Sunday, January 7, 2007

Hotels vs. Burials—Shoreline Development in Hawaii

Hawaii’s latest controversy over resort development involves a plan to build up to five new hotels at  Turtle Bay, on Oahu’s North Shore. According to this article in Sunday’s Honolulu Advertiser, Kuilima Corporation hopes to proceed under a master plan approved twenty years ago, but is running into resistance from the State Historic Preservation Division because of the subsequent discovery of Native Hawaiian burials on the property.  Hawaii  law (principally Chapter 6E, Hawaii Revised Statutes) provides significant protection to burials and archaeological sites, and the laws have been strengthened since Kuilima obtained its land use permits.  A separate challenge to the project based on the age of the permits and alleged changes in conditions since their approval has as yet been unsuccessful.

Coastal sand dunes, viewed by some as highly desirable sites for resort development, were viewed as ideal burial sites by Native Hawaiians, a circumstance that helps to make the issue of coastal development vs. preservation of burials, archaeological sites, and customary and traditional practices the subject of repeated controversy in Hawaii.  These matters generally reach the courts in the context of battles over land use permits, e.g., Public Access Shoreline Hawaii v. Hawaii County Planning Comm'n, 903 P.2d 1246 (Hawaii 1995), and Ka Pa'akai O Ka'aina v. Land Use Comm'n, 7 P.3d 1060 (Hawaii 2000), but Hawaii's Intermediate Court of Appeals has also been called upon to rule (in two cases involving the same seller!) that a seller's failure to disclose the known presence of archaeological sites on a property will allow the buyer to set the sale aside for failure to convey marketable title.  Southwest Slopes, Inc. v. Lum, 918 P.2d 1157 (Hawaii App. 1996), Create 21 Chuo, Inc. v. Southwest Slopes, Inc., 918 P.2d 1168 Hawaii App. 1996).

Carl Christensen
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Love those marketable title cases. They ought to make it into the property curriculum at some point, don't you think?

Posted by: Al Brophy | Jan 7, 2007 4:53:18 PM

Keep up the good work.

Posted by: Cherie | Oct 21, 2008 10:51:22 AM

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