An Increase in Beach Reconstruction Projects May Mean a Decrease in Property Rights: The Need for a Multi-Factor Balancing Test when Protecting Waterfront Property

Authors

Amy Forman, Washington and Lee University School of Law

Abstract

In recent years, many states have struggled to come up with an adequate solution to the negative effects of climate change, specifically rising sea levels and severe storms. The most common and successful method of protection, erecting barriers on the waterfront, not only raises its own environmental concerns, but also forces the government to invade on a homeowner’s property rights for the sake of protecting the beach. Recent cases such as the Borough of Harvey Cedars v. Karan, illustrate that when courts abandon traditional property rights, it becomes easier to implement protective measures and save their waterfront properties. This protection comes at a cost, however, as many of these protective methods end up causing long-term environmental harm. On the other hand, if courts choose to respect all traditional property rights, it avoids any detrimental impact those structures would have on the environment but fails to offer any protection to waterfront properties. Courts must find a way to balance both the property concerns and environmental concerns. This can be done through a multi-factor balancing test, including the following three questions: (1) are there other more environmentally friendly alternatives that can be implemented; (2) does the value of damage done to the environment outweigh the value of protecting the homeowner receives; and (3) will denial of this protective measure cause imminent, rapid, or sudden loss of property? This test will weigh the interests of both property and environmental issues to determine when it is adequate to compromise traditional property rights and which protective measures are permissible.

Recommended Citation

Amy Forman, An Increase in Beach Reconstruction Projects May Mean a Decrease in Property Rights: The Need for a Multi-Factor Balancing Test when Protecting Waterfront Property, 6 Wash. & Lee J. Energy, Climate & Env’t. 509 (2015), https://scholarlycommons.law.wlu.edu/jece/vol6/iss2/6