In their responses to a Hawaii Supreme Court ruling that resolves a decade-long dispute over upkeep of a crumbling sea wall edging Waikiki’s “Gold Coast” area, opposing sides found something to applaud.
For the state, according to Attorney General Doug Chin, it was the affirmation that the Legislature — not the courts system — is the proper venue for pinpointing how and when taxpayer money is spent for upkeep. For the Gold Coast Neighborhood Association, it was making sure the state is also on the hook for liability should someone be injured or property damaged.
It’s unfortunate that the big winner here is the nonprofit made up of 10 high-end condo and apartment buildings bordering the sea wall.
It’s galling that the high court’s ruling means the public will pitch in for upkeep of a structure that was constructed some 80 years ago by private parties intending to protect their property from potential damage tied to south shore swells.
What’s worse? Taxpayers will be picking up at least part of the bill for upgrades on a structure contributing to ongoing coastal erosion damaging Waikiki beaches. For example, while sea walls shield property, they also touch off flank erosion problems at either end of the wall.
The dispute hinged on whether private property rights can be passed to the state without the state’s formal consent. In this case, the court’s majority found that because a cement path topping the sea wall had several decades ago morphed into an informal public-
use footpath, the state had essentially acquired easement —
even without consent.
According to the court’s 3-2 decision, the state and Gold Coast, which owns the structure, share responsibility. What that means, exactly, remains fuzzy. “The state will not be required to ‘foot the bill’ for the entirety of the sea wall’s upkeep, nor is it under ‘no legal obligation’ to contribute to its repair and maintenance,” the majority wrote in a footnote, responding to the dissent’s criticism.
Also, dissenting justices Mark Recktenwald and Paula Nakayama rightly warned in their written opinion that the ruling “opens the door for other private property owners to receive free services from the state for the miles of sea walls built to protect private oceanfront development.”
Hundreds of sea walls line our coasts and pose a daunting liability risk to the state. That’s due in part to Hawaii’s measure of the public beach, which is set by the high wash of the waves during typical seasonal wave patterns.
Because of escalating erosion, many sea walls constructed on private property are now legally on state land as the high wash of the waves moves farther inland. Some are in disrepair, falling into the ocean. And some are now makeshift public access walkways — similar to that on Gold Coast’s wall, where a steady trickle of residents and visitors alike make their way to nearby swimming, surfing and fishing spots.
Before 1970, shoreline protection devices could be constructed without a permit. That year, Hawaii began requiring permits for construction seaward of a setback line, which is typically situated at 40 feet from the shoreline. But by then, our unwise practice of allowing property owners to build less than a stone’s throw to the water and later add sea walls was already causing problems.
Scientists say Oahu has lost about one-fourth of its beaches, and of those remaining about
70 percent are eroding. Global warming, which is causing an accelerated rise in sea level, is making matters worse. Our elected leaders must strategize with the scientific community on how to effectively tackle the challenges sea walls present.
Gold Coast sued the state in 2006, after then-state Attorney General Mark Bennett asserted that the sea wall was private property and refused to release $2 million in state funds allocated for repairs. Previously, starting in the 1980s, the state had been paying for periodic repairs.
Buoyed by last week’s court ruling, Gold Coast is expected to push hard for funding during the 2018 legislative session. When sizing up the price tag for upgrading the footpath, which now looks more like a fraying oceanside ledge than a walkway, safety and optimizing public access should be stressed. The state also should put in place a ban on construction of any new sea wall.