Public access to the shorelines legal aspects

[From the U.S. Government Printing Office, www.gpo.gov]

PUBLIC AG@,@CF-SS TO THE SHORELINE'
LEGAL ASPECTS.'.

COUTNTY OF I lAWAlt
MARCH t982

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1982

SHORELINE

PUBLIC ACCESS

PUBLIC ACCESS TO THE SHORELINE
LEGAL ASPECTS

Prepared for:
County of Hawaii
Planning Department
March 1982

Prepared by:

THE OFFICE OF THE CORPORATION COUNSEL
County of Hawaii

KIKUCHI
Graphics /Design /Typesetting

BIG ISLAND PRINTERS, INC.
Printing

"The preparation of the report was financed in part by
the Coastal Zone Management Act of 1972, as amended,
administered by the Office of Coastal Zone Management,
National Oceanic and Atmospheric Administration,
United States Department of Commerce.

Acknowledgements.....

The current phase involved research on legal considerations
and issues relating to the Implementation of such a program. This
report contains the findings of the research performed.

The Office of the Corporation Counsel, assisted by students
at the University of Hawaii Law School, conducted research of statutory
and case law relating to various aspects of public shoreline access,
from the nature of the right of public access to the potential liability on a
municipality in its implementation of public access program. The
research included a review of extra-jurisdictional law as well as Hawaii law.

A subsequent stage of the Public Shoreline Access Program
will consolidate the findings of this report with the data compiled in Phase I
and the standards and guidelines developed in Phase II in order to
develop the plan for implementation and the specific courses
of action to be taken. The final research component of the study
will continue throughout in order to update the present
findings, especially with regard to significant Hawaii cases on
appeal at the time of printing of this report.

US Dpartment of Commerce
NCAA Coastal service Conter Library
2234 South Hobson Avenue
Charleston, SC 29405-2413

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TABLE OF CONTENTS

CHAPTER Page CHAPTER Eage

ACKNOWLEDGEMENTS 3 4 TORT LIABILITY UNDER A
COUNTY BEACH ACCESS
PROGRAM IN HAWAII 44-53
INTRODUCTION 7-8

5 FEDERAL & STATE TAX
I STATE STATUTORY GUIDELINES 9-14 INCENTIVES FOR
DEDICATION OF PRIVATE
LANDS 54-58
2 THE JUDICIAL PROCESS:
NINE LEGAL THEORIES FOR
SAFEGUARDING PUBLIC CONCLUSION 59
SHORELINE ACCESS 15-27

CALIFORNIA COASTAL
3 MUNICIPAL LIABILITY ACCESS PROGRAM 60-67
IN FEDERAL COURT FOR
CONSTITUTIONAL
VIOLATIONS 28-43 MAHALO 69

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PublicAccess
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INTRODUCTION

In response to the intense pressures upon, and nities accessible to the public, and to assure that ade-
because of the importance of coastal area, the Federal quate public access is provided to beaches, recreation
Coastal Zone Management (CZM) Act was enacted by areas and natural reserves along the shoreline.
Congress in 1972. This act provided assistance and
encouragement to participating coastal states to develop Consequently, to assure that adequate public
and implement localized management programs for the access is provided in accordance with the legislative
protection and effective development of their coastal intent, the Planning Department, with the support
resources. of the Hawaii Coastal Zone Management, initiated a
public shoreline access program for the County in 1978.
The Hawaii Coastal Zone Management Program,
approved in 1978 by the Federal Office of Coastal Zone The first phase of this program which was completed
Management, provides the basis for the State and the in September of 1979, involved the inventorying of exist-
Counties to implement the overall intent of the national ing public accesses to and along the shoreline, an
act. One of the primary goals of the State and Federal inventory of the shoreline areas and nearshore waters
CZM Program is to provide coastal recreational opportu- of major recreational uses, and areas of major environ-

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INTRODUCTION Wont.)

ment aesthetic, and ecological importance. This inven- conducted research of statutory and case law relating
tory provides the baseline information in understanding to various aspects of public shoreline access, from the
current coastal conditions, accessibility, and resources. nature of the right of public access to the potential
liability of a municipality in its implementation of a
The second phase involved the development of guide- public access program. The research included a review
lines and standards for the identification of areas where of extra-jurisdictional law as well as Hawaii law.
additional public accesses are particularly necessary
and/or desirable and for the design of public access A subsequent stage of the Public Shoreline Access
systems. Program will consolidate the findings of this report with
the data complied in Phase I and the standards and
The current phase involved research on legal guidelines developed in Phase II in order to develop the
considerations and issues relating to the implementation plan for implementation and the specific courses of action
of such a program. This report contains the findings to be taken. The::final research component of the study
of the research performed. will continue throughout in order to update the present
findings, especially with regard to significant Hawaii
The Office of the Corporation Counsel, assisted by cases on appeal at the time of printing of this report.
students at the University of Hawaii Law School,

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CHAPTER I STATE STATUTORY GUIDELINES

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CHAPTER I STATE STATUTORY GUIDELINES

The Coastal Zone Management Act, enacted by This statute also provides that the counties assume
Congress in 1972, attempts to meet the need for protec- the cost of improvements to and maintenance of the
tive legislation which, in recent years, has arisen in rights-of-way upon dedication and county acceptance.
the face of increasing development and exploitation of
coastal areas. The Act provides for a partnership County responses to Sec. 46-6. 5 have been varied:
between federal and state governments by encouraging
states to develop comprehensive coastal zone management Kauai County-
programs. with federal funding support.
Subdivision Ordinance, Sec. 2.09 provides that
In 1977, the State of Hawaii legislature enacted the Planning Commission may require dedication of
the Hawaii Coastal Zone Management Act(Chapter 205A, adequate public accesswaysnot less than the minimum
Hawaii Revised Statutes), which mandated the creation width specified in the Comprehensive Zoning Ordi-
of a coastal zone management program. The State nance to publicly owned lands or water. In addition,
became eligible for federal funding upon approval of the Commission may require preservation of all
the program by the Secretary of Commerce in November, historic and arcH-aeological sites known to exist or
1978. Such funding is now in jeopardy. subsequently discovered in the parcel to be sub-
The State has enacted a number of laws which divided.
address the subject of public access to recreational Zoning Ordinance, Sec. 3.017D also states that
areas. Shoreline access legislation has generally been the Planning Commission may require dedication of
aimed at the protection of the public's right to the public access-ways at least six feet in width.
use and enjoyment of the beach through the authoriza-
tion of access acquisition. Following is a brief survey Both Kauai ordinances appear to be highly discre-
of relevant sections in Hawaii Revised Statutes (Herein- tionary in nature. Neither compels the Planning
after "HRS"). Commission to require subdivision exactments to shore-
line areas.
sec. 46-6.5,_. HRS. Dedication of rights-of -ways and
easements to counties by subdividers. Maui County

HRS 46-6. 5 was enacted in 1973, and mandates that Subdivision Ordinance, Sec. Il- 1. 9 (d) (3) (c)
each county adopt ordinances which require developers provides that where a subdivision fronts along a
and subdividers to dedicate rights-of-way or easements shoreline or other public use or recreational area,
for pedestrian travel for public access from public high- rights-of-way to those areas must be created at
ways and streets to beach and mountain recreation areas. intervals no greater than 1, 500 feet except as
County planning commission approval of development otherwise provided. Rights-of-way may also be
projects is conditioned upon fulfillment of this require- consolidated to provide sufficient area for vehicular
ment. access.

CHAPTER I STATE STATUTORY GUIDELINES Wont.)

(Note that the wording of Sec. 11- 1. 9 (d) (3) (c) 46-6. 5 to areas like West Hawaii where the nearest
presents an issue as to whether developments or sub- public highways and streets may be quite distant
divisions which do not front the shoreline or other from shoreline areas.
recreational areas are exempt from the requirement of
providing access through the development to the beac 'h. It should be noted, however, that several pub-
Note, also, that the Maui ordinance is broader than lic access-related provisions are contained in the
those of other counties since it allows for both vehicular County's General Plan which was adopted by Ordi-
and pedestiran traffic.) nance 439. For example, the County has stated that
the shoreline of Hawaii should be maintained for recre-,
Honolulu ation, educational, and scientific uses in a manner
designed to protect resources and maximize public
Subdivision Ordinance, Sec. 22-6.3 defines the benefit. (General'Plan at 24.) Similarly, one of the
scope of the ordinance and states that it applies not recommendations for effectuation of the Plan states
only to those parcels fronting the shore but to that the County shall adopt an on-going, program
parcels which lie in the path between recreational featuring identification, designation and acquisition
areas and public highways or streets as well. This of areas of recreational importance. Specifically,
sections also mandates that the City of Honolulu public access to the shoreline shall be provided in
assume the costs of improvements to and maintenance accordance with the program adopted. (General Plan
of the public access way. at 62-61

(Note that Kauai and Maui Counties require dedica- COMMENT
tion, but ignore the maintenance issue) .
The effectiveness of 46-6.5 is unclear. Subdivision
Subdivision Ordinance, Sec. 22-6.4 sets forth exaction is relatively inexpensive and poses a minimum
the requirements for the form and location of the of administrative problems, but a major disadvantage
rights-of-way. Location and alignment must be of exaction is that it applies only to those lands which
consistent with the intent and purpose of the article are to be developed. The statute could not be imple-
and must implement the intent and purpose of the mented in areas developed prior to enactment.
General Plan and Development Plan of the City..
Considerations such as topography and other exist-
ing access locations must also be evaluated. Sec. 115-1 et seq., _HR : Acquisition of Rights-of-Way
by Counties.
Hawaii County
Sec. 115-1 et seq. was enacted in 1974, in response
The County of Hawaii has promulated neither to the limitation's-o-f-S-ec. 46-6.5 HRS. Thus, this section
public access ordinance nor subdivision or zoning deals with the problem of access over privately owned
code sections which impose an access requirement. lands as yet undeveloped or developed before enactment
This silence may indicate the inapplicability of of Sec. 46-6.5.

CHAPTER I STATE STATUTORY GUIDELINES (cont.)

Sec. 115-2 provides for County acquisition of lands purposes of the chapter.
for public rights-of-way and public transit corridors
where the provision of Sec. 46-6. 5 are inapplicable. COMMENT

Sec. 115-3 establishes the maximum distance between Chapter 115's provision for a)cquisition by eminent
public rights-of-way as "reasonable intervals," taking domain is a major disadvantage. Condemnation proceed-
into consideration of the topography and physical ings necessarily involve the constitutional problem of
characteristics of the land. demonstrating that the taking is for a public purpose
and is accomplished by just compensation. It is
Sec. 115-4 mandates that the right of access to the questionable whether acquisition programs which already
shoreline includes the right of transit along the shore- suffer from inadequate funding can successfully absorb
line, so long as public safety is maintained. costly just compensation expenditures and the adminis-
trative and legal fees attendant upon condemnation
Sec. 115-5 provides that the right of transit exists litigation.
along the shoreline below the private property line;
the private property line being the line along the upper In 1975, the legislature appropriated $1,000,000 to
reaches of the wash of the waves, as evidenced by the be used to match county funds for the acquisition of
Vegetation or debris lines left by the wash of the waves. lands for public rights-of-ways and transit corridors
In areas where the topography of the land makes public (Act 195). However, the legislation provided that the
transit along the shore unsafe, the counties shall counties were to be the initiating bodies, with the
establish, by condemnation, public transit corridors responsibility of requesting grants from the DLNR. To
along the makai boundaries of the property lines. date, county response has been poor.

Sec. 115-6 adopts the provisions of Chapter 101,
which prescribes procedures for acquisition by eminent
domain. Sec. 171-26, HRS: Rights-of-Way to the Sea and Game
Sec. 115-7 outlines State and County co-sponsorshi p Preserves
of programs. The Department of Land and Natural Sec. 171-26 provides that, before making disposition
Resources (DLNR) shall enter into acquisition agree- of any public lands, the Board of Land and Natural
ments with the council of any county provided that the Resources must lay out and establish over such lands
county matches those funds appropriated by the State a reasonable number of rights-of-way.
legislature. Development and maintenance of rights-
of-way and public transit corridors are the responsi- The definition of "public lands" for the purposes
bility of the various counties. of this statute includes all lands or interests in land
classed as government or crown lands prior to
Sec. 115-8 provides that the DLNR shall be the August 15, 1895, or acquired or reserved after 1895 by
expending agency of all sums appropriated for the purchase, exchange, escheat or eminent domain.

CHAPTER I STATE STATUTORY GUIDELINES (cont.)

(Secs. 171-50 and 171-2, HRS) . Sec. 520-4, HRS: Liability of owner limited.

This statute does not apply to lands which were This section furthers the legislative intent to
leased or sold to private parties before the effective encourage private landowners to make their land and
date of the statute. Moreover, the definition of ""Public water areas available to the public for recreational
lands" operates to exclude those lands set aside by law purposes. It provides that a. landowner who allows
for federal control (Sec. 171- 2 (2) , HRS) , lands affected any person to use property for recreational purposes
by the Hawaiian Homes Commission Act of 1920 does not extend any assurance that the premises are
(Sec. 171-2(l)) and lands to which the Hawaii Housing safe for any purpose, does not owe a duty to such
Authority holds title (Sec. 171-2(7)). Note, also, that a user as an invitee or licensee, and is not liable for
this statute does not apply to privately owned lands. any injury to such a user or to property inj:ured by
the user.

Sec. 708-816, HRS: Defense to Trespass
Sec. 183-15, HRS: Surrender of Private Land.
This statute is designed to protect persons who have
Sec. 183-15 provides that private property owners entered upon government land and traversed established
who surrender lands in fee or less than fee to the and well-defined roadways, pathways or trails leading
government for a term not less than twenty years can to public beaches.
receive an abatement of land taxes. This section applies to lands owned in fee by the
The grant of tax incentives to private property Federal and State governments and any county or
owners would help to circumvent the problems created municipality, including lands under lease to private
by a taking by eminent domain; surrender cannot be persons. However, Sec. 7081-816's protection does not
equated with a taking since a surrender is dependent extend to individuals who enter lands owned in fee by
upon the voluntary action of the landowner. However, private entities.
the volition aspect of surrender makes unclear the
potential effectiveness of the statute in securing access The statute does not create a right of access-to--p-ublic
to the shoreline. beaches. It merely protects those who cross government
lands to reach a shoreline area. It is unclear whether
(Sec. 264-1 recognizes common law dedication. It both pedestrian and vehicular traffic are permissible
is probable that, under this statute, the requirements and the statute is inapplicable in those cases where
of an implied dedication would have to be met---intent individuals have entered upon government property to
to dedicate with acceptance by the public through use.) reach inland recreational areas.

