HAWSCT Oral Arguments In Seawall Hot Potato Case

by Robert Thomas, InverseCondemnation, January 12, 2016

A case that we've been following with some mild amusement has reached the Hawaii Supreme Court, where it was argued last week.

Our amusement stems from the fact that shoreline and beachfront property in Hawaii -- especially when that property is in the fabled "Gold Coast" of Waikiki at the foot of Diamond Head -- is usually fought over by those wanting to own it. But this one is different, because in this case, everybody wants the other guy to own it, because it involves a seawall that needs upkeep. And seawall upkeep don't come cheap.

We posted the trial court's decision concluding that the State of Hawaii owns it, here. The Intermediate Court of Appeals affirmed, and the State sought, and the Supreme Court granted, certiorari.

You can listen to the oral arguments -- the issues are the language of a statute, prescriptive easements, and implied dedication -- here.

Here is the description of the case and issues from the Judiciary web site:

This case arises from a dispute between Respondent/Plaintiff-Appellee Gold Coast Neighborhood Association (Gold Coast), a non-profit organization, and Petitioner/Defendant-Appellant State of Hawai`i (the State) over who owns and is responsible for a stretch of seawall (the seawall) that is on or near the seaward boundaries of property between 2943 Kalakaua Avenue and 3019 Kalakaua Avenue on the Waikiki coastline.

On July 12, 2007, Gold Coast filed a complaint for declaratory relief, seeking an order from the court that the State is responsible to maintain and keep the seawall in good and safe condition. Subsequently, on April 26, 2010, the State filed its own complaint, also seeking an order from the court that the State does not own and is not responsible for the seawall.

On November 29, 2013, the Circuit Court of the First Circuit (circuit court) held that the State owns the seawall and the real property under the seawall pursuant to the theories of surrender and implied dedication. The circuit court subsequently held in a separate order that Gold Coast was not entitled to attorneys’ fees because the State was protected by sovereign immunity.

Both parties appealed the circuit court’s orders. On June 30, 2015, the Intermediate Court of Appeals (ICA) issued a published opinion in which it affirmed the circuit court’s order holding that the State owns the seawall under the theories of surrender and implied dedication, and reversed the circuit court’s order denying Gold Coast attorneys’ fees, concluding that the State waived its sovereign immunity when it filed its own complaint against Gold Coast.

In its application for writ of certiorari, the State contends that the ICA erred when it held that: 1) the seawall could be transferred to the State without the State’s approval; 2) the seawall could be transferred to the State even though the seawall property owners were not parties to the case; and 3) the State waived its sovereign immunity.

We'll follow along and have more when the Supreme Court issues its ruling.