Gold Coast Trial Brief

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Gold Coast Trial Brief

  1. 1. FIRST CIRCUIT C.[}URÏ sTAtf 0F i{r,HÂilMcCORRISTON MILLER MUKAI MacKINNON lr_p i.ii-Í. I)ROBERT G. KLEIN #1192-0 ?ûll HAR 17 Pll l¡ 30RANDALL K. SCHMITT #3752-0JORDON J. KIMURA #9182-0 F. 0TôKE_ __Five Waterfront Plaza,4th Floor OI.E.RK500 Ala Moana BoulevardHonolulu, Hawaii 968 I 3Telephone: (808) 529-7300Facsimile: (808) 524-8293Attorneys for Plaintiff (Civiì No. 07-l -1122-06)GOLD COAST NEIGHBORHOOD ASSOCIATIONand Defendants (Civil No. l0-l-0S83-04)TROPIC SEAS,INC.; THE ASSOCIATION OF APARTMENTOWNERS OF DIAMOND HEAD BEACH HOTEL, INC.;DIAMOND HEAD APARTMENTS, LTD.; C S APARTMENTS,LTD.; THE ASSOCIATION OF APARTMENT OWNERS OF2987 KALAKAUA CONDOMINIUM; TAHITIENNE,INCORPORATED; THE ASSOCIATION OF APARTMENTOWNERS OF 3003 KALAKAUA, INC.; THE ASSOCIATIONOF APARTMENT OWNERS OF 3OI9 KALAKAUA. INC. IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAIIGOLD COAST NEIGHBORHOOD ) CIVIL NO. O7-1 -1122.06 (VLC)ASSOCIATION. ) (Declaratory Judgment) ) Plaintifl, ) PLAINTIFF GOLD COAST ) NETGHBORHOOD ASSOCTA|rON AND vS. ) DEFENDANTS TROPIC SEAS, INC., THE ) ASSOCTATION OF APARTMENT OWNERS ) OF DIAMOND HEAD BEACH HOTEL, INC.,STATE OF HAWAI.I; DOE ) DIAMOND HEAD APARTMENTS, LTD., C SGOVERNMENTAL ENTITIES I-IO; DOE ) APARTMENTS, LTD, THE ASSOCIATIoNGOVERNMENTAL AGENCIES I -10, ) OF APARTMENT OWNERS OF 2987 ) KALAKAUA CONDOMINIUM, Defendants. ) TAHITIENNE,INCORPORATED,THE ) ASSOCTATTON OF APARTMENT OWNERS ) oF 3003 KALAKAUA,INC., AND THE ) ASSOCTATTON OF APARTMENT OWNERS ) oF 3019 KALAKAUA, TNCS TRIAL BRIEF: ) CERTIFICATE OF SERVICE I
  2. 2. STATE OF HAWAII BY ITS ATTORNEY crvll. No. 10-1-0888-04 (vLC)GENERAL, (Declaratory Judgment) Plaintiff, vs. )TROPIC SEAS, INC.; THE ASSOCIATION OF )APARTMENT OWNERS OF DIAMOND )HEAD BEACH,INC.; OLIVIA CHEN LUM, )trustee of the Olivia Chen Lum Revocable Living)Trust; CLARENCE KWON HOU LUM, trustee )of the Clarence Kwon Hou Lum Trust and trustee)under the Will and Estate of Chow Sin Kum )Lum; JEANNE S. J. CHAN and HOWARD N. )H. CHAN, trustees of the Jeanne S. J.Chan )TruSt; DIAMOND HEAD AMBASSADOR )HOTEL, LTD.; DIAMOND HEAD )APARTMENTS, LTD.; C S APARTMENTS, )LTD.; THE ASSOCIATION OF APARTMENT )owNERS OF 2987 KALAKAUA )CONDOMINIUM; TAHITIENNE, )INCORPORATED; THE ASSOCIATION OF )APARTMENT OWNERS OF 3OO3KALAKAUA, INC.; THE ASSOCIATION OFAPARTMENT OWNERS OF 3019KALAKAUA, INC.; JOHN DOES 1-20; DOECORPORATIONS 1 -20: DOE PARTNERSHIPS)1-20; DOE ASSOCIATIONS 1-20, DOEGOVERNMENTAL AGENCIES 1-20; ANDDOE ENTITIES 1-20. Defendants. Trial: March 22,2011 Judge: The Honorable Virginia L. Crandall216171.4
  3. 3. TABLE OF CONTENTS Pager. TNTRODUCTION .................... III. FACTUAL BACKGROI.IND .....................2 A. Property and Easements........... .......3 B. History of States Position on Seawall-State Policy in 1975 .............4 C. State Policy and Seawall Work Between l98l and 1982......... ............ 6 D. State Policy and Seawall Work Between 1982 and 1983......... ............ 8 E. State Policy and Seawall Work Between 1983 and 1985......... ............ 8 F. State Policy and Seawall Work Between 1992 and 1993......... .......... l0 G. State Action on the Seawall in 1999 ............... I I H. State Policy in2002-2003 and the Sea Ladder Easement.. ............-.-..12 . I. Legislative Action....-. ................... 13III. DISCUSSION _.......... .............. 14 A. The State Has Repeatedly Admitted Its Duty to Keep the Seawall in Good and Safe Condition for Travel.. .....14 B. The Seawall is a State Public Highway and the State is Responsible for its Maintenance.............. .................... 16 l. Review of the Relevant State and Federal Case Law. .........-,.17 2. Applying HRS Section264-1, Levy, andJones to the Seawall ...........-....21 C. In the Alternative, At a Minimum, the State Holds a Prescriptive Easement Over the Seawall and, Therefore, Has a Responsibility for its Maintenance.-.....23IV. REBUTTAL OF THE STATES DEFENSES............... ..............24 A. There is no Public Access to the Seawall .......24 B. The State is not Responsible for the Seawall Adjacent to Properties Registered in Land Court ..........-...26 C. Hawaiis Constitution Mandates Public Access ...............27 l. Public Trust Doctrine... .....27
  4. 4. TABLE OF AUTHORITIES Page(s)CasesAkau v. Olohana Corp., 65 Haw. 383,652P.2d1130 (1982).......... .................29Appl ication of Ashford, 50 Haw. 374,440P.2d76 (1968) .29,29,30Application of Kelley, 50 Haw. 567, 445 P.2d 538 (1968) ........... l8Bishop v. Mahiko, 35 Haw. 608 (Haw. Terr. 1940).......... .-....29County of Hawaii v. Sotomura, 55 Haw. 176,517 P.zd 57 (1973) .............28Diamond Head v. State of Haw.. Bd. of Land & Natural Res., 112 Hawaii 16l, 145 P.3d 704 (2006) 14,29Illinois Central R.R. v. Illinois, 146 U.S. 387 (1892)......-... ......28In re Banning, 73 Haw.297,832P.2d724 (1968) ........... t9In re Waiola O Molokai. Inc., 103 Hawaii 401,83 P.3d 664 (2004) .......29Jones v. Halekulani Hotel. Inc., 557 F.2d 1308 (9th Cir. 1977) passimKing v. Oahu Railway & Land Co., 1l Haw. 717 (Haw. Terr. 1899).......... ._....28Levy v. Kimball, 50Haw.497,443P.2d142 (1968) ....passimMartin v. Waddell, 4l u.s.367 (1842)...._..... ........28McBryde Sugar Co. v. Robinson, 54 Haw. 174, 504 P.2d 1330 (l 973) .......... ................. 302t6t7t 4 iii
  5. 5. State v. Zimring, 52 Haw. 472,479 P.2d202 (1970) ............ 30StatutesHaw. Rev. Stat. 5 264-lHaw. Rev. Stat. $ 26a-l(c). .....17,lg,Z3Haw. Rev. Stat. ç 264-2 .... 17Haw. Rev. Stat. ç 520-7 ....20Haw. Rev. Stat. Ch. 115............ ....25.27Haw. Rev. Stat. Ch.264..... ................. 14Haw. Rev. Stat. Ch. 520........... ...........20Haw. Rev. Statu. g I l5-l ....................25Other AuthoritiesAccess to Beach in Hawaii: "A Social Necessity". l0 Haw. B.J. 3, l5 (1973) .........30Hawaiian Beach Access: A customar-v Right, 26 Hastings L.J. Bz3, g3g (1975)....................... 302t6171.4 lv
  6. 6. i
  7. 7. PLAINTIFF GOLD COAST NEIGHBORHOOD ASSOCIATION AND DEFENDANTS TROPIC SEAS, INC., THE ASSOCIATION OF APARTMENT OWNERS OF DIAMOND IIEAD BEACII IIOTEL, fNC., DIAMOND I-IEAD APARTMENTS, LTD., C S APARTMENTS, LTD, THE ASSOCIATION OF APARTMENT OWNERS OF 2987KALAKAUA CONDOMINIUM, TAHITIENNE, INCORPORATED, THE ASSOCIATION OF APARTMENT OWNERS OF 3OO3 KALAKAUA, INC., AND THE ASSOCIATION OF APARTMENT OV/NERS OF 3OI9 KALAKAUA. INCS TRIAL BRIEF Plaintiff Gold Coast Neighborhood Association, and Defendants Tropic Seas, Inc., theAssociation of Apartment Owners of Diamond Head Beach Hotel,Inc., Diamond HeadApartments, Ltd., C S Apartments, Ltd., the Association of Apartment Owners of 2987 KalakauaCondominium, Tahitienne,Incorporated, the Association of Apartment Owners of 3003Kalakaua, Inc., and the Association of Apartment Owners of 3019 Kalakaua,Inc. (collectively,"GCNA") submit the following Trial Brief detailing the key facts and legal analysis for thepurpose of this Court making a dispositive decision in this matter.I. INTRODUCTION This case arises from a dispute between the GCNA and the State of Hawaii (the "State")pertaining to whether the State is responsible, legally and f,rnancially, for the seawall on theWaikiki coastline along Kalakaua Avenue near Diamond Head (the "Seawall").I The membersof the GCNA--owners of property bordering the Seawall-maintain that the State is responsiblefor the Seawall, the State argues that it has no such duty. GCNA will detail herein the evidence,along with state statutes, state and federal case law, and the States own past admission ofresponsibility for maintenance of the Seawall, to prove that the State clearly is responsible for theSeawall in its use as a public thoroughtàre. The Sear¡,all is located in the City and County of Honolulu, State of Hawaii, and theSeawall at issue in this case borders the property identified by Tax Map Key nos. 3-l-032:030,029,028,027,026,004, 003, 002, 001 and 3-l-033: 0l l, 009. See Stipulation of Facts tf 3.2t6t1t .4
