Report Title:

Public Property; Beach and Shoreline Access

 

Description:

Amends definition of obstruction for access to public property. Creates a private right of action for a person to enforce the prohibition of obstruction. (SD1)

 


THE SENATE

S.B. NO.

1088

TWENTY-FIFTH LEGISLATURE, 2009

S.D. 1

STATE OF HAWAII

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO PUBLIC ACCESS.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


SECTION 1. The legislature finds that although public access is protected by state law, development pressure is making it difficult for residents to access beach and shoreline areas. On Oahu, insufficient public access to the shore has prompted multiple studies by state agencies to address conflicts developing between beachfront property owners and the general public. Similarly on Maui, recent coastline development plans have once again raised the issue of adequate public access to the beach from Paia through Baldwin beaches. Public access routes on Kauai have not been claimed by either the State or county. The routes are obstructed and prevent public access to the shoreline. This situation prompted the enactment of Act 56, the "roads in limbo" Act during the 2008 legislative session. The legislature finds that action is necessary to protect public access for the enjoyment of the State's residents and visitors.

The purpose of this Act is to further protect residents from obstruction of public access and to create a private right of action to enforce public access in the courts.

SECTION 2. Chapter 115, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"115‑   Suits by individuals. (a) Any person aggrieved by a violation of section 115-9 has a private right of action and may bring a civil action for injunctive relief in the circuit court. Any person bringing such an action shall also be entitled to recover the person's costs together with reasonable attorneys' fees.

(b) No action may be commenced under this section less than thirty days after written notice has been given to the person or entity responsible for the alleged violation.

(c) Any suit brought pursuant to this section may be brought in the judicial circuit where the alleged violation occurred or is occurring. In any suit brought pursuant to this section, where the State is not a party, the attorney general, at the request of the department, may intervene on behalf of the State as a matter of right.

(d) Any relief provided by this section shall not restrict any right that any person or class of persons may have under any other law, including any constitutional provision, statute, or common law to seek enforcement of any other relief, including relief against any instrumentality of the State."

SECTION 3. Section 115-9, Hawaii Revised Statutes, is amended as follows:

1. By amending subsections (a) and (b) to read:

"(a) A person commits the offense of obstructing access to public property if the person, by action or by having installed a physical, visual, or other impediment, intentionally prevents a member of the public from traversing:

(1) A public right-of-way;

(2) A transit area; or

(3) A public transit corridor;

and thereby obstructs access to the sea, the shoreline, or any inland public recreational area.

(b) Physical impediments that may prevent traversing include but are not limited to the following:

(1) Gates;

(2) Fences;

(3) Walls;

(4) Constructed barriers;

(5) Rubbish;

(6) Security guards; [and]

(7) Guard dogs or animals[.];

(8) "No trespassing" signs or any other visual indication with intent to limit public access; and

(9) Vegetation."

2. By amending subsection (e) to read:

"(e) As used in this section:

"Person" means a natural person or a legal entity.

"Public recreational area" means public lands or bodies of water opened to the public for recreational use.

"Public right-of-way" means any road, path, or passageway established by dedication, condemnation, customary use, or open and continuous public use.

"Public transit area" and "public transit corridor" shall have the same meaning as those terms are used in section 115-5."

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.