States and local governments can set conditions for new development and redevelopment (e.g., above a certain threshold) through coastal, environmental, natural resources, and land-use and zoning permits. Permit conditions are often recorded with a property’s deed to bind future owners. Permits can include many types of terms and conditions, such as requiring private property owners to pay impact fees, dedicate portions of their land for specific purposes (e.g., conservation), or restrict the use of their land;See footnote 1 however, this subsection on regulatory tools is focused on one type of condition that requires property owners to remove or relocate structures, as described in the next section.
In a managed retreat context, state and local governments can require the owners of private properties covered by a permit condition to remove or relocate vulnerable or damaged structures upon the happening or occurrence of a “triggering” event (e.g., minimum beach width, a permanent movement of the tidal line demarcating public versus private lands like mean high or low water). This type of condition allows landowners to develop property but with the expectation that development will eventually have to cede to future coastal climate impacts. These tools can require moving physical structures out of harm’s way and can facilitate the inland migration of changing coastlines and ecosystems, like wetlands, in response to sea-level rise, flooding, and erosion.
While the specifics of these types of conditions will vary, the general public purpose would be to remove or relocate development to protect the coast, people, and property from the threats of sea-level rise, flooding, and erosion. The condition to remove or relocate the structure would be tied to a physical or environmental impact trigger. By being written into coastal management regulations and local land-use and zoning ordinances, in addition to the permits themselves, these conditions would have the effect of putting property owners on advanced notice to plan for these requirements. For example, in Big Lagoon in Humboldt County, California, the California Coastal Commission — the state’s coastal management agency — conditioned a development permit by approving the permit with adaptive measures instead of denying a permit application for a new home being built on a high eroding bluff.See footnote 2 The commission determined that, based on sea-level rise and erosion rates, the house had about 50 years before it would need to be removed to avoid falling onto the beach below.See footnote 3 Accordingly, the commission is allowing the property owners to live in their home until bluff erosion reaches a point at which it is no longer safe to live there; it then has to be removed or relocated.See footnote 4
It is important for governments to consider who is responsible for the costs associated with enforcing removal and relocation conditions. These conditions would likely place the removal or relocation costs on private property owners — barring any other legal arrangements to the contrary provided for in the permit. For larger structures or privately owned infrastructure (e.g., septic systems) in vulnerable coastal zones, state and local governments could go further and explicitly require a permittee to obtain a bond or other types of financial assurances to proactively ensure that these actions will be funded once a future condition occurs. These types of measures can preclude those costs from being passed on to the public-at-large, which could help to address concerns about public subsidies for people that may choose to live in areas prone to flooding and disaster events, like severe storms.
However, governments should evaluate and seek ways to minimize the potential disproportionate effects permits could have on frontline communities and residents who would likely be unable to afford the costs associated with removing or relocating structures. Moreover, some of the people living in vulnerable coastal areas may not be there by choice, but may instead lack the financial resources to be able to voluntarily move away. Without potential mitigating measures, this type of permit condition could exacerbate or compound economic and social inequities on the coast.
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Jurisdictions can draft development permit conditions to withstand potential regulatory takings challenges. The Fifth Amendment of the U.S. Constitution and analogous provisions of state constitutions prohibit governments from “taking” private property without just compensation.See footnote 5 While there are different types of takings, courts apply a “per se” test to physical occupationsSee footnote 6 and regulations that deprive a private property owner of all or essentially all of his/her property’s economic value;See footnote 7 however, in a managed retreat context, most regulations designed to protect people, property, and the coastal environment will be evaluated under a case-by-case-specific balancing test.See footnote 8 Removal and relocation permit triggers are analyzed under the general Penn Central regulatory takings framework because they are conditions on land use and do not involve the transfer of an interest in property.See footnote 9 State and local governments considering removal and relocation conditions can succeed in takings claims if the property covered by a permit maintains some economic value and the regulatory purpose of the condition serves a legitimate public interest. To satisfy these legal requirements, governments should, at a minimum, clearly justify the need for triggering conditions based on best available science; articulate the purpose for these conditions in planning and other documents so as to put affected private property owners on sufficient notice; and apply the permits on a spatial scale that is proportionate to the coastal hazard being mitigated. For more information on takings and recommendations to minimize legal risk, see the Crosscutting Legal Considerations>Takings section of this toolkit.
