Mother Nature Vs. Property Laws

A new report by the US Geological Survey (USGS) says that the next few decades could see "rapid" ice melting in the arctic and a major rise in sea levels. The News Journal ran an article covering the report here along with a cool interactive map that shows how the Delaware coastline would change as sea levels rise. That map can be found here.

Now, let's put aside the whole "global warming" debate for a moment and just assume that the report is accurate. We can argue later about what's causing it, but it looks like the arctic ice is indeed melting and sea levels are indeed rising. The real question is what happens when the seas rise and ultimately overtake what is now dry land?

This is where things get tricky. You see, like in most states, individuals cannot own the water. Delaware law allows property boundaries on the coastline to extend as far down as the low tide line (check out the Delaware Coastal Zone Act for reference). But what happens to a beach property when the low tide line reaches well onto, or even over, the property lot lines? Does that property simply cease to exist? Does the property owner simply lose the right to any land? As far as the law is concerned, I think the answer is yes. This means, among other things, billions of dollars of lost property and rent value for Delawareans and billions more in lost property tax revenue and tourism revenue.

One way to look at this problem is from the economic point of view. Like any other investment, property comes with risk. Flood, fire, sea rise...these are all risks involved with getting into the game of owning property. If the risks begin to increase with the threat of rising seas, property owners will simply have to choose whether to stay "in the market" or sell their property and invest in something else while they have the luxury to do so. For those that do hold onto their beach properties, they'll have to be okay with the idea that someday their investment will be gone, stuck under a few feet of seawater.

Another way to look at this issue is from the political point of view. For many years, taxpayers have reduced the risks of property ownership on the beach by paying for beach replenishment and dune construction. In my view, these are wasteful programs that simply delay the inevitable. "Polishing the brass on the titanic," so to speak. When these programs no longer serve their purpose to hold back the rising seas and the storm surges, we'll either have to ramp up our efforts or abandon them. Sure, we can go the Netherlands route and start building dams and levees and pump trillions into projects that would either maintain or create dry land out of what would otherwise be a home for fish. In light of our economic and social problems, this kind of brass polish seems like a poor use of our tax money.

There's No "I" in Delaware

We live in a remarkably small state. It's small enough that one can live on one end and work on the other. The result of this small scale of geography is that, to a greater or lesser extent, the way that one of us uses our land has the potential to impact almost everyone in the state. Therefore, it makes sense to manage--or at least coordinate--the use and development of land at the state level. This is the logic behind the most current of many similar land use planning initiatives introduced by our progressive governors since the 1970s, this time called "Livable Delaware."

Since 2001, Livable Delaware's administrative agency--the Office for State Planning Coordination (OSPC)--has made all local jurisdictions come to the table in Dover to ask for permission on every type of land use decision from building a new school to annexing new land into a city. Built into this process (called the Preliminary Land Use Service, or PLUS) is the opportunity for OSPC staff and other agency officials to offer "suggestions" on how counties and cities should regulate the development of land across the State. One of the most controversial of these "recommendations" has revolved around how to discourage the disappearance of our local farmland by discouraging their development.

In a bold move, Kent County became a pioneer in adopting land use regulations that make development of farmland impossible by allowing only one house for every ten acres of land outside of the State's designated "growth area." In an even bolder move, Delaware farmers are now suing Kent County because they say that this regulation takes away their property rights and prevents them from being able to retire by selling the land to a developer. This lawsuit will probably go nowhere, at least in the long run, for several reasons:

Reason One: Taking away the potential for someone to do something with their land does not mean that that person's property rights have been violated. For example, just because you think you may or might open an arena rock hall someday on your plot of land in downtown Dover does not prevent the City from passing a noise ordinance that effectively prohibits an arena rock hall from being developed on your land. The government cannot read your mind and cannot predict the way the market and technology will evolve in the future. They can only be held responsible for tangible negative consequences of their actions.

Reason Two: The line needs to be drawn somewhere. At some point, the government needs to step in and say that development can happen here but cannot happen over there, and it should (and in this case, did) happen well before the point that development becomes too much too handle (e.g., traffic, noise, pollution, etc.). Buying and selling land is like buying and selling stocks...it's a very risky business. Ask any homeowner who bought their house four years ago for five times what it's worth now. The government and its regulations are just one of many factors that make land investments risky. Delaware is a mid-atlantic state with a relatively large density of residents, and chances are that your development might just push the area over into the category of "unlivable" because of all the bad things that come from building too many houses in a such a small state. Sorry about your luck, farmer brown. Them's the breaks. You should've had your farm up for sale in the nineties.

Reason Three: New Jersey. That's what unchecked development looks like. It's a mess and it's only getting better now because the government has taxed the crap out of residents and enacted dictatorial development laws in order to stabilize a landscape that was quickly headed for the crapper. We need to learn from New Jersey and find a good middle ground between property rights and preserving public health, safety, and welfare. Having a good regional economy that is at least partly based in agriculture also helps the state by adding diversity to our collective economic "portfolio."

So, my take on this is that farmers will have to swallow their avarice-ridden pride and start raising the next generation of farmers. Either that, or sell the farm at a fair price to someone who wants to be a farmer (what a concept!). The rest of us city-folk will have to start getting more and more comfortable with giving up the idea of limitless possibilities for developing our property and enjoy what we can do with what we have. No, you don't get to decide that that pretty farm field next door will stay that way forever, and no you don't get to raise pigs in your condo in downtown Georgetown. We all need to start thinking in terms of what is enough rather than what is bigger and better and faster.

Of course, I would hope that the process for deciding land development rules will also incorporate a good helping of public input...and not just that little "public hearing" that gets advertised once on page 27 of the local paper. We need to be able to communicate our values and desires and visions more effectively with the people who end up telling us what we can and can't do with our land. That's real democracy, folks, and we need to push our elected leaders to start using it.