Friday, Dec. 8, 2023 |
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The Hawaii Supreme Court reaffirmed its decades-old stance that the public is entitled to own and use as much of the beach as possible.
The Jan. 27 opinion, issued in a case brought by Kauai residents, orders the state to consider historical evidence in determining shorelines, which become the starting line for building setbacks.
“I’m thrilled with the decision,” said Kauai attorney Harold Bronstein, who argued the case pro-bono on behalf of Wainiha residents Beau Blair and Caren Diamond, in a press release. “It clarifies that the state should be considering all evidence that helps in identifying the line between private property and public beach.”
The state had been taking a “multi-variable approach” to setting the shoreline, which included the use of vegetation lines, artificial structures and other factors.
Rather than considering historical data, it relied on “single-year snapshot” approach, with the state surveyor guided by what was visible the day of the site visit.
But Kauai residents challenged that practice, saying it had resulted in houses being built dangerously close to the ocean and citizens losing their use of beach.
The Hawaii Supreme Court concurred in an opinion that reaffirms 45 years of rulings regarding the shoreline.
The multi-variable approach is not described in any statute or case law, the Justices wrote.
Instead, the state should have been guided by the court’s earlier rulings, including the 2006 Diamond I decision that defined the public beach as extending to “the upper reaches of the highest seasonal wash of the waves.”
The opinion directs the state to consider historical evidence, including documentation provided by non-expert kamaaina witnesses, in defining that upper reach.
It also reiterates that the state Board of Land and Natural Resources (BLNR) must not rely on vegetation, even salt-tolerant plants that are not intentionally cultivated, to set the shoreline.
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