HOUSE OF REPRESENTATIVES

H.B. NO.

933

TWENTY-SEVENTH LEGISLATURE, 2013

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO SPECIAL SHORELINE ENCROACHMENT EASEMENTS.

 

 

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

 


SECTION 1. In County of Hawaii v. Sotomura, 55 Haw. 176, 517 P.2d 57 (1973), the Hawaii supreme court held that "land below the high water mark, like flowing water, is a natural resource owned by the state subject to, but in some sense in trust for, the enjoyment of certain public rights." As a result of this ruling, any structures located seaward of the shoreline location as determined by the department of land and natural resources (department) would be considered encroachments upon public land.

When an encroachment is discovered, it may be resolved by either removal or obtaining an easement from the department. Generally, an easement must be obtained from the department for a structure within the shoreline area even if the structure was located within the record boundary of the landward property at the time of construction.

The department has been named as a party in claims regarding structures, improvements, and debris in the shoreline area that was once private property.

Pursuant to sections 171-13 and 171-17(b), Hawaii Revised Statutes, easements granted by the board of land and natural resources (board) under the circumstances described above require compensation at fair market value.

The purpose of this Act is to provide the board the discretion to grant easements for less than fair market value in regards to encroaching structures that were authorized by an appropriate regulatory agency and originally constructed landward of the shoreline and within the record boundary of an oceanfront property but are now located within the shoreline area, due to the dynamic nature of the location of the shoreline.

SECTION 2. Chapter 171, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"171- Special shoreline encroachment easements. (a) The term "special shoreline encroachment" means a structure that was authorized by a governmental authority and constructed landward of the shoreline as defined in chapter 205A, within the record boundary of the landward property at the time of construction, but is now located seaward of the shoreline on public land.

(b) The board may grant easements for such special shoreline encroachments described and defined in subsection (a) for less than fair market value.

(c) Easements granted in accordance with this section shall not require the prior approval of the governor or prior authorization of the legislature pursuant to section 171-53."

SECTION 3. Section 171-17, Hawaii Revised Statutes, is amended to read as follows:

"171-17 Appraisals. (a) The appraisal of public lands for sale or lease at public auction for the determination of the upset price may be performed by an employee of the board of land and natural resources qualified to appraise lands, or by one but not more than three disinterested appraisers whose services shall be contracted for by the board; provided that the upset price or upset rental shall be determined by disinterested appraisal whenever prudent management so dictates. No such lands shall be sold or leased for a sum less than the value fixed by appraisal; provided that for any sale or lease at public auction, the board may establish the upset sale or rental price at less than the appraisal value set by an employee of the board and the land may be sold or leased at that price. The board shall be reimbursed by the purchaser or lessee for the cost of any appraisal required to be made by a disinterested appraiser or appraisers contracted for by the board.

(b) The sale price or lease rental of lands to be disposed of by drawing or by negotiation shall be no less than the value determined by:

(1) An employee of the board qualified to appraise lands; or

(2) A disinterested appraiser or appraisers whose services shall be contracted for by the board, and such appraisal, and any further appraisal with the approval of the board, shall be at the cost of the purchaser;

provided that the sale price or lease rental shall be determined by disinterested appraisal whenever prudent management so dictates; provided further that should the purchaser fail to agree upon the sale price or lease rental, the purchaser may appoint an appraiser who together with the board's appraiser shall appoint a third appraiser, and the sale price or lease rental shall be determined by arbitration as provided for in chapter 658A which shall be final and binding. The purchaser shall pay for all appraisal costs, except that the cost of the third appraiser shall be borne equally by the purchaser and the board.

(c) For special shoreline encroachment easements granted pursuant to section 171- , the board may grant such easements for less than fair market value.

[(c)] (d) In the repurchase of any land by the board, the board shall have the option to repurchase the land for the original sale price or the fair market value at the time of repurchase, whichever is the lower. Any improvements affixed to the realty shall be purchased at their fair market value. At the time of the repurchase, the fair market value of the land, and the improvements, if any, shall be determined by a qualified appraiser whose services shall be contracted for by the board; provided should the owner fail to agree upon the value, the owner may appoint the owner's own appraiser who together with the board's appraiser shall appoint a third appraiser, and the value shall be determined by arbitration as provided in chapter 658A. The owner shall pay for all appraisal costs, except that the cost of the third appraiser shall be borne equally by the purchaser and the board.

[(d)] (e) In the event of reopening of the rental to be paid on a lease, the rental for any ensuing period shall be the fair market rental at the time of reopening. At least six months prior to the time of reopening, the fair market rental shall be determined by:

(1) An employee of the department qualified to appraise lands; or

(2) A disinterested appraiser whose services shall be contracted for by the board;

and the lessee shall be promptly notified of the determination; provided that should the lessee fail to agree upon the fair market rental, the lessee may appoint the lessee's own appraiser who together with the board's appraiser shall appoint a third appraiser and the fair market rental shall be determined by arbitration as provided in chapter 658A. The lessee shall pay for the lessee's own appraiser, the board shall pay for its appraiser, and the cost of the third appraiser shall be borne equally by the lessee and the board. Any language in present leases to the contrary notwithstanding, the provisions of this subsection, when possible and notwithstanding the six-month notice required, shall apply to leases with original lease rental reopening dates effective before and after July 1, 1996.

[(e)] (f) Whenever more than one appraiser is appointed each shall prepare and submit an independent appraisal. All appraisal reports shall be available for study by the public."

SECTION 4. Section 171-53, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) The board, with the prior approval of the governor and the prior authorization of the legislature by concurrent resolution, may lease state submerged lands and lands beneath tidal waters under the terms, conditions, and restrictions provided in this chapter; provided that the authorization of the legislature shall not be required for leases issued under chapter 190D; and provided further that the approval of the governor and authorization of the legislature shall not be required for any grant of easement or lease of state submerged lands or lands beneath tidal waters used for moorings, cables, [or] pipelines[;], or any special shoreline encroachment as described and defined in section 171- ; provided further that this exemption shall not apply to easements for cables used for interisland electrical transmission or slurry pipelines used for transportive materials, mined at sea, or waste products from the processing of the same.

The lease shall provide that the lands shall be reclaimed at the expense of the lessee. Title to the reclaimed lands shall remain in the State."

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act, upon its approval, shall take effect retroactive to July 1, 2012.

 

INTRODUCED BY:

_____________________________

 

 

BY REQUEST


 


 

Report Title:

Special Shoreline Encroachment Easements

 

Description:

Provides the Board of Land and Natural Resources discretion to grant easements for less than fair market value for structures that were authorized by a governmental authority and constructed landward of the shoreline within the record boundary of the landward property at the time of construction, but are now located seaward of the shoreline on public land.

 

 

 

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