CHAPTER2 THE JUDICIAL PROCESS: NINE LEGAL THEORIES FOR
SAFEGUARDING PUBLIC SHORELINE ACCESS

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CHAPTER2 THE JUDICIAL PROCESS: NINE LEGAL THEORIES FOR
SAFEGUARDING PUBLIC SHORELINE ACCESS

Introduction A. Ancient Hawaiian Custom and Usage
One method for securing access to and along the Ancient Hawaiian custom and usage originated in
shoreline of the County of Hawaii is to establish in various rules and beliefs that the several small kingdoms
court that the public is entitled by law to particYar of the Hawaiian islands each followed prior to unification
rights-0-f-way. The State, the County of Hawaii , under Kamehameha the Great during the years from
and private parties representing the public in a class 1795 to 1810.6 In ancient Hawaii, the chief and the
action2 may bring law suits to recover public coastal common people held customary rights. They were free,
accesses. The State or County could attempt to for example, to exercise communal rights of access to the
acquire riyhts-of-way also through condemnation pro- mountains and the ocean to obtain fish, fuel, canoe timber,
ceedings. However, condemnation would result in and birds. 7 Because the Hawaiian had no written language
large public expenditures for compensation to private until it was introduced by the missionaries, these ancient
land owners and would most likely face significant Hawaiian customs were passed orally from generation to
opposition from developers, taxpayers, and the large generation. 8
land-owners of Hawaii. 4
Foreign settlers brought with them the English
An array of legal theories and doctrines can be common law, which greatly influenced the development
used in a lawsuit to argue a public right to a beach of the national law of the Hawaiian kingdom. 9 However,
access. Nine of these theories are particularly relevant in early cases the Hawaii courts often rejected English
to the public access Issue in Hawaii: common law rules because of contrary established
Hawaiian customs. 10
1. Ancient Hawaiian tradition, custom, practice,
and usage; To clarify the situation and to give direction to the
2. Common law custom and usage; courts, the legislature passed the following statute on
3. Easement by prescription; November 25, 1892:
4. Implied dedication by private owner of public
ri g ht -of - way; The common law of England, as ascertained by
5. Way of necessity; English and American decisions, is hereby declared
6. Public trust; to be the common law of the Hawaiian Islands In
7. Implied reservation of an easement; all cases, except as....fixed by Hawaiian judicial
8. Express reservation of an easement; precedent, or established by Hawaiian national
9. Section 7-1 of Hawaii Revised Statutes. usage ..... 11

As many of these theories as appropriate to the The effect of this statute, which was succeded by
facts of the case should be utilized in a judicial pro- Section 1-1, HRS, is to require the use of English
ceeding In order to of 'fer the court a wide selection common law unless the court finds an established
of theories and remedies.5 A general discussion of Hawaiian custom in contravention of the English common
each of these legal theories follows below. law. 12

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CHAPTER2 THE JUDICIAL PROCESS: NINE LEGAL THEORIES FOR
SAFEGUARDING PUBLIC SHORELINE ACCESS (cont.)

The Hawaii Supreme Court has recognized in its However, the theory of ancient custom seems to have
decision of Application of Ashford that Hawaii's land been dicta rather than the real basis of the holding.
laws are unique in that "they aF-e based on ancient
(Hawaiian) tradition, custom, practice, and usage". 13 One commentator has suggested that under the
The meaning of "ancient" was not clarified until the reasoning of Palama, a public right-of-way is possible
1970 Hawaii Supreme Court decision of State v. Zim- based on either -of the court's theories.20 Because this
ring. 14 In deciding whether lava extensions belo case dealt with a private easement, any application of
to the State in trust for the people or to adjacent this case to supp6-rt a-claim of a public easement based
land-owners, the court found that ancient "Hawaiian on ancient usage would be an extension of the holding.
usage" pursuant to Sec. 1-1, HRS was usage that Plaintiffs could argue under the reasoning of Palama
existed prior to the incorporation of the English and Ashford, however, that the courts should recognize
common law in 1892.15 Thus, in a claim of public access , a puSFIF-rig-fit to access to a particular beach or portion
the customary use of the access must have been one of the coastline under the judicially recognized theory of
established and in use prior to November 25, 1892. ancient custom and usage. To prove such a claim plaintiffs
would have to find long-time residents who could testify
The substantive aspects of the ancient custom as kamaaina witnesses to establish the location and ancient
doctrine permits the court to find Hawaiian property (pre-1892) use of the right-of-way.
rights which are outside the common law. The proce-
dural or evidentiary aspect of the doctrine allows the
court to admit testimony from kamaaina witnesses to
establish ancient usage. The so-called kamaaina B. Common Law Custom
witness rule dates back to the time of the Great Mahele
in 1848 when kamaaina witnesses aided land surveyors The English common law is pqrt of the common law
and the Land Commission in defining land bouridaries.16 of Hawaii under Sec. 1-1, HRS.1--L The ancient English
Rule 803, paragraph (b) (2) of the Hawaii Rules of doctrine of common law custom originated in feudal
Evidence codifies the kamaaina witness rule. 17 The England before a system for recording land rights had
Hawaii Supreme Court, in As ford., recognized this been devised.22 The custom evolved under the belief
long-established rule to p6r-mittwo residents from the that a usage which had endured for centuries must have
area to test'f to hearsay declarations of other been fQunded on a legal right conferred in the distant
kamaainas. Iff In a 1969 case, Palama v. Sheehan, the past,23 and so should be recognized even though never
court admitted testimony by longtime residents on the formally recorded.
location of trails used by their parents and grand-
parents. 19 This case is particularly important in that Until recently, the application of the English common
it recognized ancient rights-of-way running from the law custom had been a dead doctrine, applied in only a
sea to the mountains. The court held that the defen- few old New Hampshire cases. 24 In State ex rel. Thorton
dants, kuleana holders, were entitled to a right-of-way v. Hay, the Oregon Supreme Court breathed life into
over the plaintiffs' land based on two theories: this d ctrine.25 The court found that the public had
1) ancient Hawaiian custom and 2) reasonable necessity. used and enjoyed the dry sand area of a beach since the

CHAPTER2 THEJUDICIALPROCESS: NINELEGALTHEORIESFOR
SAFEGUARDING PUBLIC SHORELINE ACCESS (cont.)

start of the state's history26 and held that this usage This would follow more closely the established doctrine,
amounted to a valid custom. 27 The public was entitled but seems contrary to the court's language.
to recreational rights in the beach without regard to
the title of record held by private landowners. In one of Hawaii's seaward boundary cases, County
of Hawaii v. Sotomura, the Hawaii Supreme Court favor-
The Thortoncourt analyzed the customary use in ably cited the customary right doctrine employed in
terms of tFe -seven traditional requirements for estab- Thorton . The court stated that:
lishing a law by custom as outlined by Blackstone's
treatise on English law. 28 A custom must be 1) ancient, The Ashford decision was a judicial
2) exercised without interruption, 3) peaceable and free recognitio-n-o-T-the longstanding public use of
from dispute, 4) reasonable, 5) certain, 6) obligatory, Hawaii's beaches to an easily recognizable
and 7) not repugnant or inconsistent with other customs boundary that has ripened into a customary right.
or laws. The court held that a public use was suffi- Cf. State ex. rel. Thorton v. Hay, 254 Ore. 584,
ciently immemorial if it could be traced back to the dawn 462 P2d 671 (1969). P lic policy, as interpreted
of an area's political history, even if that were only a by this court, favors extending to public use and
century ago.29' In this fashion, the court countered ownership as must of Hawaii's shoreline as is
the argument of other states which had rejected the reasonably possible. Countyof Hawaii v. Sotom-ura,
doctrine on the basis that no American custom could be 55 Haw. 176, 181-182 (1973).,30
old enough to be immemorial.
Certain language used by the court in Thorton The doctrine of English Common law custom could be
used to enhance the argument for a public right-of-way
indicates that it recognized a public right fo- all Oregon based on ancient Hawaiian custom and usage or as a
beaches: separate basis for judicially recognizing a public access.
Blackstone's seven requirements would still have to be
Strictly construed, prescription applies only to met. The Hawaii courts may follow the Oregon Supreme
the specific tract of land before the court, and Court and trace the custom back to the organization of
doubtful prescription cases could fill the courts the government in 1846, rather than to the later year,
for years with tract-by-tract litigation. An 1892, required to establish ancient Hawaiian custom.
established custom, on the other hand, can be
proven with reference to a larger region. Ocean-
front lands from the northern to the southern
border of the state ought to be treated uniformly.30 C. Easements by Prescription

Read broadly, this decision would considerably expand Prescription is a common-law theory dependent upon
the English doctrine of custom which had applied only statute and is a mode for acquiring title- to incorporeal
to narrowly defined geographic localities.3-1 The Thorton hereditaments, such as easements and rights-of-way by
decision can also be construed more narrowly as a-p-PTY-ing long continued use and enjoyment.34 Largely because
only to the beach that was the subject of the lawsuit. 32 of the historical fog out of which the doctrine emerged,

CHAPTER2 THE JUDICIAL PROCESS: NINE LEGAL THEORIES FOR
SAFEGUARDING PUBLIC SHORELINE ACCESS (cont.)

the courts have experienced a great deal of confusion With regard to private easements by prescription,
as to the theory and the time period for prescription, the Hawaii Supreme Court in Tagami v. Meyer 44
with consequent varying results.35 followed the general rule45 in setting out the elements
for establishing an easement by pres cription. The
Historical Basis court stated that:

In England prescription was based on a lost grant ... the use and enjoyment must be adverse,
theory and was given credence by the statute of under a claim of right, continuous and uninterrupted,
Westminister I which prohibits one from demanding open, notorious an *d exclusive, with the knowledge
under a writ of right the seisin of his ancestor of a and the acquiescence of the owner of the servient
longer time than Richard 1 (1189).36 It is based on tenement and must continue for the full prescrip-
the fictioLi that a grant was made and lost by length tive period. 46
of time. 61 Thus, the fictitious existence of a lost grant
was presumed from long-continued use. Some courts The prescriptive period in Hawaii, as set by law in
in this country have said that prescription rests upon 1973, is twenty years.47 The Hawaii Supreme Court in
adverse user,38 though there is some doubt as to Tanaka v. Mitsunaga recognized the principle of tacking
whether there is a true common-law concept of pre- whereby a person claiming a prescriptive right to an ease-
scription by adverse user.39 The Hawaii Supreme ment may tack on the periods of use by his predecessors
Court, citing other jurisdictions has relied on the lost to complete the prescriptive period48 so long as there is
grant theory to find the creation of an easement by privity between them.49 The court found, however, that
prescription4O in the 1920 case of In re Title of the evidence failed to establish continuous adverse
Kioloku4l and the 1944 case, Lalakea v. Hawaiian use of the claimed easement for the prescriptive
Irrigation Co. q1- period.

This faction of a lost grant has been repudicated Use is considered "open and notorious" if the real
by many courts and commentators.43 Under the more owners have actual knowledge 6r a reasonable opportu-
modern theory, courts generally apply the statutes nity to learn _oT -its existence. 5 To be 'open" the use
of limitations pertaining to corporeal interests in land must be without attempted concealment by. the users.
to the prescription of easements (incorporeal interests) . "Continuous and uninterrupted" means use notinter-
The courts have filled out the statutory gaps with rupted by the acts of the owner of the servient estate
judicial reasoning that closely parallels that used in and no voluntary abandonment by the person(s) claiming
adverse possession. In general, the requirement the easement. Thus, the acts of the user must be of such
for prescription are identical to those of adverse a nature and with such frequency as to give the land-
possession, though the two theories differ from one owner reasonable notice that the user is claiming the
another. Adverse possession is a corporeal interest easement against him.
in land which results in a change of title, and is based
on possession, while a prescriptive interest is an The kinds of action by a landowner necessary to
incorporeal interest acquired by the manner of use. constitute an interruption of the use has been disputed

CHAPTER 2 THE JUDICIAL PROCESS: NINE LEGAL THEORIES FOR
SAFEGUARDING PUBLIC SHORELINE ACCESS (cont.)

by the courts, and depends upon the nature of the The Supreme Court of Hawaii58 has adopted the
right and the attendant circumstances. 51 One general prevailing rule that the part asserting a claim be an
rule is that there must be an actual physical inter- easement by prescription has the burden of proving all
ruption with an intent to interrupt. Mere verbal of the requisite elements. 59 'However, where there has
denials are usually insufficient to interrupt the right, been an uninterrupted, continuous, and open use of a
though there is conflicting authority that verbal denials way for the prescriptive period the courts will presume
and protests are sufficient. Where, the servient. owner. the use to have been adverse.b6 Courts disagr@-e7ltro-ugh
places gates or fences across the way that do not as to @hether this presumption is conclusive or rebut-
interfere with the enjoyment of the way, the user's table. I Although this exact issue has not, apparently
right will normally not be defeated. But an interruption come b6ore the Hawaii Supreme Court in prescription
by any means which prevents the enjoyment of the way cases, in adverse possession cases the court has held
rebuts the presumption of the acquisition of a prescrip- that the -presumption- of adversity may be rebutted. 63
tive easement. In Albertina v.- Kapiolani Estate the court held that the
possession would be presumeT-to be hostile where, as in
Hawaii has followed the majority rule. In Swan v. this case, the possession was unexplaindd either by 4
Colburn the court ruled that the erection and mainte- lease, contract or permission and was "shown to have
nance of a gate by the landowner without evidence been for the statutory period. ..actual, open, victorious,
that he attempted thereby to exclude the tenants from continuous and exclusive.,,64 In the later decision of
the plaintiff's premises would not bar plaintiff's right Territory v. Paila the court held that-the 'evidence was
to the way.52 The evidence.showed that the landowner sufficient to rebut the presumption of hostility.65
closed the gate at night and only for the purpose of
excluding wandering sailors and drunken persons. 53 With regard to public easements by prescription,
courts have disagre-e-U -on whether the. general public
For the use to be "adverse" it must be against the can acquire a right of "passage by pr'escription.66 One
ownerls wishes and must be such as to indicate that the line of authority requires that the easement can only be
use is claimed as a right. 54 But what "adverse" really obtained by implied dedication, not by prescrip-tion.67
means has caused the.courts confusion and conttove.rsy.55 Under the lost grant theory a grant presupposes a
Courts have held that the use can be with the "acqui definite and Certain grantee and the public.is thought
co
escence" but not with the "permission" of the Own 'er. to be too indefinite a group to be a grantee.110 Most
"Acquiescence" has been hold to mean a passive-assent courts, however, do apply the doctrine of prescription
or submission. The Hawaii Supreme Court in Taganji to public roads based eit'her on common law or statute.69
recognized the rule that no easement by prescription InHawaii, the statutes governing public roads deal with
can be acquired where the use is by the express or dedication or surrender by the owner70 rather than with
implied permission of the owner.56 In that case the prescription.
court denied defendant's claim to an easement by
prescription over plaintiff's property because the court In the area of beach access, the New Hampshire
found defendant's use of the road "permissive" since Supreme Court has ruled that the general public has a
he paid money to the plaintiffs under an agreement right to acquire an easement by prescription. 71 In 1965
with them for nine years as part of the consideration. the court held in Elmer v. Rogers that the general
22

CHAPTER2 THE JUDICIAL PROCESS: NINE LEGAL THEORIES FOR
SAFEGUARDING PUBLIC SHORELINE ACCESS (cont.)

public had acquired a prescriptive right-Pway to a relied on the lost grant fiction in recent cases, there
lake shore beach over private property. 7 Stating is no apparent reason for the court not to find
that the lost grant theory "is more or less in disrepute that the public can acquire prescriptive rights
today,,,73 the court rejected the theory and its to easements, assuming that the requisite elements of
constraints. The court reasoned that prescriptive prescription as shown. Given the recent trend of the
rights were no longer based on legal fictions but were Hawaii Supreme Court to find in favor of the public in
now founded on statutes: shoreline and water rights cases, 79 it seems likely
that the court would follow the lead of New Hampshire
The stabilization of long continued property to hold that the general public can acquire by prescrip-
uses has motivated the continued application tion right-of-way to and along the shoreline.
of the doctrine of prescription based on the
principles of statues of limitation which
regulate the,,pcquisition of land by adverse
possession.