  8. 8. II. FACTUAL BACKGROUND The State has acknowledged its responsibility regarding the Seawall on a virtr-rallycontinuous basis for over 50 years as a blatant admission of this duty, and the State has repairedor contemplated repairing the Seawall on several occasions in the past. Indeed, the policy of pastadministrations of this State, with the exception of the administration under Governor LindaLingle, was to repair seawall walkways for the safety of the public. There are records datingback to the early 1980s which show that the State not only believed that the Seawall was heavilyused as a public thoroughfare, as well as access to the ocean for surfers, swimmers andfisherman, but that the State was responsible for the upkeep and safety of the Seawall. The GCNA is a non-profit incorporated organization doing business in the City andCounty of Honolulu and is comprised of individuals and organizations that own real propertyalong Kalakaua Avenue on the Waikiki coastline in the City and County of Honolulu, State ofHawaii.2 See Stipulation of Facts (*SOF) !f 1. The Seawall was originally built by unknown t The following organizations and/or incorporated entities are members of the GCNA: a. Tropic Seas, Inc., the governing organization for a cooperative identified by Tax Map Key ("TMK") No. 3-l-032:030; b. The Association of Apartment Owners of Diamond Head Beach Hotel, Inc., the governing organization for a leasehold identified by TMK No. 3-1 -032:029; c. Diamond Head Ambassador Hotel, Ltd., the governing organization for the cooperative identified by TMK Nos. 3-l-032:028,027 and 026: d. Diamond Head Apartments, Ltd., the governing organization for a cooperative identified by TMK No. 3-l-032:004; e. C S Apartments, Ltd., the governing organization for a cooperative identified by TMK No. 3-l-032:003 f. The Association of Apartment Owners of 2987 Kalakaua Condominium, the governing organization for the condominium identified by TMK No. 3-l -032:A02;7t617 t.1
  9. 9. private parties 80 to 100 years ago. See SOF ![22. For at least the last 55 years, the Seawall hasbeen used as a thoroughfare for public travel from one portion of Waikiki beach to another.Declaration of June Anderson ((Anderson Decl.") !f 4. One Gold Coast resident, JuneAnderson, has lived at Diamond Head Apartments for over 37 years, but began regularly usingthe Seawall as a walkway over 55 years ago. Anderson Decl. f 3- 5. For at least 50 years,persons living in properties fronted by the Seawall have used-and still use-the variousportions of the Seawall relevant to this matter as a thoroughfare and to access the water in frontof the properties fronted by the Seawalls. See SOF ![23. Further, during this same 50 yearperiod, the Seawall has been used by swimmers, fishermen, and beachgoers to access the wateralong the Gold Coast area of Waikiki. See Anderson Decl. fl 5. A. Property and Easements All of the properties bordering the Seawall and relevant to this action were originallygranted to one "Pehu" during the Mahele in I 848. See Disctosure of Expert Testimony-Ernest M. Collins, Joint Exhibit ("J")-19 at 1. The lands subject to this suit are all in Apana 3,identified and described as "Lele of Kekio, called Kapua, situate in Waikiki kai." See Exhibit J-19 at2. Royal Patênt No. 5667, Apana 3, indicates that the original makai boundary was alongthe sea. See id. The properties that are now TMK Nos. 3-1-032:030 (Tropic Seas, Inc.), :029(Diamond Head Beach Hotel), :028 (the first of three lots of Diamond Head Ambassador Hotel), g. Tahitienne, Incorporated, the goveming organization for the cooperative identified by TMK No. 3-1-032:001; h. The Association of Apartment Owners of 3003 Kalakaua, Inc., the governing organization for the condominium identified by TMK No. 3-l-033:01l; i The Association of Apartment Owners of 3019 Kalakaua,lnc., the governing organization for the condominium identified by TMK No. 3-l -033:009.See SOF !J2.216t7 t.1
  10. 10. iand:027 (the second of three lots of Diamond Head Ambassador Hotel) are each a portion of theproperty that was registered in the Land Court in 1904 pursuant to Land Court Application No.13 of Ida Tenney Castle. See id. The properties that are now TMK Nos. 3-l-032026 (the thirdof three lots of Diamond Head Ambassador Hotel), :004 (Diamond Head Apartments), :003(Coral Strand Apartments), :002 (2987 Kalakaua), and :001 (The Tahitienne) are each a portionof the property that was subdivided in 1910 as shown on the Plan of W. G. Irwin Lots, preparedby Arthur C. Alexander, surveyor, in August 1910. See id. The properties that are now TMKNos. 3-l-033:01I (3003 Kalakaua) and :009 (3019 Kalakaua) are all or portions of Lots 73,J2,andTl of the "Diamond Head Terrace" as shown on the Map of that property filed in the Bureauof Conveyances as File Plan 214 and dated April2, 1921. See Exhibit J-l9 at 3. Since at least 1960, the property designated as TMK No. 3- I -033 :009 (3019 Kalakaua)has been subject to "[a] perpetual easement of right of way for pedestrians only over, across andalong the seawall along the highwater mark at seashore as designated in and by the third courseof the description of the premises." See SOF f[25. A survey map of the properties and theirmakai borders is found at Exhibit J-24, and a full history of each parcel of property is found atExhibit J-l9. B. History of States Position on Seawall-State Policv in 1975 In a letter dated February 27, 1975; Deputy Attorney General Wallace W. Weatherwaxcommented to Christopher Cobb, the Director of the Department of Land and Natural Resources,State of Hawaii ("DLNR"), about the "Seawall Right of Way" for TMK Nos. 3-l-033:002 and053. See Exhibit J-2. Although these two properties are not the subject to this lawsuit, they arealong the same stretch of seawall, and Weatherv¿axs discussion of the policy regarding seawallmaintenance and right-of-way is applicable and informative on the issues in this matter. Thepurpose of the letter was to determine "whether or not the State has-the responsibility to maintain7t6tl | .1
  11. 11. and improve a public right of way which passes over a seawall located within the above citedproperties; and, further, that if such responsibility exists, with what State agency would theresponsibility lie." See id. at 1. The letter further notes that "during periods of high tide, [theseawall] is the only means of right of way along the shoreline other than through the water." Seeid, at 2. This was a clear admission. There was no question expressed by the States ChiefLegal Agency about the States duty. The only question was which of the States agencies wasresponsible. The way that the State dealt with these two sections of the seawall along Waikikiexemplifies the way that the State viewed the publics use of the seawall. The memorandumexplains that, by way of quitclaim deed dated December 19, 1930, the then-Territory conveyedwhatever interest it had in the seawall and a filled area of I ,3 l9 square feet mauka of the seawallto the abutting property owner. See Exhibit J-Z at l. However, the Territory made sure toreserve a pedestrian public riqht-of-way over. along and across of the seawall. See id. TheTerritorial government understood the importance of the seawall as a public right-of-way and,when given the chance, made sure to reserve public easements over the Seawall. Similar to theseproperties, the State reserved a public easement ove¡ TMK No. 3-l-033:009 (3019 Kalakaua),which is subject to this lawsuit. See SOF !f 25. With its reservation of public easements over aportion of a seawall as a public right-of-way, the State has essentially admitted its duty to theother portions of the Seawall to make this access useful. Since the public uses all areas of theSeawall along the Gold Coast for access to the ocean, regardless of an explicit easement, theState has admitted its dutv over the whole Seawall. The letter ultimately examined then current State case law, specifically Levy v. Kimball,50 Haw. 497 (1968), and concluded that "the States control over the seawall right of way carried2t617 | .4
  12. 12. with it the responsibility to maintain the seawall in a reasonably safe fashion" and that"appropriate actions cited [in Levy] be considered and implemented." þ Exhibit J-2 at2-3. C. State Policv and Seawall Work Between 1981 and 1982 On or around September 24,1981, the DLNR sent a memorandum to CouncilwomanMarilyn Bornhorst stating that "state and federal courts in the jurisdiction of Hawaii have foundthat the state is liable for injuries incurred due to lack of repairs to seawalls that are publicthoroughfares. As such the state government, through the Department of Land and NaturalResources, is primarily responsible for the repairs to seawalls that are public thoroughfares." &Memorandum dated September 24,1981, issued by the DLNR to Councilwoman MarilynBornhorst, Exhibit J-3. Early the following year, the Department of the Attomey General("DAG") wrote a letter to the State Representative Paul L. Lacy, Jr. on March 2, 1982, inresponse to Mr. L,acys letter "requesting comments on the States liability for personal injuryand properly damage that may arise from the deteriorated condition of Waikiki seawalls used bythe public." See Exhibit J-4 at 1. The DAG reviewed Levy, supra, as well as other state casesand determined that they "clearly establish[] the States liability for personal injury damageswhere the State controls (even if it does not own) an easement like the Waikiki seawall." See id.The DAGs letter did not apply to a specific section of the seawall along Waikiki. Instead, itapplied generally to any section that is used by the public. Again, this is an explicit admission ofthe States duty regarding the Seawall. Around the same time, the DLNR, Land Division, performed emergency repair work,completed in June 1982, to shore approximately 40 feet of the Seawall along the boundary ofDiamond Head Apartments, lMK No. 3-l -032:04. See Exhibit J-13. The contract price for thisrepair work was 525,000, and it was authorized by Act l, SLH 1981, Item K-2. See id. Theproject involved the underpinning of approximately 40 feet of an existing lava rock seawall216171.1 6
