On September 12 the Massachusetts Department of Environmental Protection granted a superseding order of conditions to allow the absentee owners of a house on Great Island in Wellfleet to build a 241-foot rock revetment along their property’s Cape Cod Bay shoreline to keep their five-bedroom, 5,817-squre foot house from sliding down a coastal bank.
The 2.1-acre property abuts one of the largest, most contiguous and most natural areas of coast on the entire Cape Cod National Seashore. It stretches nearly seven miles, from Pamet Harbor in Truro to Jeremy Point. It’s one of the few places where currents move sand and reshape Cape Cod’s fast-changing shoreline with few human structures in the way. That’s why the National Park Service, and the Wellfleet Conservation Commission and Shellfish Advisory Board, opposed the revetment’s construction.
Hardening shorelines with walls prevents erosion in some places, but—by robbing the coast of sources of precious sand—accelerates it in others. Jetties have a similar effect that adds sand on one side but takes sand away from the other. Structures can benefit those who build them, but to the detriment of everyone who doesn’t. Their effects are incremental and often hard to see. But they create a damaging cascade of incentives—the more anyone builds them, the more everyone needs them.
For all the talk out of the highest levels of Massachusetts government about promoting “nature-based solutions” to climate change and coastal vulnerability, this decision is 180 degrees in the other direction.
It sends an unfortunate but all-too-real message. If you have money, you get what you want—regardless of effects on everybody else. Even when there’s overwhelming evidence that limiting coastal development is in the public interest, looming lawsuits often cast a shadow over our willingness to take action—or when courageous citizens on local boards take actions—to make those actions stick.
This is not an isolated case. In the last month, the owners of Gooseberry Island, a 3.9-acre low-lying piece of land at the mouths of the Mashpee and Santuit Rivers in Popponesset Bay won a Land Court ruling that says they own a thin strip of land that they plan to use as access for a 200-foot bridge they want to build to a new house they plan on the island. The Mashpee Conservation Commission denied the owner three variances required for a building permit, primarily because the island does not have street frontage and road access. The Wompanoag Tribe also opposed the variances for the house construction because of damage to wetlands and potential risk to the Tribe’s nearby oyster farm. The Commission’s denial of the variances—which would still block construction—is under appeal at Barnstable Superior Court.
In Falmouth, the town earlier this year won an appeal to a long-standing case in which the owner of a small coastal property on Alder Land in Wild Harbour Estates claimed the conservation commission’s denial in 2012 of a permit to build a house on the lot constituted a “regulatory taking” of the value of the property. The commission denied the permit because it could not be constructed outside of a 100-foot no-disturbance zone put in place in 2008—long after the acquisition of the property by the owner’s family in 1975. The small lot, near the mouth of Wild Harbor, adjoins a salt marsh and about two-thirds of it falls in the Federal Emergency Management Agency (FEMA) VE zone of highest risk for coastal flooding and damage.
The Barnstable Superior Court ruled in 2016 that the town had to pay $640,000 damages and $310,000 in interest, but it was overruled by the Massachusetts Appeals Court in February. After enlisting the services of the Pacific Legal Foundation—a national group that challenges government regulations—the homeowner appealed to the Massachusetts Supreme Judicial Court. While that appeal failed earlier this year, the Pacific Legal Foundation is working on a petition for certiorari to the US Supreme Court that would review the case record from the lower court.
This hodgepodge of rules and rulings makes one thing crystal clear—our current system of nudging, arm-twisting, or outright regulating of the private uses of coastal lands is not only unfair and ineffective today, but will be manifestly inadequate to deal with the transformational change that climate change will deliver in the near future.
At the heart of the Falmouth Alder Lane case, and what makes a review by the US Supreme Court so potentially damaging, is that the homeowners and the Pacific Legal Foundation argue that regulations can’t change—even when conditions have. It is in the public interest to prevent new construction in flood velocity zones, through fragile salt marshes, or to shore up high bluffs that put adjacent bluffs at higher erosion risk. Requiring towns to pay hundreds of thousands of dollars to already well-off coastal homeowners who didn’t figure the risks posed by climate change into their real estate investment decisions is a recipe for complete inaction.
If you are a homeowner, maybe of modest means, perhaps living on relatively high ground, but still not thrilled with attempts to limit what coastal property owners are doing, consider two recent studies that you are already paying for their mistakes.
One, by Climate Central, found that construction of new houses nationwide is much faster in zones with 10 percent annual risk of flooding than it is in areas with little or no flood risk. The other, from University of Miami’s Rosenstiel School, shows that the homes in flood-prone areas that FEMA selected to buy out and demolish since 1989 to make communities less vulnerable to disasters depended as much on the wealth of affected neighborhoods as on the flood risk itself. Karen Mach, the study’s lead author, told the New York Times, “There is a real potential for our responses in a changing climate to make the fat cats fatter, so to speak.”
Right now, we all pay when people get what they want but make the coast more vulnerable. That needs to change.