The court further held that a private citizen, as a
member of the public, had standing to assert a public
right to access. 75

The Texas Court of Civil Appeals in the 1964 case
of Seaway v. Attorney General also recognized that
the public courJ acquire a prescriptive easement based
on peaceable, adverse, and continuous use of the beach
for recreation and as a public way for pedestrian and
.76 ItAwk
vehicular travel The court did not consider the lack @x
of a definite grantee a bar to the finding of an easement
"N'
by prescription. Additionally, the court ruled that
while use by the owners and by members of the public
at the same time raises the presumption that the use by
the public is permissive only, there may be sufficient
evidence, as there as in this case, that the users were
claiming under a right independent of any permission
from the owners so as to establish the requisite adverse-
7Y
ness.

The issue as to whether public rights to easements
can be acquired by prescri@tion has not yet come before
the Hawaii Supreme Court. 8 Because the court has not t@OATH COAST OF H4WA11

CHAPTER2 THE JUDICIAL PROCESS: NINE LEGAL THEORIES FOR
SAFEGUARDING PUBLIC SHORELINE ACCESS Wont.)

FOOTNOTES:

1. See, e.g., Gion v. City of Santa Cruz, 2 Cal, 3d29, issued to two individuals created a tenancy in common
T6'Tp. 2d 50, 84 Cal. Rptr. 162 (1970) . State ex.rel. or a joint tenancy wacs before the Hawaii Supreme
Thorton v. Hay. 254 Ore. 584, 462 p. 2d 671 (196F) Court. The English common law rule dictated that
Seaway Go. v. Attorney Gen., 375 S.W. 2d 923; such a conveyance created a joint tenancy because
(Tex. Civ. App. 1964). of the feudal aversion to the division of an estate.
2. See, e.g., Barba v. Okuna, civ. no. 4590 (Hawaii The Hawaii S upreme Court re jected the En glish
:@r-d C lv-.-l 9 8 0) . common law rule, asserting that the need for such
a rule ceased with the Great Mahele. Id. at 544.
3. See text at notes inf ra.
11. Act of Nov. 25, 1892, to Reorganize the Judiciary
4. Town & Yuen, Public Access to Beaches: A Social Department, (1892) Laws of Her Majesty Liliuoka 'lani,
Necessity, 10 HAWAII B.J. 5 (1973) (hereinafter Queen of the Hawaiian Islands, ch. LVII, Sec. 5,
cited as T6wn & Yuen). as amended, HRS Sec. 1-1 (1976).
5. Id. at 9. 12. See Tom, Supra note 6, at 835
6. Tom, Hawaiian Beach Access, 26 HASTINGS L.J. 13. Application of Ashford, 50 Hawaii 314, 315, 440
823, 830 (1975) (hereinafter cited as Tom); see P. 2d 76,77 (1968)
J. Chinen, The Great Mahele 5 (1958). 14. 52 Hawaii 472, 479 p. 2d 202, (1970).
7. Watson, Access Rights in Hawaii 33 (1972) (prepared 15. Id'. at 425, 47'9 , p. -2d at 204.
for Alu Like) (Eereinafter cited as Watson) . (citing
J. Wise "The History of Land Ownership in Hawaii," 16. Town and Yuen, supra note 4, at 7; 50 Hawaii 314,
in Ancient Hawaiian Civilization 88 (1965); See also 316, 440 p. 2d. 76,77 (1968). Kamaaina witnesses
Palama v. Sheehan, 50 R-awaii 298, 300, 440 -p7 22--D5, were defined by the court as persons "specially
97 (1968). taught and made repositories of this knowledge.
8. In re Boundaries of Pulehunui, 4 Hawaii 239, 245 17. HAWAII RULE OF EVIL. 803(b) (20) (1980)
(1879). 18. 50 Hawaii 314, 315, 440 p 2d. 76, 77 (1968)
9. Tom, Supra note 6, at 834. 19. 50 Hawaii 298, 301, 440 p. 2d. 95, 97 (1968)
10. Id. In Rex v. Tin Ah Chin, 3 Hawaii 90 (1869),
a criminal proceeding for murder in which the 20. Town and Yuen, supra note 4, at 12.
validity of a count in the indictment was challe.nged, 21. HRS Sec. 1-1 (1976)
the court stated, "our practice has leaned in favor 22. See Post v. Pearsall, 22 Wend. 425, 440-41. (N.Y.
of the common law of England, where the same does
not conflict with the laws and customs of this King- 7F trr. 1839); Public Access to Beaches: Common
dom . Id. at 95. In Awa v. Hornor, 5 Hawaii 543 Law Doctrines and Constitutional Challenges,
(1886), the question of whether a royal patent 48 N.Y.U.L. REV. 469, 375 (1973).

CHAPTER2 THEJUDICIALPROCESS: NINELEGALTHEORIESFOR
SAFEGUARDING PUBLIC SHORELINE ACCESS (cont.)

23. Id. 40. Town & Yuen, supra note 4, at 19.
24. Id. at 376. 41. In re Title of Kioloku, 25 Hawaii 357, 366 (1920).
25. 254 Ore. 584, 462 p. 2d at 671 (1969) 42. Lalakea v. Hawaiian Irrigation Co., 36 Hawaii 692,
26. Id. at 588, 462 p. 2d at 673. 706-'707 (1944).
43. 2 Thompson, Real Property 162.;--167, Sec. 337 (1980);
27. Id. at 597-99, 462 p. 2d at 677-78. see Town & Yuen, supra note ', at 20-21.
28. Id. at 595, 462 p. 2d at 677. Thompson has state-U th t " (t) he answer to the
29. Id. 597-@98, p. 2d at 677-78. question of the essential elements of acquiring an
easement by prescription turns upon the extent to
30. Id. at 595, 462 p. 2d at 676. which the jurisdiction equates prescription and
adverse possession." Id. at 187, Sec. 340.
31. 48 N.Y.U.L. REV., supra note 22 at 376.
44. Tagami v. Meyer. 41 Hawaii 484 (1956).
32. Id.
33. County of Hawaii v. Sotomura, 55 Hawaii 176, 45. See 2 Thompson, Real Property 189-200, Sec. 340
(-1T8 0)
181-82, 517 p. 2d 57 (1973T-.
34. 2 Thompson, Real Property 140-141, Sec. 335, 46. Tagami v. Meyer, 41 Hawaii, 484, 487-488 (1956).
Sec. 337 at 158. (1980) ; Town & Yuen, supra 47. HRS Sec. 657-31 (1976). The period necessary to
note 4, at 18. acquire an easement by prescription has varied in
Hawaii. 'From'1856 until 1898 the prescriptive period
35. Id. at 158-160, Sec. 337. was twenty years. L. . 1890, c. 22, Sec. 1. In 1898
36. Id.; Sec. 335 at 140; see Town & Yuen, supra the prescriptive period was reduced-to ten years,
note at 19. Am. L. 1898, c. 19, Se.c. 1; and in 1973 the period
37. Id. was raised again to twenty years, Am. L. 1973,
L. 26, Sec. 4.
38. 2 Thompson, Real Property 162, Sec. 337 (1980). Rights- of way by prescription were recognized
39. Prescription is thought by some to also have been during the earliest recorded periods of the judiciary
based on custom at common law before an statute of the Hawaiian Kingdom. In Ro Ke v. Nicholson,
of limitations or wr ' 1 Hawaii 508, 517-518 (1856), for example, the Hawaii
its. It is founded on the Supreme Court employed the doctrine of prescription
presumption that he who has had a quiet and - --
uninterrupted possesion for a long period of time to allow the plaintiff to enlarge his easement from a
has a just right. It is based, therefore, on bridle path to a cart road. In order to do so, the
presumed right as contrasted with adverse court dispensed with the requirement of twenty
possession which is based on wrongful desseisin. years continuous use as a cart road and held that
This prescriptive right probably related to custom an uninterrupted use of the way from the time of
and not to private easements initially. Id. at the organization of the government in 1846 was
sufficient to find a right of way by prescription.
159-165.

CHAPTER2 THE JUDICIAL PROCESS: NINE LEGAL THEORIES FOR
SAFEGUARDING PUBLIC SHORELINE ACCESS (cont.)

The court agreed with the plaintiff's reasoning that adverseness, the court in Tanaka stated that "the
to adopt the twenty year period required by the adverse character of the use necessary to establish
common law of England would be unreasonable an easement by prescription is the same as that
because that length of time had not yet elapsed which is necessary to e *stablish title by adverse
since landed property was divided and the titles to possession." Id. at 125.
it clearly defined in the Kingdom of Hawaii. In 56. 41 Hawaii at 488.
justifying its deviation from England's twenty year
rule the court stated that this rule had never been 57. Id.
adopted in this country, either by custom or by 58. See, e.g.., 41 Hawaii at 487.
legislature, and that Hawaii's new branch of juris-
prudence should be founded "upon plain principles 59. See 2 Thompson, Real Property 277, 281 Sec. 350
of equity and justice between man and man, rather TIT80); Town & Yuen, supra note 4,,, at, 20.
than upon the stern rulds of law established in 60. Id. at 273-281; see Town @i Yuen, Id. .
older counties, many of which rules are wholly
unsuitable to the present condition of our people." 61. Id.
Id. at 518. 62. However, in Lalakea v. Hawaiian Irrigation Co.,
48. Tanaka v. Mitsunaga, 43 Hawaii 119, 125 (1959). 36 Hawaii 692 (1944), where the court granted
49. 2 Thompson, Real Property 246-247, Sec. 346 (1980). defendant's claim to a prescriptive easement to
convey water in a ditch over plaintiff's kuleana, the
50. Id. at 193-194, Sec. 340; Town & Yuen, supra court placed the "burden to show that the use and
note at 20. occupancy of the kuleana was'permissible and not
51. Id. at 249-253, Sec. 347. hostile ... upon the 'plaihtiff."'*Id. At 708. 'Under
the circumstances of the case t-He-court found that
52. Swan v. Colburn, 5 Hawaii 394, 396-397 (1885). the rule enunciated in Albertina 14 Haw 321, 325
53. Id. applied because where, as here 11one is shown to
have been for the statutory period in actual, open.,
54. 2 Thompson, Real Property 200-203, Sec. 341 (1980); notorious, continuous and exclusive possession,
Town & Yuen, supra note 4, at 19-20. apparently as owner, and such possession is
55. 2 Thompson, Real Property 200-201, Sec. 341 (1980) unexplained., either *by showing that it was under a
Thompson has stated that under the lost grant fiction lease from, or other contract with or otherwise by
the user must be with the approval of the fee owner; permission of the true owner, the presumption is
but if prescription is considered analogous to adverse that such possession was hostile. Being hostile,
possession, the use must be against the fee holder's no notice of hostility was necessary oth 'er or in
wishes. The Hawaii Supreme Court -in Tagami, 41 addition to 'the notice which occupancy and use
Hawaii 484 (1956) and in Tanaka, 43 Hawaii 119 (1959) afford. 11
has equated prescription with adversion possession 63. Territory v. Pai'a 34 Hawaii 722, 726 (1938)
in terms of requisite elements. As to the element of Albertina -v-.-K-apiolani Estate 14 Hawaii 321,325(1902).

CHAPTER2 THE JUDICIAL PROCESS: NINE LEGAL THEORIES FOR
SAFEGUARDING PUBLIC SHORELINE ACCESS (cont.)

64. 14 Hawaii at 325. Halekulani Hotel property into shallow ocean water,
65. 34 Hawaii at 726. thereby fracturing his neck. The Ninth Circuit
affirmed the lower court's decision to grant the
66. 2 Thompson, Real Property 207-214, Sec. 342 (1980) hotel's motion for summary judgment stating that
67. Id. the public's constant, uninterrupted, peaceful use
of the seawall as a walkway from 1917 to 1972 was
68. Id. "sufficient to create an easement by prescription."
69. Id. The real basis of the holding, however, appears
to be the implication by the court that the seaw 1,
70. See, HRS Sec. 264-1 (1976 and Supp. 1980) had been surrendered by the hotel as evidenced by
71. Elmer v. Rogers. 106 N.H. 512, 515 214 A. 2d 750, the hotel's noninter ence with the public use of
752 (1965). the seawall and the lack of countering affidavits from
the hotel as to public use. The court stated that
72. Id. the Hawaii Supreme Court had previously. charac-
73. Id. terized this type of seawall easement in Levy v.
Kimball as a "public highway" under Hawaii Revised
74. Id. Statute Sec. 264-1 (1968). That section provides
75. Id. that "public highways" include ways and trails and
that "surrender of public highways shall be deemed
76. Seaway v. Attorney General, 375 S.W. 2d 923, to have taken place if no act of ownership by the
937-939 (Tex. Cir. App. 19 4). The court also owner .... has been exercised for five years." Hawaii
found in favor of the public on the bc-sis of implied Rev. Stat. Sec. 264-1 (1970)..' Thus, the ownership
dedication. Id. at 930. It seems inherently issue of this case would have been more properly
contradictory, however, that the court uses the decided solely on the basis that Halekulani- had
same set of facts and evidence to establish an surrendered the seawall to the State under Hawaii
implied dedication and to also find the use by the Revised Statutes Sec. 264-1 and under the Hawaii
public "adverse to the owner" -to support a finding Supreme Court's interpretation of that statute in
of an easement by prescription. Levy v. Kimball.
77. Id. at 938. 79. See-, e. g In re Application of Sanborn 57 Hawaii
78. In the 1977 federal court case of Jones v. Halekulani '58-5, 5-6T-P.2d 771 (1977); County of Hawaii v@ Soto-
Hotel, however, the Ninth Circuit Court of Appeals mura 55 . Hawaii. 176, 517 15. 2d @7 (1973) , cert.
affir ed the decision of the District Court that Te-nied 419 U.S. 872 (1974); State v. Zimring.,
"the state of Hawaii had acquired an -easement by 52 Hawaii 16 472, 479 P.2d 202 (1970); Application
prescription over the top of the seawall and thus of As .hford 50 Hawaii 314, 440 P.2d 76 (1968).
had the sole duty to maintain the seawall." In that
case a private. citizen sued the Halekulani Hotel for
breach of duty after he dove off a seawall on

CHAPTER 3 MUNICIPAL LIABILiTY IN FEDERAL COURT
FOR CONSTITUTIONAL VIOLATIONS

kAA @i
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CHAPTER 3 MUNICIPAL LIABILITY IN FEDERAL COURT
FOR CONSTITUTIONAL VIOLATIONS

Introduction statute that confers original Jurisdiction in federal
district courts if: 1) the controversy arises under the
Inherent In the establishment of a county beach Constitution, law or treaties of the U.S., and 2) the
access program is the likelihood that the county will matter in controversy exceeds $10,000.
become liable for violations arising out the U.S. Consti-
tution and its laws, affording the litigants a day in the While this statute confers jurisdiction, as a general
federal courts. Nearly every provision of the Consti- rule an action may not be maintained for which there is
tution is a potential source for challenge against a no statutory provision authorizing a remed y or relief
beach access program. Without any actual ordinance to be granted. However, In Bivens v. Six Unknown
or proposed plan to refer to, pinpointing the areas Agents, 403 U.S. 388 (1971), the Court held that a
of constitutional vulnerability becomes difficult. valid cause of action against federal agents who violated
However, an examination of past case law reveals the plaintiff's Fourth Amendment rights protecting
those constitutional provisions that are most likely to persons from unreasonable searches and seizures,
arise in litigation. The county should bear these in existed within the Fourth Amendment. Monetary relief
mind upon planning a beach access program. was held to be the proper form of redress.