  13. 13. along the makai boundary of Diamond Head Apartments and Coral Sands Apartments withconcrete grout. See id. On or around April 16, 1982, the DLNR sent a letter to the Department of LandUtilization ("DLU") regarding the work to be done under Act 1, SLH 1981, Item K-2. SeeExhibit J-5. The DLNR explained the following: A coral shelf on which the existing seawall was constructed several years ago, has Wave broken and eroded leaving a huge cavity beneath the seawall. action is continually eroding material from beneath and behind the seawall such that the seawall and the abutting properties are being undermined. Unless immediate action is taken to stop the erosion, the seawall is in danger of collapsing which would result in a major seawall reconstruction work, The purpose of this project is to render the existing seawall safe for public passage and to halt the undermining action of the waves. The existing seawall extending along the shoreline of V/aikiki Beach serves as protection to properties against wave action and also as a public walkway for residents and beachgoers. The surrounding properties are lined with multi-storied apartments with access on Kalakaua Avenue. Residents. surfèrs. beachgoers and fisherman use the top of the seawall to traverse between the Diamond Head end of Waikiki Beach and Sans Souci Beach. If it becomes necessary to close the seawall walkway, beachgoers will have to detour either along Kalakaua Avenue or walk on the rocky reef along the seawall. Inquiry with the State Survey Division and the City and County Department of Land Utilization and the Land Survey Division indicates that there are no recorded shoreline easements along the affected property. However, in a decision rendered by the Hawaii State Supreme Court in the case of Levy v. Kimball, 50 Haw. 497,443 P.2d 142 (1968) the court ruled that the State has a duty to keep seawalls which are used by the public in good repair. Further, the Deputy Attorney General in commenting on the seawall fronting Halekulani Hotel stated that if the rehabilitation or reconstruction cannot be done, then the seawall should be closed to pedestrian traffic or signs posted warning the public of its condition.2t6t7 t.4
  14. 14. See Exhibit J-5 (emphasis added). By these actions and correspondence, the State clearlystated its position that the Seawall was a public thoroughfare and that it was responsible for itsmaintenance and the safetv of those who use the Seawall for access to the ocean. D. State Policy and Seawall üork Between 1982 and 1983 During the 198213 period, the DLNR, Land Division, admitted its duty to maintain theSeawall by repairing and rehabilitating broken sections of the Seawalls from the Elks Clubproperty (TMK No. 3-l-032:05) to TMK No. 3-1-033.02,near the Diamond Head end ofKalakaua Avenue. See Exhibit J-13. Funds for this work were authorized by Act 1, SLH 1981,Item K-2 and Act 264,ltem K-2. See id. The repair work was completed in June 1983 at acontract price of $50,000 to fix damage caused by Hunicane lwa. See id. Act264, SLH 1981,Item K-2, is titled "Seawall Improvement, Waikiki." It set aside State funds for "[p]lans, designand incremental construction of improvements to seawall including railings, rehabilitation ofseawall, fences and other improvements necessary for the safe passage of the public overexisting seawalls." See id. Although not all of these improvements were ultimatelyimplemented, the State therein expressly admitted its responsibility to create a safe passage forthe public over the Seawall. This was a continuation of its previous policy of Seawallresponsibility. E. State Policy and Seawall Work Between 1983 and 1985 In September 1983, Hawaiian Dredging completed Phase II of an improvement projecton the seawall along Kalakaua Avenue, as authorized by Ãct264, SLH 1982, Item K-2. SeeExhibit J-13 at 2. The contract price for Phase II (Job No. 1 -OL-29) was $54,714, and thescope of the work originally planned for Phase II construction consisted "of rehabilitating aseawall, constructing a hand railing and other incidental and appurtenant work necessary tocompìete this project." þ id. Although the construction of hand rails was not completed over2t617 | .1
  15. 15. the Seawall, the State, at the very least, contemplated creating a safer walkway over that area ofthe Waikiki seawall. See id. By doing so, it admitted its ongoing duty regarding the Seawall. Phase III of the same improvement project was completed in June 1985 by IwamotoConstruction for a contract price of $5 0,7 4l . See Exhibit J-6; J-13 at 2. Phase III affected theSeawall along TMK Nos. 3-l-32:029,027,:026,:004, :003, :002, :001 and 3-l-033:011 and:009. See Exhibit J-25; SOF ![ 14. Similar to Phase II, the scope of work originally planned forPhase III construction consisted "of rehabilitating seawalls, constructing hand railing and otherincidental and appurtenant work necessary to complete this project." þ J-6; SOF ![ 13. Thescope of work actually performed for Phase III construction is described in the as-built plans andsummarized in the followins table: Desisnation on plans Properties affected Nature of repair A-2 Portion of 33:009 to 32:004 Crack repair on walkway- (33:009, :010, :01l, 32:001, chip off loose material and :002.:003. :004) epoxv the crack B-2 Approx. 35 linear feet at Repair nosing at edge of 32:002 walkway Approx. 5 linear feet at 33:011 c-2 Deleted-work not done Repair walkway-remove 32:029 existing top 4" of concrete Pofiion of 32:028 and pour new 4" D-2 32:026 and:027 Repair walkway-remove 33:010 and :011 loose concrete topping and replace with 2" thick cement mortar. (Taper new concrete left to right, see G- 2 E-2 Portion of 32:008 Add new concrete walkway on top of existing wallSee id.; SOF 1[ 14. The State named Fhase III "Waikiki Seawall, Walkway Rehabilitation" andphotographed the condition of the Sea¡valls prior to its construction and rehabilitation, on or2t617 | .1
  16. 16. about January 25, 1983. See Exhibit J-22; SOF tT 15. These photographs included images ofTMK Nos. 3-1-032:004,026,027, and 028. See id.; SOF f[ 15. On or about December 16,1982, the State also photographed images of the Seawalls and what it called the "accesseasement Diamond Head to Ocean" Iocated at TMK 3-l-033:006. See id.; SOF fl 15. Althoughnot all of these locations are directly related to this lawsuit, their similarity proximitydemonstrate the States admitted duty to the Seawall as a public walkway. Furthermore, theState acknowledges the public access from Kalakaua Avenue to the Seawall. F. State Policv and SeawallWork Between 1992 and 1993 In 1992, the DLNR, Water and Land Development Division, released a Notice ofDetermination Olegative Declaration) for Waikiki Seawall Walkway Rehabilitation. Phase V("Notice of Determination"), pertaining to the Seawalls, which stated: "[t]he State of Hawaii hasa right-of-way over all the seawalls and walkways and is responsible to keep them in good andsafe condition. The walkways are used by the public." See Notice of Determination, ExhibitJ-8 at 7 . The purpose of the 1992 rehabilitation was "[t]o increase safety of existing walkwayswhich are deteriorating and becoming hazardous" and "[t]o lengthen the useful life of theexisting seawalls, which are deteriorating." See Exhibit J-8 at 2. In 1992 and 1993, the State followed through with its planned rehabilitation of theSeawall, On December 8, 1992, via a Resolution, the Council of the City and County ofHonolulu granted a Special Management Area ("SMA") Use Permit and Shoreline SetbackVariance to the DLNR to rehabilitate the existing Seawall walkway located in Diamond Head,Oahu and identified by TMK Nos.3-l-032:001 ,002,003,004, 026,027,028 and 029,and3-l-2t6t7 | -4 l0
