THURSDAY, JUNE 29, 2006
FROM THE JULY ABA JOURNAL
ENVIRONMENTAL LAW
UP AGAINST THE SEAWALL
After Last Year's Hurricanes, a New Storm Over Property Rights and Beach Protection
Engulfs Florida's Coast
BY JOHN GIBEAUT
Emmett F. Hildreth Jr. already has the headline written. ÂD-A-D: The Day After
Dennis, he suggests as he stands on the beach near his home in the Florida Panhandle
and describes the damage from one of the most powerful hurricanes ever to strike
the area.
The first 2005 storm to make landfall as a hurricane, Dennis slammed into the Panhandle
at 2:25 p.m. Sunday, July 10, 2005, a Category 3 storm with maximum sustained winds
of more than 125 mph and a storm surge of up to 10 feet.
Though the eye of the storm passed near Pensacola Beach, some 50 miles west of HildrethÂs
beachfront place in Walton County, the damage in Walton nevertheless was awesome.
Eleven seven-figure homes along the countyÂs 26-mile coast had fallen into the
Gulf of Mexico, along with a half-dozen swimming pools and a garage. Another three
dozen single and multifamily dwellings were in danger of collapse because the storm
surge had undermined their foundations.
But another storm still rages a year later, as state and federal agencies, the county,
environmentalists and the beachfront property owners argue over more than 100 seawalls
and other erosion-control structures the residents erected after Dennis to keep
their homes high and dry.
ÂItÂs all walled, as far as you can see, Hildreth says as he faces landward
from the waterÂs edge, his arms outstretched. Before Dennis came to town, Walton
County had only a handful of seawalls.
The Florida Department of Environmental Protection says some of the wallsÂall of
which lack the necessary state permitsÂalmost certainly will have to be removed.
The U.S. Fish and Wildlife Service says the walls threaten the nesting grounds of
endangered sea turtles. It can sue or criminally prosecute owners who donÂt take
steps to reduce potential damage to turtle habitats. Environmentalists want to get
rid of the walls altogether.
The only issue the groups donÂt argue over is that the administrative proceedings
and litigation to straighten out everything will take years.
But the tale of FloridaÂs and Walton CountyÂs experience with the seawalls is
anything but a cautionary one. Similar scenes play out from Maine to Hawaii as questions
of law and public policy arise over the wisdom of rebuilding or fortifying homes
in delicate coastal areas after storms and other disasters.
ÂThere are legions of stories around the country of landowners in coastal areas
desperately trying to hang onto disappearing beachfront property, says John D.
Echeverria, executive director of the Environmental Law and Policy Institute at
Georgetown University Law Center.
RIGHTS AND RESPONSIBILITIES
The 2005 season was one of the most destructive on record, and forecasters predict
more numerous and stronger hurricanes in the years ahead. Despite the dangers, many
local and state governmentsÂFloridaÂs among themÂremain in the business of luring
development to the coast. ItÂs rarely a question of whether people should be able
to rebuild after storms. ItÂs simply a matter of when.
ÂExcept for the shortage of money, I donÂt see any limitation on any of this stuff,Â
says Charles Pattison, executive director of 1000 Friends of Florida, a watchdog
organization that keeps tabs on the stateÂs growth.
While coastal development is largely a matter of state law, a series of federal
proposals to speed up the recovery from Hurricane Katrina drew raised eyebrows from
the ABA Section of Environment, Energy and Resources. Particularly troubling was
a broadly worded bill introduced by Sen. James M. Inhofe, R-Okla., that would allow
the Environmental Protection Agency to issue 120-day waivers of any statute or regulation
if needed Âto respond, in a timely and effective manner, to a situation or damage
relating to Hurricane Katrina. By spring, however, the bill remained in the Committee
on Environment and Public Works, which Inhofe chairs.
The section supports the use of waivers under existing law, but opposes new ones
proposed last fall after Katrina struck the Gulf Coast.
ÂSome of the proposals were of such a broad sweep that this controversy over the
seawalls just wouldnÂt happen, says Irma Russell, a visiting law professor at
Pace University in White Plains, N.Y., and author of the sectionÂs comments on
the bill and other federal proposals. The permitting authorities Âsimply would
say, ÂGo away. We donÂt want to listen to you anymore. Â
In the states, the fight over reconstructing the coast features on one side developers
and property owners, who hold the threat of Fifth Amendment takings claims over
government officials who restrict their ability to build in fragile areas. On the
other side stand various advocacy groups that say increased coastal development
threatens not only the environment, but also public health and safety as growing
populations fleeing storms overrun already inadequate roads, bridges, shelters and
other facilities.
