March 13, 2015

Protecting your home v. letting it crash into the sea

By Todd F. Gaziano Chief of Legal Policy and Strategic Research, and Director, Center for the Separation of Powers

Earlier this week, I visited the northern Massachusetts coast to attend a public hearing of a relatively new agency, the Massachusetts Coastal Erosion Commission (MA CEC or Commission). The Commission issued a draft report in January on its work thus far and invited public comment. I met with municipal officials and neighborhood association leaders who would be affected by new coastal regulations, and with input from PLF colleagues who specialize in this area, I offered remarks at the hearing. Some of my comments were captured in this news report. The Pacific Legal Foundation also will submit more detailed written comments to the Commission in the next few weeks.PLUM Island shore

One reason for our interest in these proceedings (besides our experience defending coastal property rights in a number of other states) is that a regional office of the Massachusetts Department of Environmental Protection (DEP) sought to impose unconstitutional conditions on permits to rebuild six homes along the coast destroyed by a winter storm in March 2013. The office sought to require that Plum Island property owners give up their right to build a seawall to protect their property and to forego compensation should erosion due to the absence of a seawall cause a taking of their property.

After PLF sent an opinion letter pointing out that the conditions were unconstitutional, DEP’s Northeast Regional Office dropped them. Any new homes on these lots now can be built in a manner that will mitigate future damage. I visited the area on Plum Island where the houses fell into the sea and saw videos of the destruction. It’s a moving example of what the ocean can do when federal navigation jetties interfere with the normal flow of sand along the shore and adequate steps are not taken to protect the beach buffer areas.

But worse than a failure to act, it’s tragic when states try to stop coastal landowners from protecting their own property. PLF has fought this obstinacy elsewhere, including in Lynch v. California Coastal Commission, which the California Supreme Court recently agreed to hear. On Plum Island, MA, when the government got out of the way, the remaining homeowners took matters into their own hands and built a rock revetment to protect their properties from further losses. (This winter’s storms were also depositing much needed sand to restore the beach but what the sea giveth this year it can reclaim next year.)

Will others facing similar threats along the Massachusetts coast be able to protect their homes, businesses, and city property, or will the MA CEC try to justify regulations that make it harder to for them to defend their property? The DEP’s effort to extract unconstitutional permit conditions from Plum Island landowners is worrisome, especially since DEP officials occupy prominent seats on the MA CEC and its working groups. Many of the recommendations in the MA CEC draft report raise additional concerns.

Potential setback requirements that reach too far and unconstitutionally impair property rights are one example. Although the draft report recommends further study of setbacks, it does not acknowledge the most obvious concerns and most relevant legal authorities. The legal authorities listed in section 5 of the draft report only include those which authorize the regulation of coastal property. That is quite misleading without setting forth the limitations on the exercise of that regulatory authority, including those contained in the Massachusetts and United States Constitutions. Among them, the Massachusetts Constitution expressly guarantees the right of property owners to protect their property and requires compensation if any property is taken for a public use—which would occur if setback requirements unreasonably prevent construction on existing lots.

There are several other indications that at least some on the Commission’s staff preparing the draft report and who work in Massachusetts coastal management agencies would prefer to solve the coastal erosion problem, at least in part, by making new coastal construction and “significant redevelopment” much more difficult and letting existing landowners face the ravages of nature without the right to properly protect their own property. This is the “retreat from the coast” philosophy of those who don’t own coastal property and believe there is something wrong with any other individual owning it.

One citizen who spoke at the public hearing expressed the retreat-from-the-coast message in very plain terms. He said that he lived about 1.5 miles from the coast. He held up one of his favorite books on the Northeastern and Mid-Atlantic coastline and declared that the coast was a great place to visit, but people ought not to live there. If that advice was given to the Native Americans who inhabited those shores for millennia and to the Plymouth Colony and other English settlers who displaced them, they ignored it. Unfortunately, various coastal authorities now seek increasing authority to implement such philosophical and environmental goals.

The MA CEC estimated in its draft report that more than $7.2 billion worth of development was located in 78 coastal communities with tens of thousands of residents. As you might imagine, an immediate abandonment of that development to human habitation was not one of the Commission’s recommendations for study. Yet several of the other Commission recommendations would entail highly questionable approaches to “protect” the shoreline that would essentially require landowners to dedicate to the public or abandon a portion of their property.

One notion is that cities and private landowners should not protect their property with seawalls or other lateral supports because the erosion of their property could supply needed sand that might help others downdrift from them. This “natural” approach is supposedly preferable to any manmade solution, notwithstanding that some sections of the Massachusetts coast are currently protected with seawalls for most of their length. There is no way to return to the “noble” state of nature unless all navigational jetties, port facilities, hundreds of erosion control groins, and hundreds of miles of seawalls are removed.

The legal problem with preventing new construction and private coastline protections is that construction on and stabilization of private property are independently protected by the Massachusetts and United States Constitutions. Moreover, a property owner’s retention of his sand is not the cause of erosion elsewhere. New homes are not causing shoreline erosion or sea level rise, which was another major theme of the MA CEC report.

Thus, private landowners cannot be made to bear excessive costs for harms that are not of their making under a series of U.S. Supreme Court decisions won by PLF. The pseudo-externality argument that the retention of their soil and sand hurts others works in academia but proves too much in the real world (why not allow truckloads of my soil to be hauled away?).

The government should enhance protections for private property, especially if its navigation controls or other structures are partly to blame for the loss of beach buffer areas.  But trying to blame property owners for wanting to remain, protect, and enjoy their property is backward and immoral. That approach, including any form of mandated or regulatory retreat from the coast, is tantamount to destroying or abandoning the village in order to save it.

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Lynch v. California Coastal Commission

The Lynch family sought permission from the California Coastal Commission to repair a storm-damaged seawall and stairway that led from their home at the top of a bluff down to the beach. The Commission permitted the seawall restoration with a condition that they seek an additional permit in the future, and denied the permit for the stairway. To protect their home, the Lynches accepted the conditioned permit under protest and repaired the seawall. PLF represents the Lynches, arguing that the seawall conditional permit and denial of the stairway permit violated their constitutional property rights. California’s appellate courts rejected the Lynch’s claims, and the California Supreme Court added insult to injury by holding that the Lynches forfeited their claims altogether by accepting the permit and repairing the seawall.

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