  17. 17. 033:002,003, 004, 005, 006, 007, 008, 009, 010, 0l l, 053, and 056.3 see Exhibit J-10; soF tl16. Phase V construction was a G.O. Bond-funded CIP project authorized by Act 316, SLHI 989, Item K- I I , following Hurricane Iniki (Job No. 3 1 -OL-C 1). See Exhibits J-8, J-9 and J-13; SOF ![ 17. Construction was completed by Sea Engineering in September 1993 ata contractprice of $609,605. See id. This project repaired and rehabilitated the Seawall, although the onlyportion of the project that was completed was for the section in front of Diamond HeadAmbassador Hotel, Ltd. (TMK Nos. 3-l-032.026,027 and 028). See id. Although the projectwas ultimately limited in scope, the DLNR originally planned to "rehabilitat[e] seawalls andwalkways, constructing hand railings and other appurtenant work necessary to complete thisproject." See Exhibit J-9; SOF flfl 18-20. In the several years since, however, the Seawall hasagain fallen into disrepair. See Photos of the Seawall, Exhibits J-26 to J-224. G. State Action on the Seawall in 1999 In a general statement about the rehabilitation of the Seawall (or other very similarseawalls in the Diamond Head/Waikiki area), the DLNR released a memorandum from AndrewMonden, Chief Engineer of the DLNR, to Dean Uchida, Administrator of the DLNR, that states: Since 1982, at the request of Land Management, the Engineering Branch (DOWALD) has been repairing and rehabilitating damaged sections of the seawall between Halekulani Hotel and the city mini-park (TMK: 3-1-36:l) located along Diamond Head Road. Another project was authorized using special funds by Act 289, SLH 1993, Item K-8. DOWALD was not requested to implement this project and the funds lapsed. All CIP projects were authorized under LNR l0l and were implemented by DOWALD upon Land Managements request. The work involved walkway improvements, rehabilitation of the seawall and/or railing installation or repair. Of these properties, Nos. 3-l-032:001,002,003, 004,026,027,028 and029,and 3-l-033:009 and 011 are subject to this lawsuit. The State only reserved an explicit public easementover one of these properties, 3-i-033:009 (3019 Kalakaua). See SOF tT 25.2t6t71.4 ll
  18. 18. See Exhibit J-l3. H. State Policv in 2002-2003 and the Sea Ladder Easement On or about March 15,2002, a letter from the DLNR to a "Concerned Resident" living inthe area around the Seawall stated that no permits were ever obtained to construct a sea ladder onthe States Seawall. See Exhibit J-14; SOF f 5. The sea ladder sat on an area of the Seawall infront of Diamond Head Ambassador (TMK No. 3-l -032:026). See Exhibit J-16. To resolvethis issue, on July 25,2003, for the sum of $2,406 plus a $218 performance bond, the Stategranted the GCNA a 37 square-foot Non-Exclusive Ladder Easement for a term of 55 years forthe right, privilege, and authority to construct, use, maintain and repair a ladder at the followinglocation: Waikiki, Honolulu, Oahu, Hawaii Being a portion of the submerged land fronting Royal Patent 5667, Apana 3, Land Commission Award 5931, Part I to Pehu. Being at the north corner of this easement, the true azimuth and distance to the south corner of Lot 5 as shown on Map 3 of Land Court Application l3 being: 249" 324.95 feet, the coordinates of said point of beginning referred to Government Survey Triangulation Station "LEAHI" being 312.88 feet North and 2931.86 feet West, thence running by azimuths measured clockwise from True South: - 1. 304" 43 45" 5.00 feet along the top edge of concrete wall; 2. 32" 04 7.5 feet; 3. 124" 43 45" 5.00 feet to rock groin; 4. 212" 04 7.50 feet along rock groin to the point of beginning and containing an AREA OF 37 SQUARE FEET.See Exhibit J-16. The preceding survey description was prepared by the Survey Division,Department of Accounting and General Services, State of Hawaii, designated by C.S.F. No.23,559 and dated June 25, 2003. See id. The Non-Exclusive Ladder Easement sits on an area ofthe Seawall located on the ocean side of TMK No. 3-1-032:026, the Diamond Head Ambassador2t6t7 | .1 12
  19. 19. Hotel and includes the right of public ingress and egress to and from the easement area for all purposes in connection with the rights granted by the State. See id. The GCNA was required by the State, pursuant to terms of the Non-Exclusive Ladder Easement, to procure and maintain, at its own cost and expense, commercial general liability insurance, or its equivalent, in an amount of at least $300,000 for each occurrence and $500,000, aggregate, with an insurance company or companies licensed to do business in the State of Hawaii. See Exhibits J-I6 and J-21. The insurance policy or policies must name the State and Diamond Head Ambassador Hotel, Ltd., as an additional named insureds. See id. The GCNA procured commercial general liability insurance regarding the Seawalls with John H. Connors Insurance. The State, per the terms of the Non-Exclusive Ladder Easement, has renewed this ¡nsurance effective July 30, 2003,and has renewed this insurance every year since 2003. See Exhibit J-21. This is a direct acknowledgment of its responsibility by the State. In a June 30,2002, memorandum with the subject, "Line Waikiki Sea Ladder at2957, Kalakaua Avenue, Honolulu, Hawaii," Sam Lemmo, Senior Staff Planner for the DLNR, Land. Division, stated that "it is my understanding that the subject ladder was part of a public access thoroughfare through the Diamond Head Beach area, which was partially improved by the State (top of seawall) and by adjacent landowners (ladder)." See Exhibit J-15. The States clear stance on the sea ladder, its acknowledgement of the publics right-of-way over the Seawall, and the requirement that the GCNA purchase an easement from the State admits clear ownership, or at least full control, over a portion of the Seawall. I. Lesislative Action- On June 1,2006,the legislature enacted the Supplemental Appropriations Act of 2006, in: which the State set aside $2 million. as requested by the DLNR, for improvements to the Diamond Head Seawall. See Relevant Portions of Hse. Bilt No. 1900 and its status 2t6t7 1.1 l3
  20. 20. information, Exhibits J-18 and J-23 , and Exhibit J-17 (State Representative ScottNishimoto mentions at a Waikiki Board meeting on May 2006, that the State appropriated$2 million for improvements to the Waikiki seawall on the Gold Coast). The State intendedto use the funds to resurface the Diamond Head Seawall and add railings. See Exhibit J-23 at393. Although the State appropriated this money to repair and rehabilitate the Seawall, the fundswere never released for actual use and the State made no improvements to the Seawall in 2006 or2007. Considering the poor condition of the Seawall, its need for repair, and the States currentunwillingness to release appropriated funds to maintain the Seawall in a condition safe for travel,GCNA, as owners of property adjacent to the Seawall, filed its complaint for declaratory reliefon June 22,2007.III. DISCUSSION GCNA asks that this Court grant judgment in its favor and rule that the State be deemedresponsible for the maintenance and upkeep of the Seawall. The State has previously admitted tothis duty and for decades has undertaken that duty. This duty is mandated by a series of majorlegal decisions which hold that the Seawall is a public highway, is in strict accordance with HRSChapter 264 and our constitution. At a minimum, the State has a prescriptive easement over theSeawall and this too mandates its duty to maintain the Seawall. A. The State Has Repeatedly Admitted lts Dutv to Keep the Seawall in Good and Safe Condition for Travel. Public policy favors "extending to public use and ownership as much of Harvaiisshoreline as is reasonably possible." Diamond Head v. State of Haw.. Bd. of Land & NaturalRes., ll2Hawaii161,174,745P.3d704,717(2006} UpuntilthelastadministrationhereinHawaii, that public policy favoring shoreline access was reflected in the way that the State 14
  21. 21. maintained and rehabilitated the Seawall. As explained above, the State has repaired ordiscussed repairing the Seawall on numerous occasions. Moreover, the State has repeatedlystated that the Seawall is a public thoroughfare over which it has a duty to maintain. The DLNR released a letter in 1975 referring to the Seawall as "a public right of way."See Exhibit J-2 at 1. The DAG in 1982 stated that State cases "clearly establish[] the Statesliability for personal injury damages where the State controls (even if it does not own) aneasement like the Waikiki seawall." See Exhibit J-4 at I (emphasis added). The DLNRexpanded on the use of the Seawall that same year when it explained why it was rehabilitating aportion of the Seawall: "[t]he purpose of this project is to render the existing seawall safe forpublic passaqe." b Exhibit J-5 (emphasis added). The DLNR went on to note that theSeawall is used "as a public walkway for residents and beachgoers" and that "[r]esidents, surfers,beachgoers and fishermen use the top of the seawall to traverse between the Diamond Head endof Waikiki Beach and San Souci Beach." See id. (emphasis added). In 1992, when the DLNRwas once again rehabilitating the Seawall, it explained that repair was necessary "for the safepassage over existing seawalls." þ Exhibit J-I3. The 1992 Notice of Determination releasedby the DLNR pertaining to planned Seawall rehabilitation stated: "[t]he State of Hawaii has aright-of-way over all the seawalls and walkways and is responsible to keep them in good andsafe condition. The walkways are used by the public." (underlineation added) See Exhibit J-8at 7. These clear, admissions of unqualified duty, control and public access should resolve theState s responsibilities here. In addition to the States past public admissions of responsibility, the State implicitlyaccepted the responsibility of maintaining the Seawall by repairing it several times andappropriating funds for its improvement. See Exhibits J-5, J-6, J-I3 and J-25 (describing the2t6t7 | .1 t5
