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Sea-Change Ahead for Boston: Private Property Rights May...

Sea-Change Ahead for Boston: Private Property Rights May Be Forfeited

Boston grew from the sea by way of man-made land. Now, the city is facing a return to the sea by way of man-made emissions. Climate resilience and adaptation are emerging in fields spanning urban planning, architecture, real estate, finance, policy, and law, increasingly gaining prominence in coastal areas in particular. Originally an 800-acre peninsula

by Alyssa Curran May 24, 2018
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Boston grew from the sea by way of man-made land. Now, the city is facing a return to the sea by way of man-made emissions. Climate resilience and adaptation are emerging in fields spanning urban planning, architecture, real estate, finance, policy, and law, increasingly gaining prominence in coastal areas in particular.

Originally an 800-acre peninsula when founded in 1630, Boston used fill, largely from the removal of hillsides, to expand the city to today's nearly 57,600 acres over time (see a map from National Geographic below). The growth has allowed the greater metropolitan region to support a population of over 4.5 million people. With over 650,000 people in the city proper, the Boston region ranks as one of the most densely populated regions in the United States. 

Map, City of Boston, Massachusetts, USA

Urban development continues to support the city’s growing economy, which is centered on health care, social assistance, education, and professional, scientific, and technical services. While some may argue this development, which generated $52.3 million in building permit revenues in 2016, is a sign of prosperity and urban vitality – others are calling attention to Boston’s vulnerabilities in the face of climate change and rising sea levels.

The City of Boston has not shied away from this in recent years, releasing Climate Ready Boston in 2016 - a comprehensive study covering projections and impacts associated with extreme heat, rain, snow, and flooding. The report outlines important considerations associated with known and anticipated hazards, the costs attributable to climate impacts, and various principles to guide resilience efforts and increase Boston’s “climate readiness.”

The Harvard Graduate School of Design has embraced this challenge and incorporated it into the Master in Urban Planning curriculum through a core urban planning studio course that all first-year urban planning graduate students in 2017 were required to take. Featured in America Adapts: The Climate Change Podcast, host Doug Parsons took a closer look at the collaboration the school formed with East Boston, and specifically the Neighborhood of Affordable Housing. Students and instructors worked with community members to develop climate adaptation solutions for the neighborhood, using the required studio coursework as the vehicle to do so (listen to full podcast below).

From land use and zoning changes to distributed energy resources to establishing regional entities dedicated to governing and financing climate measures, the studio produced a diversity of ideas for climate adaptation in East Boston. These concepts are relevant not only to the challenges East Boston faces in the coming years but to neighborhoods across the city - and cities around the world. In the emerging field of climate resilience and adaptation, planners and policymakers grapple with the framing of problems and the positioning of solutions regularly, given the lack of clarity and subjectivity each term presents. Key questions arise in the process: adapt to what? resilient for whom? for how long? with what probability?Alyssa Curran, Core Urban Planning Studio-Adapt East Boston, Harvard Graduate School of Design, Cambridge, Massachusetts, USA

If resilience refers to protective measures that reduce risk to hazards and the ability for people and systems to return to how they were functioning before a storm or other disruption hit, adaptation aligns more closely with transformation to a “new normal” (or multiple “normals”). The City of Boston has been working toward a combination of these two, with more emphasis placed on resilience, or “bouncing back” to the status quo. Unfortunately for Boston, like other cities around the world, the challenges at hand are ones that require adaptation, as resilience in the long-term is not possible for issues like rising seas and subsidence (the sinking of land surface).

Measures like flood insurance, for example, provide ‘resilience’ to flood damage on the property level while failing to consider broader implications like how people will get to and from those properties if transportation infrastructure ceases to be functional with regular flooding. In that case, insurance may, in fact, be maladaptive, where in the short-term it provides a sense of security and a mechanism for buying down risk, while in the mid- to long-term it perpetuates the vulnerability people face as owners and tenants of property in hazardous areas. In this circumstance, managed retreat from the coast appears to be a more adaptation-focused proposition that recognizes we can’t hold the sea back along every part of the coast. Managed retreat is increasingly discussed, debated, and implemented across the world, as the impacts of climate change continue to affect waterfront communities; examples include:

Forced retreat looks to be more of a reality than repeatedly "bouncing back" and recovering from floods and storms at waterfront properties. In another episode of American Adapts, You Can’t Handle the Truth: Rising Sea Levels and the Law, adaptation lawyer Margaret Peloso discusses one of the biggest challenges we face in the coming years: sea level rise will lead to the largest land transfer from private to public hands in history.

Due to the public trust doctrine – “the principle that certain natural and cultural resources are preserved for public use, and that the government owns and must protect and maintain these resources for the public's use,” (Nolo’s Plain-English Law Dictionary) – governments have the property rights to lands under navigable waters and will acquire lands that become submerged from sea level rise under the public trust doctrine. Private property owners may work to protect assets against rising seas and flooding, but in the end may be faced with permanently submerged property that will be turned over to government ownership and maintenance.

In turn, governments are charged with managing those resources to benefit the public good. When the land is lost to the sea, the government doesn’t need to pay the private landowner, as is the case with eminent domain when the government takes private land for public use and provides just compensation. By way of common law, that property shifts hands from the private property owner to the public trust without payment.

Boston Waterfront Development, Boston, Massachusetts, USA

Trained to think about risk, Peloso and other legal professionals like her are at the forefront of analyzing and understanding our obligation to think prospectively about climate change, with increasing focus on physical risk. Dynamic property boundaries at waterfront edges (particularly at the sea), are driving debates and discussions on how to deal with existing development and land use policy going forward.

To what extent should the government be proactive in seizing vulnerable property in the name of adaptation? ...in instituting property restrictions along coasts? ...in preempting individual property owners from building sea walls or installing other protective measures?  

The intersection of policy, planning, and adaptation highlights the tension between solutions at the scale of the individual and solutions at the scale of the collective. While litigation has centered on the level of the individual property to date, at the end of the day, long-term and larger scale adaptation will likely rely primarily on reformed land use policy.

In addition to studying, measuring, and predicting climate impacts in Boston, and shaping policy as a result, other mechanisms for managing the impact of sea level rise and other hazards include: creating microgrids to improve power reliability in the face of disruptive events, upgrading infrastructure and incorporating climate resiliency into new and retrofit projects, and transferable development rights (read more on the Boston Globe’s opinion of “must-do” measures for dealing with climate change in Greater Boston).

Boston, Massachusetts, USA commute to the 90 and 93 south

When observing Boston’s homeward-bound commute in flood-prone areas of the city, it is hard to imagine what adaptation would really mean. Shifts to amphibious vehicles, construction of boardwalks and water channels, buildings that design entrances on the ground floor and 2nd floor up (that would over time permit ground-level transformation into wetlands), and formal managed retreat programs may all be on the horizon. The many unknowns, uncertainties, and risks associated with climate change force us to think about the notion of stability and the idea of how we organize in response. Whether taking proactive steps to anticipate instability and better manage its impacts or installing measures as we go, one thing is for certain: we can’t just ignore the problem – it is not going to simply go away.

What examples can you think of that would help Boston adapt to climate change? What measures is your city taking to build resilience or adaptive capacity into the urban fabric? What do you think is our biggest challenge? Share your thoughts and your city’s stories in the comments area below.

Credits: Images by Alyssa Curran. Data linked to sources.

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A native Buffalonian, UCLA-trained geographer and Harvard Graduate School of Design Urban Planning alumnus, Alyssa is passionate about improving social justice, environmental performance, climate adaptation and resource security in cities. Alyssa's m...

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