Recent New York Times Article Highlights Beachfront Property Rights Issues

The New York Times recently published an article that addresses the conflict between saving beaches that are being impacted by rising sea levels and the improvements adjacent to them. The issue addressed in the article is summarized by this quote. ‘At issue is a legal concept from the sixth century A.D., when Emperor Justinian ordered the codification of Roman laws. The resulting code declared that features of nature like the air, running water, the sea and “the shores of the sea” must be held in trust for the use of the public. That idea passed into English common law, and then to the United States. Today, most states define the beach below the high-tide line as public trust property, meaning members of the public have free access.” The concern arises because “Most beaches have a natural defense against rising seas: The sandy area simply moves landward. But when property owners install sea walls or other barriers to protect beachfront homes and other buildings, the beach has nowhere to go. So it vanishes underwater. Geologists call it coastal squeeze. It’s not a new problem, but it’s been accelerating recently as climate change causes sea levels to rise. And that’s prompting urgent questions about how coastal landscapes should be managed.” “As a result, environmentalists, regulators, surfers and others say that landowners must not install sea walls or other coastal armor that will inevitably doom public beaches to disappear. On the other hand, owners of beachfront houses, hotels and other properties argue that if rules against coastal armor cause their private property to vanish beneath the waves, then they must be compensated for their losses.”

Michigan applies this legal concept. "The riparian owner has the exclusive use of the bank and shore...." Peterman v State Dept of Nat Res, 446 Mich 177, 192 (1994). Yet, “the title to submerged lands under the Great Lakes and the straits connecting them, but not the rivers, is in the State of Michigan in trust for the people.”  Id. 

In that case, the Michigan Supreme Court recognized that a taking occurred when construction similar to the “arming” described in the article destroyed a nearby beach. The Supreme Court was “presented with the scope of the constitutional guarantee that property shall not be taken by the state for public purposes without due process and just compensation. More specifically, we must determine whether the Department of Natural Resources must compensate property owners for the destruction of beachfront property caused by the filtration of sand from the water because of the construction of a boat launch. We hold that while compensation is usually not necessary for the erosion of beach under the high-water mark caused by navigational improvements by the state, compensation is due for the destruction of plaintiffs' fast lands. Moreover, because defendant's unscientific construction of the boat launch unnecessarily caused the destruction of plaintiffs' beach, compensation must be awarded for the loss of the beach.” The case involved an inverse taking claim. “[T]o ensure the protections of this guarantee, the State of Michigan recognizes a cause of action, often referred to as an inverse or reverse condemnation suit, for a de facto taking when the state fails to utilize the appropriate legal mechanisms to condemn property for public use.”  Id, at 187-188. The Supreme Court determined that a taking occurred even though the DNR “never actually invaded plaintiffs' property” because “the erosion of the beachfront was an indirect consequence of defendant's actions.”  Id, at 188.  In doing so, it cautioned against restricting Constitutional protections offered to property owners.  “[T]o ensure that the purpose of the provision is protected, this Court is reluctant to relieve the government of its duty to compensate a property owner unless the destruction of property is ‘too remote, trivial or uncertain’ to deprive a claim of merit.” Id. The “constitutional provision is adopted for the protection of and security to the rights of the individual as against the government,’ ... the term ‘taking’ should not be used in an unreasonable or narrow sense.”  Id, at 188-189. “Thus, a physical intrusion on the property itself is not required for a ‘taking’ to have occurred.” Id, at 189.  “In the instant case, the trial court found that defendant's actions were the proximate cause of the destruction of plaintiffs' beachfront property. Assuming that defendant did not directly invade plaintiffs' land, it undoubtedly set into motion the destructive forces that caused the erosion and eventual destruction of the property. Defendant was forewarned that the construction of the jetties could very well result in the washing away of plaintiffs' property, and the evidence reveals that the destruction of plaintiffs' property was the natural and direct result of the defendant's construction of the boat launch. The effect of defendant's actions were no less destructive than bulldozing the property into the bar. Jarvis, supra at 325 (finding that “consequential” damages were compensable because they were “as clearly the direct, natural and necessary result of the acts complained of, as would be the piling of logs or the erection of a house up on the same land”). Defendant, therefore, may not hide behind the shield of causation in the instant case.” Id, at 191. When evaluating the proofs, the Supreme Court recognized that “the improper and unscientific construction and design of the groins/jetties in violation of the Army Corps of Engineers guidebook” was “compelling evidence that the groins/jetties are the proximate cause of said erosion.” Id, at 182, fn 6.

If actions taken by the government would be the basis for a taking, there may be viable claims to the extent that a private property owner causes destruction of private property rights of neighbors. 

I handle a wide variety of land use issues, including takings caused by flooding and disputes between private property owners. If you are facing situations involving your beachfront property, please feel free to contact me.