Rolling Easements
-------
This document may be downloaded from the Climate Ready Estuaries Web site at:
water.epa.gov/ type/oceb/cre/upload/ rollingeasementsprimer.pdf
CLIMATE READY
ESTUARIES
June 2011
-------
ROLLING EASEMENTS
Author
James G. Titus
Peer Reviewers
Thomas T. Ankersen
Margaret E. Peloso
James F. O'Connell
Stakeholder Reviewers
Leslie Ratley-Beach
Janet Freedman
Amanda L. Babson
Sarah N. Deonarine
John Fergus
Ken Lindeman
Jennifer Pagach
Climate Ready Estuaries Program
Michael Craghan, Co-Lead
Jeremy Martinich, Co-Lead
-------
DISCLAIMER
Any mention of a given option for responding to sea level rise does not constitute
endorsement for implementing the option anywhere, much less in a particular location. This
primer focuses on options for state and local government and the private sector. This
document does not represent any regulatory policy of the United States Government, nor
does it provide recommendations for regulatory action. Any legal discussion herein is
provided solely for the purpose of helping readers understand the implications of rolling
easements, and is not necessarily the position that the U.S. Government has taken or will take
in any legal action. The discussion of tax laws in this report cannot be used to avoid tax
penalties imposed on any taxpayer.
This document is not legal advice: Those interested in pursuing the options discussed
should seek legal counsel. Coastal law is continually changing. Anyone interested in the
implications of rolling easements in a specific state should research how the law has changed
since the beginning of the year 2011. As this report went to press, courts and government
officials in Texas were revising and refining how the rolling easement applies along the Gulf
of Mexico coast.
-------
PREFACE
Rising sea level is inundating low-lying lands, eroding beaches, and
exacerbating coastal flooding. In undeveloped areas, landowners have generally
allowed wetlands, beaches, and barrier islands to adjust naturally to rising water
levels, by migrating inland. In developed areas, by contrast, governments and
landowners have usually attempted to hold back the sea by adding sand to eroding
beaches or erecting dikes, seawalls, revetments, and other shore protection
structures. Very little developed land has been given up to the rising sea—especially
along estuaries where individual landowners can usually protect their own property
without government assistance.
Coastal development continues, as new communities replace forests and
farms, and large houses replace small seaside cottages. With few exceptions, the new
residents believe that they (and their heirs) can own the land forever if they choose.
But permanent coastal development might not be economically or environmentally
feasible everywhere. Most scientists expect a warmer climate to cause the sea to rise
more rapidly in the future. Defending coastal development from the rising sea would
prevent wetlands from migrating inland, expose large numbers of people to the
hazard of living below sea level, and often cost more than what the property being
protected is worth.
This document presents an alternative vision, in which future development of
some low-lying coastal lands is based on the premise that eventually the land must
give way to the rising sea. We provide a primer on more than a dozen approaches for
ensuring that wetlands and beaches can migrate inland, as people remove buildings,
roads, and other structures from land as it becomes submerged. Collectively, these
approaches are known as rolling easements.
The question about which—if any—of these approaches should be adopted is
beyond the scope of this primer. We do not evaluate how much of the coast should
be protected or how much of it should give way to the rising sea. Our objective is
merely to provide a summary of the tools that could be adopted and their possible
rationales, to help encourage a thorough consideration of the many available options
for responding to rising sea level. We do not exclude possible approaches merely
because they have not been tested or would require existing policies to change. We
hope that this primer helps communities to consider the full range of options for
anticipating the consequences of a rising sea.
-------
TABLE OF CONTENTS
1.0 Introduction l
1.1 Possible Responses to a Rising Sea 1
1.2 Roadmap 4
Notes and References n
2.0 What Can a Rolling Easement Accomplish? 13
2.1 Preserve Beaches and Other Eroding Shores 13
2.2 Preserve Access along the Shore 15
2.2.1 Existing Access along the Shore 15
2.2.2 Impact of Sea Level Rise on Access 19
2.2.3 How Rolling Easements Can Preserve Public Access along the Shore 23
2.3 Facilitate Landward Relocation of Roads and Other Infrastructure 24
2.4 Help Wetlands to Migrate Inland 26
2.5 Facilitate the Inland Migration of Barrier Islands 28
Notes and References 33
3.0 Legal Approaches for Creating a Rolling Easement 41
3.1 Regulation 41
3.1.1 Rolling Easement Zoning and Other Local Regulations 41
3.1.2 State Coastal Management 46
3.2 Interests in Land 49
3.2.1 Easements, Conservation Easements, and Covenants 50
3.2.2 Defeasible Estates and Future Interests in Land 52
3.2.3 Ambulatory Boundaries 58
3.2.4 Summary of Rolling Property Interests 61
3.3 Combinations of Rolling Easements 62
3.4 Combination with Other Coastal Policies 65
3.4.1 Setbacks and Other Limits on Development 65
3.4.2 Transferable Development Rights 67
3.4.3 State Management of Public Trust Lands to Facilitate Barrier Island Migration 68
3.4.4 Cluster Development 72
Notes and References 75
4.0 Choosing the Approach: Is There Legal Authority? 87
4.1 Regulatory Rolling Easements 87
4.1.1 Local Government 87
4.1.2 State Agencies 89
4.1.3 Constitutional Takings Questions 89
4.2 Interests in Land 90
4.2.1 Constitutional Takings Question 90
4.2.2 Does State Property Law Allow Creation of the Rolling Easement Needed? 90
4.2.3 Authority to Obtain a Rolling Easement 94
Notes and References 96
5.0 Advantages and Disadvantages of Rolling Easements 103
5.1 To the Community at Large 103
5.1.1 If Shore Protection is Expected Otherwise 103
5.1.2 If Retreat Will Occur with or without a Rolling Easement 104
5.2 To Landowners 106
5.2.1 The Tax Advantages When Donated 106
5.2.2 When Sold at Fair Market Value 111
5.2.3 Exacted Rolling Easements 111
Notes and References 112
iv
-------
6.0 Defining How It Will Work 115
6.1 The Rolling Design Boundary: Which Resources and Rights Roll Inland? 115
6.2 Restrictions Imposed by the Rolling Easement 123
Notes and References 127
7.0 Defining Where to Apply the Rolling Easement 130
7.1 Defining Where Retreat is Preferable to Shore Protection 130
7.2 Defining Where Rolling Easements are Preferable to Other Measures for Ensuring a Retreat 132
Notes and References 137
8.0 Managing the Rolling Easement 140
8.1 Inspection and Enforcement of Conservation Easements 141
8.2 Attempts to Invalidate the Rolling Easement 142
8.3 Rolling Easement Zoning and Other Regulatory Approaches 145
Notes and References 146
9.0 The Endgame: Managing the Transition 150
9.1 When the Terms of the Rolling Easement Start to Affect Decisions by the Owner 151
9.2 Actions Required or Encouraged by the Rolling Easement 152
9.3 Financial Assistance for Relocation 154
9.4 After the Land Is Submerged 156
Notes and References 158
Glossary 160
v
-------
-------
CHAPTER 1
INTRODUCTION
1.1 POSSIBLE RESPONSES TO A
RISING SEA
Along almost the entire U.S. coast, sea level is
rising1—and the rate of that rise is expected to
accelerate in the coming decades.2 Even today,
rising sea level is inundating low-lying lands,
eroding beaches, exacerbating coastal flooding,
and increasing the salinity of estuaries and
aquifers.3
Over the last several thousand years, shallow-
water estuaries have gradually submerged tidal
wetlands, which in turn have survived by migrating
inland, onto low-lying coastal plains (see Figure l).
Barrier islands and other beach ecosystems have
also remained intact by migrating inland. In areas
with few if any people, floodplains and tidal
ecosystems will probably continue to move inland
as sea level rises. In developed areas, however,
human activities will complicate—or perhaps
prevent—this landward migration.
Communities can respond to sea level rise by any
of three or four pathways (See Box 1):4
1. Shore Protection
a. Shoreline armoring. Protect land and
buildings from erosion and flooding using
dikes, seawalls, bulkheads, and other hard
structures. Wetlands and beaches are
eliminated as they are squeezed between
the rising sea and the shoreline armoring.
b. Elevation of land surfaces. Elevate land
and buildings as the sea rises. Efforts to
protect oceanfront communities usually
involve beach nourishment, which elevates
the surface of the beach. In theory, the land
surfaces of wetlands can also be elevated,
though shore protection projects along
wetland shores rarely do so.
2. Accommodation. Do not try to prevent tidal
inundation, erosion, or flooding. But instead of
moving people out of harm's way, develop
coping strategies that enable continued human
habitation in spite of the increased hazards.
Wetlands and beaches migrate inland, though
they may be impaired by the presence of homes
on pilings.
3. Retreat. Allow wetlands, beaches, and other
coastal habitats to migrate naturally as the sea
encroaches inland; move people out of harm's
way; and prevent new construction in
vulnerable areas.
Because accommodation would rarely be
sustainable,s the fundamental question is: Which
communities will be protected and where will
people have to retreat?
Beach nourishment is common along developed
ocean shores, and shoreline armoring is common
along developed estuarine shores. Although retreat
often occurs in undeveloped areas, it is uncommon
along developed ocean beaches and very rare along
developed estuarine shores. Shore protection is
common because it generally costs less than what
the protected property is worth. But protecting all
developed lands from a rising sea would eventually
eliminate tidal wetlands, destroy ocean habitat
through dredging, expose millions of people to the
hazards from living below sea level, and become
1
-------
ROLLING EASEMENTS
a. 5,000 Years Ago
_2 Sea Level
b. Today
Current
Sea Level
Past
Sea Level
Future
C. Substantial wetland loss where house d. Complete loss of wetlands where
is moved or upland is vacant bulkhead protects house from rising sea
Future Future
I. i ^ Future
2 Sea Level ^<3^
_2_
Sea Level
Current Current
Sea Level Sea Level
LEGEND: Sedimentation and Peat Formation Mil Marsh Pish and Wildlife that Rely on the Marsh
Figure 1. Evolution of a Marsh as Sea Level Rises. Tidal wetlands are found where the
elevation of the land is between high and low tides, with tidal marshes generally above mean sea
level and tidal flats below mean sea level, (a) When sea level was rising rapidly, tidal wetlands
tended to be a narrow fringe along the shore, determined by tide range and the slope of the land, as
both the landward and seaward boundaries migrated inland. But vertical accretion through
sedimentation and peat formation have enabled wetlands to keep pace with the relatively slow rate
of sea level rise during the last several thousand years. As sea level rose, the landward boundary
migrated inland as wetlands formed on newly flooded lands; but the seaward boundary of tidal
wetlands did not retreat to the same extent, and the area of tidal wetlands increased, (b) Today, the
area of tidal wetlands—i.e., the land between the high and low tide shorelines—is much greater
than the amount of dry land within a similar elevation range above the high tide shoreline. Yet there
is a limit to vertical accretion and the rate of sea level rise with which tidal wetlands can keep pace.
