Reasonable Investment-Backed Expectations: Should Notice of Rising Seas Lead to Falling Expectations for Coastal Property Purchasers?By:
Published: June 02, 2011
Sea level is rising, and the rate of this rise is increasing As a result, past trends and problems with coastal flooding, storm surge, salt water intrusion, and erosion will be even worse going forward. As government’s role is to help protect its people, their property, and the resources common to the people, the changes in coastal areas present enormous challenges for coastal areas and government entities with responsibility or authority in these areas. Such entities should be utilizing the tools at their disposal to keep people, property, and infrastructure safe from the rising seas. Keeping people and property safe does not only mean protecting property through “‘armoring’” such as sea walls, bulkheads, or levees. While such armoring has appropriate applications in certain circumstances, it also carries costs. Two significant costs include potentially increasing the overall risk of flood damage due to increased development in protected areas and the loss of natural resources as beaches and estuarine systems drown out between a moving shoreline and stationary armoring.4 Instead of armoring, a number of land use planning and regulatory structures can assist in moving development away from areas at risk of direct sea level rise (SLR) or erosion or storm surges that can be exacerbated by SLR.
While each potential planning approach to the problem carries its own costs and difficulties, the potential cost of a constitutional claim of a taking of private property for public use poses a significant barrier in the United States to entertaining serious consideration of many adaptive planning and hazard mitigation policies. Even when takings claims fail, the time and expense of litigating the issue can dramatically impact the regulating entity as many, particularly with the current economic situation, already lack funds for basic operations. While specific numbers on the chilling impact of takings claims on potential planning for adaptation to SLR do not exist, there is evidence that takings claims have significantly chilled enactment of regulations to protect our environment.
To minimize the barrier posed by potential takings liability, this Article focuses on one specific—and key—concept in regulatory takings law: reasonable investment-backed expectations (RIBE). This Article examines how increasing awareness of SLR and its impacts as well as distribution of such information should inform analysis of coastal owners’ RIBE in legal claims that government regulation or action has taken private property. Even absent any intent to alter takings analysis, notice requirements promote better free market operation in real property transactions since an ideal free market requires that consumers have sufficient knowledge to make informed choices. In addition, more informed choices strengthen the case that those making the choice to purchase coastal property accept the risks inherent in owning coastal property.
Recommended Document Citation
Ruppert, T. (2011). Reasonable investment-backed expectations: Should notice of rising seas lead to falling expectations for coastal property purchasers? Journal of Land Use, 26(2), 239-275.