When implementing permits conditions in a managed retreat context, decisionmakers may consider the following practice tips to address and balance different legal and policy tradeoffs:
Endnotes:
1. For information about other types of conditional development permits and exactions, see Jessica Grannis, Georgetown Climate Ctr., Adaptation Toolkit: Sea-Level Rise and Coastal Land Use 29 (Oct. 2011), available at View Source. | Back to contentBack to content
2. Cal. Coastal Comm’n, Staff Report: Regular Calendar, Application No. 1-2-023, Dale and Lei Winget (Oct. 21, 2013), available at View Source. | Back to contentBack to content
4. Id. See the report at p. 7 and “Special Condition” number three for “No Future Bluff or Shoreline Protective Device and Future Removal of Development.” This condition was coupled with a prohibition against the use of any shoreline protection device on that property now or in the future. The special conditions also include a requirement that the property owners prepare a bluff monitoring and reporting plan to ensure compliance with the removal/relocation condition. Back to contentBack to content
5. U.S. Const. amend. V. Back to contentBack to content
6. J. Peter Byrne & Jessica Grannis, Chapter Nine: Coastal Retreat Measures, in The Law of Adaptation to Climate Change: U.S. and International Aspects 274–75 (Michael B. Gerrard & Katrina Fischer Kuh eds., 2012). Back to contentBack to content
7. Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992); J. Peter Byrne & Jessica Grannis, Chapter Nine: Coastal Retreat Measures, in The Law of Adaptation to Climate Change: U.S. and International Aspects 275–76 (Michael B. Gerrard & Katrina Fischer Kuh eds., 2012). Back to contentBack to content
8. Penn. Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978); J. Peter Byrne & Jessica Grannis, Chapter Nine: Coastal Retreat Measures, in The Law of Adaptation to Climate Change: U.S. and International Aspects 276–77 (Michael B. Gerrard & Katrina Fischer Kuh eds., 2012). Back to contentBack to content
9. Conversely, other types of permit conditions that involve the transfer of an interest in property are “exactions,” which are subject to different takings rules. Exactions are regulatory obligations imposed as conditions for the grant of a development permit that require a private property owner to convey to the public an interest in real property or the monetary equivalent. Jessica Grannis, Georgetown Climate Ctr., Adaptation Toolkit: Sea-Level Rise and Coastal Land Use 29 (Oct. 2011), available at View Source; J. Peter Byrne & Kathryn Zyla, Climate Exactions, 75 Md. L. Rev. 758 (2016). For more information on exactions, see the Crosscutting Legal Considerations>Takings section of this toolkit. | Back to contentBack to content
10. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985) (the U.S. Supreme Court has found that the Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike.”); see, e.g., Michael S. Giamo, Challenging Improper Land Use Decision-Making Under the Equal Protection Clause, 15 Fordham Envtl. L. R. 335 (2004). Back to contentBack to content
11. Jessica Grannis, Georgetown Climate Ctr., Adaptation Toolkit: Sea-Level Rise and Coastal Land Use 31 (Oct. 2011), available at View Source. | Back to contentBack to content
12. In Dillon Rule states, state legislatures must delegate specific powers to local governments compared to home rule states, where local governments may have broader authorities. J. Peter Byrne & Jessica Grannis, Chapter Nine: Coastal Retreat Measures, in The Law of Adaptation to Climate Change: U.S. and International Aspects 297, n.23 (Michael B. Gerrard & Katrina Fischer Kuh eds., 2012) (“Local powers differ from state to state depending on whether it is a home-rule or Dillon-rule jurisdiction. In home-rule states, local governments are given broad authority to regulate in any manner consistent with their police powers, whereas in Dillon-rule states, local governments must be delegated specific powers from their state legislatures.”). Back to contentBack to content
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