(c) If the sea rises more rapidly, most of the existing tidal wetlands will be lost and the total area of
tidal wetlands will decline to the narrow fringe determined by the tide range and slope of the land.
(d) Finally, in places where developed lands along the shore are protected from tidal inundation,
new wetlands may not form inland and almost all tidal wetlands may be lost. Alternatively, (c) if the
development is subject to a rolling easement, then the people who live along the shore will have to
relocate and the wetlands will be able to migrate inland. Because the tidal wetlands support fish
and wildlife, loss of tidal wetlands could cause populations of birds and fish to decline or relocate.
2
-------
Introduction
Box 1. Fundamental pathways for responding to sea level rise
As rising sea level threatens coastal lands, people must decide whether to attempt to hold hack
the sea or allow shores to shift naturally. People can respond to sea level rise through one of four
pathways:
Elevate. Raise structures and land surfaces, including
beaches and possibly wetlands.
Shoreline armoring. Protect development with
structures such as dikes, seawalls, and bulkheads. This
approach maintains existing land use, but can increase the
loss of wetlands and beaches. It can also eliminate public
access along the shore.
Accommodate. Make no additional efforts to prevent
tidal inundation, erosion, or flooding. Instead of moving
people out of harm's way, develop coping strategies that
enable continued human habitation in spite of the
increased hazards.
Retreat. Allow wetlands and beaches to migrate inland.
Avoid building in the most vulnerable areas or remove
structures that are already there.
Photo source:
©James G. Titus,
used by permission.
Combinations of these approaches are also possible. Each
approach will be more appropriate in some locations than
in others. Shore protection costs, property values, the
environmental
values of habitat,
and the feasibility of
protecting shores
without harming the
habitat all differ,
depending on the
location.
3
-------
ROLLING EASEMENTS
economically unsustainable in many areas where it
initially seemed successful.6
What can society do if individual communities and
property owners are inclined to protect more land
than would be in society's long-run interest?
Logically, there are three ways to limit the portion
of our coast eventually subject to shore protection:7
1. Setbacks. Prevent development of some lands
vulnerable to sea level rise, either through
regulation or by purchasing land (or
development rights) from the current owners.
2. Rolling easements. Make no effort to restrict
land use but prevent shore protection of some
coastal lands either through regulation or by
transferring any right to hold back the sea from
owners inclined to do so to organizations that
would not.
3. Laissez-faire. Make no effort to prevent either
development or shore protection, but curtail
government subsidies for both, and hope that
eventually the forces of nature and economics
will lead owners to allow their lands to be
submerged.
Each way is appropriate in some circumstances.
Landowners tolerate setbacks as long as they can
build somewhere on their property. Thus setbacks
can be practical where parcels are large or the land
is steep enough so that each lot can have a building
site high enough to be safe for the next few
centuries. But in most places with setbacks,
development is only set back by at most a few
hundred feet or enough to keep a home out of
harm's way for a few decades.8 In the United
States, more than ten thousand square miles of
land are within two meters above the sea.9 The
expectation of additional development is reflected
in the high prices of undeveloped coastal lands. To
prevent development of these lands would impose
a great cost either on landowners unable to put
their land to its most profitable use, or on
governments and private parties who purchase or
otherwise pay landowners to refrain from
development. Buying most of the nation's
undeveloped coastal lands seems unlikely and
economically infeasible.
The laissez-faire approach is based on the
assumption that investors are more likely to
appropriately manage known risks if they bear all
of the burdens of bad decisions and reap all of the
rewards of good decisions. This approach can
reduce eventual shore protection in places where
government subsidies would otherwise fund shore
protection or coastal development. The Coastal
Barrier Resources Act10 removed federal subsidies
for certain barrier islands,11 causing some to remain
undeveloped and reducing the likelihood of shore
protection for several that have been developed
without the subsidies.12 Some ocean beach
communities have funded their own shore
protection or would do so if federal and state
subsidies were unavailable.^ Other oceanfront
communities are unlikely to be protected without
public funds; so a laissez-faire approach would
reduce the extent of beach nourishment along the
ocean. But along estuaries, private landowners
generally pay for shore protection. Therefore,
laissez-faire is unlikely to provide much vacant
land for a gradual upslope migration of wetlands
and beaches along estuarine shores. Planners view
shore protection as likely for at least 6o percent of
the low land along the Atlantic coast if sea level
rises three feet in the next century. 14 Many
landowners will eventually decide to yield their
lands to the sea, as shore protection costs
escalate,but only after interim shore protection
have blocked the inland migration of wetlands and
compromised use of the beach.
1.2 ROADMAP
This primer focuses on rolling easements. If it is
unrealistic to prevent development of low-lying
coastal lands that could eventually be submerged
by a rising sea, an alternative is to allow
development with the conscious recognition that
land will be abandoned if and when the sea rises
enough to submerge it. This approach combines
the strengths of the other two approaches:
4
-------
Introduction
• From now until the land is threatened, valuable
coastal land can be put to its highest use, as
with the laissez-fare approach;
• Once the land is threatened, it will convert to
wetland or beach as if it had never been
developed.
Rolling easements enable ecosystems to migrate
inland and allow society to avoid the costs and
hazards from protecting low lands from a rising
sea. Like laissez-faire, rolling easements are
generally based on the assumption that private
investors in a free market could reasonably
manage the risks of sea level rise. But unlike
laissez-faire, rolling easements are also based on
the assumption that to incorporate the risk of sea
level rise, the market needs some clearly defined
rules about which lands may be protected.
Otherwise, uncertainty about future government
activities (e.g. subsidizing or regulating shore
protection) can overwhelm an investor's ability to
manage the risk of sea level rise.
The following chapters examine many options for
ensuring that wetlands, beaches, or barrier islands
migrate inland. But the question about which—if
any—of these options should be adopted is beyond
our scope. We merely provide a summary of the
tools that could be adopted and their possible
rationales, to help encourage a thorough
consideration. We have not excluded options
merely because they have not been tested or would
require existing policies to change. Because
modern civilization has not faced a rapid rise in
sea level, sometimes the best response may be to
do something new. The mention of a given option
in this report does not constitute endorsement for
implementing the option anywhere, much less in a
particular location. Although the federal
government could—in theory—adopt a rolling
easement policy, this primer focuses on options for
state and local government and the private
sector.16
A rolling easement would generally prohibit shore
protection and require removal of pre-existing
structures seaward of a specific migrating
shoreline such as the dune vegetation line, mean
high water, or the upper boundary of tidal
wetlands. This primer uses the term "rolling
design boundary" for the shoreline that defines
where the restrictions of a particular rolling
easement apply. "Submergence" means dry land
becoming wetland or open water, whether through
actual submergence or shoreline erosion. The term
"submerge date" refers to the day the rolling
design boundary migrates inland of the main
building on a parcel of land subject to a rolling
easement.17
"Submergence" means dry land
becoming wetland or open water,
whether through actual submergence or
shoreline erosion. "Submerge date"
refers to the day the rolling design
boundary migrates inland of the main
building on a parcel of land subject to a
rolling easement.
The next two chapters look at the purpose of a
rolling easement and how it could work. Chapter 2
provides an overall picture for why rolling
easements may be appropriate in areas where it is
important to allow beaches, wetlands, developed
barrier islands, and access along the shore to
migrate inland. The chapter also includes a brief
overview of the legal boundaries that define private
land ownership or public access along the shore. In
some cases, legal boundaries migrate as the
shoreline changes; so public rights along the shore
remain the same, albeit inland. But in other states,
the inland boundary of public access is fixed as the
shore erodes. Shoreline erosion can leave the only
means of (legal) pedestrian access seaward of
where ocean waves regularly wash and even break
at high tide.
Chapter 3 presents specific ways to put rolling
easements into practice. Overall, a rolling
easement is a legally enforceable expectation that
the shore or human access along the shore can
5
-------
ROLLING EASEMENTS
How much of this report should I read?
This primer examines more than a dozen different legal approaches to rolling easements. It
differentiates opportunities for legislatures, regulators, land trusts, developers, and individual
landowners. We also consider different shoreline environments (e.g. wetlands, barrier islands)
and different objectives (e.g. public access, wetland migration). So most of the possibilities
described in this primer might not apply to your situation.
For a general understanding of what a rolling easement can accomplish, see Chapters 1, 2, and 6.
Sections 3.1 and 3.2 explain what a rolling easement is—but they are much more detailed.
If you are considering rolling easements for a particular location, you might start with the
particular section in Chapter 2 that addresses your objectives—plus Sections 2.2.1 and 2.2.2,
which explain public and private property rights along the shore. Regulatory options are
examined in Sections 3.1 and 4.1. Options for landowners, developers, land trusts, and
government resource managers are discussed in Sections 3.2, 4.2, and 5.2. Chapter 8 looks at
some of the issues a land trust may face managing a rolling easement. Chapters 6 and 9 discuss
practical issues that may arise with any type of rolling easement,
If you are considering rolling easements for many locations, it may be best to read the same
sections of Chapter 2, 3, and 4 as you would read for a particular location, plus Chapter 7.
migrate inland instead of being squeezed between
an advancing sea and a fixed property line or
physical structure. The "rolling easement holder"
could be the government agency whose regulations
prohibit shore protection, or the person, land trust,
or government agency who obtains the property
rights embodied in a rolling easement.
"The rolling easement holder could be
either the government agency whose
regulations prohibit shore protection,
or the person, land trust, or government
agency who obtains the property rights
embodied in a rolling easement."
The term "rolling easement" refers to a broad
collection of legal options, many of which do not
involve easements. Usually, a rolling easement is
either (a) a regulation that prohibits shore
protection or (b) a property right to ensure that
wetlands, beaches, barrier islands, or access along
the shore moves inland with the natural retreat
of the shore. Although the regulatory approach is
the more common way to prevent shore protection,
the non-regulatory approach may sometimes work
better. Private land trusts, government agencies,
and (for some approaches) even private citizens
can buy (or secure donations of) rolling easements
from property owners. An owner who has
voluntarily engaged in the creation of the rolling
easement is more likely to perceive the
arrangement as fair than a landowner subjected to
government regulation.
Regulatory rolling easements include:
• Local zoning that restricts shore protection;
• Regulations that prohibit shore protection by
state coastal or wetland programs, or require
removal of structures standing on the beach or
in the wetlands;
• Permit conditions that require public access
along the dry beach in return for a building
permit; and
6
-------
Introduction
• Permit conditions that require public access
along the inland side of a new shore protection
structure, in return for a permit to build such a
structure.
The property rights approach includes:
• Affirmative easements that provide the public
with the right to walk along the dry beach even
if the beach migrates inland;
• Conservation easements that prevent
landowners from erecting shore protection
structures or elevating the grades of their land;
• Restrictive covenants in which owners are
mutually bound to avoid shore protection and
allow access along the shore to migrate inland;
• Future interests that transfer ownership of land
whenever the sea rises to a particular level;
• Migrating (ambulatory) property lines, which
move as the shore erodes, enabling waterfront
parcels to migrate inland so that inherently
waterfront activities can continue.
