The California Supreme Court heard oral arguments earlier this month on whether limiting a permit to replace a seawall that would protect homeowners living on a bluff-top to a 20 year period constituted as a taking of private property. Thomas Frick and Barbara Lynch are challenging whether the California Coastal Commission has the authority to impose a time limit on a permit to build a seawall.
In a nutshell, due to rising sea levels attributed to climate change, the bluff below the Fricks’ and Lynches’ homes was eroding. In 2011, the homeowners sought to stabilize the bluff by constructing a seawall, for which they required Coastal Commission approval. The Coastal Commission approved the seawall, but limited it to a 20 year period after which the homeowners would be required to reapply for a new permit. The homeowners constructed the seawall – at significant expense – but then sued the Coastal Commission alleging that limiting the permit to a 20 year period effectively constituted a taking of their property.
While there was very little discussion beyond whether the property owners waived their rights to sue the commission when they built their new seawall, Justice Kathryn Werdegar noted the onerous conditions that diminish the value of the homes could be considered a government taking.
Attorney John Groen, representing both Lynch and Frick, has argued that a significant decrease in home value would occur as a result of the uncertainty over the re-permitting process that would likely cost tens of thousands of dollars and — if unsuccessful — would leave the homes vulnerable to a collapse. Justice Werdegar seemed to acknowledge the sentiment.
“The right to protect your property, it’s protected by the California Constitution; it’s also protected by the [California] Coastal Act,” said Groen, as quoted in E&E News. “Putting a 20-year permit on the seawall really reaches too far.”
Attorneys representing the state argued that there is no reason to assume the agency would not approve a new permit. Therefore, the time limit on the permit doesn’t represent a taking of the private property owners’ rights.
Effectively, it appears the state is keeping its options open for a “managed retreat” of the coastline over time as sea levels rise as a result of climate change. By limiting the permit to 20 years and requiring a re-application for a new permit after that time, the state is allowing for the possibility that impacts on the environment may be such that in 20 years, it no longer makes sense to try to protect the bluffs and to simply allow them – and consequently the Lynches’ and Fricks’ homes – to erode into the sea.
The Supreme Court is expected to issue a decision in the next 90 days. If the court sides with the state, the families could appeal to the U.S. Supreme Court, arguing all of this is an unconstitutional taking of private property.
We will continue to follow this case along and see if the case could have any far reaching implications on eminent domain laws. If you think your property or business may be facing eminent domain, you can learn more about your options by giving us a call at (866) EM-DOMAIN.