Stuck in the middle are state and local governments, which must balance property
rights against environmental and public safety concerns and try to reduce exposure
to liability.
ÂTheyÂre on the end of the spear as far as the takings issue is concerned, says
Pensacola lawyer George R. Mead II. He represents a homeowners association fighting
Walton County and the stateÂs denial of its application to install geotubesÂlong,
sand-filled cylinders that are supposed to keep the beach from washing away.
All the while, emotions seethe as property owners say they have a right to protect
their homes, while critics say the owners really just want to keep the public beach
to themselves.
ÂItÂs hard to find a middle ground on this, says Robert H. Thomas, managing
attorney for the Honolulu office of the Pacific Legal Foundation, a public interest
law firm that backs property owners. ÂEvery time someone sneezes on the shoreline,
itÂs front-page news.Â
Though Florida hardly is unique, its 2,276 miles of coastline is the longest in
the continental United States and the most vulnerable to hurricanes. About 80 percent
of the Sunshine StateÂs 17 million residents live within 20 miles of the coast.
ÂFlorida is a state thatÂs based on growth and development, says Tallahassee
lawyer Thomas G. Pelham, former secretary of the Florida Department of Community
Affairs, the state agency responsible for overseeing that growth. ÂWeÂre getting
1,000 new residents a day.Â
Many of those newcomers flock to the barrier islands that ring Florida and other
coastal states. As the term suggests, barrier islands serve as natural buffers between
storms and the mainland.
Their beauty also makes them attractive to developers. But barrier islands are notoriously
unstable because they are essentially big sandbars with contours that regularly
shift with normal ocean currents and wave action. It does not take the storm of
the century to wipe out everything on a barrier island.
Seawalls and similar structuresÂcollectively called coastal armoringÂmay save
buildings from going into the drink. But most engineers and government authorities
discourage their use because they ultimately can destroy beaches.
In their natural state, beaches along eroding shorelines maintain their width by
retreating toward land as the water rises. A seawall, however, blocks the path of
retreat, so the water erodes the beach right up to its base. (See the diagram on
page 49.) In addition, female sea turtles, which weigh 250 pounds or more, canÂt
scale the walls to come ashore and lay their eggs.
ÂIf that armoring remains, thereÂs enough evidence that we may lose our beaches,Â
says Anita Page, executive director of the South Walton Community Council, which
opposes the seawalls.
Walton County lies in a largely rural region where the live oaks and Spanish moss
of the Old South meet modern coastal Florida along a beachfront stretch of swank
homes that some call the Emerald Coast. Others call it the Redneck Riviera because
many of the tourists and seasonal residents come from Alabama, Mississippi and other
parts of the Southeast.
Panhandle counties like Walton also make up FloridaÂs historical political power
base. Long suspicious of state government in the capital of Tallahassee, Panhandle
counties have always marched to their own tune, even as power shifted after World
War II with rapid development to the south.
For example, arguing that hurricanes hardly touch there, Panhandle lawmakers for
years managed to exempt the region from stricter building codes imposed on the rest
of the state to reduce storm damage. After several unsuccessful attempts, the rest
of the legislature ended the Panhandle exemption this spring.
The politicians meteorological prognostications notwithstanding, it only took
a few hours in July 2005 for hurricane-induced beach erosion to erupt into a crisis
for Walton County, which depends on its coast for 90 percent of its property taxes.
ThatÂs not to mention the bundles of money tourists spend in the increasingly popular
vacation destination.
Though extreme in scope, the Walton County seawall standoff draws together key points
of the laws governing coastal land use.
Like the politicians, county residents along the Gulf had grown complacent over
the years. After all, it had been a decade since the last major storm struck the
area.
But the beachfront owners quickly awakened when they saw the damage Dennis left
behind. The storm surge, caused by wind and low pressure associated with hurricanes,
had taken a 300-foot bite out of a line of 15- to 30-foot-tall bluffs above the
beach, where the homes stand.
SEAWALL FRENZY
The day after Dennis, Colleen M. Castille, secretary of the state Department of
Environmental Protection, issued an emergency order allowing counties to grant 60-day
permits for temporary seawalls to protect property threatened by the Gulf. In no
time, Walton County officials were hip-deep in the temporary permits, issuing them
to 243 owners, about 150 of whom eventually built seawalls. Among the contracting
companies pulling permits was one owned by a county commissioner who voted for them.
Though Florida statutes and the state administrative code envision easily removable
sandbags and wood pilings as temporary measures, the Walton County beachfront owners
had something else in mind. They erected massive fiberglass and galvanized steel
barriers that reach down to sea levelÂ15 feet or more beneath the surfaceÂand
stand another 15 feet above ground. Anchored, covered with sand, planted with sea
oats and costing about $1,000 a foot, the walls were anything but temporary.