• Legislative or judicial revisions and
clarifications regarding the inland migration of
public access along the shore and the rights of
landowners to hold back the sea; and
• Transferable development rights—especially
along migrating barrier islands—that provide
those who yield land to the rising sea the right
to build on land nearby.
The regulatory and property rights approaches are
not mutually exclusive; a land trust could acquire a
rolling easement on lands where regulations
currently prohibit shore protection, to ensure that
future changes in public policy do not put
ecosystem migration in jeopardy.
Usually a rolling easement would involve wetlands,
beaches, and open water migrating onto areas that
are dry land today. In some cases, however, islands
and peninsulas could migrate onto areas that are
open water today. Thus a comprehensive rolling
easement policy may have to manage newly
created land, as well as the loss of land.
"A rolling easement is a legally
enforceable expectation that the shore
or human access along the shore can
migrate inland instead of being
squeezed between an advancing sea and
a fixed property line or physical
structure. The term refers to a broad
collection of legal options, many of
which do not involve easements.
Usually, a rolling easement would be
either (a) a law that prohibits shore
protection or (b) a property right to
ensure that wetlands, beaches, barrier
islands, or access along the shore moves
inland with the natural retreat of the
shore."
The ability to implement rolling easements
depends on state law, which varies considerably, as
we see in Chapter 4. In some states, local
governments have broad powers, while in other
states their authority is limited. In some states,
local governments can obtain a conservation
easement as a condition for a building permit, or
through eminent domain. In other states, local
governments can only obtain such an easement
from a donor or willing seller. Even if a
government has the regulatory authority to
prohibit shore protection, doing so might be a
"taking of private property," which would require
compensation under the U.S. Constitution.
Section 4 does not evaluate the "takings question"
in detail, beyond pointing out that the most
important question would often be whether coastal
property owners have a right to hold back the sea.
This question has not been settled in any coastal
state. A key reason for government agencies and
land trusts to acquire a rolling easement is that
doing so would resolve the legal uncertainty about
whether a particular landowner has the right to
shore protection. Even in states where a rolling
easement regulation or statute does take away an
7
-------
ROLLING EASEMENTS
existing property right, the requirements would
have a more modest impact on landowners (and
hence require less compensation) if they were
enacted long before landowners would have
otherwise attempted to hold back the sea.
The greatest obstacle to implementing a planned
retreat from the coast is that few landowners
choose to give up their homes or businesses to a
rising sea (see Photos 1 to 4), unless the means of
defending their land costs more than their
property is worth. Therefore, at first glance, it
seems implausible that landowners would agree to
eventually allow their lands to become submerged,
especially along estuarine shores where holding
back the sea is likely to be cost-effective. But as
Chapter 5 shows, for the typical parcel of coastal
land, a rolling easement would decrease the
property value only slightly, because the eventual
submergence is so far in the future. Therefore, a
relatively modest near-term inducement can lead a
reasonable farmer or developer to agree to a
rolling easement—especially if the landowner is
more skeptical than the land trust about a large
rise in sea level and hence views the eventual
submergence as a distant possibility. If a rolling
easement is part of the permit condition, for
example, approval for subdivision of a large parcel
of land may be more than an adequate
inducement. Cash payments amounting to less
than 5 percent of the land's value may be adequate
for farms whose owners have no intention of
developing the land.
In a small number of cases, a landowner may
actually benefit by donating a rolling easement. A
conservation easement sometimes has tax benefits
that more than offset its cost to the landowner. But
land trusts are not necessarily interested in
managing every conservation easement that a
landowner might wish to donate. If a rolling
easement enticed a land trust to accept a
conservation easement that it would otherwise not
accept, then the rolling easement could
economically benefit the donating landowner.
Chapters 6-9 discuss some of the key
considerations for those designing a rolling
easement. Chapter 6 examines the restrictions:
The "rolling design boundary" can be based on
whatever shoreline most closely corresponds to the
particular resources the rolling easement is meant
to preserve. Along a beach, for example, the
rolling design boundary is often the dune
vegetation line, which separates the dry sand
beach from the dunes. A rolling easement can
specify that the public will have access to the beach
and that homes encroaching onto the beach as a
result of shoreline erosion will be removed within a
defined period of time. Chapter 7 looks at ways to
identify the lands where a rolling easement would
be most useful.
This primer uses the term "rolling
design boundary" for the shoreline that
defines where the restrictions in a
particular rolling easement apply.
The final two chapters discuss some of the issues
related to managing a rolling easement once it is
created. Chapter 8 examines what the land trust or
government agency would have to do between now
and sometime in the future when a given parcel of
land will be threatened. The chapter focuses on
inspection, enforcement, and possible efforts by
property owners to have a rolling easement
invalidated.
Chapter 9 looks at the endgame: management of
the rolling easement from the time when
submergence of a parcel becomes imminent until it
is finally submerged. The ultimate cost of yielding
land and home to the sea can be minimized if the
rolling easement leads landowners to gradually
alter what they do when the eventual submergence
is still a few decades away, and continue to adjust
how they use the land and structures as the
submerge date approaches (Section 9.1). Whether
the owner actually prepares, however, will depend
8
-------
Introduction
largely on what the rolling easement holder
does (9.2). Because people wall not always prepare
optimally for the loss of a home to the rising sea,
some form of relocation assistance may also be
necessary (9.3).
Internal Revenue Service (IRS) regulations require
that restrictions from tax-deductible conservation
easements apply in perpetuity. The restrictions in
a rolling easement would also be in perpetuity, but
unlike the standard conservation easement, the
entire purpose of a rolling easement is to prepare
for the day when the easement is no longer
relevant. If the landowner complies with the
rolling easement, then eventually the land will
convert to tidal wetlands, beaches, or open water.
This conversion will subject the land to existing
wetland protection rules and (in most cases)
eventually transfer title of the land from the owner
to the state. At that point, the mission of the rolling
easement will be accomplished. A rolling easement
can set ground rules for this transition.
Photos 1 to 4. Few landowners choose to give up their homes to a rising sea. Top left arid right: A
home on pilings in front of shore protected by a stone revetment (left) and two homes protected by
seawalls (right) on land extending into the Gulf of Mexico, along Bluewater Drive north of Surfside, Texas
(May 2003). Bottom left: a home on pilings on an eroding beach at Kitty Hawk, North Carolina (October
2002) Bottom right: homes behind a bulkhead whose toe is protected by a stone revetment at North
Beach, Maryland (September 2008). Photo source: ©James G Titus, used by permission.
9
-------
ROLLING EASEMENTS
We hope that this exposition does not leave the
impression that rolling easements are easy to enact
or enforce. A large rise in sea level would
eventually require communities to either hold back
the sea or move inland. Neither of these options
seems feasible today, given what we know about
the forces of nature and human nature. Yet those
are the only logical possibilities. If some lands
must give way to the rising sea, the economic,
environmental, and human consequences could be
much less if the abandonment occurs according to
a plan rather than unexpectedly.
The merits of planning do not guarantee, however,
that the plan will be carried out everywhere that
lands are subject to a rolling easement. People
rarely give up a home voluntarily, even when they
have notice.18 Governments may relax rolling
easement regulations instead of preventing shore
protection, especially if the public sympathizes
more with the waterfront landowners losing their
homes than with the environmental resources
threatened by shore protection. Courts are often
skeptical about previous generations' efforts to use
land deed restrictions to limit what people can do
today with their land.19 Even restrictions recorded
onto a land deed in return for a fair payment may
eventually be overturned by a court, especially if
the original purpose of the restrictions no longer
seems to benefit society. Yet some legal
agreements and regulations continue to have force
for a long time, when succeeding generations
continue to find the rules reasonable. The principle
that property boundaries move as the shore
erodes, for example, is more than 500 years old.20
Thus an underlying premise of this report is that
some rolling easements will be enforced, some will
be modified, and some will be invalidated. Rolling
easements would generally involve permanent
restrictions. But the overall objective of a rolling
easement policy need not be to force future
generations to give up homes to a rising sea
against their better judgment. It is simply to
ensure that they will have the option to retreat or
hold back the sea as they see fit in the
circumstances they face, instead of having their
options limited by the decisions that our
generation makes today.
If some lands must give way to the
rising sea, the economic,
environmental, and human
consequences could be much less if the
abandonment occurs according to a
plan rather than unexpectedly.
10
-------
Introduction
NOTES AND REFERENCES
1 See, e.g., NOAA (National Oceanic and
Atmospheric Administration), Sea Level Variations
of the United States 1854-1999 (NOAA Technical
Report NOS CO-OPS 36, 2001). This report and
subsequent updates displayed on NOAA's website.
Available at:
http://tidesandcurrents.noaa.gov/sltrends/sltrends.shtml.
2 See, e.g., Intergovernmental Panel on Climate
Change, Contribution of Working Group I to the
Fourth Assessment Report of the
Intergovernmental Panel on Climate Change 7
Table SPM.1; id at 13 Table SPM.3, and id. at 820
Table 10.7 (2007).
3 Climate Change Science Program, Coastal
Sensitivity to Sea Level Rise: A Focus on the Mid-
Atlantic Region 2 (U.S. Environmental Protection
Agency 2009) [hereinafter CCSP],
4 Intergovernmental Panel on Climate Change,
Climate Change: The IPCC Response Strategies,
146-149 (1990).
5 If people were not moved out of harm's way as
sea level rises, buildings that are in low-lying areas
today would eventually be standing in open water.
There is probably a limit to the number of dock homes a
given community would tolerate.
6 See CCSP, supra note 3, at 97-103.
7 See, e.g., James G. Titus, Rising Seas, Coastal
Erosion, and the Takings Clause: How to Save
Wetlands and Beaches without Hurting Property
Owners, 57 Md. L. Rev. 1281, 1308-1318 (1998)
[hereinafter Maryland Law Review], That article used
the phrases "deferring action" instead of "laissez-faire"
and "preventing development" instead of "setbacks."
See also IPCC, supra note 4, at 147 (using the terms
"preventing development", "planned phaseout", and "no
direct government role").
8 See notes 293-300 and accompanying text.
9 See J.G. Titus, R. Park, S.P. Leatherman,
R. Weggel, M. Greene, P. Mausel, M. Treehan,
S. Brown, C. Gaunt, & G. Yohe, Greenhouse Effect and
Sea Level Rise: The Cost of Holding Back the Sea, 19
Coastal Mgmt. 171, 189-92 & Tables 2 and 9 (1991).
1016 U.S.C.. §3501 etseq.
11 See, e.g., CCSP, supra note 3, at 171.
12 See, e.g., Environmental Research Letters,
infra note 14, Table S3 (projecting that 26 miles of
ocean shoreline along developed barrier islands
covered by Coastal Barrier Resources Act in Currituck,
Hyde, and other counties are less likely to be protected
than similar barrier islands not covered by the act) and
id. Table S5 (concluding that being covered by the
Coastal Barrier Resources Act reduces the likelihood of
shore protection from "almost certain" to "likely," based
on interviews with local planners).
