In On Appeal, Hawaii Land Use Law previewed Maunalua Beach Ohana v. Hawaii where a shoreline property owner challenged Act 73 (2003).
Act 73 changed ownership rights of littoral property owners to adjacent, accreted land by providing that (1) owners of oceanfront lands could no longer register or quiet title to accreted lands unless the accretion restored previously eroded land, (2) only the State could register or quiet title to land accreted along the ocean, and (3) accreted lands not otherwise awarded would be "public lands." The Plaintiff, landowners, filed an inverse condemnation lawsuit challenging the state's regulatory taking of private property without compensation under the 5th Amendment of the U.S. Constitution.
In Hawaii, any property that is below the certified shoreline is public lands. The certified shoreline is determined by the state, which considers the "upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves." See HRS § 205A-1, Diamond v. State, Board of Land and Natural Resources, 112 Haw. 161 (2006). Consequently, as shore area is added to a property through accretion, the shoreline moves toward the ocean creating additional land above the shoreline. Prior to Act 73, a littoral property owner could claim this land if it could show, among other things, that the adjoining land formed by accretion was permanent.
The circuit court granted Plaintiffs' motion for partial summary judgment on Plaintiffs' claim for injunctive relief to bar enforcement of Act 73 "unless and until the State of Hawai`i acknowledges that it must provide just compensation to the class members and undertakes to do so in conjunction with these proceedings." The State appealed. The Intermediate Court of Appeals heard argument on November 10, 2009, which is posted here. An opinion from the ICA should be published soon.
For more on shoreline issues, see Shoreline.