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Susan Farady, Seawalls: Legal Implications of Shoreline Protection


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BeachSAMP Stakeholder Meeting
December 9th, 2013
Susan Farady, Director and adjunct faculty
Marine Affairs Institute, RI Sea Grant Legal Program
Roger Williams University School of Law, Bristol RI

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Susan Farady, Seawalls: Legal Implications of Shoreline Protection

  1. 1. Follow Follow Beach SAMP Stakeholder Meeting 12/9/13 Susan Farady, Director and adjunct faculty Marine Affairs Institute, RI Sea Grant Legal Program Roger Williams University School of Law, Bristol RI
  2. 2. Overview of legal issues implicated by shoreline protection in RI  Implications of changing shoreline boundaries  State interests and the public trust doctrine  Private property owner interests  Public vs. private property  Some cases
  3. 3. Westerly Charlestown Photo: RIDOT Narragansett South Kingstown
  4. 4. Changing shorelines, legal implications  Sea land  Private public  Management expectations and property owner interests based on past shoreline conditions  As these conditions change, expectations and interests change
  5. 5. RI ownership of tidal lands  “The state of Rhode Island, pursuant to the public trust doctrine long recognized in federal and Rhode Island state case law, and to article 1, section 17 of the constitution of Rhode Island…has historically maintained title in fee simple to all soil within its boundaries that lies below the high water mark and to any land resulting from any filling of any tidal area….no title to any freehold estate in any tidal lond or filled land can be acquired by any private individual unless it is formally conveyed by explicit grant of the state by the general assembly for public trust purposes.”  R.I.G.L. section 46-5-1.2
  6. 6. CRMC jurisdiction  “CRMC shall have the exclusive jurisdiction below mean high water for all development, operations, and dredging, consistent with the requirements of chapter 6(1) of this title and except as necessary for the department of environmental management to exercise its powers and duties and to fulfill its responsibilities.”  R.I.G.L. section 46-23-6(2)(ii)(A)  Prevent loss of public rights and access from negligent or improper conversion to private uses
  7. 7. “Public trust doctrine”  “The people shall continue to enjoy and freely exercise all the rights of fishery, and the privileges of the shore, to which they have been heretofore entitled under the charter and usages of this state, including but not limited to fishing from the shore, the gathering of seaweed, leaving the shore to swim in the sea and passage along the shore.”  RI Constitution, Article 1, Section 17
  8. 8. Public trust doctrine  Public trust =  Legal interest +  Held by state +  In tidal and navigable waters +  For public benefit
  9. 9. Where is the boundary?  RI: mean high tide line  “the state holds title to all land below the high water mark in a propietary capacity for the benefit of the public” and “the doctrine preserves the public rights of fishery, commerce, and navigation in these waters.”  Greater Providence Chamber of Commerce v. Rhode Island, 657 A.2d 1038, 1041 (R.I. 1995).  “the line formed by the intersection of the tidal plan of mean high tide with the shore”  “the arithmetic average of high water heights observed over an 18.6 year Metonic cycle”  State v. Ibbison, 448 A.2d 728 (1982)
  10. 10. Private coastal property owners  May have following interests:  Access to water  Right to wharf out  Right to acquire accretions  Right to fill  Right to continued flow  Right to waterfront view  Right to defend against “common enemy”  “Reasonable investment-backed expectations”
  11. 11. Possible legal issues from seawalls  State may challenge if structure impairs public access     to public lands Landowner may claim a taking has occurred if the state doesn’t allow property protection Landowner could be liable for injuries to others caused by structure Neighboring landowners could assert seawall creates a nuisance or trespass if causes damage to their property Landowner may assert ‘common enemy’ defense
  12. 12. When the “common enemy” becomes subject to“reasonable use”  “Common enemy” doctrine:  old legal principle that considers water to be a “common enemy” of landowners  gives landowners the right to repel or capture water, and not be liable for damage to neighboring properties  Most states (including RI, Zannini v. Arboretum Development, 1998 WL 1017288, R.I. Super. July 7, 1988) have replaced this with a “reasonable use test:”  Landowners can be held liable if their actions are unreasonable or result in unreasonable harm to neighboring lands
  13. 13. “No Adverse Impact”  Principle developed by the Association of Floodplain Managers:  “an approach that ensures the action of any community or property owner, public or private, does not adversely impact the property and rights of others.”
  14. 14. Some cases  CT, 2012: DEP must demonstrate authority over all portions of seawall, not just those waterward of high tide line, to properly order removal (Shanahan v. DEP)  CT, 2013: DEP within jurisdiction to order removal of seawall in “tidal waters,” and illegal seawall was properly deemed a public nuisance (Sams v. DEP)  CA, 1987: Coastal Commission properly required a homeowner to relocate a temporary seawall granted under an emergency permit to balance protection of private property with protecting the public beach (Barrie v. CA Coastal Com’n)
  15. 15. Some more cases  CA, 1997: City acted properly declaring property owner’s seawall, riprap and patios a nuisance that obstructed the public walkway, no taking occurred (Scott v. City of Del Mar)  WA, 2005: Landowner can’t use “common enemy” defense to defend nuisance claim from neighbor because seawater is not “surface water” (Grundy v. Thurston Cty)  NY, 2013, ongoing: landowner ordered to stop work on rock revetment after town zoning board granted permit when town trustees claimed property was public, not private; landowner claimed property line moved with avulsion/erosion (East Hampton Trustees v. Zweig)
  16. 16. Resources  SHIFTING SEAS: The Law's Response to Changing Ocean Conditions, November 14 & 15, 2012 Roger Williams University School of Law This Symposium examined the laws and policies that are implicated as climate change impacts coastal and ocean environments.  Congressional Research Report, “Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future,” Nov. 2012
  17. 17. “The human race is challenged more than ever before to demonstrate our mastery - not over nature but of ourselves.” – Rachel Carson, Silent Spring, 1962