makai boundary can change…and these fines would be forthcoming.”
When Big Island Land Board member Robert Pacheco asked whether fines were standard for walls that have been in place as long as Vinson’s, board chair Laura Thielen said that regardless of when a wall was built, once it encroaches on state
property, it has been board policy to fine the landowner.
“[P]art of it is to just say that there is a consequence when encroachments are built upon state property. A lot of times, property transfers over time and Realtors and property owners have a due diligence responsibility to check on the structures prior to purchasing, and in some cases that doesn’t happen. But as these are discovered, it’s been the board’s practice and policy to impose [a fine] as a standard practice,” she said, adding that fines may be higher for deliberate and flagrant encroachments.
Vinson pointed out that the wall wasn’t built as a seawall; it was just a perimeter wall around the property and the shoreline has since eroded. He said that given the property’s history, he believed when he bought the land that the improvements were grandfathered in.
To this, Atta said, “The legitimacy of the structure has always been an issue for the purposes of a certified shoreline going forward. But…because of the fact that the shoreline is moving over time, the policy that was put forth from the board was that all encroachments would be fined because it was a trespass onto state property and we would treat all of these encroachments the same.
“Clearly, there will be instances where legitimate, permitted structures would at some point in time, with the movement of shorelines and rising of sea levels, become encroachments on state land…. At some point in time the board came to a position that our shorelines are a mess – there are literally hundreds of these encroachments out there – and we need to deal with it and somebody has to pay for the removal or correction of these problems.”
Thielen added that there is some confusion about the term “illegal encroachment” in reference to a legitimate structure in this case. She also seemed to believe that the fine was, essentially, rent for being able to keep an “unauthorized” structure on state land, “recognizing in cases there the shoreline is migrating up.”
Atta clarified that an easement from the Land Board would legitimize the encroachment from now on, but the fine “is for the existence of the encroachment up until now, that it’s been allowed to remain there, arguably, to the detriment of the public because it’s now state land and the public has not had the benefit of accessing that land. If you were to look at it from the public access standpoint, something needs to be done about this structure… Whether it’s just a perception or legal title, the public has been denied access to that portion of the state’s land. That’s where the concept of a fine came in. The issue of whether an easement should be granted or whether the structure should be removed was given to OCCL to assess. If OCCL felt that it would be more harm to remove it the decision would normally be to allow it to remain, but they would have to pay for it because it’s on state land.”
Goode asked Atta what would happen, if, 20 years from now, Vinson had to do a new shoreline certification and, as a result of subsidence and sea level rise, inspectors found his wall to be extending twice as far onto state land.
“What happens then? Do we fine him again?” he asked.
“Hypothetically, yes,” Atta said, “and that’s something that’s not been addressed. The shoreline laws are obviously really complex and really complicated. This issue of the creation of encroachments by natural processes and movement of the shoreline has always been a really tough nut for us to deal with because it not only affects encroachment issues, but subdivision issues that come into play….
“Until either the law changes, case law changes, or the Legislature changes how we treat the shoreline and ownership issues…given our current regulatory structure, we have to treat each new encroachment before us as a brand new encroachment. Obviously, we wouldn’t charge for those portions we previously dealt with, an easement or whatever, but if an additional encroachment is created by rising sea levels, under the current law, that’s how we have to deal with it.”
(As a matter of practice, however, the state does not always rush in to claim ownership of “private” lands that now fall within the high wash of the waves, i.e. Lanikai on the island of O`ahu or Kapoho on the Big Island.)
When Pacheco asked whether the structure would revert to private ownership if natural accretion extended the shoreline makai, Thielen mentioned, but did not elaborate on, the state Legislature’s 2003 change to the state’s accretion laws and the recent state Intermediate Court of Appeals decision. (See article on Page 3.)
As a show of sympathy to Vinson’s plight, the board chose to cut his fine in half.