  22. 22. emergency repâir work done to portions of the Seawall in 1981 to 1983); Exhibits J-8, J-9and J-13 (describing repair work done on portions on the Seawall |n 1992 and 1993); andExhibits J-17, J-18 and J-23 at 393 (showing the appropriation by the State Legislature of$2 million to repair the Seawall). Pursuant to the 2006 appropriation, the Seawall was to beresurfaced and handrails added-another clear acknowledgement that the intended use of theSeawall is for public access. See Exhibit J-23 at 393. These types of improvements indicate aclear intent by the State to make the wall safer for travel, as handrails would not be necessary ifthe State did not believe that the public uses the Seawall on a regular basis. As will be explainedbelow, current case law and statutory authority supports the GCNAs position that the State hascontrol over the Seawall and is responsible for its safety and maintenance. B. The Seawall is a State Public Hishwav and the State is Responsible for its Maintenance. State statute along with both state and federal case law provide that private partiessurrender a seawall to the State as a "public highway" when the following conditions are met: (1)the seawall was originally built by private parties, (2) the private parties, as historic owners ofthe seawall, have exercised no act of ownership over the seawall in five years, and (3) the Stateholds some form of easement (including a right of way) over the seawall. These three conditionsare met here. The Seawall, originally built over 80 years ago by private parties. The privateparty adjacent to the Seawall have not exercised ownership over the Seawall for many years.Instead, the Seawall, has been controlled by the State and used as a public thoroughfare for atleast 55 years, and likely much longer. Hawaiis legislature has long decreed that publicthoroughfares are the States responsibility. The following cases, Levy v. Kimball , 50 Haw. 497 ,443 P.2d 142 (1968) and Jones v. Halekulani Hotel. Inc. , 557 F.2d 1308 (9th Cir. 1977), analyzeand explain Hawaii Revised Statute ("HRS") Section 264-1, which provides the basis for the l6
  23. 23. States responsibility, (as opposed to a private landowners responsibility) to maintain theSeawall. l. Review of the Relevant State and Federal Case Law. a. Levy v. Kimball The primary Hawaii state case to examine a seawall as a public thoroughfare is Levy v.Kimball, supra. Levy provides two important points of precedent: (1) that a seawall may besurrendered in ownership to the State for use as a public highway under HRS Section264-l(c),and (2) that the State has a responsibility to maintain "public highways," including seawalls, in acondition safe for travel. Whether a paficular seawall meets the conditions of HRS Section 264-l(c) such that its ownership is surrendered to the State depends on whether its historic privateowners exerted any control or acts of ownership over the seawall within the past ñve years. Asis explained below, Levy involves a seawall very similar to the Seawall in this case. Levysdisposition clearly indicates that the State cannot abandon its responsibility for lands that it alonecan control. Levy involved a seawall along the Waikiki coastline adjacent to several hotels.a A visitorto the islands fell ofTthe seawall, portions of which were badly deteriorated, and sued the Statefor negligence. Levy, 50 Haw. at 497-98, 443 P.2d at 143. The State had previously acquired anexpress easement over the seawall for the purpose of providing a path for public travel. Id at498,443 P.2d at 144. The Coun explained that an owner of an easement has the right and duty to keep the landin repair, and that the owner of the easement is liable for any damages caused by the lack ofproper repairs. Levy, 50 Haw. at 498, 443 P.2d af 144. Most important, the Court held that "it is o This seawall is not the Diamond Head Seawall.2t6t7 t.4 t7
  24. 24. the control and not the ownership which determines liability." Levy, 50 Haw. at 499,443 P.2d at144 (quoting In re Taxes Victoria Ward, 33 Haw. 235 (1934)). The Court found that since theState controlled the seawall, that it had the duty to maintain the whole wall. Id. The Court held that the State not only owned an express easement over the seawall, butthat the seawall had. in fact. been surrendered to the State for public use. Therefore. the Seawallwas a public highway. Levy, 50 Haw. at 499, 443 P.2d at 144- Ownership of the seawalltransferred to the State.s For this proposition, the Court cited Revised Laws of Hawaii 1955("RLH") Section 142-l-what is now HRS Section264-l (2006). Id. Section 264-l(c) hasremained largely unchanged from RLH Section 142-1, and provides in part that: Allroads, alleys, streets, ways, lanes, trails, bikeways, and bridges in the State, opened, laid out, or built by private parties and dedicated or surrendered to the public use, are declared to be public highways or public trails as follows: (2) Surrender of public highways or trails shall be deemed to have taken place if no act of ownership by the owner of the road, alley, street, bikeway, way, Iane, trail, or bridge has been exercised for five years.HRS $ 264-l (c). The Court in Levy held that, "[a]lthough a seawall is not expressly mentionedin the above enumeration, it can be fairly implied that a seawall such as that which is in questionhere which is used as a public thorouqhfare is included in the term public highway." Levy, 50Haw. at 499,443 P.2d at 144 (emphasis added). Because the seawall was a public highway opento the public for travel, the State had a "duty to maintain Lthe] highway in a condition safe for s The seawall in Levy was surrendered to the State, meaning that, even without a formaltransfer of ownership, the State now owned the seawall. The history of HRS section 264-l(c)confirms that a "surrender" of a thoroughfare to the State does indeed confer upon the State fullcontrol and ownership of the highway. The Supreme Court of Hawaii has clarified that "Hawaiiis one of the few jurisdictions which have provided, at one time or another, for vesting the fee ofa highway or road laid out by a private party and abandoned to the public in the centralgovernment." Application of Kelley, 50 Haw. 567 , 579, 445 P.2d 538, 546 (1968) (emphasisadded). Hence, Levvs holding vests ownership of the seawall to the State, regardless of anydedication or formal transfer of ownership.?16t7 | .4 r8
  25. 25. travel." Levy, 50 Haw. at499,443P.2dat144 (quoting Restatement (Second) of Torts $ 349,cmt. b (1965) (emphasis added). HRS Section264-1(c) requires that, in order for a public thoroughfare to be surrenderedto the State, (l) it must have been originally built by private parties, and (2) the historic privateowners must not have exercised any act of ownership over the thoroughfare for five years.Expanding on Levy, In re Banning, 73 Haw. 297 , 832 P .2d 724 ( 1968), added, in dicta, a thirdrequirement to HRS Section 264-l(clthat before a public thoroughfare may be surrendered tothe State, the State must have previously held an easement over the thoroughfare. Id. at3l2, B32P.2d at 732. As will be explained, infra, the Seawall in this case meets all three requirements.Therefore, the State is the entity responsible for the maintenance of the Seawall. b. Jones v. Halekulani Hotel, Inc. There exist two distinctions between Levy and the instant case: (l) here, the State doesnot hold an express easement over the Seawall, and (2) in Levy, the State admitted it controlledthe seawall. Neither of these distinctions is significant, however, given the holding in Jones v.Halekulani Hotel. Inc., supra. Here, the State holds a prescriptive easement over the Seawall.The Jones court abolished any notion that the type of easement---€xpress or prescriptive-makesany difference in the application of Levy Holdings. Second,4!çg also stands for the propositionthat the States control over the Seawall may be established by the publics consistent, Iengthyuse of it as a public thoroughfare. Like Lev-v, Jones involved a seawall along the Waikiki coastline.6 A visitor to theislands, a minor, dove from a seawall on Halekulani Hotel property into shallow ocean water andfractured his neck. Jones, 557 F.2d at 1309. He sued the Halekulani, asserting that the hotel had u Th. Jones seawall is not the Levy seawall or the seawall in this case.2t6t71.4 r9
