We hear an awful lot about the “taking” of private property, and how it is something to be avoided at all costs, seeing as how private property rights are sacrosanct and public encroachment upon them can be enforced and penalized to the fullest extent of the law, including, in some states, with a loaded gun.
But what about the private “taking” of what’s public, that insidious creep and claim of the private upon the public? Should it not be similarly scorned and subverted? (Though not, in any case, to the extreme of death.)
Here’s the story of the private “taking” of one small stretch of beach on one small island in one small chain of islands where such stories are far too common:
The year is 2000. A 20,028-square-foot lot in the Wainiha Subdivision has just sold for $675,000; the asking price was $690,000. The lot is described as “wooded, grassy, and the MLS remarks read:
OCEANFRONT PARCEL WITH EXQUISITE COAST- LINE VIEWS. WINDSURFING,SNORKELING,SWIMMING & FISHING AT YOUR DOORSTEP ON A BROAD WHITE SAND BEACH. PARADISE FOUND!
By 2002, the lot has been cleared. It is now easy to see the debris deposited by wave wash extending well into the lot. And as we know from the Hawaii Supreme Court decision, the public beach extends to the highest seasonal wash of the waves.
Realtor Steven D. Moody, who is part-owner, lists the lot for first $1.5 million. The MLS remarks read:
Large Haena beachfront lot. 102 ft beach frontage. Listor is part owner.
Then he lists it for $1.995 million, and the MLS remarks read:
Large Haena Beachfront lot.102 Ft.frontage.
Largest lot in subdivision. Call listor for details.
Listor is part owner.Great location,swimming, snorkeling, windsurfing, surfing and a quite uncrowded beach.
By May 2003, the listing price has dropped to $1.850 million, but the MLS remarks indicate a change on the lot. It appears it’s now been landscaped:
Beautifully landscaped lot with 102 ft. of frontage on
a white sand beach.Close to swimming, snorkeling,
diving, windsurfing, surfing and kiteboarding. CC&R'S
and design review insure quality in the small 15 lot
sudivsion.One of only a few quality beachfront properties
available on Kauai's beautfil northshore.Listor is part
owner.Price reduced 6-23-03.
In April 2004, the lot — now described as “grassy” — is listed for $1.795 million, and sells for $1.65 million. Again, the MLS remarks reference the landscaping:
Spacious beachfront lot with wide 102' frontage on dramatic North Shore white sand beach allows for generous home design possibilities. Famous snorkeling and water sports are steps away at this small oceanfront subdivision with increasingly high quality home construction. Enjoy the views and sounds of surf on the outer reefs all year. Nice tropical landscaping in place is a bonus. This is the best beachfront vacant lot deal on Kauai's North Shore and offers loads of potential.
By December of 2004, as this photo shows, that "nice tropical landscaping" on the makai side of the lot, which also borders an easement, is being assisted with some irrigation:
You can still see, however, that the ocean debris continues to wash well into the lot.
By 2005, the price has escalated to $2.199 million. The MLS remarks remain the same, but now a new caveat has been added to reflect challenges by the community to the proposed shoreline boundary:
Private: Land area may vary as typical with oceanfront property. Attach Standard Oceanfront Property Addendum with all offers. Seller motivated for sale in 2005!
By 2007, the lot has sold again, this time for $1.9 million. The remarks and “private” clause in the the MLS remain the same.
The beach, however, has changed. It is no longer wide and sandy, but instead has been narrowed, become steeply sloped, due to the dense plantings of naupaka that interfere with the normal movement of sand. This is how that lot looks now, viewed from the beach:
At times, the beach that fronts it is nearly impassable because the cultivated naupaka sprawls so far makai. Meanwhile, naupaka, palms and spider lilies encroach into the public access.
This is the lot that prompted Judge Kathleen Watanabe to scold the state for improperly relying upon cultivated vegetation and current, rather than historical, wave wash data when setting the shoreline on the crest of the dune now covered with tended naupaka.
So that particular shoreline certification has been vacated, and the landowner, Craig Dobbin, will have to do the process over before he can build a house.
But how does the public ever get back the beach that’s been taken?