The memorandum is divided into two major sections. While the Supreme Court has not ruled on its validity,
Part I, "Maintaining Actions in Federal Court, 11 covers several district courts have extended the Bivens rationale,
the two important jurisdictional statutes that give i.e.., that a valid cause of action may arise directly from
federal courts the power to hear constitutional claims, a Constitutional provision affording the litigant a remedy
and goes on to explain certain Eleventh Amendment and despite the absence of a federal statute authorizing such,
abstention doctrine restrictions on bringing actions in to Fourteenth Amendment claims. The Nineth Circuit-
federal courts. Part II, "Constitutional Provisions' Court has-recognizEid' ,that municipalities may be held
Likely to be Litigated," covers those specific provisions liable for civil rights violations directly under the Four-
that will be of the highest concern: The Fifth -Amend- teenth Amendment by applying the Bivens approach.
ment Taking Issue, Fourteenth Amendment Substantive See, e.g., Gray v. Union County IH-termediate Educ.
Due Process, Fourteenth Amendment Procedural Due Dist., 520 F.2d 80319th Cir 1975).
Process, and Fourteenth Amendment Equal Protection
Clause. Due to its importance, special emphasis is
placed on the Fifth Amendment Taking Issue and its B. 42 U.S.C. 1983
applicability to land use regulations.
42 U.S.C. 1983 provides:

"Every person who, under color of any statute,
Part' I - Maintaining Actions in Federal Courts ordinance, regulation, custom, or usgage, of
any State or Territory, subjects, or ca.uses to
A. 28 U.S.C. 1331 and the Bivens Approach be subjected,' -any citizen-of the United State or
28 U.S.C. 1331 is the Federal Question Jurisdiction other person within the jurisdiction thereof to
F, 29

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00,

1 4.0

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CHAPTER 3 MUNICIPAL LIABILITY IN FEDERAL COURT
FOR CONSTITUTIONAL VIOLATIONS Wont.)

the deprivation of any rights, privileges, or by, 1) the implementation of "a policy statement,
immunities secured by the Constitution and ordinance, regulation, or decision officially adopted
laws, shall be liable to the party injured in and promulgated by that body's officers," or by 2) the
an.action at law, suit in equity, or other adherence to a governmental "custom" even though such
proper proceeding for redress." custom did not receive officidl approval. Monell, supra
at 691.
This statute, providing an express right of action,
has been used together with 28 U.S.C. 1343 (3) which The Court, addressing the issue of the applicability
is the federal court jurisdiction provision. Litigants of the doctrine of respondeat superior, explicitly stated
have used these provisions to take municipal and state that a municipality would not be vicariously liable under
employees to federal court for civil rights viblations. Sec. 1983. The Court reasoned that by employing the
Recently, the Supreme Court in addition to providing words "subject" and "causes to be subjected" in Sec. 1983,'
a cause of action for Constitutional violations, held that Congress had injected into the statue the element of
Sec. 1983 also provides a cause of action for violations causation. Under the doctrine of respondeat superior,
of federal statutes, Main v. Thibout, 100 S. Ct. 2502 liability attaches in the complete absen culpability.
(1980). See generally PROSSER, HORNBOOK OF THE LAW OF
While Sec. 1983 actions have always been maintained TORTS Sec. 69 (4th ed. 1971).
against municipal employees, in Monroe v. Pape, 365 U.S. Some of the courts which have applied the
167 (1961), the Court stated that municipalities are not Sec. 1331/Bivens rationale to Fourteenth Amendment
11persons" within the meaning of Sec. 1983, in effect violations have also held municipalities vicariously liable
granting local governments absolute immunity from under the doctrine or respondeat superior. See e.g.
Sec. 1983 liability. In order to circumvent this rule Culp v. Devlin, 441 F. Supp. 120 (E.D. Pa. 1977);
in Monroe, supra, litigants have brought actions under Collum v. Yardovitch, 409 F. Supp. 557 (N.D. Ill. 1975).
Sec. 1331/Bivens and unsuccessfully under various It would appear that the only possible use the direct
---- He-
other approao s. See Moor V. County of Alameda, Fourteenth Amendment action could serve after Monell
411 U.S. 693 (1973); City of Kenosha v. Bruno, 412 would be as a vehicle for circumventing the MoneTl
U.S. 507 (1973) ; and Aldinger v. Howard, 427 U.S. 1 rule against the use of the doctrine of respondeat
(1976). superior. However, this tactic has been attempted
unsuccessfully in this federal circuit. See Molina v.
After sixteen years of the municipal immunity rule Richardson, 578 F.2d 846 (9th Cir. 1978), c-e-r-t-Te-nied
,established in Monroe, supra, the Supreme Court in 439 U.S. 1048 (1978).
Monell v. Dept. of SociiTl -Services of the City of New
York, 416 U.S. 658 (1978), reversed, b Iding that The concept of "good faith" immunity has been
municipalities do not enjoy absolute immunity from recognized in suits against state and municipal officials,
Sec. 1983 liability, as they are "persons" within the protecting them from liability under Sec. 1983 actions.
statute. Henceforth, municipalities were to be liable Wood v Strickland, 420 U.S. 308 (1974); Schener v.
for Sec. 1983 constitutional violations occasioned either Rhodes, 416 U.S. 232 (1974). The immunity standard

CHAPTER 3 MUNICIPAL LIABILITY IN,FEDERAL COURT
FOR CONSTITUTIONAL VIOLATIONS (cont.)

requires that an individual defendant has acted in both C. Eleventh Amendment Limitations
objective and subjective good faith. Therefore, a
defendant is cloaked with immunity if he had no know- The Eleventh Amendment of the Constitution says
ledge or was not expected to have knowledge that his that:
actions infringed on a Constitutional right or norm, and
if he acted without malice or intent to cause Constitu- "The judicial power of the United States shall not
tional deprivation or injury. Procunier v. Navarette, be construed to extend to any suit in law or equity,
434 U.S. 555 at 562 (1978) . Since Monell, supra, has commenced or prosecuted against one of the United
held that municipalities are "person-91 -unde-r-S-ec. 1983, States by citizens of another State, or by Citizens
several Circuit Courts have attempted to extend the or Subjects of any ]Foreign State
good faith immunity to local governments. See Sala v.
County of Suffolk, 604 F.2d 207 (2d Cir. 1979), Although not explicit in its language, the Eleventh
vacated, 48 U.S-M.W.4389 (1980); Owen v. City of Amendment has been held to bar suits against a state in
TR-depeRdance, 589 F.2d 335 (8th Cir. 1979), rev1d, federal courts by its own citizens. Hans v. Louisiana,
48 U.S.L.W. 4389 (1980); Paxman v. Campbell,_=F.2d 134 U.S. 1 (1890). However, in Eldeman -v_. Jordan,
848 (4th Cir. 1980) (en banc) . 415 U.S. 651 (1974), the Supreme Court recognized the
well-established rule that unlike the state itself, munici-
This issue of the applicability of the good faith palities and other political subdivisions are not immune
immunity to local governments was settled by the from suit under the Eleventh Amendment. This rule was
Supreme Court who reviewed the 8th Circuit case of reaffirmed for Sec. 1983 actions against municipalities
Owen V. City of Independance, supra. The Court held under Monell, supra. However, the Court in Monell,
that the doctrine of good faith immunity afforded to supra,_&o_ncede_d_tFa_t there are situations where a I cal
government officials did not extend to government government UDit may be considered a state for Eleventh
bodies, based on common law practices and policy Amendment purposes, cloaking the unit with immunity
consideration. from suit in federal courts. Monell, supra at 690.

One final aspect of Sec. 1983 actions is the question Courts have considered the question of whether or
of its applicability to states. In Quern v. Jordan, 440 not a state has delegated its immunity largely in terms
U.S. 332 (1979), the Court held tF-at states are not of whether the governmental unit excercising power can
"persons" within the meaning of Sec. 1983. The be viewed as an "alter ego" or "arm" of the state, or
exclusion of states from Sec. 1983 liability is important whether the unit is more like a municipal corporation
when read with the Monell qualification that its holding or independant political subdivision. Mt. Healthy City
was "limited to local government units which are not School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 at 280
considered part of the State f6r Eleventh Amendment (1977). In essence, the question is whether the state
purposes." Monell, supra at 690. The possible effects is a "real party in interest." See In re Ayers, 123 U.S.
of Eleventh Amendment immunity on local governments 443 (1887); Hander v. San Jacinto junior College,
is discussed in the following section. 519 F. 2d 273 (5th Cir. 1975).

CHAPTER 3 MUNICIPAL LIABILITY IN FEDERAL COURT
FOR CONSTITUTIONAL VIOLATIONS Wont.)

Federal courts have looked at a number of factors compact to protect the Lake Tahoe area, enacted an
in determining the legal status of government entities, ordinance that substantially restricted that market value
i.e. , whether the factors are sufficient to afford the of a tract of property by reclassifying it from residen-
entity state status and its Eleventh Amendment immu- tial to "general forest" and 11recreation" uses. Property
nity. The analysis always begins with a review of the owners brought suit for damages under Sec. 1983. The
applicable state law to determine what characteristics, Supreme GDurt took the case on certiorari to decide the
powers, and relationships exist which determine Eleventh Amendment issue, holding that California and
whether the suit is in reality against the state itself. Nevada had not delegated Eleventh Amendment immu-
Handor, supra at 279. Courts in different Circuits nity to the TRPA, which was only exercising a "slide of
F ----on different factors depending on the state power." Jacobsen, supra at 1359.
have ocused
particular facts of each case and applicable state law.
However, the analysis of the State law in every case The Court focused on the following factors: 1) TRPA
should start off with the examination of the factors was described as a "separate legal entity" and a "politi-
that the U.S. supreme Court has found to be important. cal subdivision," 2) six of the ten governing members
of the Agency were appointed by cities and counties,
In Mt. Healthy, supra, the Supreme Court 3) funding under the compact was to be provided by the
considered whether an Ohio school district was to be counties with state treasuries absolved of liability for
treated as an arm of the state partaking the state's TRPA obligations, and 4) while TRPA was originally
Eleventh Amendment immunity. The Court considered created by the States, its authority to make rules in
the following factors under Ohio law: 1) Ohio school its jurisdiction was not subject to veto at the state level.
boards were subject to guidance from the State Board
of Education, 2) school boards received a significant The principle's established by the Supreme Court
amount of money from the state, 3) the term "stateft for testing delegation of immunity have been applied by
did not include "political subdivision" and school dis- lower federal courts to a variety of government agencies,
tricts were included in the term "political subdivision", universities, school districts, state review boards, social
and 4) local school boards had extensive powers to service agencies, etc. See e.g., Carey v. Quern, 588
issue bonds and levy taxes. On balance the court F. 2d 230 (7th Cir. 1978) ; Mackey v. Stanton , 5 6 F. 2d
concluded that an Ohio school board was not an arm of 1127 (7th Cir. 1978) , cert. denied, 100 S. U-t. 172 (1979)
the state entitled to share its immunity. Hander v. San Jacinto, supra; Savage v. Pennsylvania,
475 F. Supp. 524 (E.D. Pa. 1979), aff'd, 620 F.2d-2U-
Lake County Estates, Inc. v. Tahoe Regional (3d Cir. 1980); Holley V. Lavine, 07M. d 638 (2d Cir.
Planning Agency, 440 U.S. 391 (1979), was the Supreme 1979), cert. denied, 446 U.S. 913 (1980).
Court ruling on the Ninth Circuit case Jacobsen v.
Tahoe Regional Planning Agency, 566 F.2d 1353 ( 7), The federal courts have focused on several factors
in which the Court considered whether the California- to determine whether a state has delegated its Eleventh
Nevada bi-state Tahoe Regional Planning Agency (TRPA) Amendment immunity to its component entities. A review
was protected by the Eleventh Amendment. The TRPA, of the case law seems to indicate that the courts have
a major regional planning agency formed by interstate placed emphasis on three general factors: 1) a clearly

AIL

CHAPTER 3 MUNICIPAL LIABILITY IN FEDERAL COURT
FOR CONSTITUTIONAL VIOLATIONS (cont.)

articulated state policy, 2) retention by the state of While the Supreme Court has not yet considered
the power to administer and enforce that policy, and the federal abstention doctrine in land use cases, several
3) assumption of financial liability by the state. The lower federal courts, including the Ninth Circuit, have
greater the state maintains responsibility and control applied the doctrine. In Sederquist v. City of Tiburon,
over the entity, the more likely the courts will find the 590 F. 2d 278 (9th Cir. 1978) the plainfiff challenged t
entity to be an arm of the state, entitled to immunity city's temporary development moratorium as a taking for
from suit in federal court. which just compensation was required under the Fifth
Amendment. The court invoked the federal abstention
The County of Hawaii should keep these factors in doctrine, recognizing that land use regulation is a
mind when establishing a beach access program. The sensitive area of state and local policy. Quoting from an
county participation in a statewide access program may earlier Ninth Circuit case, the court state that," (flederal
serve to immunize the county from claims in federal courts must be wary of intervention that will stifle
courts. However, this may necessarily mean trading innovative state efforts to find solutions to complex
off some of the flexibility that would accompany a more social problems." Sederquist, supra at 282. The court
closely drawn, exclusive county plan. As a final note, al�o reasoned that a state court determination of
the California Coastal Act of 1976, CAL. PUB. RES. applicable state law might render the federal constitu-
CODE Sections 30000-30900 (West 1977), may be referred tional issue moot.
to as a comprehensive statewide coastal zone management
program that would.probably meet the standards entit-
ling concerned local governments to ch@im a share of the
state's Eleventh Amendment immunity. See 8 HASTINGS PART II - Constitutional :Provi sio ns Likely to be Litigated
CONST. L.Q. 453 (1981).
D. Abstention Doctrine A. Fifth Amendment Taking Clause
The Fifth Amendment of the United States Constitir
Federal courts may decline to hear Sec. 1983 civil tion states in part: "nor shall private property be taken
rights claims based on the Federal Abstention Doctrine. for public use, without just compensation." The amend-
The reason lies in principles of judicial restraint that ment provides for just compensation as a remedy. This
limit federal court intervention in matters of state and means that actions may be maintained in federal courts
local competence, such as land use regulation. Since without reliance on Sec. 1983 as. a claim of relief
land use planning zoning regulations address problems provision, assuming that jurisdiction can be established.
that concern the state or municipality for which they (Jurisdiction will most likely be established under the
are enacted, federal courts can apply the abstention Federal Question Jurisdiction of the District Courts,
doctrine to decline jurisdiction over land use litigation. 28 U.S.C. 1331). In effect Sec. 1983 provides a .
Abstention is usually exercised when a state law statutory damage action that parallels the condemnation
decision might avoid the necessity to condider a federal remedy for unconstitutional and land use takings.
question. See 8 HASTINGS CONST. L.Q. 491 (1981).

CHAPTER 3 MUNICIPAL LIABILITY IN FEDERAL COURT
FOR CONSTITUTIONAL VIOLATIONS (cont.)