13 See, e.g., NOAA Coastal Services Center,
Beach Nourishment: A Guide for Local Government
Officials, section on "Federal Cost Participation"
(undated), http://www.csc.noaa.gov/beachnourishment/
html/human/socio/shares.htm, cited April 1, 2011
(discussing sources of beach nourishment funding in
Florida which include special taxing districts) and
Carteret County, North Carolina, Adopted Budget
2011-2012 222 (mentioning Salter Path Special Taxing
District for Beach Nourishment).
14 E.g., J.G. Titus, D.E. Hudgens, D.L. Trescott,
M. Craghan, W.H. Nuckols, C.H. Hershner,
J.M. Kassakian, C.J. Linn, P.G. Merritt, T.M. McCue,
J.F. O'Connell, J. Tanski, & J. Wang, State and Local
Governments Plan for Development of Most Land
Vulnerable to Rising Sea Level along the U.S. Atlantic
Coast 4 Environmental Research Letters 044008 V
(2009).
15 Cf. CCSP, supra note 3, at 87, 102, and 149
(questioning the sustainability of shore protection).
16 Many federal agencies are starting to consider
how to adapt to changing climate. White House
Council on Environmental Quality, Progress
Report of the Interagency Climate Change
Adaptation Task Force (2010). For a brief discussion
of federal opportunities to adopt a rolling easement, see
James G Titus, Does the U.S. Government Realize that
the Sea is Rising? How to Restructure Federal
Programs so that Wetland and Beaches Survive, 30
Golden Gate University Law Review, 717, 752-769
(2000).
17 In the case of future interests in land where the
entire parcel transfers at once to the rolling easement
holder, "submerge date" means the day the property
transfers.
18 See, e.g., Severance v. Patterson, 566 F. 3d 490
(5th Cir. 2009) and Brannan v. State, No. 01-08-00179-
CV, (Tex. App.-Houston [1st Dist.] Feb. 4, 2010, pet.
filed).
19 Legal scholars generally use the term "dead hand
control" when referring to efforts by previous
generations to limit what present owners can do. See,
e.g., Andrew Dana and Michael Ramsey, Conservation
Easements and the Common Law, 8 Stan. Envtl. L. J.
1, 22-24 (1989). The planning literature appears to
have no comparable term for similar long-term effects
caused by investment decisions. Boston's streets, for
example, follow the paths that early settlers used to
take cows to pasture or grain to the mill. See
11
-------
ROLLING EASEMENTS
D.B. Fradin, Samuel Adams: The Father of American
Independence (1998), and Megan Woolhouse, Seeing
Double in Quest to Map Boston's Roads, Boston
Globe (March 19, 2008).
20 See infra note 65.
-------
CHAPTER 2
WHAT CAN A ROLLING EASEMENT
ACCOMPLISH?
The combination of rising sea level and coastal
development could threaten wetlands, beaches,
access along the shore, and perhaps eventually, the
integrity of barrier islands.
This chapter examines how rolling easements
could be part of a sustainable strategy to mitigate
these impacts. Preventing seawalls, bulkheads, and
other shore protection structures can enable
beaches to migrate inland (Section 2.1). A rolling
easement can ensure that the public (or a private
party) continues to have access along the shore as
a beach erodes (Section 2.2), or that people can
relocate roads, infrastructure, and parks inland if
necessary (Section 2.3). Wetlands can have room
to migrate inland if landowners refrain from
Photo 5. Galveston Seawall. (May 2003).
Photo source: ©James G. Titus, used by permission.
erecting shore protection structures and elevating
the surfaces of their land (Section 2.4). Towns on
barrier islands can move inland rather than
attempt to keep the islands in their current
locations (Section 2.5).
This chapter focuses on what people might do
differently on account of a rolling easement. We
defer the legal approaches for creating a rolling
easement until Chapter 3. Some aspects of coastal
property law are unavoidable in this chapter,
however, because one of the resources threatened
by sea level rise—access along the shore—is itself a
legal right.
2.1 PRESERVE BEACHES AND
OTHER ERODING SHORES
Seawalls, revetments, and other structures have
eliminated ocean beaches even at low tide in a few
locations,21 and narrowed the beach in many areas
to the point where there is little or no dry beach at
high tide (see Photo 5). When a seawall is placed
between homes and an eroding beach, eventually
the eroding shore reaches the seawall and the
beach is eliminated. The elimination of estuarine
beaches is so commonplace that several
communities with "Beach" in their names no
longer have a beach.22
The importance of recreational beaches has led
most coastal states to replenish some eroding
ocean beaches with sand dredged from nearby
13
-------
ROLLING EASEMENTS
shoals, or transported by truck from inland
sources; this activity is known as "beach
nourishment. "2» Several states have also enacted
rolling easement statutes and regulations, which
prohibit seawalls, revetments, and other hard
shore protection structures.24 Because beach
nourishment is a type of shore protection while
rolling easements facilitate retreat, the
combination of both approaches does not
necessarily put a community onto a long-term path
toward either retreat or shore protection. But
together they ensure the continued existence of a
recreational beach more effectively than either
approach by itself: the rolling easement prevents
the beach from being squeezed by a seawall at the
landward edge, while the beach nourishment
offsets erosion of the seaward edge.
The typical characteristics of rolling easements
along eroding beaches may include:
• No shoreline armoring;
• A rolling design boundary (e.g. dune vegetation
line), seaward of which the owner's property
rights are reduced;
• No new structures seaward of the rolling design
boundary;
• Encouragement or requirement to remove pre-
existing structures when erosion leaves them
seaward of the rolling design boundary;
• Warnings about the policy to prospective buyers
of coastal property;
• Provisions for public access (we address this
issue in Section 2.2); and
• Indication whether beach nourishment and
adding sand to dunes are allowed.
The relative importance of these features is
different for ocean and bay shores.
Along ocean shores, at least seven states prohibit
seawalls (and other shoreline armoring). 25 Some
flexibility is often necessary for homes left
standing on the beach after the dunes erode out
from under them (see Photos 6 to 8). Such homes
are hazards and impair public use of the beach.
Yet if they remain useable, officials find it difficult
to order their demolition—especially if the houses
Photos 6 to 8. Retreat. Houses along the shore in
Kitty Hawk, North Carolina, where regulations
prohibit seawalls. Geotextile sand bags protect a
septic tank buried in the dunes. Homes stand on the
beach untii the septic system fails. Top: June 2002.
Middle: October 2002. Bottom: June 2003. Photo
source: ©James G. Titus, used by permission.
14
-------
What Can a Rolling Easement Accomplish?
are still on private land, or if the beach is likely to
be restored through natural or artificial processes.
A rolling easement can require a home to be
removed once it encroaches seaward of the dunes
or once the land on which it sits is flooded at high
tide; or it can provide for a waiting period during
which the beach might be rebuilt or relocation of
the home can be negotiated.26 Actual removal of
the house may be precipitated by other factors:
Erosion may leave a home's septic tank inoperable
(see Photo 9), for example; or storms may destroy
the home.
Along estuarine shores, rolling easements are rare.
As with rolling easements along the ocean, the key
feature is the prohibition of shoreline armoring.
One significant difference, however, concerns the
fate of pre-existing structures. Homes on pilings
could continue to stand on bay beaches or even in
a bay for decades. If a community intends to
retreat, then the rolling easement must require
that homes be removed at some point after the
land is submerged. But if the community is on the
accommodation pathway, then the rolling
easement might allow the homes to stand in the
water indefinitely. (Access along estuarine shores
is often a lower priority than along the ocean.)
Photo 9. Exposed septic tank makes beach
home uninhabitable. Kitty Hawk, North Carolina
(June 2002). Photo source: ©James G. Titus,
used by permission.
A stricter form of rolling easement is to ban all
forms of shore protection—even beach
nourishment and other nonstructural shore
protection. Along ocean shores, beach
nourishment generally occurs wherever funding is
available, based on the assumption that adding
sand to a sandy beach protects private property
while preserving the community's most important
environmental asset: the beach.27 in a few cases,
ocean beach nourishment projects have been
stopped because of their environmental
consequences.28 And along estuaries, beach
nourishment can significantly alter the coastal
environment?9 If beach nourishment is impractical
or undesirable, or if continued shore erosion is an
essential policy goal, 30 a rolling easement can
prohibit all forms of shore protection—including
beach nourishment.
2.2 PRESERVE ACCESS ALONG
THE SHORE
Eroding beaches can impair the legal right to
access along the shore, whether or not the beach is
eliminated. We first summarize existing public-
rights to access along the shore (Section 2.2.1);
then we describe the possible impact of sea level
rise (Section 2.2.2) and examine how rolling
easements can preserve public access along the
beach (Section 2.2.3).
2.2.1 Existing Access along the
Shore
The general right of access to tidal waters and
shores is defined by the "Public Trust Doctrine",
which is part of the common law of property in all
of the United States. According to the Public Trust
Doctrine, navigable waters and the underlying
lands were publicly owned at the time of
statehood31 and remain so today32 unless the state
has consciously transferred ownership to someone
else.33 Even if a land deed seems to say that
someone's property extends into the water, the
Public Trust Doctrine often overrides that
language, and the public still owns the shore.3-*
15
-------
ROLLING EASEMENTS
(Many scholars and a few courts have suggested an
expanded Public Trust Doctrine that prevents the
government from privatizing submerged land.35 In
this report, "Public Trust Doctrine" refers to the
collection of laws governing public and private
property rights along the shore, not legal theories
about legitimate governmental power.)
Figure 2 illustrates some key terminology used in
this report. The wet beach lies between mean high
water and mean low water. More precisely, the
wet beach is seaward of the line along the beach
whose elevation is the same as mean high water,
which is sometimes called the "mean high water
line"36 or the "mean high tide line." The wet beach
extends seaward to the comparable mean low tide
line, below which the landscape is often called
open water because it is covered by water during
the typical low tide. Immediately inland of the wet
beach is the dry beach. The dry beach extends
from the mean high water line inland to the
seaward edge of the dune grass or other terrestrial
plant life, sometimes called the vegetation line.37
The dune grass generally extends inland from the
point where a storm in the previous year struck
with sufficient force to erode the vegetation,38
which is inland of the high water mark of the
average daily tide and well above mean high water.
Vegetation
Line
Average
High
Water
Mark Crest
Mean
High
Water
Line
Mean
Low
Water
Line
Dune
Berm
MHW = Mean High Water
MLW = Mean Low Water
Dry Beach
MHW
MLW
Swash
Wet
Beach
Flooded
by waves
Open
Water
Figure 2. Legal and Geological Zonation along a Beach.