  26. 26. breached its duty to warn users of the seawall of the shallowness of the water, or otherwiseprotect users of the walkway from dangers incident to use. Id. The Halekulani argued (l) that the State had acquired an easement by prescription overthe top of the seawall and had the sole duty to maintain it, and (2) that the provisions of HRSchapter 5207 precluded liability on the part of the hotel. Jones, 557 F.2d at 1309-10. The NinthCircuit chose not to address the second issue but, instead, explained that the Halekulani owned aprescriptive easement over the seawall because: (1) The seawall had been used as a walkway from l9l7 to 1972. (2) The Halekulanis owners never attempted to interfere with pedestrian traff,rc. (3) The Halekulani "assumed that the public had a right to use the wall as a public walkway."Id. at l3 10. The court held that "[u]se which is constant. unintemrpted and peaceful is sufficientto create an easement by prescription." Id. (emphasis added). Because of the publics extensiveuse of the seawall as a thoroughfare, the Halekulani had no control over the seawall andtherefore had no duty with respect to the protection of its users. Id. Not only did the Ninth Circuit hold that the State held a prescriptive easement over theseawall, the court recognized that the Supreme Court of Hawaii characferized this type ofseawall easement as a "public highway" under HRS Section 264-1. Jones, 557 F.2d at l3l I(citing Levy, supra). Given that the Halekulani had abandoned control over the seawall, and thatthe public had been using the seawall as a walkway for over 50 years, the Court found that theHalekulani no longer had a right to control the seawall. Jones, 557 F .2d at l3l I . In accordance HRS Chapter 520 "was enacted to encourage land owners to make their land availableto the public for recreational purposes by limiting their liability toward persons entering the landfor such purposes." Jones, 557 F .2d at l3 10 n.l . Under chapter 520, no person or entity mayacquire an easement over land which a landowner opens for recreational public use through thispublic use. HRS ç 520-7 . Chapter 520 was enacted in 1969, at least l7 years after the publicstarted to use the Diãmond Head Seawall as a thoroughfare. See Anderson Decl. !f 4.2t617 | .4 20
  27. 27. with the holdings in Jones and Levy, a seawall used by the public as a thoroughfare, either by means of an express or prescriptive easement, is surrendered to the State as a public highway where the historic owners exercised no act of ownership over the seawall for at least frve vears. The Seawall in this case clearly meets this description. 2. The statutory and case law explained above provides three requirements before a seawall is surrendered to the State as a public highway: (l) that the seawall was built by private parties (2) that no private parties have exercised any act of ownership over the seawall for at least five years and (3) that the State previously held an easement over the seawall. The Seawall meets allthree requirements. a. Private Parties Built the Seawall. The State acknowledges that the govemment did not originally build the Seawall. SeeSOF T 22 (the various portions of the Seawalls relevant to this matter were constructed byunknown private parties at least 80 to 100 years ago). b. The Private Parties who Built the seawall, and rheir Successors, Have committed No Act of ownership over the Seawall for Several Decades. June Anderson has lived in her home along the Gold Coast for over 37 years, and hasused the Seawall as a pathway for over 55 years. See Anderson DecI. 4. Throughout this T13,entire period, Ms. Anderson has observed the public using the Seawall as a walkway andthoroughfare, as well as for access to the water for fishing, surfing and swimming. See id. ff 3,41517. To the best of Ms. Andersons knowledge, no owner of property along the Seawall hasever attempted to block access to the wall or exen any other similar acts of control or ownershipover the Seawall during that time- See id. fl 6. Indeed, the private property owners along theGold Coast have no control over the Seawall. If they were to attempt to complete minor repairs216t7 t.4 ,ìt zl
  28. 28. over portions of the Seawall, it would only be because the State has refused to undertake such repairs, and the conditions were so dangerous on the Seawall as to put the public in danger. The State has admitted that it has a "right-of-way" over the Seawall and has appropriated funds for improvements to the Seawall to make it safer for travel. Not only has it appropriated funds for improvements, the DLNR has repaired and rehabilitated the Seawall multiple times in the past. The public, which extensively uses the Seawall as a walkway, often to parts of the ocean and beach that cannot be accessed otherwise, obviously regards the Seawall as a public thoroughfare with no restriction on its use. In the past, the State has explicitly exerted control over the Seawall, through its use andits repair, and inexplicably abandoned during the last administrated the Seawall when repair isdesperately needed. Although the State is aware that the Seawall is used consistently by thepublic, it is foisting the responsibility of the publics safety on private landowners who do notcontrol, nor have the right to control, the Seawall. It is clear, based on the publics use for atleast 55 years and the States control over the Seawall that any responsibility over the Seawallnow rests with the State. c. The State Holds an Easement by prescription over the Diamond Head Seawall. The Seawall has been used by the public for at least 55 years, if not more. Like theHalekulani Hotel in Jones, the members of the GCNA understood that, because of the publicsuse of the Seawall for so many decades, they have no right to control it. Indeed, the State hastaken over that responsibility by repairing the Seawall and appropriating funds for furtherrehabilitation. The public has deemed the Seawall a public thoroughfare by using it consistently.The publics "constant, uninterrupted and peaceful" use for at least 55 years is sufficient to createan easement by prescription in the state. See Jones, 557 F.zd at 1310.2t6t7 | .4 22
  29. 29. Once an easement is established giving the public the right to use the privately-built Seawall as a public thoroughfare, and the historic owners of the Seawall fail to exert ownership over it for at least five years, HRS Section264-l(c) dictates that ownership of the Seawall transfer from historic owners and to the State. Indeed, this mandatory transfer of ownership took place decades ago. The Seawall is a "public highway." The State is responsible for the maintenance of the Seawall. C. Alterna tmu Ho Even if the Seawall was not formally surrendered or dedicated to the State as a publichighway under HRS Section264-l(c), the State still holds a prescriptive easement over theSeawall. The publics "constant, unintemrpted and peaceful" use of the Diamond Head Seawallis sufficient to create an easement by prescription. Jones, 557 F.2d at 1310. According to Levy,"[i]t is a well established rule that an owner of an easement has the right and the duty to keep itin repair." 50 Haw. af 498, 443 P.2d at 144. Additionally, "[t]he owner of the easement is liablein damages for injuries caused by failure to keep the easement in repair." Id. Further, ,.it is thecontrol and not the ownership which determines the liability." Id. at 499, 443 p.2d at 144. The State has exerted control over the Seawall for many years, repairing andrehabilitating it and appropriating funds for its improvement. The publics use of the Seawallhas been constant, unintemrpted, and peaceful for at least 55 years. Even if the ownership of theSeawall does not vest in the State, the State has, by its own admission, a "right-of-wây,,, which,when combined with the publics long use of the Seawall, equates to a prescriptive easement. Tohold otherwise would confound logic. The State, by now disclaiming any interest in the Seawall, is essentially taking either oneof two positions: (l) that the Seawall may, and indeed should, be cut off to public use entirely,2t6t7t.4 ¿)