ÂIÂve got a quarter of a million dollars into it, says part-time resident Stephen
Holmes, a partner in a Menlo Park, Calif., venture capital firm. ÂThis is my retirement
money.Â
After CastilleÂs order, Walton County seawall construction took off like nobodyÂs
business. The pace shocked some residents, who watched as trucks and other equipment
smashed through protective sand dunes to gain access to the beach.
The property owners knew they ultimately would need state permits if the walls were
to remain. But one of their lawyers says he came up against another kind of wall
when he tried to get some advance indication of what DEP officials would approve.
Thomas G. Tomasello says he usually advises his clients to come to him first before
trying to deal with state bureaucrats. But he says even he got nowhere when he contacted
DEP on behalf of a Walton County condominium association. And Tomasello is a former
DEP general counsel.
ÂI couldnÂt get any cooperation from them, says Tomasello, who practices in
Tallahassee. ÂI said, ÂThis just isnÂt working. I told my client, ÂJust build
it with the emergency permit, and weÂll deal with it later. Â
By the time turtle nesting season began May 1, the seawalls were finished, and the
trucks, bulldozers, cranes and pile drivers all had pulled out. Now the property
owners face the difficult task of getting permanent DEP permits after the fact.
TABLES TURN FOR TURTLES
Owners also must deal with Fish and Wildlife over the turtle question.
Before the seawalls, about 20 turtles a year nested on Walton County beaches. Now
Richard Fowlkes wonders whether the turtles will nest there again. The combination
of storm damage and construction in many areas had left only a few feet of beach,
hardly enough for a turtle to lay its eggs without them being carried out to sea
by the next tide.
WhatÂs more, the county allowed some contractors to replace sand with red clay
hauled in from the interior instead of the sugary white substance that makes Gulf
beaches some of the worldÂs finest. The red clay doesnÂt just clash aesthetically
with the native white sand. It also can spook turtles back into the Gulf before
they make their nests.
ÂThe county gave them a green light to do whatever they wanted, says Fowlkes,
a retired photojournalist who with other volunteers marks and monitors turtle nests
to make sure people donÂt disturb them. ÂThe temporary structures morphed into
permanent ones. No way is a turtle going to be able to climb those steep walls.
The only place for them to go is on that little strip of beach where itÂs almost
for sure guaranteed that theyÂre going to be washed out.Â
The property owners say the storms, not the seawalls, damaged the turtle habitat.
In fact, they say theyÂve improved the beach with their own money.
The death of a rare KempÂs Ridley sea turtle in a dredge in May forced the U.S.
Army Corps of Engineers to halt an unrelated beach restoration project off Walton
County until October. It was the third turtle killed since the project began this
year.
Though Fish and Wildlife can sue and even criminally prosecute uncooperative owners
under the Endangered Species Act, lawyer Tomasello doubts that will happen. He sees
the agency as a bully that threatens local governments and individuals with a parade
of legal horrors that never arrives. ÂI donÂt think Fish and Wildlife has the
grit to sue.Â
The agency declined comment. Citing potential litigation, DEP spokesman Anthony
De Luise also declined to respond to similar remarks Tomasello directed toward his
department, except to say TomaselloÂs clients must wait like everyone else for
permit applications.
For its part, the county says itÂs out of the seawall business, though it continues
to work with the owners and Fish and Wildlife to address concerns for turtles and
other endangered species that may inhabit the area. County Attorney David A. Hallman
says owners who ignored the requirements of DEP and other agencies did so at their
own risk.
ÂMy board authorized folks to do temporary armoring and nothing more, Hallman
says. ÂIf I tell you to build temporary armoring, and you build something more
elaborate, itÂs not my responsibility. The hard decisions now lie with DEP.Â
Hildreth says he and his neighbors have plowed at least $70 million into the structures,
which they prefer to call Âupland retaining walls. He, too, doubts any government
agency or court will force their removal.
ÂThe beachfront property owners have been hurt unmercifully by the storms, he
says. ÂTo make them tear out these walls would be without conscience. Why shouldnÂt
property owners be able to protect their homes or businesses?Â
Florida law may not be so benevolent, as one company learned when it went ahead
and began building condominiums in Martin County on the Atlantic coast. The developer
had been warned that the project may not receive final approval after legal challenges
to it had run their course.