Wet beach is defined as the land between the mean low water line and the mean high water line. Dry
beach is defined as the land between the dune vegetation line and the mean high water line. The term is
a misnomer because along ocean shores, a large part of the dry beach is wet. The swash zone is
generally saturated as waves run up the beach face. During an average high tide, several waves
generally run up over the crest, leaving a water mark on the sand and sometimes debris such as
seaweed at the average high watermark. Unusually high tides or heavy seas can bring waves inland of
the average high water mark, preventing dune vegetation from becoming established seaward of the
vegetation line. Under the public trust doctrine, the public owns the land below the "ordinary high water
mark" in all but a handful of states. Courts in different states have defined "ordinary high water mark"
differently.
16
-------
What Can a Rolling Easement Accomplish?
The term "dry beach" is a misnomer.39 Along
beaches with large waves, such as the Atlantic and
Pacific Oceans, wave run-up regularly washes well
inland of the mean high water line (see Photos 10
to 13). A person standing on the dry beach a step
inland of the mean high water line during the
average high tide would regularly experience waves
bringing water levels between the shin and the
waste. The beach is regularly saturated to the crest
of the berm, which is typically a few feet higher
and tens of feet inland of the mean high tide line.
The highest wave of a given high tide generally
leaves a high water mark which can be readily
observed by anyone walking along the beach. In
this report, we use the term average high water
mark40 to indicate the high water mark left by the
average high tide during average seas (i.e. typical
wave heights). The portion of the dry beach
Photos 10 to 13. How wet is the dry beach? The U.S. Fish and Wildlife Service surveys the mean high water
line at Trustom Pond National Wildlife Refuge (South Kingstown, Rhode Island) each year, and places posts
along the survey line. The dry beach is everything inland of the posts. The top two photos show one of those
posts before (top left) and after (top right) a typical wave, at mid-tide on a day with average seas. At high tide,
the water would have been almost two feet deeper (September 5, 2008). The lower left photo shows an
adjacent post (about a minute earlier), with waves running up the beach face, and gulls feeding along the drift
line where waves deposited floating vegetation at the last high tide. (September 5, 2008). The lower right photo
shows the same location during average seas when water levels were at approximately the neap low tide level.
Even at low tide, the waves are almost reaching into the dry beach. Photo Source: Janet Freedman, Rhode
Island Coastal Resources Management Council.
17
-------
ROLLING EASEMENTS
between the average high water mark and the dune
line truly is dry on an average day (assuming no
rain).
Box 2 (on page 27) shows the corresponding
classes for wetland shores. Mudflats are found
between mean low water and mean sea level, low
marsh is found between mean sea level and mean
high water, and high marsh extends from mean
high water to spring high water.41 Mangroves
extend up to spring high water, but zonation
between different types depends more on salinity
and temperature than the tides.42 Collectively, the
lands between mean high water and mean low
water (mudflats, low marsh, and wet beaches) are
commonly known as tidelands.
In all but five states, the public owns the land
below the "ordinary high water mark," which state
courts have defined differently.43 The most
common definition is the mean high water line.
Until the 20th century the term "ordinary high
water mark" did not have a specific legal
definition,44 which led people to assume that it
referred to something tangible, such as an actual
mark or the impact of water on the land's
suitability for specific uses.45 But in 1935, the U.S.
Supreme Court endorsed the approach of
calculating the ordinary high water mark based on
an elevation survey of the mean high water line.46
(The case concerned a tract of land originally
granted by the federal government along a shore
without substantial wave runup). The elevation of
mean high water is estimated using tide gauge data
over an 18.6 year tidal epoch. Several state courts
subsequently endorsed using the mean high tide
line for a variety of reasons.47 Texas uses variations
of the mean high tide line48 as a starting point, but
will consider other factors if they regularly cause
higher water levels.49
Along ocean shores, parts of the privately owned
dry beach are regularly flooded, to the extent that
wave runup causes the average high water mark
to be inland of the mean high tide line. Courts in
some states have not yet decided whether the
public owns the part of the beach between the
mean high tide line and the average high water
mark.50 This distinction is unimportant along
estuaries with no waves, because the average high
water mark is the mean high tide line.
Some states use neither the average high water
mark nor the mean high tide line. In states where
the original land grants were made during French,
Spanish, or Mexican rule, the public trust
boundary is often farther inland, because under
the civil law, more of the beach was publicly owned
than under English common law.51 Hawaii and
Washington have taken account of the particularly
large waves along the Pacific Ocean by defining the
ordinary high water mark as the dune vegetation
line or the mark of floating debris left by the high
tide.52 In areas where mangroves dominate, the
ordinary high water mark can be especially
difficult to ascertain and surveyor's meander lines
are sometimes the only practical boundary.53 In
five states, by contrast, original land grants from
the King of England provided land down to mean
low water, so private landowners own the wet
beach and low marsh, as well as the dry beach and
high marsh.54 (See Figure 3.)
Finally, regardless of the original land grants and
the public trust doctrine, the public has obtained
ownership to some dry beaches through
government purchase, land dedication by a
developer55, or beach nourishment projects that
created beaches from publicly owned waters.56 On
the other hand, many state governments have
conveyed some bay bottoms and tidal wetlands to
private landowners for residential and commercial
development, especially in Florida.57 Unless
otherwise stated, this primer assumes that
the state has not conveyed tidelands or
other submerged lands to a private party
Ownership, however, is only part of the picture.
Along the ocean coasts of New Jersey and Oregon,
the public trust doctrine (or the similar doctrine of
custom) provides for public access along the
privately owned dry beach.58 In the five states
where private property extends to mean low water,
the Public Trust Doctrine provides an easement
along the land below the ordinary high water mark
for hunting, fishing, and navigation.59 Most of the
18
-------
What Can a Rolling Easement Accomplish?
20th century cases that defined the
boundary of private lands as the mean
high water line did not address public
access along ocean shores, so it is
unclear whether the public has access
to the regularly flooded part of the
"dry" beach (i.e. between the mean
high water line and the average high
water mark).60 Finally, when govern-
ment agencies transfer ownership of
tidelands to private owners, the
public still has access along the shore
for fishing, hunting, and navigation,
unless the state explicitly indicates an
intent to extinguish the public trust.61
The Public Owns:
Below mean low water; access to wet
beach for hunting, fishing, navigation
Wet beach below high water
Wet beach; access along dry beach
Wet and dry beach
The public also has access along many
specific beaches for reasons other
than the public trust doctrine. Along
most of the Texas Gulf Coast,62 and
parts of other states,63 the public has
obtained an easement to the beach because of
longstanding use. Elsewhere, state or local
governments have purchased easements for access
along the dry beach, or property owners have
provided public easements in return for beach
nourishment. Federal policy precludes funding for
shore protection unless the public has access to the
entire dry beach.64 Figure 3 summarizes the
variation of public access and ownership of the
beach.
2.2.2 Impact of Sea Level Rise on
Access
The potential impact of rising sea level on public
access depends on how the public obtained access.
If the public trust doctrine is the source of public
access, then the impact of sea level rise on access is
similar to the impact on wetlands and beaches.
Where there is no shoreline armoring or other
obstruction, shoreline erosion causes the landward
boundary of public access to move inland. Any
seaward boundaries for specific types of access
move inland as well: For example, if driving on the
beach is prohibited within 50 feet inland of the
high water mark, then as the shore erodes, that
Figure 3 Public ownership and public access to beaches
based on the public trust doctrine or other common law
doctrines. The public has access along some dry beaches in most
states, in addition to the six shown here, where access is universal.
boundary will migrate inland. Similarly, pedestrian
access is generally impractical seaward of the
mean high tide line in areas of wave runup: as the
shore erodes, the mean high tide line retreats as
well. Wherever the shore is armored, pedestrian
and vehicular access can be eliminated as the
access ways are squeezed between the retreating
shore and the shoreline armoring.
Wherever the public has access for reasons other
than the public trust doctrine, shore erosion can
eliminate access whether or not the shore is
armored.
Public Trust Lands. Where property lines follow a
shoreline, the rule for several centuries has been
that the property lines advance or retreat
whenever shores gradually advance or retreat.65
The principal is generally known as the "law of
accretion and reliction (sea level drop)" because
the law originally evolved as courts decided cases
between the King of England and waterfront
landowners regarding the ownership of newly
created lands.66 But the same rule applies when the
shore erodes, which is part of the rule's
justification.6?
19
-------
ROLLING EASEMENTS
When the shoreline migrates suddenly, by
contrast, the property line does not move, under
the "law of avulsion."68 Although somewhat
counterintuitive,69 courts treat avulsion and
accretion differently for several reasons. Originally
all lands had fixed boundaries,70 so when large
areas of land suddenly appeared over what had
been water, early courts had little reason to change
the rule that what had been the King's water was
now the King's land.71 When the state fills a body
of water to create land, the state owns that land
under the law of avulsion,72 although there may be
provisions to ensure that the littoral landowner
continues to have access to the water. 73 The courts
in some states, however, view the new land as an
artificial accretion and award it to the waterfront
landowner.74 Another example of avulsion would
be a river changing course75 or the sudden creation
of an inlet through a barrier island. If one's home
is originally west of a channel, and a storm causes
the channel to switch to a point west of the home,
Gradual inlet m igration (erosion)
Initial Condition
^privaTe^ ^ ^ f*- county~park
10 years later
~ private ' f countypark
20 years later
private f coirily park
30 years later
private _3 czzr corny park
Inlet breech followed by inlet closing (avulsion)
Initial Conditbn
private ' f*" county park
After storm creates new inlet
private 7* C priv^e "*^ ^ f*" countypark
After old inlet cbses
private y1 C ' ^ ^priv^e Tcountypark
Figure 4. Impact of Inlet Migration and Inlet
Breech on Land Ownership, According to the
Doctrines of Accretion and Avulsion. In this
example, the island to the west is privately owned
while the island to the east is a county park.
then under the law of avulsion the same person
still owns the home (see Figure 4).
The law of avulsion has a clear rationale when land
is created or a channel switches, but the logic for
the rule is not as clear in the case of a sudden
retreat of the shoreline. Most ocean beaches have
had at least one storm that caused substantial
erosion since the land was originally transferred
from the government to a private landowner. If
courts follow the doctrine of avulsion, then
boundaries remain out in the ocean at the location
where they had been before the avulsive storm.
Finding such boundaries would be difficult.
