Challenges

Sometimes through the adoption of land use measures, the state or local government may create conflicts with property owners adjacent to ecosystem resources, including marshes, coastal forests and prairie, waterways and open water.

  • Presumption of Validity: Generally, under the police power, a court will presume that a land use regulation is valid and will only declare a regulation to be unconstitutional if the regulation is clearly arbitrary and unreasonable, with no substantial relation to the public health, safety and welfare of the community.
  • Taking?: Although the government can regulate property, if a land use regulation “goes too far,” a court may consider it to be a regulatory taking.
    • Since local governments often regulate coastal property more heavily than inland property, coastal regulations can be more susceptible to takings challenges by affected property owners.

Regulating coastal development also has additional legal issues as compared to inland areas.

  • Changing Property Lines: Property lines are often shifting on the coast because of:
    • Avulsion — a sudden change in the shoreline, often by storms;
    • Accretion — the gradual addition of land to the shoreline by sand deposits; and
    • Erosion — the gradual loss of land along the shoreline.
  • Waterfront Property Rights: Waterfront property owners will have some littoral or riparian rights that come with their property.
    • However, these rights may be limited by the state’s regulation of its submerged lands and public trust resources, which the state manages for the public’s benefit.
  • Duty to Protect?: A local government may be liable if it doesn’t act to protect its citizens and property, so a town may choose to regulate its coast even if the regulation may create conflict with waterfront property owners.