Real Estate & Property Law

Cert Application In Hawaii Beach Taking Case: Legislative Reassignment To The State Of The Right To Future Accretion Is A Taking

By Robert Thomas (inversecondemnation.com)

The property owners have filed an application for a writ of certiorari asking the Hawaii Supreme Court to review the decision of the Intermediate Court of Appeals in Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009).

Disclosure: we filed an amicus brief supporting the property owners in the ICA, available here, and will be submitting a motion for leave to file an amicus brief urging the Supreme Court to accept the application for cert.

In its opinion, the ICA held that "Act 73" (codifed here and here) was a taking. In the Act, the legislature declared that title to shoreline land naturally accreted cannot be registered by anyone except the State, and that only the State could quiet title to accreted land. The ICA held that the Act was a taking of existing accreted land, but was not a taking of what the ICA called "future accretions" --

We conclude that (1) Plaintiffs and the class they represent had no vested property rights to future accretions to their oceanfront land and, therefore, Act 73 did not effect an uncompensated taking of future accretions; and (2) Act 73 effectuated a permanent taking of littoral owners' ownership right to existing accretions to the owners' oceanfront properties that had not been registered or recorded or made the subject of a then-pending quiet-title lawsuit or petition to register the accretions.

Accordingly, we vacate that part of the PSJ order which concluded that Act 73 took from oceanfront owners their property rights in all future accretion that was not proven to be the restored portion of previously eroded land. We remand this case to the circuit court for a determination of whether Plaintiffs have accreted lands that existed when Act 73 was enacted and, if so, for a determination of the damages they incurred as a result of the enactment of Act 73.

Our summary and analysis of the opinion is posted here, and of the oral arguments is posted here.

The Application for Writ of Certiorari presents four issues: 

1.  Did the ICA commit grievous error and disregard controlling decisions from this Court when it held that the State can permanently fix the seaward boundary of oceanfront properties and deprive littoral property owners of future accretion without paying just compensation?

2.  Did the ICA commit grievous error by sua sponte criticizing the Circuit Court's order granting class certification -- which was not appealed -- without notice to the parties and without any valid basis for suggesting that class certification was improper?[*]

3.  Did the ICA commit grievous error by flagrantly misstating the record regarding the Petitioners' ownership of accreted land, the existence of which was never disputed by the State?

4.  When Petitioners proved the State unconstitutionally took accreted beachfront land from property owners throughout the islands, did the ICA grievously err and disregard this Court's decisions in holding that Petitioners were not entitled to fees under the private attorney general doctrine?

App. at 3.

* Chief Judge Nakamura dissented from the portion of the majority opinion discussing class certification, noting "I would not address and do not express any view on matters that were not before us."

Full post as published by inversecondemnation on April 27, 2010 (boomark / email).