Real Estate & Property Law

Aggressive New Kauai Shoreline Setback Ordinance Adopted

By rht

In "New Kauai shoreline erosion bill among the nation's most conservative," Jan TenBruggencate summarizes the recently enacted Kauai ordinance adopting a variable shoreline setback:

Kaua'i County has adopted the most aggressive shoreline building setback law in the state, a powerful policy that aims to protect coastal structures against 70 to 100 years of erosion.
. . . .

Under the new legislation, there are two potential ways of calculating how close to the water a structure can be erected.
. . . .

The Kaua'i bill is considerably stronger than the state's first such legislation, Maui's bill. The Maui setbacks are 25 feet plus 50 times the erosion rate.

For comparison, on a beach with one foot of erosion per year, a Maui home would be set back 75 feet from the certified shoreline (25 feet plus 50), while the same house on Kaua'i would be set 110 feet back (40 feet plus 70).

Read Jan's entire summary here on his Raising Islands blog.  One of his more interesting observations is:

One of the interesting features of the maps is that they indicate that on many shorelines, land is actually building up. Accretion and erosion both are features of Hawaiian shorelines, and some shores have some of both, depending on where along the coast you look.

As a result of this, on many coastlines, the dramatic Kaua'i setback legislation would not take effect. If there's no documented erosion, then the issue doesn't come into play.

The Garden Island newspaper earlier reported on the legislation here. 

Shoreline "setbacks" and other no-build zones must be applied carefully to avoid constitutional takings and due process problems.  After all, it was a shoreline development ban -- also based on erosion -- that resulted in the Lucas decision (Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).   That case confirmed that a regulation takes property when it deprives a property owner of "economically beneficial or productive use of land," even if the government's reasons for enacting the legislation are valid.

Full post as published by inversecondemnation on February 29, 2008 (boomark / email).