{"id":10172,"date":"2018-01-31T01:17:44","date_gmt":"2018-01-31T01:17:44","guid":{"rendered":"http:\/\/www.environment-hawaii.org\/?p=10172"},"modified":"2019-02-28T23:44:27","modified_gmt":"2019-02-28T23:44:27","slug":"land-board-to-legislature-please-consider-shoreline-easement-bills","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=10172","title":{"rendered":"Land Board to Legislature: Please, Consider Shoreline Easement Bills"},"content":{"rendered":"
\n
\n
\n
\n
\"\"<\/a>
Flooding in Kapoho Vacationlands on Hawai`i island.<\/figcaption><\/figure>\n

“We have to be aware. It think it\u2019s quite likely, and probably in the lifetimes of our children, the removal of structures that are uninhabitable because of sea level rise is going to be a big government issue. The state is going to have to insist the property owner remove them or we\u2019re going to be out billions of dollars. … I think people are going to walk from properties. People are going to create shell companies that are going to hold properties they think they\u2019re going to abandon. It\u2019s not just the ocean coming in. The groundwater comes in and it becomes flooded. I think that\u2019s what we\u2019re going to be looking at in the future,\u201d said Chris Yuen, a former Hawai\u2018i County planning director, at the January 12 meeting of the Board of Land and Natural Resources.<\/p>\n

Days later, the Department of Land and Natural Resources issued a press release linking to the new Sea Level Rise Vulnerability and Adaptation Report drafted by the Hawai\u2018i Interagency Climate Adaptation Committee (ICAC), which predicts that more than 6,500 structures in Hawai\u2018i would be compromised or lost with a rise in sea level of 3.2 feet, displacing more than 20,000 residents. The value of projected flooded structures and lands amounts to more than $19 billion statewide, the report stated.<\/p>\n

With some hope of discouraging landowners from abandoning their doomed properties \u2014 and the structures they built \u2014 Yuen voted with the rest of the board that day to urge the Legislature to at least hold hearings on bills the Department of Land and Natural Resources has tried for years to get passed that would allow it to charge less than fair market value for shoreline encroachment easements.<\/p>\n

The department\u2019s Land Division has had to pursue such easements with increasing frequency over the years, as erosion \u2014 whether caused by sea level rise, shoreline hardening, or other causes \u2014 has eaten away at coastal properties, leaving legally built, private shoreline structures on public land. Under the Department of the Attorney General\u2019s interpretation of case law, as shorelines move inland, so do property lines, and anything seaward of the highest wash of the waves is state land.<\/p>\n

Under current law, the DLNR must seek fair market value for the use of state lands, except in limited circumstances. The department also wants easements in place to limit the state\u2019s liability for structures that landowners wish to retain. The high cost of those easements and the fact that they often need to be expanded with each new shoreline survey have raised concern among a number of Land Board members who question the fairness of charging so much and so often for legally built structures.<\/p>\n

\n
\n
\n
\n

As reported last March in Environment Hawai\u2018i<\/em>, bills supported by the department to reduce \u2014 or even eliminate \u2014 costs for shoreline encroachment easements failed for the fifth year in a row. The main argument keeping the bills from going anywhere has been this: Making it easier for landowners to retain structures located below the shoreline encourages development too close to the ocean at a time when movement inland should be encouraged. The state Office of Planning has repeatedly raised this point in testimony to the Legislature.<\/p>\n

The bills introduced last year \u2014 Senate Bill 986 and House Bill 1120 \u2014 were deferred to this session. This year, at the urging of board members, the DLNR\u2019s Land Division drafted a letter for the board to sign, encouraging the Legislature to at least weigh in on the matter.<\/p>\n

Board member and former legislator Stanley Roehrig, however, said he could not support a letter recommending passage of the bills because he objected to language in them that disclaimed state ownership of shoreline encroachments covered by the easements. He seemed to believe that the state owns the structures if the shoreline is set inland of them and that no easements were actually required in those cases. Land Division administrator Russell Tsuji and board chair Suzanne Case argued that is not the case. The state only owns the land beneath the structures, not necessarily the structures themselves, they said.<\/p>\n

\n
\n
\n
\n

\u201cThere are different opinions on the what is the public interest here. I have a different opinion from you,\u201d Case told Roehrig.<\/p>\n

\u201cI\u2019m happy to sign and just say, \u2018I don\u2019t concur,\u2019\u201d Roehrig replied.<\/p>\n

\u201c[Then] why would we send a letter?\u201d Case asked.<\/p>\n

\u201cWhy do we have to have a poison pill in there?\u201d Roehrig countered, referring to the objectionable bill provisions.<\/p>\n

\u201cTo me, it\u2019s only a poison pill for a plaintiff\u2019s attorney,\u201d Yuen answered, adding that some of the normal clauses included in the easements the department has issued are that the owner maintain insurance and cover the state\u2019s liability. \u201cThat\u2019s a reasonable approach to maintain insurance to compensate anybody who gets hurt,\u201d he said.<\/p>\n