  30. 30. completely undermining the constant accessibility the public has enjoyed for several decades, or (2) that members of the GCNA should be responsible for all maintenance of the Seawall, liable for all accidents that occur thereon, yet completely incapable of exerting control over who uses the Seawall, how they use it, and when they use it. Both positions show a complete disregard for public access rights and general principles of liability. Public use of the Seawall, as with other seawalls along the Waikiki coast, has become both a tradition-an accepted means of travel from one part of the ocean and beach to another-as well as an engrained legal right. The Statesconfounding position in this matter ignores these practical realities.IV. REBUTTAL OF THE STATES DEFENSES The State has asserted two reasons why it should not be found responsible for theSeawall: (a) no public access to the Seawall; and (b) no responsibility for portions of theSeawall adjacent to land registered in Land Court. Both ignore the facts, the statute and thecaselaw. A. There is no Public Access to the Seawall The State claims that there is no real public access to the Seawall and, hence, the Seawallcannot be a public thoroughfare. This is in bold denial of the publics extensive use over severaldecades. To support its position, the State points to a "hole" in the continuity of the publiceasements over the path that the public generally uses to access the Seawall. The property at3037 Kalakaua Avenue, TMK No. 3-l-033:006, includes a narrow stretch of dirt road that leadsfrom Kalakaua Avenue to the ocean, with access to the Seawall. See Exhibit J-19 at I l. Thisproperty was registered in Land Court pursuant to Land Court Application No. 1243 of Bishopfrust, Ltd. See id. As indicated on the LCD No. 2384206 and T.C.T. No. 492637, there is an"[Easement] of [right of way] to the sea in favor of the owners of lots in the Diamond HeadTerrace Tract across Lots A and C" and an "[Easement] of [right of way] in favor of the general216t7 | .4 24
  31. 31. public across Lot C." See id; J-244. Lot A and C are the two sections of the narïow dirt roadaccess to the ocean, on the Ewa side of TMK No. 3-l-033:006. Lot A is the section closest toKalakaua Avenue, and Lot C sits between Lot A and the ocean. See id. Essentially, Lot C is apublic access to the ocean and the Seawall that, if read literally would mean that no member ofthe public could access because Lot A only contains an easement for owners of lots in theDiamond Head Terrace Tract. This landlocked public easement contravenes the purpose of HRS Chapter I15, whichwas enacted specifically to combat a lack of public right-of-way to the shoreline and ocean inHawaii. HRS Section I l5-l states as follows: The legislature finds that miles of shorelines, waters, and inland recreational areas under the jurisdiction of the State are inaccessible to the public due to the absence of public rights-of-way; that the absence of public rights-of-way is a contributing factor to mounting acts of hostility against private shoreline properties and properties bordering inland recreational areas; that the population of the islands is increasing while the presently accessible beach, shoreline, and inland recreational areas remain f,rxed; and that the absence of public access to Hawaiis shorelines and inland recreational areas constitutes an infringement upon the fundamental right of free movement in public space and access to and use of coastal and inland recreational areas. The purpose of this chapter is to guarantee the riqht of public access to the sea. shorelines. and inland recreational areas. and transit along the shorelines, and to provide for the acquisition of land for the purchase and maintenance of public rights-of-way and public transit corridors.(Emphasis added). Obviously, the grant of a public easement through Lot C was meant toprovide the public with access to the shoreline. The fact that Lot A, which provides access toLot C from Kalakaua Avenue, technically has no public easement should not prevent shorelineaccess. The illogical results of bureaucracy on the encumbrances of land sales and modificationsshould not prevent the people of Hawaii from basic access to its shores. The pubtic has beenusing both Lot A and Lot C as an access way to the ocean and the Seawall for several decades.For the State to take a position that Lot C is now a useless public easement, and that access to the2t6171.4 25
  32. 32. shoreline and along the shoreline by means of the Seawall is now trespassinq, is against thepublic policy set forth in Chapter I 15. B. The State is not Responsible for the Seawall Adiacent to Properties Registered in Land Court The States second assertion is that the registration of properties adjacent to the Seawallin Land Court obviates its obligations. Specifically, the Land Coun properties relevant to thiscase are TMK Nos. 3-l-032:030 (Tropic Seas, Inc.), :029 (Diamond Head Beach Hotel), :028(the first of three lots of Diamond Head Ambassador Hotel), and:027 (the second of three lots ofDiamond Head Ambassador Hotel). See Exhibit J-19 at 2. None of the Land Court applicationsfor these properties contain an explicit right-of-way for the public and, thus, the State contendsthat it is not responsible for the maintenance of those areas of the Seawall. This position ignoresthe plain language of the statute and the holdings in Levy and Jones. The stipulated survey map in this case shows that portions of the Seawall fronting theLand Court properties are outside private property. See Exhibit J-24. This means that this landis State property. Indeed, the "shoreline," where private property ends and State property begins,often includes a portion of the top of the Seawall, on both Land Court and regular registeredproperties. See id. This presents a curious conundrum-what if both the State and privateproperty owners own parts of the top of walkway on Land Court property that is used extensivelyby the public? The GCNA does not dispute that properties registered in Land Coun cannotinclude encumbrances not explicitly stated, but in this case the State controls (via actualownership, according to the survey map) the portion of the Seawall that is most likely to causeunderlying structural damage. Specif,rcally, the State owns portions of the top of the Seawalladjacent to Land Court property and it owns the submerged portions of the Seawall. Since wave2t6t7t 4 26
  33. 33. action causes underlying structural damage, it is illogical to require private land owners to beresponsible for the liability and maintenance of the Seawall fronting their properties. Second, there exists an unfortunate conflict between the policies regarding Land Courtproperty and the States policy favoring ocean access. The Seawall represents a pathway alongthe shoreline and the fact that portions of the Seawall may fall within Land Court propertycreates unjustified "holes" in public access. HRS Chapter I 15, supra, was created so that theseholes would not exist-so that the public would have the right to access public beaches. TheSeawall, logically, is the classic example of an easement by ancient or historic use. Denyingaccess to the public now would be unfair, and would be against the States long-lasting policythat the people of Hawaii deserve reasonable access to all of the States beaches. C. Hawaiis Constitution Mandates Public Access GCNAs position here is also in direct accord with Hawaiis constitution and over ahundred years of Hawaii caselaw. The public trust doctrine and Hawaii Supreme Courtsreliance on ancient Hawaiian custom have established the publics right to access beaches. Bothare discussed in turn. l. Public Trust Doctrine Section XI of the Hawaii constitution provides as follows: For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaiis natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self- suffrciency of the State. All public natural resources are held in trust by the State for the benefit of the people.2t617 | .4 27