Moreover, if the original intent of a land grant
from a state (or the King) was for the public to own
the wet beach below the high water mark, it seems
unlikely that the state would want continued
public ownership of the wet beach to depend on
whether shore erosion was caused by severe
storms or more gradual processes. For this reason,
Texas has decided not to follow the rule of avulsion
for the impact of shore erosion on the seaward
boundary of privately owned land.76
Many states that observe the law of avulsion
provide the waterfront land owner with the right to
fill and thereby recover the lost dry land,77 but
eventually move the boundary inland if the owner
fails to do so. The right to recover lost land has
limited utility: Federal and state laws require a
landowner to obtain a permit before filling open
water or wetlands with soils to create or reclaim
land from the sea, and obtaining such a permit
may be difficult.78 Nevertheless, the landowner's
right to reclaim land implies that when a
governmental beach nourishment project reclaims
the land shortly after it is lost, the reclaimed land
belongs to the private landowner, though
otherwise land created by beach nourishment
would be an avulsion that belongs to the state.79
Access along Privately Owned Lands. As we
discuss in the previous subsection, the public has
access to many privately owned beaches, for one of
two reasons: (a) under the public trust doctrine of
a few states, the public retained access to the beach
20
-------
What Can a Rolling Easement Accomplish?
when the state (or King) transferred the land to a
private owner or (b) the public re-acquired access
from a private landowner. The impact of sea level
rise on access along the shore is different for those
two situations:
• The public access way reserved by the public
trust doctrine migrates inland as shores erode.
• A public access way acquired from a private
landowner does not migrate if that landowner's
parcel is submerged; so access along a beach
can become impractical.
• The impact on access is ambiguous (depends on
state-specific law and site-specific facts) if
public access is acquired from a private
landowner and only a portion of her parcel is
submerged.
Under the public trust doctrine, the inland
boundaries of public access are based on
environmental features of the shore. Therefore,
when the shoreline moves gradually, the inland
boundary of public access also moves. In New
Jersey (and possibly Oregon), as the dune
vegetation line retreats, the public has access to the
new area of beach that was formerly part of the
dune.80 In the five states where private land
extends to mean low water, the public continues to
have access up to mean high water (for fishing,
hunting, navigation) as the ordinary high water
mark advances inland.81 The impact of avulsive
shore erosion on public access is less clear. If
avulsion does not change a property boundary, one
might assume that it would not change the inland
boundary of public access. Yet the practical need
for access along a beach depends on where the
shoreline is now, while the need for established
property lines for mineral royalties or port
facilities would not require boundaries to move
instantaneously to be effective. Few if any cases
have addressed the distinction between access and
ownership as defined by the public trust doctrine
in the context of an avulsive loss of land.82
Public access usually does not migrate inland
where it has been obtained by means other than
the public trust doctrine. As a general rule, a
landowner can grant someone else the right to
cross her own land. (Such a right is generally called
an "easement." Chapter 3 discusses easements in
greater detail.83) But a waterfront owner cannot
sell what she does not own, such as the right to
cross a neighbor's land. Therefore, the dry beach
easement conveyed by the owner of one parcel
cannot migrate to an inland parcel. Consider the
many communities where government agencies
have purchased or otherwise acquired public
access along privately owned beaches whose title
extends to mean high water. The public access is
along beaches over parcels that are waterfront
today, but not across parcels that are not even
along the water. Suppose the shore erodes so that
today's beaches become water and the beach
migrates onto land that currently is the second row
of lots back from the ocean. The public will not
have access along the new dry beach.84 It will still
have access across land that was previously the dry
beach; but pedestrian access will not be feasible if
the mean high tide line is regularly flooded by the
runup from large waves.
There is no clear rule about whether existing
public easements migrate inland within a given
parcel of land.85 If the normal rule for easements
applies, then the inland boundaries probably do
not move inland. 86 Some state courts have
explicitly declared that easements do not roll.87 In
Texas, the public access boundary within a given
parcel moves if the shore erodes gradually, but
does not move if the shore retreats suddenly
during a hurricane.88 If avoiding such ambiguities
is important, deeds that provide public access
should specifically say whether the access migrates
with the changing shore.
Shoreline Structures. Homes standing on the
beach can impair access along the shore, by
blocking vehicles and creating a hazard to anyone
on the beach (see Photos 14 and 15). Where the
shore is armored, pedestrian and vehicular access
along an eroding shore is generally lost because the
beach is eliminated (see Photos 16 to 18).89
21
-------
ROLLING EASEMENTS
Photos 14 to 15. Homes on the beach also impair access along the shore. Left: West Galveston,
Texas (March 2006). Right: Surfside Texas (March 2006). [Photo source: ©James G. Titus, used by
permission].
QNE MAY
jnurrrvr™
Photos 16 to 18. Shoreline armoring can
make vehicular and pedestrian access along
the shore impractical. Top left: a seawall
protecting some high-rise buildings along the
Gulf of Mexico on North Padre Island prevents
automobile traffic on the beach (March 2010).
Top right: At first, traffic was restricted to one-
way (March 1998). Bottom: a stone revetment
makes walking along the shore impractical north
of Surfside, Texas (May 2003). Photo source:
©James G. Titus, used by permission.
r»«S§l
22
-------
What Can a Rolling Easement Accomplish?
2.2.3 How Rolling Easements Can
Preserve Public Access along the
Shore
Rolling easements prevent sea level rise from
eliminating public access either by (a) prohibiting
shore protection structures that eliminate public
trust wetlands and beaches, or (b) changing (or
clarifying) the rules about how the upper boundary
of public access migrates inland as the shore
erodes. We discuss the first approach in Section
2.1; so here we focus on the second approach.
A rolling easement can ensure that shoreline
armoring does not eliminate public access along
the shore even if the armoring does eliminate the
public trust wetlands and beaches to which the
public currently has access. The Texas Open
Beaches Act requires pedestrian access inland of
seawalls in a few specific locations (including the
seawall shown in Photos 16, 17, and 24). 9° New
Jersey requires public paths along the waterfront
inland of new bulkheads and revetments in some
locations.91 Washington requires waterfront owners
who build docks to ensure that people walking
along the shore have a reasonable way to walk
over, under, or around the docks at all tides.92
Maryland's Department of Natural Resources
takes the position that when a stone revetment
covers the intertidal beach, people still have the
right to walk over that beach on the boulders that
comprise the revetment.93 (See Photos 19 and 20.)
A rolling easement can also ensure that eroding
shores do not eliminate public access in those
cases where the inland boundary of public access
currently does not migrate as shores erode. The
rolling easement must simply make it clear that
the public access boundary does migrate inland,
even if the shoreline migrates onto an inland
parcel across which the public does not currently
have access—regardless of whether the erosion is
gradual or episodic. A rolling easement can require
homes to be removed once they impair public
access, or tolerate existing homes while allowing
no additional structures. The term "rolling
easement" originated with policies in Texas under
which the public had access up to the dune
vegetation line because people had walked or
driven along the beach for many decades, not
because of the public trust doctrine.94 Under the
Texas rolling easement policy, access has migrated
inland as the dunes retreated."'
Photos 19 and 20. Public Access along
armored shores in Maryland. Top: A revetment
along the shore of Chesapeake Beach protects a
private residential community (April 2010).
Although the revetment is privately owned, some
officials believe that the public may have a right to
walk along the portion of the revetment built over
the water and intertidal beach. Bottom:
immediately to the north in the town of North
Beach, the public does have access inland of the
shore protection structures along a boardwalk
known as Atlantic Avenue (May 2006). [Photo
source: ©James G. Titus, used by permission].
23
-------
ROLLING EASEMENTS
2.3 FACILITATE LANDWARD
RELOCATION OF ROADS AND
OTHER INFRASTRUCTURE
Many coastal communities have public roads (or
other infrastructure) parallel to the shore. If a road
is not essential, then a local government with a
retreat policy could allow the sea to reclaim it, after
which the eroding shore would reclaim land that
today is inland of that road. But what if the road is
essential? If the retreat policy makes no provision
for its relocation, then that policy may become
ineffective once the shore erodes up to the road.
The alternative, which we consider here, is for the
boundary of the rolling easement to be far enough
inland to include the public roadway, as well as the
public beach.
Most existing cases of a rolling easement concern
the boundary between a public beach and private
land.96 But the concept of a moveable boundary
can be applied to public roads (Section 2.3.1),
driveways (Section 2.3.2), and shoreline parks and
buffers (Section 2.3.3).
2.3.1 Public Roads
The implications of sea level rise for roads along an
eroding shore are similar to the case where public
access along the shore was obtained by means
other than the public trust doctrine. Governments
do not have an automatic right to relocate a
washed-out road inland across private property.97
But a rolling easement could provide such a right.
Consider a road along the shore that is both a
through-street for the community and the sole
means of egress for most homes along that road
(Figure 5a), in a community where driving on the
beach is not practical. If a storm removes part of
the road (Figure 5b), then homeowners left
without access may have to negotiate with
neighbors to ran driveways or private roads
through the side yards of the homes behind them
(Figure 5c), or through the front yards of homes
along the washed-out part of the old road (Figure
5d). The common law would help to motivate an
agreement among the neighbors: The law of
property presumes that no parcel is inaccessible
and when a parcel is somehow left without road
access, courts order an "easement by necessity"
through an adjacent landowner's lands8 (assuming
that there is some intervening dry land between
the roadway and the parcel that lost access"). But
litigation costs could be considerable—and neither
the negotiations nor the easement by necessity
would re-establish the public road.
Under a rolling easement, by contrast, the road
could be rebuilt inland wherever necessary to
maintain road access along the shore (Figure se).
The risks of eroding shores would be transferred
from the owners of the road to the owners on the
landward side of the road. Instead of providing
shore protection for the road—possibly at the
expense of the beach—the town could locate the
roadway inland just as it would in an undeveloped
area. Although the cost of relocating homes—often
within a given lot—would not be avoided, everyone
would be able to plan for the road's relocation,
rather than possibly be subjected to an unexpected
road through a side yard (Figure 5c).
The same concepts apply to public bike paths,
pedestrian access ways, and utilities, which are
sometimes built along the shore.
2.3.2 Driveways and Other Private
Roads
Similarly, if a driveway connecting one person's
home to a public street passes between another
person's lot and the water, erosion of the driveway
could deprive an owner of road access. There is no
guarantee that a judge would find a rolling
easement by necessity. Access from the water100
and/or pedestrian access might be sufficient,101 the
doctrine might not recognize erosion as a qualified
cause of necessity,102 and even if there was an
easement by necessity, a judge might pick a
different route to preserve access to the homes. To
avoid the uncertainty about how access will be
resolved, a buyer who wants the driveway to follow
the shore as it erodes could negotiate with the
seller a rolling easement.
24
-------
What Can a Rolling Easement Accomplish?
(a) Initial condition
Ocean
(b) Storm erosion leaves home without road access
Ocean
(c) Access restored: Driveway easements by necessity
Ocean
(d) Access restored: Private road easement by necessity
Ocean
(e) Access restored: Public roadway rolling easement
Ocean
Figure 5. Options for
restoring access to
shorefront lands when road
along the shore is lost in
places to erosion, (a) Initially,
the neighborhood depicted has
a road along the shore, with
dunes on the seaward side and
homes on the landward side,
(b) After a storm, the shorefront
road has been reclaimed in two
places, leaving some lots
without road access, (c) A court
might declare, or owners might
negotiate, an easement by
necessity along the sides of
adjacent lots, and a new
through street might be
necessary to ensure that traffic
could pass from east to west.
(d) Alternatively, a court might
find an easement by necessity
for a private road along the
shore just inland of the beach.