\n
\n
\n

Before finalizing the language of its letter, the board discussed what the easements would cost if the bills actually became law.<\/p>\n

\u201cHow does a board determine [the] amount, if it\u2019s not fair market?\u201d asked Maui board member James Gomes.<\/p>\n

Tsuji replied that it would be whatever compensation the board decided on, adding that landowners would not like to pay anything for it.<\/p>\n

\u201cThe option would be to waive the fee. Anything in between would be more complicated. … If there\u2019s any reason why something in between makes more sense, we could evaluate it at that time,\u201d Case said.<\/p>\n

\u201cIf we have the right to arbitrarily decide what to pay, you\u2019re going to run into problems with litigation,\u201d board member Keone Downing interjected. He recommended that the board establish some kind of fee structure to apply to easements should the bills become law.<\/p>\n

\u201cIf we\u2019re going to create more problems because we don\u2019t have a formula to use …\u201d he warned.<\/p>\n

Tsuji said that granting the easements for free may create even more opposition to the measure. \u201cYou\u2019re giving away state land,\u201d he said. He then assured the board that his division would think about developing a fair method to determine the easement cost.<\/p>\n

During public testimony, O\u2018ahu resident Sam Monet recommended that the Land Board set a minimum easement cost high enough to discourage people from hardening the shoreline or to encourage them to move seawalls inland. \u201cIf you encourage the property owners to move the wall back, it allows for global warming … and beach access,\u201d he said.<\/p>\n

He also agreed with Yuen\u2019s prediction about what\u2019s going to happen as sea levels rise. \u201cWhen these guys who built these walls get old … they\u2019ll walk. And we are stuck with it. Our kids. … Make it expensive. It\u2019s our money, and we\u2019re gonna need that money later to take it down. Put it at such a price they\u2019ll decide, \u2018I don\u2019t want to go out that far,\u2019\u201d he said.<\/p>\n<\/div>\n

\n

In the end, the board approved a brief letter to the Legislature endorsing the concept\u00a0of modifying the state\u2019s land use\u00a0law \u201cto allow the assessment of\u00a0less than fair market value by the\u00a0Land Board when granting easements for shoreline structures\u00a0that were legally constructed on previously private property but are now on public property due to erosion and other causes. We request the measures such as Senate Bill 986 and House Bill 1120 be heard and considered in committee.\u201d<\/p>\n

We Pay Them<\/strong><\/em><\/p>\n

While the DLNR\u2019s easement scheme deals with shoreline structures that landowners want to keep, ICAC\u2019s sea level rise report focused more on ways to prevent development too close to the shore or to get landowners to move improvements inland, especially along \u201clegacy beaches,\u201d such as Sunset Beach on O\u2018ahu\u2019s North Shore.<\/p>\n

The climate adaptation committee suggested that the state\u2019s Legacy Lands Act, which allocates a percentage of conveyance taxes for the acquisition of lands or conservation easements to protect them from development, be amended to \u201cset aside funding for preserving priority coastal lands … to enable legacy beaches to persist.\u201d<\/p>\n

\u201cThe Federal Coastal and Estuarine Land Conservation Program can also provide matching funds to acquire property from willing sellers either through fee simple purchase or through conservation easements,\u201d the report stated.<\/p>\n

The committee also recommended that government agencies \u201cconsider the feasibility of a buy-out program for residential property owners vulnerable to sea level rise.\u201d<\/p>\n<\/div>\n

\n

\u201cManaged retreat has long been avoided in public dialogue as an adaptation strategy. Yet when weighed against the magnitude of risk faced by coastal and riverine communities, retreat should be included in the toolbox of strategies for climate adaptation. While there do not appear to be any existing residential land acquisition programs for sea level rise vulnerability, there are corollary programs at the federal level that could provide us with lessons and tools.<\/p>\n

\u201cThe Flood Mitigation Assistance Grant Program (FMA) provides funding to states and local communities for projects and planning that reduces or eliminates long-term risk of flood damage to structures insured under the NFIP [National Flood Insurance Program],\u201d the report states.<\/p>\n

\u201cThe state could develop a policy for prioritizing areas for acquisition within the statewide vulnerability zone and model it after the FMA program. However, timing of such a program presents new challenges since a goal would be to preemptively move development from areas of increasing flooding and erosion risk before catastrophic losses occur, rather than compensating people after a disaster event. Nevertheless, a buy-out program for at-risk coastal properties needs serious discussion, given our expanded understanding of present and future risks of erosion and flooding risks through this report and other data tools referenced herein,\u201d it continued.<\/p>\n

\u2014 Teresa Dawson<\/strong><\/em><\/p>\n

For Further Reading<\/i><\/b><\/p>\n