  34. 34. It should be noted that Hawaii adopted the "public trust" doctrine with respect to our shorelinesand submerged lands over a hundred years ago and the doctrine has been repeatedly affirmed inseveral landmark cases over the years. In King v. Oahu Railway & Land Co., I I Haw. 717 (Haw. Terr. 1899), the SupremeCourt for the Territory of Hawaii held that: "The people of Hawaii hold absolute rights to all itsnavigable waters and the soils under them for their own common use. . . . The lands under thenavigable waters in and around the territory of the Hawaiian Government are held in trust for thepublic uses of navigation." Id. at725 (citing Martin v. Waddell,4l U.S. 367 (1842) andadopting the reasoning of the United States Supreme Court in Illinois Central R.R. v. Illinois,146 U,S. 387 (1892)). In Application of Ashford,50 Haw. 314,440P.2d76 (1968), the Hawaii Supreme Courfurther clarified that the boundary between private property and the public beach along thecoastline was "the upper reaches of the wash of waves, usually evidenced by the edge ofvegetation or by the line of debris left by the wash of waves." Id. at 315, 440 P.2d at 77 .Roughly five years later, the Court expanded the "public trust" doctrine to include tidelands,when it held that "[]and below the high water mark. like flowing water, is a natural resourceowned by the state subject to, but in some sense in trust for, the enjoyment of certain publicrights." County of Hawaii v. Sotomura,55 Haw. 176,183-84, 517 P.2d57,63 (1973) (quotingBishop v. Mahiko, 35 Haw. 608,641(Haw. Terr. 1940)).8 Importantly, the Court noted that"[p]ublic policy, as interpreted by this court, favors extending to public use and ownership asmuch of Hawaiis shoreline as is reasonably possible." Id. at 182,517 P.2d at 6l; see also In re I More recently, the Hawaii Supreme Court reaffirmed the decision of Ashford andSotomura, see Diamond v. State , ll2 Hawaii I6l, 145 P.3d 704 (2006), ultimately unifying thedefinition of "shoreline" of the state statutes, common law, and administrative rules.2t617 | .4 28
  35. 35. waiola o Molokai. Inc., 103 Hawaii 401, 432,83 p.3d664,695 (2004) (..any balancing between public and private purposes [shall] begin with a presumption in favor of public use, access, and enjoyment."). In fact, the Court boldly stated that "the state bears an affirmative [] duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible." Waiola O Molokai, 103 Hawai,i at 430. g3 p.3d at 693. Further, the Hawaii Supreme Court has held that access by the public to these beaches are also of utmost importance: "The ability to get to a recreation area is as vital for enjoying it as having it in its natural condition." Akau v. Olohana Com.,65 Haw. 383,390, 652p.2d I130, I 135 (1982) In support, the Hawaii State Legislature has enacted legislation in favor of public beach access, effectuating the publics ability to use Hawaiis shorelines. HRS Ch. I l5 provides for public rights of way to access the shoreline and specif,rcally provides in HRS Section ll5 - 4as follows: The right of access to Hawaiis shorelines includes that right of transit along the shorelines.HRS $ 11s-4 (2009). 2. Ancient Hawaiian Custom Similarly, Hawaii courts reliance on ancient Hawaiian custom and usage to securepublic beach access also supports GCNAs position. In re Ashford is the genesis of a line ofcases that secures public beach access through the use of ancient Hawaiian custom and usage. InAshford, the Hawaii Supreme Court recognized that the land laws of Hawaii are unique in that"they are based on ancient tradition. custom, practice and usage." Id., 50 Haw. at 315,440 p.Zdat 77 . In so recognizing, the Court utilized the longstanding kamaaina witness rule, based on21617 | .1 29
  36. 36. necessity, which permits the admission of reputable evidence of kamaaina witnesses in landdisputes. Id. 50 Haw. at 315-17, 440 P.2d at 77-78. The Hawaii Supreme Court further relied upon kamaaina testimony in State v. Zimring,52Haw.472,479 P.2d202 (1970). In Zimring, the Court considered a claim of ownershipbrought by the State that of seaward accretions to beach front property caused by volcaniceruptions. Id. The Court admitted kamaaina testimony, based on personal knowledge andknowledge passed down by the witness parents and grandparents, regarding the Hawaiianpractice of granting ownership of new land to the abutting owner. Id. at 47 5, 479 P .2d at 204. The foregoing line of cases culminated in the Courts reliance on ancient Hawaiiancustom and common law custom in McBryde Sugar Co. v. Robinson, 54 Haw. 174, 504 P.Zd1330 (l 973) that "the right to water was not intended to be, could not be, and was not transferredto the awardee, and the ownership of water in natural watercourses, streams and rivers remain[ ]in the people of Hawaii for the common good." Id. at 186-87, 504P.2d,1339. The courtrecognized the publics right to running water, asserting that no private owner could acquire theadverse right to "surplus" water from the state. Id. at I 85-87, 504 P.2d at 1338-39. Scholars have commented that the McBryde Courts reliance on documents from the1840s, "Principle Adopted by the Land Commission" and "the Enactment of Further Principles"in 1850 is important to public beach access. Michael Anthony Town & William Wai Lim yuen,Public Access to Beach in Hawaii: "A Social Necessit)¡?, l0 Haw.8.J.3, l5 (1973). Utilizingthese documents, the Court established "that beach access, if it existed as a customary right, is apublic right and, like the water right, is held by the state for the public." Michael D. Tom, Note,Flawaiian Beach Access: A Customarv Right, 26 Hastings L.J. 823, 839 (1975). The botomline is that the foregoing principles of the public trust doctrine and ancient Hawaiian custom2t6t7 | .4 30
  37. 37. dictate that the State is responsible for maintaining the Seawall. For the State to now ignore thisduty would fly at the face of well-established case law and statutes.V. CONCLUSION GCNA submits that, as shown herein, the State has been and should continue to beresponsible for the Seawall. GCNA therefore respectfully request that this Court affirm thatduty. l,fAR 17 2011 Dated, Honolulu. Hawaii ROBERT G. K RANDALL K. SCHM JORDON J. KIMURA Attorneys for Plaintiff (Civil No. 07-1-l 122-06) GOLD COAST NEIGHBORHOOD ASSOCIATION and Defendants (Civil No. l0-l-0888-04) TROPIC SEAS, TNC.; THE ASSOCIATION OF APARTMENT OWNERS OF DIAMOND HEAD BEACH HOTEL, INC.; DIAMOND HEAD APARTMENTS, LTD.; C S APARTMENTS, LTD.; THE ASSOCIATION OF APARTMENT OWNERS OF 2987 KALAKAUA CONDOMINIUM ; TAHITIENNE, INCORPORATED; THE ASSOCIATION OF APARTMENT OWNERS OF 3003 KALAKAUA, INC.; THE ASSOCIATION OF APARTMENT OWNERS OF 3OI9 KALAKAUA. INC.2t617 | .4 3l
  38. 38. IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAIIGOLD COAST NEIGHBORHOOD cryrl- No. 07-l -1122-06 (vLC)ASSOCIATION, (Declaratory Judgment) Plaintiff. CERTIFICATE OF SERVICE vs.STATE OF HAWAII; DOEGOVERNMENTAL ENTITIES l-10; DOEGOVERNMENTAL AGENCIES 1-I O. Defendants.STATE OF HAWAII BY ITS ATTORNEY clvll. No. l0-1-0888-04 (VLC)GENERAL. (Declaratory Judgment) Plaintiff,, VS. )TROPIC SEAS, INC.; THE ASSOCIATION OF )APARTMENT OWNERS OF DIAMOND )HEAD BEACH, INC.; OLIVIA CHEN LUM, )trustee of the Olivia Chen Lum Revocable Living)Trust; CLARENCE KWON HOU LUM, trustee )of the Clarence Kwon Hou Lum Trust and trustee)under the Will and Estate of Chow Sin KumLum; JEANNE S. J. CHAN and IIOWARD N.H. CHAN, trustees of the Jeanne S. J. ChanTrust; DIAMOND HEAD AMBASSADORHOTEL, LTD.; DIAMOND HEADAPARTMENTS, LTD.; C S APARTMENTS, )LTD.; THE ASSOCIATION OF APARTMENT )owNERS OF 2987 KALAKAUA )CONDOMINIUM; TAHITIENNE, - )INCORPORATED; THE ASSOCIATION OF )216t7 | .1
  39. 39. APARTMENT OWNERS OF 3003 )KALAKAUA, INC.; THE ASSOCIATION OF )APARTMENT OWNERS OF 3019 )KALAKAUA,INC.; JOHN DOES l-20; DOE )CORPORATIONS I -20; DOE PARTNERSHIPS)l-20; DOE ASSOCIATIONS l-20, DOE )GOVERNMENTAL AGENCIES l-20; AND )DOE ENTITIES I -20. Defendants. Trial: March 2l,20ll Judge: The Honorable Virginia L. Crandall CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing document will be duly served upon thefollowing persons by hand-delivering (HD) or by mailing (M) said copy, postage prepaid, firstclass in a United States post office in Honolulu, Hawai.i, as indicated below, on , addressed as set forth below: DAVID M. LOUIE, ESQ. (HD) Attorney General of Hawaii V/ILLIAM J. WYNHOFF, ESQ. Deputy Attomey General Department of the Attomey General, State of Hawai,i 465 King Streer, Suite 300 Honolulu, Hawaii 968 I 3 Attorneys for Plaintiff STATE OF HAWAII LESTER K.M. LEU, ESQ. (HD) KARYN A. DOI, ESQ. Leu & Okuda The Merchant House 222Merchant Street, Main Floor Honolulu, Hawaii 9681 3 Attomeys for Defendants OLIVIA CHEN LUM, CLARENCE KWON HOU LUM, JEANNE S.J. CHAN and HOWARD N.H. CHAN2t6t7 | .4
  40. 40. STEPHEN K. C. MAU, ESQ. (HD)Rush Moore LLP737 Bishop Street, Suite 2400Honolulu, Hawaii 9681 3Attomey for DefendantDIAMOND HEAD AMBASSADOR HOTEL, LTD.DATED: Honolulu, Hawaii, }iAR 1 ? 20ll ROBERT G. KLEIN RANDALL K. SCH JORDON J. KIMURA Attorneys for Plaintiff (CivilNo. 07-1 -1122-06) GOLD COAST NEIGHBORHOOD ASSOCIATION and Defendants (Civil No. l0-l-0S88-04) TROPIC SEAS, INC.;THE ASSOCIATION OF APARTMENT OWNERS OF DIAMOND HEAD BEACH HOTEL, INC.; DIAMOND HEAD APARTMENTS, LTD.; C S APARTMENTS, LTD.; THE ASSOCIATION OF APARTMENT OWNERS OF 2987 KALAKAUA CONDOMINIUM ; TAHITIENNE, INCORPORATED; THE ASSOCIATION OF APARTMENT OWNERS OF 3OO3 KALAKAUA, INC.; THE ASSOCIATION OF APARTMENT OWNERS OF 3OI9 KALAKAUA. INC.

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