Despite its mission to protect the coast, the Coastal Commission has adopted a strategy of eroding coastal property in order to make way for public access and new shoreline habitat. The Coastal Commission calls this “managed retreat.” Managed retreat stops cliff stabilization, seawalls, and beach nourishment, exposing coastal property to flooding and erosion.
The EPA refers to managed retreat as a “rolling easement“—“a legally enforceable expectation that the shore . . . can migrate inland instead of being squeezed between an advancing sea and a fixed property line.” Rolling easements can be “regulatory,” such as setback requirements or open space, or can be public “property,” such as restrictive covenants and conservation easements. The Coastal Commission, however, has found the coastal development permit to be the most effective tool for managed retreat.
Under the Coastal Act, any development on the coast requires a coastal development permit from the Coastal Commission. Under managed retreat, the Coastal Commission conditions approval of coastal development permits on the waiver of the right to maintain a seawall. In doing so, the Coastal Commission countenances the erosion of coastal landowners’ property.
Many coastal properties require seawalls to buttress the land from erosion and storms. By waiving the right to maintain seawalls, coastal property owners gradually expose the land to the waves. Through erosion, local agencies can eventually remove damaged buildings entirely. Advocates of managed retreat call this “breaking the seawall cycle”
Fortunately for coastal property owners, this strategy runs afoul of the California Constitution — which guarantees landowners the right to protect their property — as well as the Coastal Act — which requires the Coastal Commission to issue seawall permits as required to protect coastal property. The Pacific Legal Foundation is currently litigating three cases to defend the right to protect coastal property, including Capistrano Shores Property, LLC v. California Coastal Commission, Beach & Bluff Conservancy v. City of Solana Beach, and Lynch v. California Coastal Commission.