By Louis A. Galuppo
This is part 2 of a 2 part series on Managed Retreat:
Without much public fanfare, the California Coastal Commission began to promulgate a policy of “Managed Retreat”. Unfortunately for those living along the California coast, this policy has become the Commission’s newest gizmo for limiting or taking away homeowners’ rights to protect their homes. True. This is real life. It is actually the case throughout the state. This is not the Commission’s expressly stated objective, but it is an intended result.
A commonly talked about definition of “Managed Retreat” means an area, that was not previously exposed to flooding by the sea, to become flooded by removing or not allowing coastal protection. This process is usually in low lying estuarine areas and almost always involves flooding of land that has at some point in the past not been claimed by the sea.
The NOAA (“National Oceanic Atmospheric Association”) website explains the concept of Managed Retreat as an adaptation strategy to address issues caused by sea level rise and increased storm surge and erosion. According to NOAA’s website “a managed retreat approach typically involves establishing thresholds to trigger demolition or relocation of structures [added – e.g., homes] threatened by erosion.”
If one searches the internet for the words “Managed Retreat”, they will find numerous relatively consistent, definitions. This policy is due to the belief by the California Coastal Commission’s staff that it has the legal authority to address climate change” (see https://www.coastal.ca.gov/climate/whyinvolved.html) and therefore adopt Managed Retreat as a working adaptation solution. So how does a Community, City, County or the State of California permit a $10,000,000.00 home, heck any home, to become flooded and demolished by the sea, therefore lost forever? Who pays for the clean-up? Who owns the land? And, who is the real loser and what have they lost?
In this new reality, because of Managed Retreat, your home may not really be your home, at least as you once knew it. Depending on the city, county or community in which you live, you may actually be responsible for everyone else’s home around you, the beach, the bluff, and the ocean, in the event of a clean-up if your home is destroyed by the sea. This policy has potential tremendous long term negative impacts on the public, cities and counties, insurance companies, mortgage companies, and owners. Lastly, once the home is lost to the sea, the ownership of your land may escheat to the State of California under the Public Trust Doctrine.
Knowing the potential loss to its constituents, the City of Del Mar decided to pursue an amendment (i.e., adaptation plan) to their existing Local Coastal Program (i.e., Sea-Level Rise Local Coastal Program Amendment or “SLRLCP Amendment”). After working through the process by setting up an internal City based working group, having over 25 community meetings, creating an external ad hoc working committee (i.e., Seal Level Rise Stakeholder Technical Advisory Committee 2015-2018), obtaining a Vulnerability Assessment and numerous other studies, and developing a draft version of the “SLRLCP Amendment” the City of Del Mar adopted an amendment on October 1, 2018 and expressly rejected the policy of “Managed Retreat” on October 15, 2018. To Council’s credit and the City’s future benefit, the draft version of the SLRLCP Amendment by the City contained specific and measurable thresholds regarding sea level raise and many viable, responsible, and expressly supported adaptation solutions. These solutions are found on the City’s website and in the City’s Adaption Plan, which are: sand nourishment; natural infrastructure; accommodation; monitoring; and living levee system.
However, on September 21, 2019, Commission staff rejected the City’s SLRLCP Amendment and made 25 “Managed Retreat” centered comments (i.e., suggested modifications) to the City’s SLRLCP Amendment. The City and Commission Staff are now attempting to work through the remarks and comments made by Commission’s staff (see https://www.coastal.ca.gov/meetings/agenda/#/2019/10). This City of 4,340 residents, with an average age above 50 years, needs to remain confident in its position, look for and gain support throughout the state in both the private and public sector, create, find and implement funding mechanisms for the proposed SLRLCP Amendments, and establish itself as the leader in the state in what needs to become a statewide effort to reject “Managed Retreat”.
This is second in a series of informational editorial articles related to issues facing the ownership of real property along the California coast. Louis A. Galuppo is a coastal, environmental, land use, and real estate attorney practicing for 30 years (for more information, go to www.galuppolaw.com.) His office is located in Carlsbad, California (for about 20 years.) He raised his family and lives with his wife (of 32 years) in Encinitas, California (for almost 30 years.) He taught real estate law, land use, and public policy at the University of San Diego, in the Burnham-Moores Center of Real Estate, for 14 years.