Despite the developerÂs protests that it stood to lose $3.3 million, a trial judge
ordered the demolition of five buildings in various stages of completion, including
two that were nearly totally occupied. The Florida Fourth District Court of Appeal
in West Palm Beach showed no sympathy in affirming the order. Pinecrest Lakes Inc.
v. Shidel, 795 So. 2d 191 (2001).
ÂIf the rule of law requires land uses to meet specific standards, then allowing
those who develop land to escape its requirements by spending a project out of compliance
would make the standards of growth management of little real consequence, wrote
appeals Judge Gary M. Farmer. ÂIt would allow developers such as this one to build
in defiance of the limits, then escape compliance by making the cost of correction
too high.Â
Walton CountyÂs first coastal armoring litigation may come from the Retreat Homeowners
Association, the client Pensacola lawyer Mead represents in its effort to install
geotubes. As talks with the state and county continued this spring, Mead already
was researching a takings claim.
In late April, he received an unexpected boost in the case from other Walton County
property owners fighting a renourishment project, which restores beaches by pumping
more sand onto them. In somewhat counterintuitive arguments, the owners maintained
the project constituted a taking because the state denies them property rights over
the added sand, even if it increases the size of their lots, and because the new
sand also would cut their property off from direct access to the water. The First
District Court of Appeal in Tallahassee agreed with the owners and ordered the project
scuttled. Save Our Beaches Inc. v. Florida DEP, No. 1D05-4086 (April 28). Not before
the court, however, were the questions of whether the taking requires a condemnation
trial or compensation.
As Mead sees it, the stateÂs denial of the geotubes already has deprived his client
of partial use of the property, perhaps worth as much as $250,000 a month in compensation.
He shudders at what a taking of all 90 lots on the site could entail.
ÂMy clients are willing to spend $1.7 million to protect themselves, and we may
have a takings claim that could wind up costing tens of millions of dollars, Mead
says. ÂI donÂt get it.Â
REINING IN DEVELOPMENT
Besides case law, the state also has set a strong political precedent when it comes
to saving Florida from Floridians. Pattison of 1000 Friends recalls how legislators
in the 1970s wrested control of runaway development in the Florida Keys from the
locals and turned it over to the state by designating the Keys as an area of critical
state concern.
ÂThe state was not going to sit back and let local governments ruin everything,Â
says Pattison, a regional and urban planner who helped implement the project for
the community affairs department.
Like sports records, though, political precedents are made to be broken. The 2006
edition of the Florida Legislature lifted the designation, effective in 2009.
But at least on paper, Florida has one of the nationÂs strongest laws to control
development. The 1985 Growth Management Act requires local and regional governments
to submit to the state comprehensive plans that cover all aspects of growth, from
transportation to sanitation. The state can reject plans that donÂt meet minimum
standards and can punish local governments that fail to enforce the law.
The act brought the concept of zoning to the Panhandle for the first time, including
to large sections of the urbanized Pensacola area. It also discourages development
along the coast.
ÂI think the process is unravelingÂsteadily, says former Community Affairs Secretary
Pelham, who administered the act in its early days. Pelham also has served as chair
of the ABA State and Local Government Law SectionÂs committee on land use, planning
and zoning.
ÂThereÂs been an increasing deference to the property rights side of the equation,
and itÂs in full swing today, Pelham says. Then he ticks off a list of key state
agency positions and legislative posts held or controlled by developers. Many of
those same agency heads, legislators and developers dominated the stateÂs Coastal
High Hazard Study Committee, established by Gov. Jeb Bush last fall to explore ways
to alleviate future storm damage. The upshot: a Florida that just canÂt say no.
ÂIt takes strong political leadership to overcome that sort of pressure, Pelham
says. ÂThatÂs just a fact of life in Florida, even though weÂve had laws on the
books for years restricting development in coastal areas.Â
Legislators may have brought PelhamÂs nightmare to life this spring when they unanimously
adopted a bill that would allow local governments to increase population densities
in coastal areas, provided the development can meet minimum evacuation times. The
developer can avoid that requirement, however, through unspecified Âpayment of
money, contribution of land, and construction of hurricane shelters and transportation
facilities.Â
While the bill could make construction more difficult in many more congested parts
of the state, it actually could speed it up in the still relatively undeveloped
Panhandle, where evacuation times arenÂt a crucial issue.
Republican Charlie Clary is Walton CountyÂs state senator and sponsor of an earlier
version of the legislation. He also sits on the Bush study committee and knows heÂll
never please everyone.
ÂItÂs a fine line of protecting private property rights and the community, says
Clary, an architect. ÂThereÂs never a magic fix. You just have to have flexibility.Â
But Walton County officials and residents canÂt expect Clary and the legislature
to bail them out of the seawall mess.
