Beachgoers have right to shoreline despite homeowners’ claim

Question: Recently fishermen and families who enter Paiko Beach through the one remaining public easement (127-A) are being told by several residents that they cannot set up poles, stand or sit beyond the high-water mark as they are trespassing on private property. Do these homeowners have the right to keep the public off land that is not theirs? No homeowner owns property up to the water line, and it’s sad that the public is being told they are trespassing. Can you please clarify who owns the beach?

Answer: Unless a property owner can prove that he/she owns the area above the high-water mark, beachgoers have the right to be along the shoreline, according to the city Department of Planning and Permitting.

"The public should know their rights and not be unduly dissuaded by beachfront property owners," said Art Challacombe, deputy director for Planning and Permitting.

At Paiko Beach it may be a case where public property looks like private property.

Challacombe explained that under Hawaii shoreline law, the high wash of the waves is the certified shoreline.

"That said, the shoreline has absolutely nothing to do with property boundaries," he said. "All that means (is that) the mauka side of that shoreline delineation is urban land administered and controlled by the City and County of Honolulu, and everything makai of that is controlled by the state."

Lands mauka of the certified shoreline are not necessarily owned by adjacent private landowners, especially if the beach is accreting, he said.

(Accretion happens when sand or other beach material builds up through the natural action of waves, currents and wind.)

As an example, he points to Kailua, where he said the shoreline may have built up 70 to 100 feet from private property lines in many areas.

Property owners may be maintaining that added land, "fertilizing, watering, so forth," he said.

But while it might look like private property, "that is public land, up to the private property boundary line. … It really is in the public domain."

Whether that is happening in Paiko would take further research, he said. "But it looks very suspicious (as to being accreted land) when I looked at the area photographs."

Meanwhile, when erosion, the opposite of accretion, happens, there might be areas where properties now extend right up to the water.

"That said, anything at the high wash of the waves is public domain," Challacombe said, "even if it used to be private property. … Basically anything makai of that certified shoreline, basically the high wash of the waves, is public domain."

However, if there is grass along an eroding beach, chances are that it probably is on private property, and "chances are (beachgoers are) trespassing if they’re on the grass."

Asked what beachgoers who are ordered away should do, he said, if it were him, "I’d stand my ground and say, ‘Prove to me that that’s private. Show me your property boundaries,’" especially if it’s on an accreting beach.

Beach Access

The city’s list of BROWs — beach right of ways — can be found on the Department of Parks and Recreation’s website: www.honolulu.gov/parks/default.html. Look under "frequently asked questions" for the link.

There is no map attached to that list, which simply gives the number of the Emergency Response Locations at each access point.

However, you can find a map that gives "an approximate account" of the public shoreline access points compiled by city, state and federal agencies on the city’s Maps of Oahu website: cchnl.maps.arcgis.com/home.

Here’s the map of shoreline/beach access points, with the disclaimer that it does not include all possible public points of entry: bit.ly/1qWd2su.

You can also find a map of beach right of ways by clicking on "parks/outdoor recreation": bit.ly/1CeJxIv.

The Maps of Oahu site includes other maps as well, including of hiking trails and bikeways, police/fire stations, planned Honolulu rail stations, sewer projects, refuse centers, etc.

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