(e) The agency responsible for
the road could obtain a rolling
easement enabling the roadway
to be relocated inland when
shoreline erosion necessitates
doing so (or condemn land
through eminent domain later).
Some owners would lose front
yards unless they moved their
homes back. The end result
would be analogous to the
situation in Texas, except there
would be a paved road on dry
land rather than the dry beach
being the road.
25
-------
ROLLING EASEMENTS
2.3.3 Shorefront Parks and
Buffers
A rolling easement could also accompany the
landward boundary of a shorefront park,
shorefront conservation buffer, or any type of
shorefront land reserved for conservation reasons.
Today, shorefront parks and conservation areas
often act, in effect, as sacrificial erosion buffers. If
a waterfront park or conservation buffer covers the
land within (for example) 100 feet of the shore,
and the shore erodes, then the park or buffer area
will be reduced in size or eliminated. The
waterfront land delays the need for eventual
shoreline armoring—but whatever function it was
designed to serve is lost. If the community needs a
park along the water as the shore migrates, it could
obtain a rolling easement for the park's landward
boundary. As a with a rolling road easement, a
rolling buffer or park boundary would transfer the
risk of erosion and sea level rise from the park or
conservation buffer to the development
immediately inland of that buffer.
These rolling boundaries might involve removal of
nonconforming structures. But less drastic
remedies could be pursued, as with homes left
standing seaward of the dunes.103 A rolling buffer
could mean that a home can remain, but all
pavement must be removed and no landscaping is
allowed. Major repairs could be disallowed, or the
structure could be put on a 20-year timetable once
it is seaward of the rolling boundary.
2.4 HELP WETLANDS TO
MIGRATE INLAND
For purposes of rolling easements, a key difference
between wetland shores and ocean beaches is that
tidal flooding, rather than waves, governs the
conversion from dry land to intertidal habitat (see
Box 2).
Several consequences follow from this distinction:
• Land elevation rather than distance from the
shore is the key predictor for how long a rising
sea will take to convert dry land to wetlands.
Land elevation is something that an owner can
change by adding sand, soil, or other fill
materials.
• Similarly, although the width of a natural beach
is fairly constant for a given wave climate and
sand size, the width of the strip of wetlands can
vary greatly. While the inland and seaward
boundaries of a beach retreat together, the
inland and seaward boundaries of tidal
wetlands can migrate independently: Migration
of the inland wetland boundary as sea level rises
depends primarily on land elevations, while
retreat of the seaward boundary depends on
wave erosion and the ability of the wetlands to
keep pace through sedimentation and peat
formation.
• Although beach nourishment and dune
construction can move the beach seaward, they
generally do not narrow the beach after an
initial adjustment.104 By contrast, efforts by
owners to elevate dry land can narrow the
wetlands by preventing their inland migration
even while the seaward boundary erodes. Boat
traffic can erode the seaward wetland boundary
without causing the inland boundary to move
inland.
• The inland boundary of tidal wetlands is not a
straight line that is easy to discern.
• While storms often destroy homes along an
eroding ocean shore within a few years after
they encroach seaward of the dune vegetation
line, homes along wetland shores are less
vulnerable to storms.
• The confusing "law of avulsion"105 is usually not
an issue along wetland shores (except possibly
in the five states where private land extends to
mean low water). Although the seaward edge of
tidal wetlands may erode suddenly during a
storm, the mean high tide line retreats gradually
inland as sea level rises.
26
-------
What Can a Rolling Easement Accomplish?
2.5
0)
UJ 1
0.5
Mean q
Sea Level
-0.5
Box 2. Land Elevations, Tides, and Wetland Zonation. Tides are caused by the gravitational attraction
of the moon and sun on the ocean water. The tides usually rise and fall twice each day. Along the Atlantic
Ocean, the two high tides are similar. Along the Pacific Ocean, by contrast, one of the high tides is much
higher than the other. The daily tide range varies over the course of the lunar month. Mean high water and
mean low water are the average elevations of the daily high and low tides. The higher of the two high tides
is known as mean higher high water. During full and new moons, the gravitational pull of the moon and the
sun are aligned, which causes the tide range to be 15-25 percent greater than average. During half moons
along much of the Gulf Coast, there is only one daily tide. The average of the full and new moon high (and
low) tides is known as spring high water (and spring low water). Daily tide ranges are as greater than ten
feet in some places, but only a few inches in some estuaries. In addition to the astronomic tides, water
levels fluctuate due to wind, atmospheric pressure, ocean current, and—in inland areas—river flow, rainfall,
and evaporation. The figure shows tidal elevations for Hampton Roads, Virginia.
In coastal areas with tidal marshes, the high marsh is generally found between mean high water and spring
high water, while low marsh is found from slightly below mean sea level up to mean high water. In bays
with small tide ranges of about half a foot (10-20 centimeters), however, wind and seasonal runoff can
cause water level fluctuations with a greater impact on tidal wetlands than the tides themselves. These
areas are known as "irregularly flooded." In some locations, such as upper Albemarle Sound in North
Carolina, the astronomic tide range is essentially zero, and all wetlands are irregularly flooded. Freshwater
wetlands in such areas are often classified as "nontidal wetlands" because there is no tide. But unlike the
situation in most nontidal areas, the flooding and risk of wetland loss are still controlled by sea level.
Wetlands that lie at sea level along an estuary with a very small tide range are more accurately called
"nanotidal wetlands."
Transition
Low Marsh
Tidal Flat
Upland
High Marsh
100 Year Storm
Annua Storm
Open Water
(subtidal)
Spring High'Water
Mean HighjWater
Mean Low Water
Tidal
Range
27
-------
ROLLING EASEMENTS
Thus, for a rolling easement to ensure preservation
of wetlands, it would generally have to prevent the
landowner from adding fill to elevate the grade of
the yard, or at least ensure a return to the original
grade at some point in the future. As with a
beachfront rolling easement, shore protection
structures that stop the landward edge of the
wetlands from migrating inland (e.g., bulkheads)
must also be prohibited. Breakwaters, sills, and
biologs that slow erosion of the outer marsh edge,
by contrast, could be compatible with a rolling
easement. Whether a rolling easement would have
to directly require removal of homes in the
wetlands would depend on site-specific factors
beyond our scope here—but if removal is
important, responsibility cannot be easily shifted
to the next hurricane. Similarly, responsibility for
site cleanup may have to be specifically allocated.
Figure 6 shows how this rolling easement could
play out over time for the typical case where the
private/public boundary is mean high water,106
and therefore the high marsh is privately owned
while the low marsh is publicly owned. A rolling
easement allows construction near the shore, but
requires the property owner to recognize nature's
right-of-way to advance inland as sea level rises. In
the case depicted, the high marsh reaches the
footprint of the house 40 years later. Because the
house is on pilings, it can still be occupied,
assuming that it is hooked to a sewerage treatment
plant. (A flooded septic system would probably fail,
because the drain field must be a minimum
distance above the water table.) After 60 years, the
marsh has advanced enough to require the owner
to park her car along the street and construct a
catwalk across the front yard. After 80 years, the
marsh has taken over the entire yard; moreover,
the footprint of the house is now seaward of mean
high water, and hence is on public property. At this
point, additional reinvestment in the property is
unlikely. Twenty years later, the particular house
has been removed, although other houses on the
same street may still be occupied. Eventually, the
entire area returns to nature.
This primer assumes that the mission of a rolling
easement is accomplished once the rising sea
submerges a given parcel.107 In most cases, a
rolling easement designed to allow wetlands to
migrate inland will also enable the public/private
boundary to move inland, because that boundary is
either the mean low tide line (in five states), the
mean high tide line (in most states), or another
point defined based on the characteristics of the
shore. At some point of submergence, privately
owned land will become publicly owned water.
Because an owner can never transfer that which
she does not own, a rolling easement does not
restrict what the state can do with the land once it
is submerged and becomes wetland. In the rare
case where a land trust believes that a state is likely
to fill the wetlands once they become publicly
owned, a rolling easement might not be
advisable.108
As with sandy beaches, the public has an interest
in both publicly and privately owned wetlands. The
environmental interest includes all tidal wetlands,
which generally extend inland to at least the spring
high water line. But public ownership and public
access generally only extends inland to mean high
water under the public trust doctrine (ordinary
high water for most states). I0') Hence, any
restrictions may have to distinguish between
migration of the upper edge of tidal wetlands and
migration of the boundary between public trust
wetlands and privately owned wetlands. (Chapter
6 considers the rolling design boundary in more
detail.)
2.5 FACILITATE THE INLAND
MIGRATION OF BARRIER
ISLANDS
2.5.1 Possible Responses to Sea
Level Rise
Most discussions about the effects of sea level rise
focus on retreating shores.110 But geologists have
long pointed out that the impact of sea level rise
can be more complicated than the simple
inundation—or even erosion—of lands along the
shore.111 New land can be created under several
28
-------
What Can a Rolling Easement Accomplish?
TODAY
High Water
Mean
Sea Level
PRIVATE
PUBLIC
+40 YEARS
PRIVA F
PUBLIC
+60 YEARS
PRIVATE
PUBLIC
+80 YEARS
PRIVATE
PUBLIC
+100 YEARS
+120 YEARS
<Ł*
<0?
W) Low Marsh
(tffy High Marsh
Figure 6. Migration of Wetlands and Boundary between Public and Private Land, with a Property
Subject to a Rolling Easement. Source: Maryland Law Review. See note 7,
29
-------
ROLLING EASEMENTS
situations.112 This section focuses on the most
commonly discussed example: the landward
migration of barrier islands. Figure 7 shows four
general responses to rising sea level:113
• Encircle the island with a dike;
• Protect the existing development by elevating
land surfaces, with sand replenishment projects
for beaches, and fill material added to the dry
land (island raising or "elevate island");
• Allow the island to erode on the ocean side, but
create new land by filling shallow waters on the
bay side (engineered retreat); or
• Allow the island to erode on the ocean side,
become submerged on the bay side, and
possibly disintegrate and become uninhabitable
(1abandonment).
By "fill" we mean placing sand, mud, or other soil
materials onto dry land to elevate its surface, or
into wetlands or a shallow body of water to create
new dry land from what had been wetlands or
open water.
Dikes and island raising do not involve rolling
easements, while an engineered retreat or
abandonment could. Dikes are unlikely to be the
primary response to sea level rise on barrier
islands,n4 so this section only discusses the other
three approaches.