As a beach access program will undoubtedly involve may not only arise by the institution of condemnation
the acquisition of some private land, the possibility of proceedings, but that they may also arise in actions
challenges under the Fifth Amendment deserves great for inverse condemnation, where the landowner institu-
consideration. On its face the meaning of the Amend- tes the action against the government. Pumpley v.
ment appears clear - the government cannot take Green Ba_y__,T0 U.S. (13 Wall.) 166 (1871). Typical-ly,
private property unless the taking is for a public in an inveise condemnation suit the government will
purpose and just compensation is awarded. However, engage in some action pursuant to a public purpose by
both legal and practical problems cloud the issue. As which the landowner's property is physically damaged.
a legal problem, one must first confront the threshold The landowner will then bring an action in which the
question as to what actions constitute a "taking. " Once court may assess against the government the compensa-
the action is deemed to be, a taking, the questions as tion the landowner should have been entitled to had the
to whether it is for a "public purpose" and whether the government brought eminent domain proceedings. In
compensation is "just" arise. The fact that compensa- service of this principle, the Court has frequently found
tion is mandatory, along with an attendant administra- taking outside the context of formal condemnation pro-
tive or legal fees, draws attention to the greatest ceedings or tranfer of fee simple, in cases where govern-
practical problem of condemning 'land for beach access ment action benefiting the public results in destruction
purposes, the ability to secure adequate funding. of the use and enjoyment of private property. E.g.,
While the gravity of the funding problem cannot be Kaiser Aetna v. United States, 444 U.S '. 164 (1979) ' I
over emphasized, a discussion of it is beyond the scope (navigational servitude allowing public right of access);
of his memorandum. The fbllowing is a discussion of United States v. Dickinson, 331 U.S. 745 (1947) (pro -
the legal issues surrounding the Fifth Amendment. perty flooded because -or-government dam project);
United States v. Causby, supra (frequent low level
First, the threshold question of whether the action flights of military ai t over private property).
is a "taking" must be answered. The typical taking
occurs when a government entity formally condemns To further pass constitutional muster, the taking
private land and obtains the-fee simple pursuant to its must also be for a "public use". The Supreme Court
sovereign power of eminent domain; the judicial or in Berman v.Parker, supra, c1drified "public use" to
administrative body enters a decree of condemnation mean "public purpose. -"Public purposes are those that
and just compensation is awarded. See Berman v Parker, are substantially related to the advancement of public
348 U.S. 26 (1954). Acquisition of an easement interest health, safety, morals, or general welfare. Village of
in property by the government is also a taking. See Euclid v. Ambler Realty Co., 272 U.S. 365 at-7957(M).
United States v. Causby, 328 U.S. 256 (1946). Govern- The reasonable regulation of acts pursuant to these
ment actions that may be characterized as physical purposes are valid exercises of a state's police power.
acquisitions or occupation of private resources to Land use regulations for recreational purposes, which
permit or facilitate uniquely public functions have thus would seem to encompass a beach access program, -have
been characterized as takings. been held to be valid exercises of police power as they
promote the general welfare. Jenad, Inc. v. Village
However, it is widely accepted that a taking of Scarsdale, 18 N.Y. 2d 78, 218 N. E. 2d 6 73 (1966)

CHAPTER 3 MUNICIPAL LIABILITY IN FEDERAL COURT
FOR CONSTITUTIONAL VIOLATIONS (cont.)

Once a taking for a public use has been established, less of a problem.
the constitution demands that the landowner be afforded
just compensation. The Fifth Amendment does not embody An understanding of the law in the area of regulatory
any specific procedure or form of remedy, rather it takings is an important aspect of the taking issue.for the
flexpresses a principle of fairness". United States v. County to take in consideration. A Beach Access Program
Dickinson, supra at 748. Therefore, courts are free to will undoubtedly involve land use regulation (zoning,
experiment in the implementation of this rule, provided moratoriums, exactions, use restrictions, etc.) Outside
the chosen procedures and remedies are fundamentally of actual physical appropriations, the County must be
just. As a general rule the remedy of monetary reflief alerted to the possibility that they be held liable to
or damages is awarded for physical acquisition or compensate land owners if land use regulations are
damages. beyond reasonable limits, amounting to regulatory takings.
The analysis starts off with ascertaining whether regula-
Regulatory Takings tory takings are Fifth Amendment takings, and fashion-
ing a proper remedy (ie., deciding what compensation
While it is clear that takings involving formal iq "just"). These questions will be discussed under the
condemnation proceedings, occupations, and physical framework of the recent Supreme Court decision, San
invasions demand compensation, the Supreme Court has Diego Gas & Electric Company v. City of San Diego,
yet to clearly rule on the compensability of de facto 49 U.S.L.W. 4317 (March 198 which was an attempt
takings of property, or "regulatory taking s7r7R_e gula- to resolve the issue of "regulatory takings".
tory takings typically arise where despite the lack of
any phydical appropriation or damages to the property, The specific issue presented to the Court in
government regulations have substantially restricted San Diego, supra, was whether a "state must provide a-
the uses to which the property may be put, and monetary remedy to a landowner whose property
consequently have substantially reduced its value. allegedly has been 'taken' by a regulatory ordinance
States are permitted to reasonably regulate, the health, claimed to violate the Just Compensation Clause'of'the
safety, morals and general welfare of its citizens Fifth Amendment." San Diego, supra at 4317. Unfortu-
pursuant to their inherent police powers, without nately , the Court in its main opinion failed to address
paying compensation. Village of Euclid, supra. States the issue leaving it undecided, due to a finding of lack
must however compensate land -owner-Tf-oF-takings of of jurisdiction. The Court decision was split 5 to 4,
private property pursuant to their inherent powers with Justice Rehnquist joining with the majority but
of imminent domain. (Fifth Amendment). The important also filing a concurring opinion. Although Justice
issue that remains to be resolved is whether the govern- Rehnquist agreed that the case be dismissed on jurisdic-
ment's exercise 'of its regulatory police powers can ever tional grounds, he also state that but for the Jurisdic-
amount to a Fifth Amendment taking. Assuming that tional problem, he "would have little difficulty in
regulatory takings demand compensation, courts have agreeing with must of what (was) said in the dissenting
been further plagued by the need to fashion a proper opinion of Justice Brennan." San Diego, supr-a at 4320.
remedy - injunctive or monetary. The issue of whether
the regulatory taking is for a public purpose has posed In the dissently opinion Justice Brennan opined that

CHAPTER 3 MUNICIPAL LIABILITY IN FEDERAL COURT
FOR CONSTITUTIONAL VIOLATIONS (cont.)

the Court had properly taken jurisdiction and thus inverse condemnation but that his exclusive remedy
went on to discuss the merits, proposing the rule that is invalidation of the regulation in an action for
would recognize regulatory takings as takings under mandamus or declaratory relief. The court, in other
the Fifth Amendment, for which monetary relief should words limited the remedy available to a landowner who
be afforded. The fact that gives Justice Brennan's claimed that a zoning regulation amounted to a taking.
dissently opinion major importance is that his conclu- Howe7e-r, the court did not hold that the same injunc-
sions on the merits were supported by the three justices tive remedy limitation also applied to actual regulatory
who concurred in his opinion and by justice Rehnquist takings, as it found the facts of the case insufficient
who concurred with the majority only on the Jurisdic- to constitute a taking. It did not hold that regulatory
tion issue. It therefore appears that Justice Brennan's zoning could never amount-fo a-taking. Id., 24 Cal. 3d
conclusions on the compensation issue may have the at 272, 598 P.2d at 98. The U.S. Supreme Court
support of a majority of the Court. affirmed, leaving the issue of whether land use regula-
tion could ever amount to a taking requiring just
The case arose out of an action for damages in compensation undecided.
inverse condemnation, as well as mandamus and declara-
tory relief brought by the plaintiff landowner against In light of Agins, supra, the intermediate appellate
-the defendant city. The Plaintiff alleged that the city court reversed -f-hetriaT-court's judgment, holding that
had deprived it of the beneficial use of its property appellant could not recover compensation through inverse
through the rezoning and adoption of an open-space condemnation and that, because the record presented
plan. The plaintiff alleged that he was now unable to factual disputes not covered by the trial court, mandamus
use the land purchased for the purpose of constructing and declaratory relief would be available if plaintiff
a nuclear power plant, which would have been allowable desired to retry the case. The California Supreme Court
under the previous industrial zoning status. denied further hearing, and the Gas and Electric
The trial court found that the deprivation of use of Company appealed to the U.S. Supreme Court.
the plaintiff's land entitled it to monetary damages for As mentioned earlier, the majority dismissed the
the fee simple value of the property. The judgment case on the ground of lack of jurisdiction, 28 U.S.C.
was affirmed by the intermediate appellate coUrt. How- 1257 granting the Court limited jurisdiction to review
ever, the appellate court Judgment was vacated by the only 11 (f) inal judgments and decrees rendered by the
California Supreme Court, and the case was retrans- highest Court of a State in which a decision coWd be
ferred to that court for reconsideration in light of the had." Basically, the Court held that there was no
intervening holding in Agins v. City of Tiburon, 24 Cal. "final judgement," as the intermediate appellate court
3d 366, 598 P.2d 25, afTrd on other grounds, 447 U.S. on remand by the California Supreme Court, had found
255 (1980). that certain factual disputes were yet undecided.
In Agins, supra, the California Supreme Court held Nevertheless, the dissenting opinion by justice
that an-(5-w-ner Te-prived of the beneficial use of his land Brennan went on to discuss the case on its merits. First
by a zoning regulation is not entitled to damages in of all, Justice Brennan established that a government's

CHAPTER 3 MUNICIPAL LIABILITY IN FEDERAL COURT
FOR CONSTITUTIONAL VIOLATIONS (cont.)

exercise of its regulatory police power can amount to property. Id.
a Fifth Amendment taking. The principle has its source
in Justice Holmes' opinion in Pennsylvania Coal Co. v. Having established that property may be "taken for
Mahon, 260 U.S. 393 (1922), in which he stated; "The public use" by police power regulation within the mean-
general rule at least is, that while property may be ing of the just Compensation'Clause of the Fifth Amend-
regulated to a certain extent, if regulation goes too ment, Justice Brennan went on to discuss whether the
far it will be recognized as a taking." Id. at 415. government could constitutionaly, limit the landowner's
Unfortunately, the Court in PennsylvardE Coal, Su ra, remedy to invalidation of the regulation, instead of
'T_
i
i v
and in subsequent land use cases has failed to clar y awarding monetary compensation as is afforded in other
an exact standard as to when a particular regulation taking cases.
"goes too far".
Courts that have held land use restrictions unconsti-
In Penn Central Transportation Co. v. New York tutional usually provide relief by injunction as the
City, 438 U.S. 104 (1978) the Court identified s-e-v-e-r-al appropriate judicial remedy. See Agins, supra. The
factors that have particular significance when examining remedy of monetary compensation Ts -not affo-r-Ze-d as
the taking question - such as the economic impact of courts have been reluctant to extend the Fifth Amend-
the regulation, its interference with reasonable invest- ment guarantees to include "regulatory takings." Since
ment backed expectations, and the character of the no constitutional taking occurs, the monetary remedies
government action. Id. at 124. Penn Central, supr4 afforded through condemnation and inverse condemna-
seems to indicate thaf-de facto regulatory Tang will tion actions are denied.
not be found where thi'_@lando7ner retains "reasonable
beneficial use" of the property, (Id. at 138) and he is In a typical action, a landowner in land use litigation
not "solely burdened and unbenETf-ited " by the regula- will challenge the constitutionality of the regulation as
tion. Id. at 134. it applied to his particular property (not a facial attack
on the regulation), and if successful is granted an
Justice Brennan argues that there is an essential injunction setting aside the land 'use restriction as uncon-
siffiflarity between regulatory takings and other takings. stitutional as applied to the particular property. See
"Police power regulations such as zoning ordinances and 8 HASTINGS CONST. L.Q. 517 (1981). While 'in this
other land-use restrictions can destroy the use and typical action no taking violation is found, the unconsti-
enjoyment of property in order to promote the public tutionality is based on. a Fourteenth Amendment violation
good just as effectively as formal condemnation or of substantive due process. The constitutional challenge
physical invasion of property." San Diego , supra is almost always based on both the Fourteenth Amend-
at 4325 (Brennan, J., dissenting) . "It is onFy-loglcal ment's due process clause and the Fifth Amendment taking
then, that government action other than acquisition clause. (See next section on urteenth Amendment
of title, occupancy, or physical invasion can be a Substantive Due Process). Courts do not provide an
"taking", and therefore a de facto exercise of the alternative remedy based-on the taking clause by award-
power of eminent domain, where the effects completely ing compensation to the landownerfor an unconstitutional
deprive the owner of all or most of this interest in the land use restriction. See e'.g., Allen v. City & County'

CHAPTER 3 MUNICIPAL LIABILITY IN FEDERAL COURT
FOR CONSTITUTIONAL VIOLATIONS (cont.)

of Honolulu, 58 Haw 432, 571 P.2d 328 (1977); Fred F. and ending on the date the government entity
French Investing Co. v. City of New York, 39 N.Y. 2d chooses to rescind or otherwise amend the .
587, 350 N.E.2d 381, 385 N.Y.S.2d 5, aTpeal dismissed, regulation. Ordinary principles determining the
429 U.S. 920 (1976). proper measure of just compensation, regularly
applied in cases of permanent and temporary
However, justice Brennan goes on to asset that 'takings' involving formal condemnatio 'n proceed-
once there is a taking, just compensation is automati- ings, occupations, and physical invasions, should
cally required. Due to the equitable nature of the just provide guidance@ to-, the courts in the award of
compensation requirement, mere invalidation of a regu- compensation for a regulatory Itaking.1 As a
lation may not be constitutionaly sufficient where the starting point the value of the property taken may
landowner has suffered economic loss. San Diego, be ascertai'ned as of the date of the 'taking.' .
supra, at 4326 (Brennan, J., dissenting) . But, the Alternatively -the government may choose formally
ro-sses sustained by land use regulation are often to condemn the property, or otherwise continue-the
temporary in nature, due to the possibility that the offending regulation: in either case the action
regulation may be rescinded or amended. This is in must be sustained by proper measures of just
contrast to most traditional taking cases where condem- compensation." San Diego., supra at 4327 (Brennan,
nation or property damages result in a permanent taking J., dissentingo
of the land.
Commenters have pointed out that it should be made
justice Brennan downplays the distinctions between clear that courts may also terminate a "temporary" regu-
temporary and permanent takings by stating: "Nothing latory taking by declaring the regulation invalid,- and
in the just Compensation Clause suggests that 'takings' that formal action by the, governing- body t.o "rescind'.I
must be permanent or irrevocable." San Diego, supra, or "amend" is not required. 8 HASTINGS CONST.L.Q.
at 4326 (Brennan, J., Dissenting) . Cases als exist 535 (1981)-. A landowner would th u-s be-able to both
where although the government has taken temporary invalidate a harsh I-and use regulation a's a de facto'
use of property through its powers of eminent domain, taking and to recover compensation for losses caused
the Court has not hesitated to determine an appropriate by the regulation while it was in force in a direct Fifth
measure of monetary compensation. See Kimball Laundry and Fourteenth Amendment action.
Co. v. United States, 338 U.S. 1 (1949) -Un-fffie-a States
v. Petty Motor C@;-.,327 U.S. 372 (1946). 1Federal and state courts will probably accept
Justice Brennan's views, as stated in San Diego, to be
Briefly stated, Justice Brennan concludes by pro- the best evidence of the Supreme Court's current
posing a constitutional rule that: interpretation of the Fifth and Fourteenth Amendments
as applied to regulatory taking cases. The degree of
(0) nce a court finds that a police power regulation depri'vation necessary to amount to a regulatory taking
has effected a 'taking', the government entity must and the development of formulas to appropriate the
pay just compensation for the period commencing on amount of just compensation will need to be worked out
the date the regulation first effected the 'taking,' on a case-by-case basis.

