Sea Level Rise versus Private Property Rights

By Tony Capitelli

In a draft Policy Guidance, the California Coastal Commission has suggested “structure relocation” and “abandonment of land” as possible approaches to the problem of rising seas.

The California Coastal Commission, which regulates land use and public access in California’s coastal zone, seeks to address more aggressively sea level rise in its draft Residential Adaptation Policy Guidance. While addressing the effects of climate change is noble, the issue must be dealt with pragmatically so as not to seriously curtail the private property rights of home and business owners near the coast.

The Residential Adaptation Policy Guidance is just as it says, a “guidance.” The document itself is not binding. The potential danger, however, lies in (1) the weight of this Guidance in eminent domain and private property rights disputes against local municipalities and (2) the implications of the public trust doctrine. The latter is essentially a common law doctrine that refers to the basic right of the public to use waterways.

Estimates vary, but most studies predict that California will lose a portion of its beaches within the next one hundred years. If the public has the right to beach access and a property owner, well, owns his or her property, who wins? The reality is that eminent domain (the right of the government to take property for public use) already makes this an uphill battle for property owners. The Coastal Commission’s draft Guidance makes this fight even more difficult.

Within the Guidance itself, the most troublesome proposed strategy is that of “Managed Retreat.” In the most extreme of circumstances, this strategy “refers to varying approaches to managing coastal hazard risk by structure relocation and/or abandonment of land.” Yes, you read that right. This particular strategy offers guidance to local municipalities regarding how to move or abandon at-risk coastal property.

This brief article is not an attempt to argue against the merits of mitigating the potential damage of sea level rise, but are the strategies mentioned in the California Coastal Commission’s draft Residential Adaptation Policy Guidance measures we are willing to take? You be the judge.