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 City of Solana Beach
Section 2
Shoreline and Coastal Bluff Management Strategies Draft MEIR
Project Description
Under the Planned Retreat Alternative, some property owners might lose their homes, while
others, at least in the initial period, might lose only portions of their backyards. The latter
scenario would raise the question of how much property must be lost for a taking to occur.
Although the United States Supreme Court has never precisely defined how much must be
taken to constitute a loss of all economically beneficial or productive use of land, at least two
lower federal courts have found wetland-protection regulations to be takings when they
prevented development and decreased property values by roughly ninety percent. (Florida
Rock Industries, Inc. v. United States (Fed. Cir. 1994) 18 F.3d 1560; Formanek v. United States
(1992) 26 Cl.Ct. 332.).
The Planned Retreat Alternative would not result in a loss of property until some time in the
future, when coastal bluff erosion eventually leads to collapse of the bluffs. Two Supreme Court
cases concerning coal mining in Pennsylvania, when read together, imply that a regulation that
eventually curtails the useful lifetime of real property is less likely to be a taking than a
regulation requiring an immediate curtailment. (Pennsylvania Coal Co. v. Mahon (1922) 260
U.S. 393; Keystone Bituminous Coal Ass'n v. DeBenedictis (1987) 480 U.S. 470.) Still, bluff
erosion under the Planned Retreat Alternative may proceed at a pace that does not allow recent
purchasers time to fully amortize the value of their investments. This fact would tend to
strengthen any claim that the Alternative would effectively deny all economic use of properties
located along the tops of the City's bluffs.
Some individuals have raised the reasonable question of whether any blufftop property owner
really has a "right" to build a structure on someone else's property (e.g., bluff faces owned by
the City). The answer to this question seems to be that, although the City, citing the traditional
"right to exclude others" from its property, could certainly decide to refuse to make its property
available for shoreline protection purposes in the future, such a exclusion might give rise to a
takings claim. Such a claim would likely be premised on the notion that the past practice,
pursuant to 30235 and the City Ordinance, of permitting structures on public property has
created expectations that such permission will continue to be granted in the future. Although
such permission can be rescinded, affected landowners could argue that such a "change in the
rules" would frustrate what they regard as their "reasonable investment-backed expectations"
and thus would deprive them of what they consider to be their ongoing right to protect their
properties by building structures on public property if need be.
Two common law doctrines affect the reasonable investment-backed expectations of coastal
property owners. First, according to the law of accretion and reliction (or "the law of erosion"),
ownership migrates inland when shores erode. Thus, where long-term geological processes
create a landward retreat of a shoreline, the boundary separating an upland property from a
seaward property will continually move landward. The landward property owner is on notice of
this fact, and has no viable claim against the seaward property owner.
Under the "Public Trust Doctrine" in California, the seaward property owner might well be the
State of California, which owns "tidelands" along the shore. (See Slater, California Water Law
and Policy, vol. 2, p. 13-12 et seq.) Thus, under common law, a landward owner facing
geological forces gradually eroding a seashore would have to recognize that, as the shore
Project No. 323530000
Page 2-37
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