CHAPTER 3 MUNICIPAL LIABILITY IN FEDERAL COURT
FOR CONSTITUTIONAL VIOLATIONS (cont.)

Justice Brennan's solution appears to be a compro- regulations on grounds of substantive due process
mise between those advocates who assert that a "regula- without finding that they amount to a de facto taking.
tory taking" can never amount to a taking (ie. the Usually the challenger asserts both th@t -the land use
proper remedy is not in inverse condemnation but regulation is "arbitrary," or "capricious," and/or
injunctive relief), and those who assert the view that 'lunreasonable, 11 and that it is so restrictive as to
regulatory takings may be treated like traditional amount to a de fii-c-to taking. E.g., Nectow v. City of
takings (ie. the remedy is' in inverse condemnation, Cambridge, T27 U. .S. 183 (1928) . However, an action
based on the fee value of the property permanently to invalidate a regulation may be maintained exclusively
taken) . The inequities of rendering an injUr-ed E_nd- on a due process argument'.
owner unable to obtain monetary compensation are
removed, but only removed until the temporary injury A court may find that a regulation has deprived
abates through invalidation of the harsh regulation. a landowner of property without substantive due process,
although the regulations are only moderately restrictive,
For the county or government unit pressed if, 1) the purpose of the regulations is found to be
monetarily, this will have a chilling effect on the imple- improper - ie., the purpose, is not to protect public
mentation of strict or innovative planning measures. health, safety, morals or welfare -, or 2) the means
However, the effect would be less chilling than if chosen to effect a proper purpose are not rationally
compensation was awarded on the bases if a permanent related to the ends sought to be achieved. Katobimar
taking. The effect is that local government decision- Realty Co. v. Webster, 20 N.J. 114, 118 A.2d 824 -(1955),
makers must more seriously consider the economic In such cases, courts tend to. say that the regulations
impact of proposed land use regulations on landowners, are invalid-because they are "arbitrary," 11capricious,"
allowing for the possibility that courts may demand it -
unreasonable" and/or "not substantially related to the
temporary monetary compensation to aggrieved land- public health, safety or welfare.
owners.
B. Fourteenth Amendment Substantive Due Process C. Fourteenth Amendment Procedural Due Process
The requirements of procedural due process demand
The Fourteenth Amendment states in part that: "nor that whenever the government deprives a person of his
shall any State deprive any person of life, liberty, or property, he is entitled to notice and a meaningful hear-
property, without the due process of law." ing before the fact. Fuentes v. Shevin, 407 U.S. 67
(1972); Sotomura v. County of Hawaii, 460 F.Supp.473
Chronic confusion has resulted in judicial language (1978). 7rTWTFe-na person has an opportunity to speak
where landowners challenge the constitutionality of up in his own defense, and when the State must listen to
regulations based on the Fourteenth Amendment, which what he has to say, substantively unfair and simply
encompasses both the Due Process Clause and the incor- mistaken deprivations of property can be prevented. It
poration of the Fifth Amendment Taking Clause as has long been recognized that 'fairness can rarely be
applied to the States. In other words, under the rubric obtained by secret, one-sided determination facts
of the "Fourteenth Amendment," courts have invalidated decisive of right... 11 Fuentes, supra at 81.

CHAPTER 3 MUNICIPAL LIABILITY IN FEDERAL COURT
FOR CONSTITUTIONAL VIOLATIONS (cont.)

The requirement of a meaningful hearing before the Superior Court held that a city ordinance that excluded
deprivaton of property rights illustrates the importance non-residents from municipal beaches was in violation
attached to the concept that an individual has a right of the Equal Protection Clause. This decision was
to own and freely use and control property. A formal later approved by the New Jersey Supreme Court in
condemnation hearing is a procedural means used to Neptune City v. Avon-by-the-Sea, 61 N.J. 296, 294
protect the landowner from unconstitutional deprivations AM 47 (1972). In those two cases the beaches were
and also to justify the governments taking. A govern- public by virtue of dedication or the public trust
ment entity must be sure that a landowner is afforded doctrine.
proper procedural due procedural due process before
the taking of property. However, New Jersey courts have distinguished
cases where the city beaches were not acquired by
The usual judicial remedy for a procedural due dedication or the public trust doctrine, allowing the
process violation is remand to the decisionmaking agency exclusion of non-residents (Van Ness v. Deal, 139 N.J.'
for new proceedings in accordance with due process Super. 83, 352 A.2d 599 (Low Div. IT75T, -rev'd on
dictates. 8 HASTINGS CONST. L.Q. (1981). In Carey other grounds, 145 N.J. Super 368, 367 A. 2d 1191
v. Piphus, 435 U.S. 247 (1978), plaintiff students were (App. Mv 6), and the charging of higher non-
deprived of procedural due process when suspended resident fees (Hyland v. Allenhurst, 148 N.J. Super.
from school. They sought monetary reli6f for mental 437,372 A.2d 1133 (1977)). The distinction recognizes
and emotional distress under Sec. 1983. The Supreme the fact that when cities act in their local or private
Court denied the monetary relief, noting the difficulty capacities, it is for the health, safety, and welfare of
in proving actual mental and emotional distress. When their own residents. The fact that a beach may have a
the only constitutional violation is procedural, Carey, limited capacity and that its maintenance is through
supra, indicates that the procedural violation does not local taxes and bonds, may j u*stify placing a heavier
warrant a monetary damage award when no actual burden on non-residents.' Those two cases are current-
damage is shown. ly on appeal to the New Jersey Supreme Court.
D. Fourteenth Amendment Equal Protection Absent any justifying special circumstances it
appears that courts will deny a municipality the right
The Fourteenth Amendment states in part that; "nor to exclude non-residents or charge them higher user
shall any State ... deny to any person within its jurisdic- fees under the Equal Protection Clause. Further, in
tion the equal protection of the laws. a state like Hawaii where the beaches are a major draw-
ing card for the vital tourist industry, policy consider-
As demands for beach access increase, rendering ations demand a similar result.
municipal beaches more, and more crowded and unman-
ageable, can a city or county restrict access to its
citizens only? While the U.S. Supreme Court has not
addressed such a narrow issue, in Brindley v. Lavallette,
33 N. J. Super. 344, 110 A.2d 157 (1954), the New Jers-ey

CHAPTER 4 TORT LIABILITY UNDER A COUNTY BEACH ACCESS
PROGRAM IN HAWAII

40/

!W/Sam,
Pro

lo@

CHAPTER 4 TORT LIABILITY UNDER A COUNTY BEACH ACCESS
PROGRAM IN HAWAII

The determination of the county's liability for Liability Act, derived in substance from the Federal
violations of tort laws must be considered prior to the Torts Claims Act, was enacted in 1957. H.R.S. Sec. 662
acquisition of legal control or jurisdiction over any (1976).
lands under a County Beach Access Program. Recrea-
tion areas, often rugged and remote, are fraught with Applicability of H. R. S. Section 662 to County Govern-
potential injury causes arising most probably from, but ments
not limited to, nonfeasance or negligence of county
employees. In examining county liability the historical The application of H.R.S. Sec. 662 provisions to
development of liability and immunities will be traced the county governments has been upheld in a limited
from its common law applications to the development of and confusing manner. A discussion of the development
case law in Hawaii. of relevant case and statutory law follows.

The question of the liability of public corporations, Under H.R.S. Sec. 662-4, Statute of Limitations,
such as cities, towns and counties, for various classes a tort claim against the state must be brought within
of torts is one upon which there is a wide divergence two years. However, uii-der H.R.S. Sec. 46-72 tort
of opinion. The general doctrine of liability for torts claims against the counties must be brought within six
is based upon the common law rule that affords redress months.
for wrongs suffered by individuals. Governmental
immunity from tort liability has its origins in the The Hawaii Supreme Court in Salavea v. City &
common law doctrine of sovereign immunity under County of Honolulu, 55 Haw. 217 (1973), considered the
which it was postulated that, "The King can do no applicability of H.R.S. Sec. 662-4 to a tort action
wrong." However, more recently courts and legal against the City & County of Honolulu. The court held
scholars 'have been critical of the attachment of such that the provisions of H.R.S. Sec. 46-72 being incon-
devine immunity to the throne or government. justice sistent with Sec. 662-4, were invalid; and therefore
Holmes state in Kawananakoa v. Polybank, 205 U.S. Sec. 662-4 being the applicable statute of limitations,
349 at 353 (1907), sustaining a Hawaii Territorial superceded Sec. 46-72. Salavea, supra, was subsequent-
Supreme Court decision, "A sovereign is exempt from ly followed in two more tort actions against the City and
suit, not because of any formal conception of obsolete County. See: Sherry v. Asing, 56 Haw. 141 (1975),
theory, but on the logical and practical ground that and Kelley v. Kokua Sales, 56 Raw. 209 (1975).
there can be no legal right as against the authority
that makes the law on which the right depe6ds.11 In Orso v. City & County of Honolulu, 56 Haw. 241
(1975), the Flawaii Supreme Court clari ied the extent
It is settled that the United States and the various of the holding in Salavea, supra. "In Salavea, supra ,
state governments cannot be sued without their consent. the court dealt soYeTy--w-Fth-tHe-applicabU7it-y--oTHRS
=e principle of governmental responsibility for govern- Sec. 662-4 upon the City & County of Honolulu .......
mental tortious acts was accepted by Congress with the Mhe see no valid reason to extend the applicability
passage of the Federal Tort Claims Act in 1946. 28 U.S. of any other provisions of HRS Chapter 662 to the
C. Sec. 2671 et seq. (1976). The Hawaii State Tort City and County of Honolulu, and hereby specifically

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CHAPTER 4 TORT LIABILITY UNDER A COUNTY BEACH ACCESS
PROGRAM IN HAWAII (cont.)

limit the holding of Salavea to the City & County of Salavea, supra, that the majority's ipse dixit correla-
Honolulu." Orso, supra at 247. tion of couHt-ies with the State is contrar-- to the
y
reasoning of Kamau & Cushie v. County of Hawaii,
In Breed v. Shaner, 57 Haw. 656 (1977), the 41 Haw. 527 (1957), wh in the same court heM-that
Hawaii Supreme Co-urt upheld the Orso limitations on the diffences between State and local governments in
the applicability of H.R.S. Sec. 662 to the counties. terms of their law-making powers justified the reject-
The court held that Sec. 662-5, which states that tort tion of the common-law doctrine of sovereign immunity
actions against the state brought under Sec. 662 will with respect to the latter.
be tried without a jury, does not apply to tort actions
against the counties. It appears that Sec. 662 is ai State Tort
Liability Act, not meant to be ext-e-n-a-eU to political
While the case law indicates that H.R.S. Sec. 662-4 subdivisions. While not questioning the validity in
is the only Sec. 662 provision applicable to the counties, lengthening the statute of limitations for county tort
its applicability is limited to the City & County of liability claims, the proper way to do it would be
Honolulu. None of the cases subsequent to Salavea, through the amendment of H.R.S. Sec. 46-72.
supra, should be so narrowly construed and I can see
no v id reason for any distinction between the City & The distinction that Orso, supra, seems to make
County of Honolulu and the other three counties. Any between the City & Count--y-of Fro-no-Mu u and the three
application of Sec. 662 to the City & County of Honolulu other counties appears unfounded in light of Matsumura
or to the other three counties seems to be faulty for v. County of Hawaii, 19 Haw. 18 (1908), where the
two reasons. Hawaii Supreme Court (territorial) discussed the nature
of political subdivisions in Hawaii - municipalities,
First, the language of the statute clearly indicates counties, and City & County. (Matsumura, supra,
application to the "Employees of the State. 11 H. R. S. is an important case as it establishes muR_ici_P9 -tort
Sec. 662-1(2) defines employees as including "officers liability in this jurisdiction, and is thus discussed in
and employees of any state agency, members of the more detail later.)
Hawaii state guard, and persons acting in behalf of a
state agency in an official capacity, temporarily, whether The court in Matsumura recognized that at common
with or without compensation." A "State agency" is law confusing distinctions were made between municipal
said to include "the executive departments, boards and corporations proper and quasi corporations. Also see:
commissions of the State but does not include any con- Coffield v. Territory of Hawaii, 13 Haw. 478 (1901).
tractor with the State." H.R.S. Sec. 662-1(1). Municipalities or cities were classified as municipal,
Justices Levinson and Marumoto point out in the dis- corporations proper, created by the consent of their
senting opinion in Salavea, supra, that a county or members with broad corporate powers to promote the
City & County is no-t-i-n-c-Fude-Filn the definition of an private interests of those in the particular locale. On
employee of the State. the other hand, counties were classified as quasi corpor-
ations, created with a view to the policy of the state at
Second, Levinson points out in his dissent in large, for purposes of political organization and general

CHAPTER 4 TORT LIABILITY UNDER A COUNTY BEACH ACCESS
PROGRAM IN HAWAII (cont.)

public interest. Municipalities were held liable for tort the state is similarly vested with immunity. The courts
violations due to their general corporate nature. How- have stated time and again that a municipality is clothed
ever, counties, being involuntarily created political with two-fold functions: 1) governmental, political, or
organizations with limited corporate powers, especially public functions, and 2) proprietary, corporate, pri-
without powers to levy taxes, were deemed to be vate or ministerial functions. In the exercise of
immune from suits in tort, unless a cause of action was 11 governmental" functions a municipality is and agent of
provided by statute. See: Russell v. Men of Devon, the state and is exempt from liability for its failure to
2 Term Rep. 667. exercise them or for the exercise of them in a negligent
or improper manner, but for negligence in the exercise
In Matsumura, supra, the court recognized that of 11proprietary" powers a municipality is liable for
counties in Hawaii b-e-a-r-Tittle resemblance to those at damages in the same manner as an individual or private
common law and to those of the various states; and that person. Kamau, supra at 530. Like states, municipali-
they in fact possess many corporate powers in addition ties may become li-T-le-lor tort violations of "govern-
to political duties. The counties of Hawaii were held to mental" functions by consent. (statute or charter)
be liable for tort violations as municipal corporations. Perez v. City & County of Honolulu, 29Haw. 656 at 659
The court made it clear that the City & County of (1927).
Honolulu was also to be treated as a municipal corpor-
ation. As governmental" instrumentalities,. municipalities
"They could as well be called 'districts' as are endowed with powers and duties necessary for the
establishment and maintenance of government as a politi-
1counties', or, on the other hand, could be cal subdivision of the state, employed by it as a means
called 'city and county, I as has been subse- through which it may perform duties that it owes to all
quently done with the Island of Oahu, which citizens alike. On the other hand, as "proprietary" -
has been converted from the 'County of Oahu' instrumentalities, municipalities are incorporated at the
into the 'City and County of Honolulu.' S.L. wish of their inhabitants for the special interests and
1907, Act 118. These differences make the convenience of the particular locality and its people.
extension of immunity to counties in Hawaii Traditionally, the underlying test has been, "whether
merely a blind adherence to nomenclature in the act is for the common good of all without the element
the application of an erroneous principle. of special corporate benefit, or pecuniary profit. It it
Matsumura, supra at 34. is, there is no liability; if it is not there may be liabi-
Traditional MuniciL)al Tort Liability - Governmental lity. " Kamau, supra at 534.
and Proprietary Functions The general rule that the municipality is liable for
torts committed by its agents in the performance of its
The theory of non-liability of municipal corporations private or proprietary functions, but not responsible
is that the state being sovereign no suit can be brought for torts committed in the performance of governmental
against it without consent, and a municipality in per- functions is almost universally acknowledged. However,
forming certain functions as a political subdivision of as to what is a "governmental" function and what is

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CHAPTER 4 TORT LIABILITY UNDER A COUNTY BEACH ACCESS
PROGRAM IN HAWAII (cont.)

a "proprietary" function or "private" act of a municipa- of the public health as such matter would "contaminate
lity is a question on which there is a wide divergence the atmosphere or breed pestilence and disease." Maki,
of opinion. Kamau, supra at 530-31. supra at 178.