ÂI donÂt know if we can resolve the current seawall situation legislatively,Â
Clary says. ÂThatÂs an issue for the county, the property owners and the state
[agencies].Â
The DEP approval process for permanent permits, meanwhile, has broken out of the
gate at a crawl. By mid-May, the agency had approved only three of 66 applications
and denied one because the wall was built too close to the water.
Some observers say the agency is buying time because turtle nesting season began
May 1 and runs through Oct. 31, meaning contractors canÂt bring heavy equipment
onto the beach to remove any illegal walls. Nesting season also ends a few days
before FloridaÂs gubernatorial election. Because of term limits, Bush canÂt run
again. So the prospect of a new governor with different priorities for the coast
could chill DEP officials from acting quickly.
But despite the potential for litigation in Walton County, experts in land use and
planning say insurance ultimately will decide the issue writ large. Most private
insurers offering wind and flood coverage have pulled out of Florida, leaving the
state to pick up the cost of rebuilding through its own insurance program. Storm
damage claims by coastal residents mean higher premiums for people who donÂt live
anywhere near the sea.
ÂIf I tell you your insurance premium is going to go up 125 percent every year,
I think youÂll get peopleÂs attention, Pattison says.
Property owner Hildreth also is an Alabama-licensed litigator. And he sounds every
bit the part as he sits behind his desk and delivers the summation of his case for
seawalls. As if he were standing before the bench or a jury, he describes a taking
through an examination of WaltonÂs beachfront homes the day after Dennis.
ÂNo. 1, he says, Âthey were unsellable. There was nothing to buy. No. 2, you
could not personally use them. The county red-tagged them [as unsafe]. No. 3, you
couldnÂt rent them out. No tourists would take them. And No. 4, you canÂt insure
them. If you canÂt sell it, if you canÂt use it, if you canÂt rent it, and you
canÂt insure it, itÂs worthless.Â
LOOKING AT LUCAS
The question of rebuilding in coastal areas resides almost exclusively in state
law, but one U.S. Supreme Court decision sets the tone.
In Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the justices held
6-3 that the state supreme court erred in denying a developer compensation for two
lots on a barrier island by declaring planned home construction on them in violation
of the public interest. The developer had purchased the lots for $975,000, but a
state setback law enacted after he bought the property prohibited building there
because it was too close to the Atlantic Ocean. After the Supreme Court decision
revived the developerÂs takings claim, the state on remand paid for the lots.
Now, with the devastation of the 2005 hurricane season, one leading environmental
advocate says itÂs time for the court to reverse Lucas.
ÂIÂd just love to have an opportunity to re-litigate Lucas today, says John
D. Echeverria, head of Georgetown Law CenterÂs Environmental Law and Policy Institute.
ÂIf we re-litigated Lucas after Katrina, hands down it comes out the other way.Â
He notes that Justice Anthony M. Kennedy concurred in the judgment and refused to
go along with the majorityÂs conclusion that such a ban almost always would result
in a taking. He also sees hope for reversal in new Chief Justice John G. Roberts
Jr.Âs successful defense before the high court of a takings challenge to land-use
regulations in Lake Tahoe when Roberts was in private practice.
Though Lucas also suggests that a taking has to render property virtually worthless
to merit compensation, courts in states like Florida go further and make payouts
for partial takings. Other state courts, though, have used subsequent Supreme Court
takings precedent to dull the bludgeon Lucas can wield.
LINGLEÂS EXAMPLE
The Massachusetts Supreme Judicial Court in 2005 upheld coastal building restrictions
using Lingle v. Chevron Inc., 544 U.S. 528, which was also decided in 2005 and held
that land use regulations that Âsubstantially advance a legitimate state interest
can defeat a takings claim. The Massachusetts case involved a lot on the southeastern
tip of Cape Cod, surrounded by the Atlantic on three sides. Gove v. Zoning Board
of Appeals of Chatham, 831 N.E.2d 865.
Given the propertyÂs location and the lack of evidence to the contrary, the court
had no problem in establishing state interest. Though the owner couldnÂt build
a home on the lot, the court noted that the state had not physically occupied the
property or rendered it totally worthless. In doing so, the Massachusetts court
followed LingleÂs suggestion that Âgovernment hardly could go on if to some extent
values incident to property could not be diminished without paying for every such
change.Â
Echeverria says more state courts should step up to the plate with that approach.
ÂIf you create the impression that people can make stupid building decisions and
get bailed out, then people will keep making stupid building decisions.Â
John Gibeaut is a senior writer for the ABA Journal. His e-mail address is gibeautj@staff.abanet.org.
©2006 ABA Journal
