say about the issue. She claims there are "many" public beach accesses,
yet ignores the fact that some aren't even marked clearly, and others
are more than half a mile apart. Marshall also apparently hasn't walked
along Kalaheo Avenue herself, or she'd see how dangerous certain
stretches of that road are for parents with children who have to to
avoid speeding cars as they walk further distances to reach those
public accesses. Also, why is it that if a property is a Land Court
parcel, it is somehow exempt from Hawaii State law as she seems to
imply below when she says "adverse possession" can't be applied? We
suggest you ask her these questions via email, phone calls or in person
at her next 3 TALKS meeting on Tues., Oct. 30 at the Kaneohe Community
and Senior Center.
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"Kailua Beach Access An 'Oil-and-water' Mix"
Written by Barbara Marshall for MidWeek Oct. 24, 2007 Issue
The Council is working actively to formulate policy on affordable housing, and we again urge residents to provide input into this very important issue. Meanwhile, the closing by homeowners of the private beach access at the end of L'Orange Place in Kailua has brought great emotion and
considerable controversy.
This is not the first time beach access has raised passions - and it probably won't be the last. The State Constitution guarantees the public's right to use all beaches in the state; the State Supreme Court - on numerous occasions - has upheld the public's right to beach access, and many state laws exist that task the counties with the responsibility of ensuring public beach right of ways.
Generally, no person or entity is allowed to prevent or otherwise restrict the public's use of an existing public beach right of way. Public beach rights-of-way are usually marked by a bright blue sign, but sometimes overgrowth or vandalism can render these signs illegible or obscure them completely. In addition to the numerous beach parks, there are many public beach rights-of-way in our district:
Kailua, Waimanalo
Mokulua Drive A, Ehukai Street, Mokulua Drive B, Hihimanu Street, Mokulua Drive C, Hinalea Street, North Kalaheo Avenue at Kawainui Canal, Kaula Street, North Kalaheo Avenue at Ainoni Street, Hilu Street, North Kalaheo Avenue at Dune Circle, Manana Street, North Kalaheo Avenue at Pueohala Place, Alaihi Street, South Kalaheo at Kuuniu Street, Puuone Street, Milokai Place and Wailea Street
Kaneohe
Ipuka Street, Kaimalino Street, Kaneohe Bay Drive Beach Remnant, Kaneohe Bay Drive A and Kaneohe Bay Drive B.
I have always supported the public's right to beach access and strongly encourage owners of private beach-access points, as many generous owners already do, to continue to allow the general public to use them. But this issue butts the rights of private property owners right up against the desires of long-time beach-access users - and this appears to be an oil-and-water mix at this point.
The city does not have any explicit ordinances regarding private beach-access points. When a property owner submits a building permit for the installation of, say, a gate across a private beach-access point, the process is purely ministerial - meaning that so long as the structure meets building and zoning standards, there is no review. This is not unlike a homeowner applying for a building permit to build a new fence around a property.
That does not, however, sit well with people who for decades have been using a specific path to get to their favorite beach. There has been talk of "adverse possession"-in some parts of the law someone who uses a parcel of land for a certain period of time can have some rights to continue to use that land. However, Hawaii's Land Court system does not allow "adverse possession"-and the L'Orange Place parcel is a Land Court parcel, we are told.
There are some private beach accesses that do allow use by the public-and some that never have. It is a sad day whenever an access which has been public is barred to the public.
If you will allow me a personal reminiscence: For years and years I walked in the very early morning, before sunrise, on a certain stretch of Kailua Beach accessing over an empty lot. I will never forget the morning I arrived for my usual walk to find a huge board fence stretched across "my" access. So I sympathize and empathize with those long-time users of L'Orange Place, and I wish I could regain my access and theirs as well.
But we are fortunate in this country to have private property rights that preclude uses of our own private land by people we do not choose to welcome. And the folks on L'Orange Place have exercised their right to no longer welcome the public. That is their privilege and the community's loss. We can only hope that other owners on other private ways do not follow suit- and be grateful that the lawmakers and the judges in our state have, at least, ensured that the beaches themselves remain public - and that there ARE public accesses to those beaches.
We had more than 100 people at our September 3 TALK to discuss this very issue. If you wish to discuss this or any city issue, we welcome you at any of our monthly 3 TALKs. The next one is at 7 p.m. Tuesday (Oct. 30) at Kaneohe Community and Senior Center.
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