"On no subject, perhaps, is there more confusion Development of a Municipal Tort Liability Rule in Hawaii
among decisions, than that of municipal liability
for torts. The rule of governmental immunity The tendency of modern time 's is to extend the
is subject to a great number of exceptions, liabilities of municipalities for tort actions, either
many of which are purely arbitrary and without through court decisions or statutory provisions. The
any relation to the grounds upon which the following is a survey of the development of county tort
courts please to base the general rule. The liability in Hawaii.
whole doctrine of governmental immunity from
liability for torts rests upon a rotten founda- The earliest case establishing county liability for
tion." 75 A.L.R. 1196 editorial note. torts was Matsumura v. County of Hawaii, supra, . I
decided in 19487 _T@hecoUnty was held liabfe Tfor the
Attempted distinctions between "governmental" negligence of its servants who, in constructing a high-
or "public" and "proprietary" or "private" activities way, diverted a stream of water so that it undermined a
of a municipality have been subjected to sharp citicism large mound or bank consisting of earth and rocks which
by the courts and legal scholars. The Hawaii Supreme fell upon plaintiff's land, causing damage to his store,
Court in Mark, Moo & Carter v. City and County of house, and stables. While the court acknowledged that
Honolulu,-4T'Raw 343 (1953), recognizing the confusion the issue of liability normally turns upon whether the
Tn-dabi`Urdity created by the existing laws proposed act, the repair of highways, is classed as a corporate
that a modified set of more concise rules governing or governmental function, it failed to reach such a
municipal tort Liability be implemented. decision. Instead, the court stated that, "we are of
the opinion that under no proper construction of the
An example of the startling results arising from doctrine of municipal immunity in the performance of
attempts to classify particular functions is the Hawaii government functions can it be held to include immunity
case Maki v. City & County of Honolulu, 33 Haw. 167 for negligence resulting in the direct invasion of plain-
(1934T-.-Tn-Maki, supra, the Gity & County was held tif f Is private right as an adjacent land owner.
liable in an @'c_tion @intoit for the negligence of it s Matsumura, supra at 22.
employees in removing dry garbage, termed as
llrubbish," found to be a corporate activity for the The reasoning in Matsumura, supra, that a munici-
benefit of the residents of the municipality. By dicta, pal corporation is liable for a direct invasion of plain-
the removal of wet garbage (e.g. , entrails of fiih-or tiff's right as an adjacent land owner, was followed in
animals, refuse animal or vegetable matter), termed two subsequent cases. In Halawa Plantation v. County
as "garbage," would be classified as a governmental of Hawaii , 22 Haw. 753 (1915), the county was held
function. The distinction was based on the theory that ri_a@ble foFr damages caused to a crop of cane by a fire
the removal of "rubbish" was not a necessary protection started by road employees of the county acting within

CHAPTER 4 TORT LIABILITY UNDER A COUNTY BEACH ACCESS
PROGRAM IN HAWAII (cont)

the scope of their employment. In Mark, Moo & Carter hauling away of dry garbage as distinguished from
V. City & County of Honolulu, supra, the City & County hauling "wet garbage" which would be a governmental
was-Held liable to private individu@Fs for damages by function.
fire caused by the negligence of its officers, employees,
etc. , in permitting electric current to escape from its Current Hawaii Rule on Municipal Liability - Rejection
street-lighting system to a telephone wire and flow into of the Governmental and Proprietary Function Difft-inc-
and upon plaintiff's private property. tion

In Reinhardt v. Maui, 23 Haw. 102 (1915), the Under the implementation of any County Beach
county was held liable for failing to repair a defect in Access Program, it is very likely that municipal liability
a public highway or to guard against injury therefrom as to the maintenance of beach parks and easements will
resulting in personal injury to one lawfully traveling be a crucial area of focus. The following is a discussion
upon the highway. This case is important for two on the case Kamau & Cushnie v. Hawaii County, 41 Haw.
reasons. First, it expands county tort liability to 527 (1957), the most important case concerning municipal
include not only acts of misfeasance (Matsumura, supra) , liability in this jurisdiction since. Matsumura, supra.
but also includes nonfeasance. Second, the court ru ed Kamau., supra, is important because: 1) it rejects the
that where there is a dangerous situation (defect in "gove nffien-Mil V. 11proprietary" function test-rule on
the highway) that the county has knowledge of, it has municipal liability; and 2) It does so by specifically
a legal duty to warn the public of such dangers and to establishing municipal liability in the maintenance of
repair them. beach parks.

While the four previous cases all state that the Kamau, supra, is actually a consolidation of two
municipality is immune where the tort is committed in case-s-53TH7 a33r-essing the single issue of immunity or
carrying out governmental functions but not immune liability of the County of Hawaii for the negligence of
when carrying out proprietary functions, they are by its employees. Kamau v. County of Hawaii deals with
dicta. However, in Perez v. City & County of Hono- liability in the maintenance and operation of a county
ruiru-, supra (1927), the City & County was not liable hospital. But, more directly on point, Cushnie v.-
in damages for injury to a person caused by the negli- County of Hawaii deals with liability in the maintenance
gence of its agents and servants in operating a fire afid oper-a-t-io-n--oTa county park.
engine and police patrol wagon. The court held that
the acts complained of which resulted in injury to In Cushnie v. County of Hawaii, the county
the plaintiff were done in the performance of govern- operated and maintained a public beach park, Kawaihae
mental f unctions. Park, and employed a caretaker. The county had a
regulation that banned bonfires on the sand beach area
Also, as previously presented, there is the case of of the park, to which effect a sign was posted within
Maki v. City & County, where it was held that the city the park. The caretaker, while on duty, permitted a
was liable for damages occasioned by the negligent bonfire to be built on the beach and burn for some five
operation of a non- governmental function, namely, the hours, during which time it burned down to live coals

CHAPTER 4 TORT LIABILITY UNDER A COUNTY BEACH ACCESS
PROGRAM IN HAWAII (cont.)

covered with ashes. Plaintiff, a child of two years of and that a municipality is subject to liability for in-
age, while running along the sand beach fell into the juries resulting from its failure to do so. Kamau,
coals and was burned, resulting in pain and suffering supra at 545.
as well as permanent injury to the fingers.
In Wax v. City & County, 34 Haw. 256 (1937),
The issue was raised concerning whether the the Hawaii Supreme Court ld, "Where a municipality
county would be liable for all suits brought against owns and controls public pa@ks there is imposed upon
it, be they for breaches of governmental or proprie- it the legal duty to use ordinary care to keep such
tary functions, under R. L. H. 1945, Sec. 6202 (curr- parks in a reasonably safe condition for the public
ently H. R. S. Sec. 61-2(1) which states that the rightfully using the same." While a duty to maintain
counties of Hawaii, Kauai, and Maui each has the power parks was recognized, the court did not decide -whe-
and liability, "to sue and be sued in its corporate ther such duty results in any municipal liability based
name. 11 The court refused to enlarge the liability of on a governmental function.
the counties, by citing its earlier decision in Perez,
s@Ypra, where the court rejected an identical construc- The court in Kamau, supra, went on to take notice
tio f R. L. 1925 Sec. 1721 (currently H. R. S. Sec. of the expansion of go J_nmental activities, where the
70-6) which authorizes the maintenance of suits nation, states, and municipalities are increasin4ly
against the City and County of Honolulu. carrying out functions once thought to be private.
The court also stated that the underlying test as to
The court in Kamau and Perez, supra, rationa- whether the service performed is for the common good
lized that the purpose of the statutory sections is to 6f all or for the be n-efit of the members of a particular
authorize suits against the counties, "when a cause of locality is worthless, as all functions perfomed for
action which is recognized by law arises. It does pur- which public funds are expended are deemed for the
port to enlarge the liability of the municipality so as public benefit.
to include acts for which it would not be liable at com-
mon law." Kamau, supra at 548. In light of the changing conditions, the court re-
The court in Kamau, supra, went on to discuss the cognized the basic need to adapt itself to the changes
and reinterprete them in a modern context; and that
confusion and nor@c-onformity in laws governing muni- stare decisis is a principle of policy not a mechanical
cipal liability and their underlying rationale. Address- Fo-rmula that should bind a court to p*recedent when
ing the issue of maintenance of a public park. the court changing conditions and sounder policy call for adjust-
recognized that there is a split in authority, the ments in the law. Finally, the court concludes:
weight of authority holding that the maintenance of a
public park is a governmental function and therefore "We are of the opinion that the narrow rule
a municipality is not liable for torts of its agents. heretofore followed as to so-called 'govern-
However, other jurisdictions have held that a muni- mental' or public functions and 'proprieta-
cipality has a duty to exercise ordinary care in es- ry I or private functions should not control
tablishing, equipping and caring for public parks to the question of municipal liability for its
make them reasonably safe for persons using them, torts; that where its agents are negligent
52

CHAPTER 4 TORT LIABILITY UNDER A COUNTY BEACH ACCESS
PROGRAM IN HAWAII (cont.)

in the performance of their duties so that
damage results to an individual, it is immate-
rial that the duty being performed is a public
one from which the municipality derives no
A lUmilLA,
profit or that it is a duty imposed upon it by
the legislature.
We therefore hold that it is the duty of the 4:1
County of Hawaii to use ordinary care to keep
the parks in a reasonably safe condition for
the public rightfully using them regardless of
the fact that no charge is made for the same."
Kamau, supra at 552.'

The effect of Kamau, supra, is in line with the Fk
modern trend to hold governments accountable for
their torts. The confusing7first step of classifying
functions having been removed, municipal liability in
this jurisdiction will now turn directly upon the ques-
tion of pure tort law (ie. duty, breach, causation,etc.)

V
Recognizing that the establishment of public ease-
ments through private lands will be an important as-
pect of a County Beach Access Program, there is a need
to determine county liablility for injuries suffered by
easement users. In Levy v. Kimball, 50 Haw. 497
(1968), the plaintiff Tas -injured while walking on a
seawall that was a public easement controlled. by the
state, the ownership. in the property belonging to
the Halekulani Hotel. The court recognized that a
seawall was within the scope of the definition of a
public highway, to which was imposed a duty of ordi-
nary care in maintenance upon the controlling govern-
ment entity. The court then held that cont'rol over
the easement not ownership of the property determines
who is liable for injuries caused by failure to keep the
easement in repair.

CHAPTER 5 FEDERAL & STATE TAX INCENTIVES FOR
DEDICATION OF PRIVATE LANDS

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CHAPTER 5 FEDERAL & STATE TAX INCENTIVES FOR
DEDICATION OF PRIVATE LANDS

Providing tax incentives to property owners en- can be deducted depending upon the party making the
couraging them to donate interests in land to the go- contribution. As a general rule, an individual may
vernment for recreational purposes may be used as a deduct up to 50% of his taxpayer's contribution base
method for acquiring public beach access. Tax incen- for the year. Sec. 170 (6) (1) (A) "Contribution base"
tives provide an alternative means of acquiring private is defined as the adjusted gross income. Sec. 170 (b)
land that is a lot less expensive and simpler than going (2) . A corporation may deduct up to 5% of its ahnual
y
through condemnation proceedings. No "taking" issue taxable income. Sec. 170 (b) (2). For either type of
arises as the surrender of land is voluntary. However, taxpayer, excess contribution may be carried over
the voluntary nature of such acquisitions is also its through five succeeding tax years. Sec. 170 (d) .
weak point. Real property is appraised at.its fair market value at
the -time of contribution.
The following is a presentation of tax incentives
available to private landowners who dedicate land for As a general rule, subject to a few exceptions un-
public purposes. On the federal tax level the three der Sec. 170 (f) (3) (B), no d6duction is allowed for
primary incentives are 1) Income Tax deductions, less than a contribution of the donorls entire estate
26 U.S.C. 170, 2) Federal Estate Tax deductions, in the property. Therefore a contribution of a lease
26 U.S.C. 2055, and 3) Federal Gift Tax deductions, interest or term of years in property would not be en-
26 U.S.C. 2522.' In Hawaii, state tax exemptions or titled to a deduction. Reg. Sec. 1.170A-7(a How-
abatements are awarded to private landowners cover- ever, to the extent that their v@klue may.0e appraised,
ing 1) Real Property Taxes for dedicated lands in contributions of less than fee titl 'e interests.such as
urban districts, 2) Real Property Taxes for surrender easements and licenses may be deduct7ed. Fair v.
of private land as forest or water reserve lands, 3) C.I.R., 27 T.C. 866 (1957). As the ac@uisitio_nof
State Inheritance Taxes, and 4) State Conveyance easements may be a very desirable part.of a beach
Taxes access program, especially in coastline areas already
developed or where. costs. are prohibitive. this appli-
Federal Taxes cability of deductions to dedications of easements is an
important incentive.
A. Federal Income Tax; Itemized Deductions;
Charitable, etc., contributions and gifts, 26 U.9-7111. A 'charitable contribution" has been construed to
170. mean that the incentive or motive behind the gift must
This section provides for itemized income tax be that of detached and disinterested generosity or
deductions for "charitable contributions, " defined as that of affection, respect, admiration,. charity, or,
contributions or gifts to or for the use of., "A State, like impulses. Whenthe contribution is made for ulter-
a posession of the United States, or any political ior business purposes it is not deductible under Sec.
subdivision of any of the foregoing, or the Uni 170. - Transamerica Corp. v. U -S., 254 F. -Supp. 50.4,
States or the District of Columbia, but only if the affirmed, 39 F. 2d 522 (1965).
contribution or gift is made for exclusively public
purposes. (emphasis added) Sec. 170 (c) (1) - B. Federal Estate Tax; Transfers for public,
There are certain limitations places on the amount that charitalile, and r-eFigious uses, 26
55

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CHAPTER 5 FEDERAL & STATE TAX INCENTIVES FOR
DEDICATION OF PRIVATE LANDS (cont.)

