So I got curious about the law surrounding a news article this past week in the Cape Cod Times, Chatham land claim turns the tide. It seems that the breach of the Chatham Spit, and avulsion, has provided a windfall to nearby property owners through the accretion of sand on their properties.
So I got curious and Googled the question, about how the changes in land affects property rights and found that exactly that question has landed in the U.S. Supreme Court, Stop the Beach Renourishment, Inc., Petitioner v. Florida Department of Environmental Protection, et al. and here. It is a discussion that has people buzzing on both sides of the issue. On one side is the property rights people who want to protect the new beachfront property owners "rights" to beachfront property. On the other side are people who feel that restoring the lost beach area will provide future protection to the new beachfront property owners.
The case may have relevance MA should we ever codify the boundary defined as "Mean High Water." In Florida they have codified, post recent hurricanes that the present mean high water line as a property boundary defined as a new Erosion Control Line (ECL). Essentially the state has "taken" land that lies below the mean high water (essentially by the deeds land that now belongs to the public trust). The law allows the state to renourish beaches below the ECL. By establishing the formal property boundary as this new ECL and only providing easement rights to the water for adjacent property owners, property owners claim there has been a taking of their "land" as it has "taken" their waterfront rights after the state renourishes the beach.
The issue is also presently being played out in New Jersey Courts where there are several different issues progressing at once. First there is the City of Long Branch v. Liu case which involves a property owner whose land is being taken by eminent domain. He is seeking compensation not only for the upland area, but also for a beach area that was restored at public expense. The state courts, so far, have ruled that he has gained no personal value from the public expenditure. Separately there is a begining of another case known as Harvey Cedars and here. In this case, it appears that Harvey Cedars, NJ has issued an eminent domain easement taking in order to restore dunes. The dunes will be restored and the town will maintain control of the land for dune maintenance. As the MSNBC article illustrates, there are significant divisions between land owners. Without the maintenance some appear at risk of losing their homes to the ocean.
The Cape Cod Times article deals with accretion of sand. The accretion has resulted in "lands" that were formerly in the Public Trust being converted to private property. While generally, Public Trust lands cannot be taken by adverse possession, there are many deeds written in such a fashion that as the mean high water line changes, so do their property (and that of the Public Trust).
The Florida and New Jersey situations illustrate the problem, do we pursue beach renourishment as a mechanism to protect private property from the impacts of storm surges? If we do, what are the public rights to that property? With Sea Level Rise, will we be simply delaying the inevitable? One estimate I saw for the Harvey Cedars project was that the renourishment would cost $25 million plus the costs associated with the eminent domain takings - valued within the past week as $480,000 on just one property. Obviously losing these coastal properties to the ocean will have a significant impact on the town's overall property values, but could the overall costs be put to a better use such as preparing the community for the day when the ocean takes this area as it is trying to do?
I do believe it is necessary now, and going to be even more necessary in the future to protect our coastal properties, but do we do this in areas where the property owners cannot recognize the long term value to themselves of these public actions? This really gets to the heart of all of these issues, the public good is to protect private property from flood damage. Looking at the storm surge impacts of the recent major hurricanes, it is easy to see justification for these efforts.
In the Florida case, the questions asked by the Supreme Court Justices as to the added value to the adjacent properties due to the public expenditure to protect their properties, need to be considered. The costs in New Jersey to protect 82 homes from the ocean could be viewed as using public money for private benefit. Far more than a taking issue, this should be viewed as a situation where a public/private partnership is needed. The public, the town and the Army Corps have anted up their share, the property owners are simply being asked to allow the proper erosion controls to be placed on "their land." Land that from the looks of the MSNBC site will soon be in the Public Trust if the ocean is allowed to continue to have its way. Or, perhaps the homeowners in all these cases should be required to undertake the appropriate measures at their own costs?
This will all be interesting to watch. However, it clearly raises the question, should we do something to officially establish a boundary for the Public Trust lands now? We clearly have better surveying equipment today than was had in colonial times. Something to think about.
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