In light of the impacts of this year’s storm activity, we need some answers and numbers on the community level to help make some local planning and state-level policy decisions.
- What are the total public costs to maintain threatened private property?
- Since we all contribute via our tax dollars and insurance premiums to maintain services and infrastructure to these high-risk properties, we should all have some say in the issue.
- How can we have a say?
- Since the economic well-being of our state depends on the activities in the coastal zones, how do we all equitably share the risk?
- What are civilized options for addressing repetitive loss properties and areas?
- How can cities and towns possibly keep up with the financial demands?
- Read about NEGOTIATED SOLUTIONS for coastal communities to address at-risk properties.
Town turns off power to coastal residents in attempt to avoid devastating fires during the previous storm event.
Scituate town officials estimate $700,000 in damage [to town property] from Juno and ask voters to approve moving funds from the town’s “savings” fund to cover storm damage.
“This will be like the tenth time we’ve rebuilt.” Massachusetts coastal property owner interviewed in the aftermath of Juno.
Marshfield leads Massachusetts in repetitive loss properties.
“In Marshfield, flooding shut down Brant Rock, Bay Avenue, and Beach, Willow and Ferry streets, and damaged a 100-foot stretch of sea wall in Brant Rock and an 80-foot stretch on Bay Avenue. Harbormaster Mike DiMeo said the storm also caused about $500,000 in damage to the Green Harbor jetty, which underwent more than $1 million in repairs this summer. “
Seawall crumbles, homes condemned:
This case could very well contribute to establishing legal precedent for claiming that the effects of coastal erosion (not the erosion itself) that are caused by coastal protection structures are a (legal) nuisance.
This would add another dimension to how erosion is perceived in the public mind and treated legally. It could also provide another legal avenue for property owners that are experiencing catastrophic or damaging erosion near coastal structures like seawalls, revetments, jetties, and groins.
The Supreme Court of New York ruled that property owners could sue their town by claiming nuisance because the Town interfered with the owners’ use and enjoyment of their properties because their homes are in significant danger of washing away. The property owners can also sue for damages from the public nuisance caused by the jetties.
The Court also ruled that the property owners could sue their town by claiming trespass because water entered their land because of the jetties.
Here’s a bit more detailed description:
The Supreme Court of New York ruled that the effects of coastal erosion caused by coastal protection structures can constitute public nuisance (blocked access to streets, parking) and private nuisance (interference of use and enjoyment of property). It also ruled that if private parties have “special injuries” over and above what the community suffers from the public nuisance, they can also sue for damages caused by the public nuisance.
The Court also upheld the right of private property owners to sue the town based on the trespass of water over their land caused by the erosion that’s occurring because of the jetties. It is interesting that the property owners did not cite the erosion itself as the trespass or nuisance, but the Town took exception to the “erosion as trespass” anyway (which the Court ignored). The Court also found that there was sufficient evidence that the Town acted intentionally and was negligent in its actions regarding the planning, installation, maintenance, and public communications of the jetty project, so it ruled that the property owners could sue the Town for “duty, breach, causation, and damages.”
What was left unsaid, especially about the takings claims:
The Court dismissed all of the claims against the State and Federal defendants (with one exception), including the takings claims. However, almost all of these claims were dismissed because of the timing of when the plaintiffs filed them, not because the Court ruled that there were no takings.
It is disturbing that the circular reasoning (in my opinion) about when property owners can file takings claims when a situation is ongoing (like coastal erosion and inundation) could leave property owners without remedy. If filed when the erosion starts, the situation may not be dire enough to constitute a taking, and if filed when the situation is dire (when a house is in imminent danger of destruction), it is too late to file a claim according to the statutes used to determine eligibility to file.