The Fifth Amendment of U.S. Constitution protects the rights of property owners by restricting the power of the government to exercise eminent domain. Specifically, the “takings” clause requires a compelling and broader public purpose in order for the government to seize private property, as well as “just compensation” to the property owner. Hawaii state law also requires that “private property shall not be taken or damaged for public use without just compensation.”

Honolulu City Council member Trevor Ozawa, in support of the Surfrider Foundation Oahu Chapter, is seeking to acquire a public right-of-way across one of the “lanes” leading to the ocean along Portlock Road. The Council’s recent decision to claim a non-possessory easement for public access across private property is not supported by a compelling public purpose, falls short of compensating the private landowners fair market value, and fails to consider the implications of such an action.

The oceanfront properties were purchased from the Bishop Estate, together with their corresponding “lane.” The 21 lanes are co-owned parcels that provide access to driveways, carports, garages and homes. In 1988, the trustees created a Declaration of Protective Provisions (DPP) that established restrictive covenants that “run with the land” and stipulated that utility easements be granted to service these homes. Each parcel was identified by a unique tax map key (TMK) number, with no “right” of public use or access.

These driveways have been and continue to be ungated and utilized on a 24/7 basis by surfers, fishermen and other pedestrians seeking to access the ocean, and by commercial ventures for profit. Property owners have been subject to disrespectful behavior and excessive litter, and properties have been vandalized and tagged with graffiti. However, one owner has historically and very vehemently expressed opposition, and to combat such public use, installed a locked chain-link gate.

In response to pleas from surfers to remove the gate, Ozawa introduced a resolution to exercise eminent domain. The final version that passed, Resolution 18-263, failed to properly identify that the parcel would remain under the tenure of the landowners, replete with liability, and subject to a continual 24/7 crossing of their property. There has been no public accounting of the costs spent to date, nor of the projected costs that will result from an appeal of the decision.

While the results of the TMK appraisal have not been made public, it is inconceivable that the fair market value of the parcel is only $1, the specific amount that the owners were purportedly offered.

The heart of the debate lies in the fact that the concepts of “public beaches” and “access to public beaches” have been thought of interchangeably. Although all beaches in Hawaii are public, public access points are clearly designated by city blue signage that directs the behavior of visitors and residents. Smoking is prohibited, hours are restricted from 9 p.m. to 5 a.m., and fines imposed should there be any violations. An excellent website, http://cchnl.maps.arcgis.com, depicts designated shoreline/beach access points on Oahu.

Compounding the misinformation that underlies this dispute, recent articles in the media further obfuscate the facts. Most recently, the Star-Advertiser presented an unbalanced account based on an interview that is fraught with inaccurate interpretations of the “legal rights” of the public (“Portlock Road beach access resolution passes,” Nov. 15, 2018). The test for a compelling reason to exercise eminent domain does not hold up in this case.

Let’s tread lightly on the Constitution, re-consider the costs to the public and the violations of the rights of private property owners, and choose to exercise eminent domain only when it benefits a wider public need, as required by federal and state law.

Oahu resident Jennifer Lee Busto is a member of the Portlock community, and a full-time Realtor® who advocates for the rights of property owners.