The asserted “right to defend” coastal propertyPosted: September 25, 2014 Filed under: Regulatory Takings Comments Off on The asserted “right to defend” coastal property
The California Court of Appeals has issued an interesting decision rejecting a takings claim based on restrictions imposed by the California Coastal Commission on landowners’ alleged “right to defend” their properties from coastal erosion. Following a serious storm that destroyed erosion control structures protecting two neighboring properties on the coastal bluff in Encinitas, California, the Commission granted the owners permission to construct new coastal erosion structures. However, the Commission took the (relatively new and unusual) step of limiting the permits for the new structures to twenty years, giving rise to the takings issue in the case.
The Commission justified limiting the permit duration to twenty years based on various findings, including that (1) the seawall was only intended to protect the plaintiffs’ existing homes and was not intended to accommodate future redevelopment of the homes; (2) the new erosion control structures would have long-term adverse impacts on adjacent properties, (3) the Commission’s “shoreline protection strategies are evolving, particularly in light of climate change and sea level rise,” and (4) the erosion control structures would “likely need augmentation, replacement, or substantial changes within 20 years because of sea level rise and the seawall’s location in a high hazard area.” To sum up, the Court explained that ”the duration limit allows the Commission to revisit the need for the seawall or require further mitigation for its impacts based on a lifespan corresponding to, but not exceeding, the remaining anticipated lifespan of respondents’ existing homes.”
The dissenting judge argued that the limitation of the permit to twenty years constituted a taking because it impaired the plaintiffs’ “inalienable right” to “protect” their properties pursuant to Article I, Section I of the California Constitution, which provides, “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” The dissent reasoned that by placing a time limit on the plaintiffs’ ability to maintain the new structures, the permit condition “forces the homeowners to waive their present and future rights to protect their homes,” and “effectively extinguishes their right to protect their right to protect their properties.” In the dissent’s view, a coastal property owner apparently has an unqualified right to build and maintain a coastal defense structure, regardless of any adverse effects on other private or public rights in the coastal area.
The majority summarily rejected the takings argument, observing that “[t]he dissent’s conclusion [on the takings issue] presupposes a particular outcome when [plaintiffs] apply to renew their seawall in the future.” The majority characterized this conclusion as “purely speculative,” and ruled that the takings claim would not be ripe until the Commission acts on an application to extend the life of the coastal erosion structures.
This issue will undoubtedly be revisited in future cases as the seas continue to rise.