California Coastal Commission’s new Sea level Rise guidelines – Takings Issues

My advice is be very careful before buy any Coastal land in California because of the coastal commission’s new guidelines, which indicate their intention to “take” (a legal term worth researching) property that is impacted by sea level rise.

The government is allowed to “take” property if for a legitimate public purpose. If there is a complete taking, meaning the taking has left the property without value, there must be “just compensation”. However, if the property still has some value or use, compensation is not required.

If you own on the California coast, you may start thinking about an exit plan because it seems likely that coastal properties affected by sea level rise as defined by whatever plan the Commission adopts, will be affected adversely, thereby decreasing value. I would guess that possibility is greater if you’ve already had to deal with the Coastal Commission in your area. The document below outlines what the Commission considers to be some basic guidelines to consider it as the parties involved figure out the plan. You can scroll down to the below document and go to this excerpt, on page 170 of the document linked below. After reading, if you want to discuss this more, feel free to contact me.

Various recommendations of this Guidance may potentially give rise to takings concerns. Because the determination of whether a particular regulation may in some circumstances be applied in a way that constitutes a taking is so fact-intensive and context-specific, this Guidance cannot provide a simple set of parameters for when agencies should either allow exceptions to a land use regulation or consider purchasing a property interest. That said, land use restrictions that prevent all economically beneficial use of the entirety of a property are vulnerable to Lucas takings claims unless those uses would qualify as a nuisance or are prohibited by property law principles such as the public trust doctrine. Agencies can minimize the risk of these claims by allowing economically beneficial uses on some of the property and by exploring whether legal doctrines regarding nuisance, changing shoreline property lines, or the public trust independently allow for significant limitations on the use of the property. Establishing a transferable development rights program for properties that are subject to significant development restrictions may also minimize potential exposure to takings claims.

Where a proposed development would be safe from hazards related to sea level rise in the near future, but cannot be sited so as to avoid those risks for the expected life of the structure, agencies may consider allowing the structure, but requiring removal once it is threatened. Property owners may argue that they have a right to protect threatened structures even if they have waived rights to shoreline protection under the Coastal Act, but a recent federal court of appeal ruling casts significant doubt on the existence of any common law right to attempt to fix an ambulatory shoreline boundary through artificial structures such as seawalls (see United States v. Milner (9th Cir. 2009) 583 F.3d 1174, 1189-1190).

0 Full 2018AdoptedSLRGuidanceUpdate