(a) (1). urban districts dedicated for "landscaping, open spaces,
public recreation, and other siinilar uses. 11 -Fem-p-Na- S'17 S
This section applies to the taxable estates of added) Sec. 246 34 (b) . Open spaces are, defined @as,
U. S. citizens and residents where the gifts are teste- "lands open to the public for pedestrian use and mo-
mentary. Testators who are worried about the effects mentary repose, relaxation and contemplation. " Sec.
beachfront properties may have on increasing the value 246-34 (h) . Lands for public recreation are defined
of-their taxable estate (ie. higher estate taxes) and the ad, "lands used for public park, playgrounds, histori-
burdens that may be imposed upon legatees unable to cal sights, camp grounds. wild life refuges, scenic
pay inheritance and property taxes, should be encour- sites, etc." Id.
aged to make testamentary gifts to the government.
The dedicatory status of the land is for a mi-
C. Federal Gift Tcix; Charitable and similar gifts, nimum ten year period, automatically renewable inde-
26 U.S.C. 2522. finitely, subject to cancellation by either the owner or
director of taxation upon five years' notice any time
This section provides for deductions from the after the end of the fifth year. Sec. 246-34 (c) .
federal gift tax which is calculated quarterly. Includ- The landowner must petition the director of taxation
ed in the deductions are, "the amount of all gifts made for tax exempt status approval.
during such quarter to or for the use of... the United
States, any State, or any political subdivision thereof, Dedications of urban lands, where beach access
for exclusively public purposes." (emphasis added) is likely to be most in demand, shouldbe encouraged
Sec. 2522 (a) (1) . While.Sec. 7522 (a) (1) applies speci- upon property owners who are unable to pay property
fically to citizens or residents, an identical provision taxes and/or maintain the land, as ah alternative to
applicable to foreign nonresidents is provided for in sale. Note, that according to the State land use control
Sec. 2522 (b) (1) . laws, counties have exclusive control over zoning regu-
lations and ordinances in their respective urban dis-
This provision differs from Sec. 2055, Federal tricts. The obvious drawback for the government in
Estate Tax deductions. in that here intervivos gifts obtaining such land is the possible subjection to ter-
are dealt with as opposed to testimentary gifts,- and mination by the. landowner with five years' notice.
here the transfers include those made,by both residents
or citizens, and foreigh nonresidents, as opposed those B. . Property Tax exemptions for lands surrendered
limited to residents or.citizens. as forest or water reserve lands, H.4.9. Sec. 183-1.5

State Taxes Under this section, Ildny person may, on
agreement with the department of land and natural
A. Real Property Tax exemption for -dedicated resources, at any time surrender to the government
the care, custody and control of @Lny lands, whether
lands in rban dis ricts,-H.R.S. Sec. 246-34
held under lease -or in fee, as forest or water reserve
This section allows the landowner a property lands., either for a term of not less than twenty years,
tax exemption for the portion or portions of lands in or"forever. *.. No taxes shall be levied or collected on

CHAPTER 5 FEDERAL & STATE TAX INCENTIVES FOR
DEDICATION OF PRIVATE LANDS (cont.)

any private lands so surrendered so long as the land owners who transfer property to the public, is the
remains exclusively under the control of the govern- exemption on the tax imposed on 11 (a) ny document
ment as a forest reservation. 11 Sec. 183-15. or instrument which solely conveys or grants an
easement or easements." Sec. 347- 3. Note, however,
This surrender of land provision may be a that the incentives for exemption of a conveyance tax
very effective way of getting large tracts of private are very minimal due to the fact that the tax is assess-
forest and water reserve lands which are unused but ed on the rate of only five cents per one hundred
nevertheless subject to real property taxes, under dollars of consideration. Sec. 247-2.
public control. Note, however, that under the State
land use contrbl laws the zoning of forest and water
reserve lands, classified under conservation districts,
are exclusively under the control of the Department
NXII
of Land and Natural Resources. Sec. 205-5. In other 7 It*
words, they are beyond the powers of county zoning
regualtion. The obvious drawback of obtaining land
through surrender is that any surrender less than
forever is subject to the reversionary interest of the
private landowner.

C. State Inheritance Taxes, Sec. 236-8

This section provided in part that all property
transferred to any "public corporation" are exempt
transfers for purposes of calculating state inheritance
taxes. In other words, rather than being an incentive
for private landowners to dedicate lands, its primary
effect is save a recepient public corporation from in-
heritance tax liability. The actual benefit to the land-
owner is a deduction on his federal estate tax.

D. Conveyance Tax Exemption, H. R. S. Sec. 247

Conveyance taxes are imposed on transfers or
conveyances of realty, or interests therein, to be paid
by the grantor, lessor, sublessor, assignor, trans-
feror, seller or conveyor. Sec. 247-1,4. Although
ten exemptions to the tax are recognized, the one most
likely to prove to be some incentive to beach front

CONCLUSION

The foregoing chapters reveal that Hawaii's legis- ticable. The extent of developed access ways is
lature and courts have attended significantly to the inhibited by the municipality's ability to properly open
subject of public access to the shoreline and, thus, to and maintain such areas.
the variety of recreational and customary pursuits long
enjoyed by the people of the islands. In addition to Other limitations arise as a result of the potential
applicable case and statutory law, there are several liability of a municipality in its regulatory actions to
theoretical bases available to establish the right of the acquire land for public access and in its development
public to such access. and maintenance of such areas.
Still, there are practical limitations to the imple- Nevertheless, on the basis of existing law and
mentation of public access to the shoreline. Costs of further supportive legislation, Hawaii's State and
acquisition and development of land are high. In many County governments will be able to fashion programs
areas, the great distance between the shoreline and the to provide and ensure increased access to the shore-
nearest public street often makes public access imprac- line for the people of Hawaii.

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CALIFORNIA COASTAL ACCESS PROGRAM
INTRODUCTION

As a supplemental portion of this research project, This study merely provide s an initial review of
a limited study was conducted on the approach taken California's overall Plan, Presenting th6 possibility
by California to manage and preserve its coastal areas. that the County of Hawaii will'do further analysis
Focused on the public-access subject, this study is of the methods and ideas which are, employed by
based on a recognition that California and Hawaii share California and which would seem to be.desirable and
many common objectives and problems relating to'public feasible here. Such further analysis would accompany
access which result from the.widespread use of the a subsequent phase of the Public Shoreline Access
coastal areas by the public, the increasing demand for Program in which an implementation plan and specific
that use by an ever-increasing population, and the courses of action would, be developed.
increasing inaccessiblity of such areas due to inade-
quate developmental controls.

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CALIFORNIA COASTAL ACCESS PROGRAM

Californians have long recognized the importance 1) the functional criteria for providing access, 2) the
of the need to adequately control and manage their definitions, specifications "and costs of coastline access,
coastlines. In 1972, the voters overwhelmingly 3) a system for effectively locating and distributing
endorsed Proposition 20 (the Coastal Initiative), cre- accessways, 4) th -e accessway and facility management
ating a temporary state agency charged with protecting responsibilities, 5) the appropriate management, agencies,
coastal resources and coastal access. The California and 6) innovative management and funding techniques.
Coastal Act of 1976 established the California Coastal Reference should be made to the joint Staff Report on
Commission as a permanent agency, its purpose to Standards and Recommendations for Coastal Access,
make recommendations and guide other public agencies Coastal News , Vol. 3, No. 6, Oct. /Nov. 1980, for a
in the development and maintenance of the coastline general rundown of these concerns.
areas. Also, in 1976, the State Coastal Conservancy
was established by the Coastal Conservancy Act and The following is a brief review of California's
given a principal role.in implementing a system of approach to solving access problems dealing with 1)
public accessways to and along the state's coastline, funding, 2) maintenance and management and 3) liability
chiefly through the provision of funds to acquire and These problems are interrelated with funding limitations
develop public coastal accessways. being a common handicap. Before going any further,
it should be emphasized. that the novel approach taken
By .1979, it became clear that the state's. efforts by California in solving its coastal problems represents
to effectively manage the coastline was not being fully a comprehensive statewide plan. However, under the
realized due mainly to a lack of coordination between statewide plan, it-is envisioned., that the local govern-
responsible governmetal units and an incomplete ments play an important role in developing local coastal
mechanism for paying the operation and maintenance programs by identifying all existing and proposed access
costs of increased public access. Accordingly,, in areas and proposing a program for their acquisition,
1979, the state legislature established a comprehensive improvement and management.
coastal access program, designating the Coastal Com-
mission and State Coastal Conservancy as the joint A. FUNDING
lead agencies. These joint agencies are responsible
for designing the comprehensive access program and The problem that California faces in regards to
coordinating all local,. state and federal efforts to securing adequate funds, especially to pay for facility
implement the program. development,, operation, maintenance, liability and spin-
off (e.g., need for more police) costs, can be seen in
Due to the comprehensive and weli-coordinated the fact that currently there are more accessways than
nature of this statewide program, any other state the government is willing to take responsibility for..
hoping to implement a coastal access.program, should For a detailed breakdown of the estimated value of the
examine the California approach. The joint commission Costs involved, see the Joint Commission Report on
has begun by preparing An access inventory and guide Innovative Management and Funding Techniques for
to all coastal accessways. The joint commission has Coastal Accessways_ (I.M.F.T.), pp. 8-14, January .1981.
been developing a comprehensive list of standards and
recommendations for coastal access by examining: In California, the Coastal Commission is in charge
63

CALIFORNIA COASTAL ACCESS PROGRAM (cont.)

of approving development permits conditioned on dedi- Under the traditional approach, as a general rule,
cation of accessways. As of January 1981, over 500 offers to accept responsibility for accessways are first
such offers to dedicate were unaccepted and the pro- given to local governments, with the Joint commissions
posed accessways remained closed to the public. This providing aid in securing funding. Concurrent with
was primarily due to a lack of funds available to local these initial offers to local governments, local private
governments and agencies for accessway management non-profit organizations (e.g., land trusts or service
and maintenance. Also, hundreds of potential access organizations) should also be approached regarding
easements along the coastline remain closed for the the assumption of accessway operation and maintenance
same reasons. duties. Where this occurs, the local government would
retain legal control of the accessway, and arrangements
The joint commission has proposed several innova- would be made with the local non-profit organization
tive means to raise revenues that could be made avail- for operation and maintenance.
able to local governments, state of federal agencies,
local non-profit organizations or to a statewide coastal If a dedication offer is not accepted by the local
access trust (covered in following section) through government or non-profit organization, it should be
administration by the State Coastal Conservancy. They offered to the appropriate state agency. In general,
include: 1) voluntary state income tax "add-ons", the considerations of assigning access responsibilities
2) voluntary license plate fee "add-ons", 3) part of and making offers to stat 'e agencies include: proximity
the fees from vanity (personalized) license plate sales, to existing facilities or areas under agency control, .
4) part of the Tidelands Oil Revenue, 5) profits from level of potential public use of the accessway, visibility
accessway concession, 6) a voluntary fee system, 7) from the nearest state highway, and proximity to
private sector constritutions, 8) fund-raising events environmentally sensitive habitats or wetland areas.
by a Coastal Access Trust, and 9) a combination of The concerned state agencies include the Department
the foregoing techniques to provide an endowment fund of Parks and Recreation, the State Lands Commission,
for on-going management and operation expenses. For the Department of Transportation, and the Department
a more detailed explanation of these techniques, see of Fish and Game. A few situations may also exist
I.M.F.T., pp. 14-16. where the dedication should be offered to a federal
agency, such as where an access 'way is in proximity to
B. MAINTENANCE & MANAGEMENT a national park. For details of the criteria used to
offer dedications, see Standards and Recommendations
Basically,, the Joint Commission proposes two for Coastal Access, pp. 1713.
systems of management, 1) through the traditional
public sector and 2) an alternative system based on a The joint commission recognizes that an alternative
private statewide non-profit land trust. Under the to traditional governmental operation of access facilities
traditional approach, the Joint Commission has set up is necessary for two reasons: local governments a ind
a system by which different government entities are state agencies increasingly disclaim their need to under-
offered the opportunity to accept lands dedicated to take such responsibility and conventional sources to
the public. fund such activities are diminishing. At the same time,

CALIFORNIA COASTAL ACCESS PROGRAM (cont.)

it has been recognized that there was no overall state which are most needy.
priority to encourage and stimulate citizens to give of
themselves voluntarily for the benefit of others and A major advantage of such a trust system is the
for the resources of the state. The joint commission innovation that can be applied to funding and manage-
suggests that a major portion of coastal access faci- ment, free of normal bureaucracy and government
lity operation and maintenance be carried out by an constraint. Other advantages include the sense of
independent, private non-profit corporation. Such civic pride, accomplishment and cooperation that mem-
an alternative is based on concepts of stewardship bers of the community will realize, and the arousal of
and volunteerism. "Stewardship" involves private civic consciousness concerning the problems of the,
management of public resources for the benefit of all. environment.
The joint commission proposes that a statewide
non-profit corporation (California Coastal Access C. 'LIABILITY
Trust) would manage, operate, and maintain access
facilities under contract or lease from the government California has very strong statutory provisions
agencies which own such facilities. In turn, the that protect agencies and organizations which accept
Coastal Access Trust would subcontract with a local responsibility for operation and maintenance of coastal
group, such as a service organization or local non- accessways from personal injury liability. Under
profit organization, to provide the necessary mainte- Government Code Sec. 831.4, a public 'entity, public
nance services for a fee. The local group would then employee, or grantor of a public easement to a public
secure volunteer efforts from its membership in fund- entity who provides access to water recreation and
raising and organization activities. On-going funding scenic areas, is immune from liability for injuries
for the Trust would be derived from a combination of occurring on such paved or unpaved accessways.
techniques presented in the earlier section on funding. However, where dangerous conditions exist on paved
However, the joint commission envisions that the bulk accessways, the responsible party has a duty to post
of the funding would come from the operation of reasonable warning,, and the failure to do so may give
profitable recreational concessions at public park rise to liability.,
facilities along the coast, the net proceeds going to
the operation and maintenance of coastal accessways. According to the joint commission, other recent
While it is critical that the non-profit trust be self- legislation has also created immunities under most
sustaining, the availability of adequate start-up _ circumstances for coastal public land trusts which main-
capital must be a'ssured. The joint commission sug- tain coastal accessways and have entered into specific
gests that the State Coastal Conservancy provide agreements with the State Coastal Conservancy. See
such funds for the first five years, allowing the L.M.F.T. , p. 13. Statutes provide for government and
trust to build itself up to self-sufficiency. As pro- government employee immunity for injuries arising out
ceeds would be pooled together under one common of natural conditions of unimproved or unoccupied
fund, money can be equitably distributed throughout portions of certain public lands. California Code
the state, assuring that funds will be given to areas Sec. 831.2, 831.6.

CALIFORNIA COASTAL ACCESS PROGRAM Wont.)

A review of the trend in accessway legislation perty in safe condition and the expense of
reveals the clear favored public policy to increase defending claims for injuries would probably
coastal access even at the expense of traditional rules cause many public entities to close such
of tort liability. The legislative comment to Sec. 831.2 areas to public use. In view of the limited
explains the state's policy. It is notable that the policy funds available for the acquisition and
has been expanded to cover improved accessways under improvement of property for recreational
Sec. 831.4. purposes, it is not unreasonable to expect
"It is desirable to permit the members of the persons who voluntarily use,unimproved
public to use public property in -its natural public property on its natural condtion to
condition and to provide trails for hikers assume the risk of injuries arising there-
and riders and roads for campers into the from as a part of the price to be paid for
primitive regions of the state. But the benefits received." California Code Sec.
burden and expense of putting such pro- 8131.2, Legislative Committee Comment.

CALIFORNIA COASTAL ACCESS PROGRAM
CONCLUSION

California's approach is based on a strong state land trust and the related use of volunteers in the
legislative plan for adequate management and preser- management and operation of access facilities.
vation of the coastal areas. Statutory protection of
participating public and private bodies from liability These and other aspects of California's approach
addresses a long-standing problem for such entities. seem worthy of further study. Effective legislative
action and innovative ideas are characteristics which
California has demonstrated innovation in its have the potential of facilitating an effective public
approach, such as the private state-wide non-profit shoreline access program for the County of Hawaii.

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A special Mahalo
to the Hawaii State Archives for the use of their photos,
and to Susan Shaner, our Aloha for assisting us
to select relevant photos for the project.
With your cooperation we are able to visually share
"Old Hawaii" with the readers of this document.

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