In October 1989, hundreds of old tires were strewn along the narrow beach in front of the Sugar Cove condominiums at Sprecklesville, Maui, in an effort to stop further erosion of the dune on which the condominiums were built. Netting was cast over the tires, forming what agents for the owners’ association described as “tire gabions.”
Over the next four years, the netting and tires filled with jetsam, and the so-called gabions took on the appearance of a marine junkyard unrelieved by vegetation. Some feet landward of the tires a few hardy beach vines and grasses ventured forth at the foot of the scarp fronting the condo buildings.
But when it came time to define the “certified shoreline” – something required before there can be any approval of development plans – the surveyor hired by the condominium owners’ association determined the legal shoreline to be along the seaward edge of the tires.
State law prescribes that the certified shoreline be defined by the high reach of the wash of the waves during high seasonal surf. While it is customary to think of this as the vegetation line, in fact, in most areas along the coast, beach vegetation is subject to frequent dousing by waves. In the case of the Sugar Cove area, the highest annual reach of the wash of the waves probably would have been mid-way up the scarp if not at its top; the scarp itself as noted by the various applications for permits made by the condominium association, was receding as a result of wave action.
Had the legal definition been strictly applied, the legally defensible edge of the condominium association’s land probably would have been staked some 10 to 20 feet inland of the makai edge of the tires.
As it happened, however, the shoreline that the surveyor proposed for certification – the line along the sandy front of the tire gabions – was not challenged within the 20-day period for appeal (as provided by state regulations). As a result, the moment the deadline for appeal expired without action, the real estate belonging to the Sugar Cove owners’ association rushed seaward some 10,000 to 15,000 square feet.
Lost Land
Perhaps the condominium owners believed they were simply reclaiming what they had lost over the years. Since 1972, after all, the shoreline had moved inland 40 or more feet. Planting the surveyor’s stakes just shy of the high-water line on the day of the survey may have been regarded by the owners as an exercise of their legitimate property rights.
State law holds otherwise.1 Property whose seaward boundary is defined by the shoreline can take legal action to claim ownership of land that has accreted naturally. But, except in cases of extreme storm events where landowners seek to restore their property within one year of loss, the law provides no means for reclaiming eroded shoreline property. The best one can hope to do then (from the viewpoint of property protection, at least) is to try to stay further loss by building a wall or installing some other means of defense against natural forces.
Where such structures exist, the shoreline is defined by them – so long as they have been legally built (or are grandfathered structures). For development on these lots, where the shoreline has been “hardened,” no shoreline certification is required.
Drawing the Lines
The process by which shorelines are certified allows for public comment and challenge. Standard procedure is for the land owner to hire a surveyor, who stakes what he or she decides (usually in close consultation with the landowner) to be the legal shoreline. Since the “high reach of the wash of the waves” may be difficult to determine in the course of the few hours a survey takes, most surveyors simply follow the vegetation line. The surveyor prepares a map depicting the lot and its seaward boundary. Then copies of the map and supporting photographs are forwarded to the state Department of Land and Natural Resources, where application is made for shoreline certification.
The DLNR’s Division of Land Management handles the applications. The maps and photographs are to be reviewed by the state land surveyor’s office. If the surveyor’s office deems it appropriate, a site inspection may be made.
The DLNR also publishes notice in the OEQC Bulletin of the applications’ availability for review by the public. The initial comment period extends two weeks from date of publication in the OEQC Bulletin. If there is no public comment and no objection from the surveyor’s office, the Division of Land Management then makes its own determination as to the adequacy of the survey and the application. If the application is deemed satisfactory, notice of the decision to certify the shoreline is published in the OEQC Bulletin. If anyone desires to appeal the decision to certify, that appeal must be made within 20 days of the date of notice in the Bulletin.
If appeal is made (as happens rarely), the survey may be modified by the owner to address the concerns of whoever is making the appeal. Otherwise, the DLNR may decide to hold a contested case on the matter. A hearing officer is usually appointed to decide the facts of the case; he or she reports to the Board of Land and Natural Resources a proposed finding of fact and conclusion of law; and the Board then (usually) decides to adopt the hearing officer’s report as its own.
If the DLNR does not grant a contested case, or if either the landowner or the appealing party does not like the outcome of the contested case hearing, the law provides for appeal to the circuit court.
After a shoreline is certified, it is valid for 12 months. After that, anyone wishing to build on property fronting the water must obtain a new certified shoreline.
Keeping Watch
One of the few people in the state to have mastered the shoreline certification appeal process is Jerry Rothstein of Kailua-Kona. Rothstein and the group he founded, Public Access Shoreline Hawai’i, have been involved in numerous appeals of shoreline certifications.
The activities of PASH are focused on the island of Hawai’i, but Rothstein’s experience in challenging shoreline certifications has statewide application. It is the position of PASH that the protection of public beach access and public beach lands requires strict conformance with state law, which defines the shoreline by the high reach of the wash of the waves. As Rothstein pointed out in commenting on a case involving a Kailua-Kona beach, “It is common knowledge that high seasonal surf almost invariably exceeds the vegetation line, and that permanent vegetation survives high seasonal surf.”
What concerns Rothstein is the tendency to face the certified shoreline along the vegetation line and to ignore documentary evidence (such as photographs or debris) that would place the legal shoreline further inland.
Should this trend prevail, Rothstein wrote last year, it will “have undermined the Supreme Court and state law and in the process increased the amount of public shore transferred to private ownership when the shoreline is incorrectly certified too far makai, as is the case in most shoreline certifications.”
“The greatest loss of public shore,” Rothstein continued, “is not from natural erosion but from ‘administrative erosion,’ i.e., the loss of public shore by the action of the state in certifying the shoreline.”
1 See Hawai`i Revised Statutes, Chapter 205-A (the state’s Coastal Zone Management Act), and the regulations to implement it: Chapter 13-222, Hawai`i Administrative Rules, “Shoreline Certifications.”
Volume 4, Number 6 December 1993