Bill proposes the state acquire Sunset Beach lots hit by erosion

Nearly two dozen oceanfront properties along Sunset Beach on Oahu’s famed North Shore would be condemned under a bill proposed this year by state Sen. Chris Lee that seeks to save the beach from being lost to erosion.

The measure, which emphasizes the “unstoppable reality” of sea-level rise and blasts the state for failing to protect the public beach, would require the Department of Land and Natural Resources to acquire via eminent domain the lots stretching from 59-145 Ke Nui Road to 59-175C Ke Nui Road for fair-market value.

“Sunset Beach is a priceless stretch of irreplaceable coastline, world-famous and iconic to the sport of surfing, and a key driver of the North Shore economy,” Senate Bill 1026 states. “However, the state’s failure to enforce its own laws and uphold its duties under the public trust doctrine on a small stretch of Sunset Beach coastline … has led to houses falling onto the sand, debris littering near shore waters, and limitations to public access.”

The stretch of beach between Sunset Beach and Rocky Point has become ground zero in the escalating conflict between private property and public beaches that is set to grow more intense as Hawaii’s coastlines suffer the impacts of climate change and sea-level rise. Property owners along the stretch have marred the picturesque beach with massive sandbags, ugly black tarps, boulders, concrete and other debris in recent years in an attempt to save their homes from powerful waves.

Some of the armoring was done illegally. Other barriers, including many of the “burritos” — long tubes filled with sand that are connected to heavy tarps — were erected with the state’s permission but were only supposed to be in place as temporary, emergency measures. Homeowners have refused to remove them after they expired, and for the most part the state, which can issue daily fines of up to $15,000, hasn’t tried to force them.

Coastal experts have said there are already signs that the barriers are harming the beach. When waves slam up against a hardened shoreline, they claw away at the sand, leading to beach loss. Oahu has already lost about one-quarter of its beaches to shoreline hardening and scientists warn that figure could rise to 40% by 2050.

The idea of condemning oceanfront properties increasingly at risk from climate change has been batted around by coastal land officials and policymakers for years, but hasn’t gotten much traction. Critics say Hawaii taxpayers shouldn’t be bailing out property owners, particularly those who are wealthy and should have been well-versed in the risks of owning coastal property, from their bad investment decisions.

The cost to the state, if such a practice became a routine policy, would be extraordinary. Statewide, 6,500 shoreline structures, including homes, hotels, shopping malls, schools, churches and community centers, are expected to be damaged or destroyed by 3.2 feet of sea-level rise, which could occur by 2060, according to the Hawai‘i Sea Level Rise Vulnerability and Adaptation report published in December 2017.

The value of the damaged structures and 25,800 acres that are projected to be flooded is pegged at $19 billion.

On Oahu’s North Shore alone, about 28% of beachfront homes, comprising 2.5 miles, are within 20 feet or less of the shoreline, putting them at risk of being damaged by ocean waves and increased flooding, according to a report released last year by the North Shore Coastal Resilience Working Group, which included a mix of more than 30 top scientists, environmentalists, attorneys, coastal engineers and other stakeholders.

In the coming decades, with 2.4 feet of sea-level rise, that figure is projected to rise to 40%.

Lee’s bill stresses that the buyout would be a one-off solution designed to save one of the state’s most valuable beaches after the state failed in its duty to protect it.

“I don’t think eminent domain is the real answer for all of this because we certainly couldn’t do that everywhere, even if we wanted to,” said Lee, a Democrat whose district includes Kailua, Waimanalo and Hawaii Kai. “In this case, had the state actually been enforcing all of these years, then we wouldn’t be in this situation to begin with, one way or another. How do we get ourselves out of this fix? Sunset … we can’t lose that beach. It is like losing part of Waikiki Beach. This would be a tool to help fix that and not to set precedent for the future.”

UNDER LEE’S bill, the homes would at some point be demolished and the area turned into a public park, allowing natural coastal processes to restore the damaged beach. The measure proposes turning the park over to the city or a nonprofit, such as the North Shore Community Land Trust, to manage.

Property owners could also be given the option of renting the homes from the state after they are acquired, which could give at least some of the owners more time before staying put becomes untenable while also offsetting the cost to the state of buying the lots.

Homeowners could end up getting just a fraction of what their properties have been valued at in past years if SB 1026 passes, but Lee said that could be more than what they would get if they wait for their erosion problems to worsen.

The public beach extends to the high wash of the waves at the time of year when the ocean pushes farthest inland. That boundary shifts over time with most beaches naturally migrating landward at a pace that is poised to increase with sea-level rise.

Oceanfront property owners along Sunset Beach are already seeing their property values threatened as more of their makai-facing yards become public property.

“If we wait long enough, the price of those properties is basically zero,” said Lee.

Lee said the 22 lots that are listed in his bill were valued at about $49 million a number of years ago, prior to the area becoming known as an erosion hot spot, but if condemned would likely be valued at significantly less due to worsening erosion and sea-level rise projections.

Even so, it could be a palatable prospect for property owners who are facing increasing enforcement from the state, rising seas and more powerful storms. Lee said that the measure could give owners a chance to salvage some value from their properties while saving the beach from further damage.

“So it is kind of a win-win for the public who gets to save their beach and also the property owners who in spite of their desire to keep their property, are just going to lose everything in the long run,” he said.

COLIN LEE, an attorney and climate change analyst with the University of Hawaii at Manoa’s School of Ocean and Earth Science and Technology, said that if the bill passes, DLNR would then appraise each property and make offers to the owners based on what it determines is the fair-market value, taking into consideration various factors such as any outstanding judgments or liens on the properties, as well as the impacts of sea-level rise.

He said that property owners, if dissatisfied, could challenge the valuation in court, in which case both sides would bring in various experts to make a determination.

“In this particular case, although I’m not super supportive of spending public money on bailing out these property owners, I do think there is an argument to be made that the state has failed to do its job here, and to just clear the slate and create a big, beautiful beach park would be OK,” said Colin Lee.

A few of the property owners along the stretch of coastline have indicated in recent years that they would welcome a government buyout, but SB 1026 is sure to stir debate.

Todd Dunphy, who came under fire for shoreline violations last year, owns two of the lots that would be condemned under the bill. He said he opposes the measure and instead wants the state to give him and his neighbors permission to build a wall of boulders along the beach to protect their homes. Such structures are prohibited under state law.

“Nobody’s going to win if we don’t armor the beaches with big, beautiful rocks,” he said.

Dunphy is facing a $92,000 fine that DLNR leveled against him last year for employing an excavator and without permission pushing large amounts of sand in front of his two lots. DLNR also alleged that Dunphy refused to remove broken sandbags, rocks, concrete rubble and other debris placed on the beach in front of the lots. Dunphy has denied responsibility for the barriers.

He said that this winter’s massive swells carried away the material anyway, including the sand, leaving the home he is living in unprotected. Dunphy said he doesn’t even use his front door anymore because it’s now teetering above the sand berm that drops several feet down toward the ocean.

Still, he said he wants to keep the property and worries the state wouldn’t proffer much to buy his lots.

“We could get robbed on that deal,” said Dunphy.