HOUSE OF REPRESENTATIVES

H.B. NO.

1120

TWENTY-NINTH LEGISLATURE, 2017

 

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 designated and to read as follows:

"171-13.5 Special shoreline encroachment easements. (a) The term "special shoreline encroachment" means a structure that was authorized by a governmental authority and located landward of the shoreline (as defined in chapter 205A) within the record boundary of the property at the time of construction, but is now located seaward of the shoreline on public land.

(b) Such special shoreline encroachments described and defined in subsection (a) may be granted easements for a value determined by the board notwithstanding section 171-17. The granting of an easement in accordance with this section shall not be construed as state ownership of the shoreline encroachments.

(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.

(d) Easements granted in accordance with this section shall take into account the public policies of protection and preservation of the natural shoreline and public pedestrian access along the shoreline and the long-term risks to life and property from coastal hazards."

SECTION 3. 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 171-13.5; 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 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. 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 located landward of the shoreline within the record boundary of the property at the time of construction, but are now located seaward of the valid certified shoreline on public land.

 

 

 

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