Before the 1960s, creating new land by filling the
bay sides of barrier islands was common ns and
beach nourishment was rare.116 Communities were
not engaged in a conscious engineered retreat at
the time: Oceanside erosion was a fact of life along
lightly populated barrier islands, and states
allowed (or encouraged) people to convert
wetlands on the bay sides to developable dry
lands."7 Concerns about the environmental impacts
of filling wetlands and shallow waters generally
ended that method of creating developable dry
land. Nevertheless, the practice of filling bay sides
has been part of the effort to prevent undeveloped
barrier islands in Louisiana from disintegrating.118
The cost of creating (or saving) land by filling the
ocean side is inherently many times the cost of
filling the bay side.119
At about the time people stopped filling bay sides
of barrier islands, sand replenishment projects to
fill the ocean sides became commonplace.120 This
practice is expected to continue.121 The environ-
mental consequences of dredging sand and filling
ocean shores are often noted,122 but government
agencies have almost always decided that those
impacts are acceptable, given the alternative of
oceanside erosion. Yet as sea level continues to
rise, the cost of shore protection will increase.
Many geologists doubt that sand replenishment
will be a sustainable response for most barrier
islands if sea level rise accelerates.123 Even if it is
sustainable, the costs will accelerate as annual
sand requirements increase and sand becomes
more costly when least-cost supplies are
exhausted.12-*
If sand replenishment becomes too costly, those
who pay for it will logically look for less expensive
alternatives. Although environmental regulations
currently favor sand replenishment over an
engineered retreat, no study outside Louisiana has
directly compared the environmental impact of
filling the bay with filling the ocean.125 Another
alternative would be to allow an island to erode
and make no effort to build additional land on the
bay side. On some narrow islands, natural
processes can create new bayside lands known as
"overwash fans" as storms and winds bring sand
from the ocean beach to the bay.126 But common
land use practices on developed islands have
stopped the overwash process.127 Restoring over-
wash might enable an island to migrate inland as
with an engineered retreat; but such restoration is
more difficult than creating the same land
artificially.128
Along islands where new bayside lands are not
created, narrow islands may erode on both the bay
and ocean sides, and either disintegrate, become
segmented with more inlets, or otherwise become
uninhabitable.129 The relatively wide islands would
generally narrow until reaching a critical width, at
which point they would migrate (or disintegrate)
like other narrow islands.130 Barrier island residents
30
-------
a. Initial Case
What Can a Rolling Easement Accomplish?
c. Elevate Island
d. Mo Protection
e. Engineered Retreat
Figure 7. Four General Pathways for Responding to Rising Sea Level on a Barrier Island. The
initial case (a) shows the cross section of a developed barrier island. If sea level rises, (b) lowlands
could be protected with a dike, but a barrier island below sea level would be hazardous. A more
common approach is to (c) elevate the beach profile with a sand replenishment project; and
individual landowners may also choose to elevate their lots to prevent increased flooding. If no shore
protection occurs (d) the islands may become narrower as the ocean side erodes and the bay side
becomes submerged, which would reduce the number of developable lots. An alternative is (e) to
imitate the natural overwash process by creating a new bayside parcel to replace the parcel lost on
the ocean side. Source. Sea Level Rise and Barrier Islands. See note 113.
31
-------
ROLLING EASEMENTS
and businesses would strongly oppose the
elimination of their communities.131
There is no general rule about whether allowing a
previously developed barrier island to disintegrate
is environmentally preferable to artificially
maintaining the island. The restoration of
disintegrating barrier islands in Louisiana was
undertaken primarily to protect estuarine wetlands
from storm waves.132 Some scientists have
expressed concern about the impact of increased
salinity and tide range in Pamlico and Albemarle
Sounds from a deterioration of the Outer Banks
barrier islands.133 These concerns may justify
efforts to prevent those islands from deteriorating.
But the question has not been evaluated in detail
for most estuaries.
Given the absence of analysis to demonstrate that
any of the three options would be clearly superior,
this primer assumes that island raising, engineered
retreat (or a similar retreat caused by natural
overwash), and abandonment could each be a
preferred option in some cases. Because Sections
2.1 to 2.4 have examined the issues that can arise
with a generally retreating shore, we now turn our
attention to some additional issues that may be
associated with the creation of bayside land from
either an engineered retreat or from natural
bayside accretion.
2.5.2 How Rolling Easements
Might Facilitate a Retreating
Barrier Island
Along a retreating mainland shore or a shrinking
island, the essential feature of a rolling easement is
the set of rules under which open water, wetlands,
beaches, and public access migrate inland. Along a
migrating barrier island, a rolling easement policy
would do the same thing on the ocean. But on the
bay side, it would do the opposite, establishing
expectations for shallow waters and wetlands to
become privately owned dry land. The bayfront
owners would not be confronted by the loss of land
and home. They may have to prepare, however, for
eventual loss of waterfront access or views of the
water, or for bayward relocation of their homes
onto newly created land, to retain access and view.
The simplest possibility would be an incremental
landward migration, with new bayside parcels
offsetting the loss of oceanside parcels. That
possibility is depicted along with other responses
to sea level rise in Figure 7, which originally
appeared in a study of Long Beach Island, New
Jersey, a narrow barrier island with single family
homes on small lots. The study concluded that
elevating the island in place will be the most
feasible pathway at first, but after the sea rises a
few feet, the cost savings from an engineered
retreat is likely to outweigh the considerable
administrative challenges.134
Larger and less frequent land reclamation may be
more cost-effective and better facilitate possible
long-term plans. Even if the community is satisfied
with existing land-use, it may still be more efficient
to create an entirely new city block on the bay side,
and eventually move all homes on the existing
bayside block to the new bayside block. Otherwise,
creating new bayside lots would harm yacht clubs,
community parks, waterfront owners, and even
people who like their views of the water.
Larger-scale land creation could also encourage
transitions to more sustainable development
possible.13"1 Instead of moving oceanside homes to
the bay side, communities could use newly created
land for some combination of higher-density
housing and open space, to achieve any number of
possible public policy goals, including:
• Decreased traffic and more walkable
communities;
• Allowing the island to narrow, by creating less
land on the bay side than the ocean side loses;
• Restoration of coastal wetlands and other
habitat; and
• Gradual depopulation of another part of the
barrier island or a nearby barrier island.
32
-------
What Can a Rolling Easement Accomplish?
NOTES AND REFERENCES
21 See, e.g., CCSP, supra note 3, at 90 (photos
along the Texas coast). See also photos before major
beach nourishment projects at Miami Beach (FL) and
Sea Bright (NJ) available from the Corps of Engineers.
22 See, e.g., David A. Fahrenthold, In Maryland:
Eco-Bills Come Due at Bay's Beaches, Washington
Post, March 19, 2009 (Dares Beach, Columbia Beach,
Mason's Beach, and Scotland Beach) and Josh
Harkinson & Kate Sheppard, Buh-Bye East Coast
Beaches, 35 (4) Mother Jones 40 (July 2010)
(Chesapeake Beach, Pamlico Beach, and Tolchester
Beach).
23 See, e.g., CCSP, supra note 3, at 92 & 102.
24 See, e.g., infra notes 352 & 355.
25 See infra notes 352 and 355 and accompanying
text.
26 For example, the Texas Open Beaches Act
generally requires removal of homes seaward of the
dune vegetation line, but administrative relief is possible
for up to two years. The relief is not available, however,
for homes seaward of the high tide line. See infra
§ 3.1.2.2
27 CCSP, supra note 3, at 165-166 & 202.
28 E.g., Surfrider, Inc. v. Town of Palm Beach,
Florida. Florida Division of Administrative Hearings
Decision #08-1511 (Department of Environmental
Protection Administrative Order #09-0729, July 15,
2009) (denying the town a permit for beach fill because
of the project's potential to harm environmental and
recreational resources).
on
Jeroen Speybroeck (and 12 others), Beach
Nourishment: An Ecologically Sound Coastal Defence
Alternative? A Review, 16 Aquatic Conservation:
Marine and Freshwater Ecosystems 419-435 (2006).
on
E.g., because a species depends on an eroding
bluff. See infra note 286 and accompanying text.
31 In 1842, the United States Supreme Court stated
that all 13 original states followed the public trust
doctrine. See Martin v. Lessee of Waddell, 41 U.S. (16
Pet.) 366, 410 (1842) ("For when the revolution took
place, the people of each state became themselves
sovereign; and in that character hold the absolute right
to all their navigable waters, and the soils under them,
for their own common use.") Chief Justice Taney
pointed out that submerged lands had originally been
"held by the king ... as the representative of the nation,
and in trust for them." Id. at 409. New states were
granted submerged lands upon statehood. Pollard v.
Hagan, 44 U.S. (3 How.) 212, 229-30 (1845). A century
later, the Supreme Court held that the federal
government had retained tidelands along the ocean
coasts of all new states. United States v. California, 332
U.S. 19, 38-41 (1947). Congress overruled this
decision with the Submerged Lands Act of 1953,
43 U.S.C. §§ 1301-1356, which grants the states the
ocean floor out to the three-mile limit, see 43 U.S.C.
§ 1312.
32 In some cases, the public that owns the
tidelands is a Native American tribe, in which case the
tribe rather than the state owns those public trust
tidelands today. See, e.g., U.S. v. Milner, 583 F. 3d
1174, 1190 (9th Cir. 2009).
oo
See generally Richard J. Lazarus, Changing
Conceptions of Property and Sovereignty in Natural
Resources: Questioning the Public Trust Doctrine, 71
Iowa L. Rev. 631 (1986) and Carol Rose, The Comedy
of the Commons: Custom, Commerce, and Inherently
Public Property, 53 U. Chi. L. Rev. 711, 715-23 (1986).
34See Martin, 41 U.S. (16 Pet.) at 410; see also
David C. Slade et al., Putting the Public Trust
Doctrine to Work 175 & 180-81 nn.5-10 (1990)
(discussing judicial limitations on the ability of states to
convey public trust lands to private parties); cf. United
States v. Denver & Rio Grande Ry. Co., 150 U.S. 1,14
(1893) ("It is . . . the well-settled rule of this court that
public grants are construed strictly against the grantees,
but they are not to be so construed as to defeat the
intent of the legislature . . . .").
oc
See, e.g., Joseph L. Sax, The Public Trust
Doctrine in Natural Resource Law: Effective Judicial
Intervention, 68 Mich. L. Rev. 471, 473 (1970)
(describing an expanded public trust doctrine) and
James L. Huffman, Speaking of Inconvenient Truths—A
History of the Public Trust Doctrine, 18 Duke Envl. L. &
Pol'y F. 1, 4-7, 37-69 (2007) (summarizing legal
commentaries advocating an expanded public trust
doctrine and discussing court opinions that adopted that
expanded doctrine or mentioned it while basing their
rulings on other grounds).
36 The scientific and legal literature do not mean the
same thing by "high water line". Scientific papers
generally mean a visually discernible line in the land
made by the high water. See e.g. Elizabeth H. Boak &
Ian L. Turner, Shoreline Definition and Detection: A
Review, 21 Journal of Coastal Research: 690-697
(2005). Court opinions generally mean an elevation
contour. See infra note 46 and accompanying text.
37 See e.g. Severance v. Patterson, No. 09-0387
(Tex. 2010) ("The area from mean low tide to mean
high tide is called the "wet beach," because it is under
the tidal waters some time during each day. The area
from mean high tide to the vegetation line is known as
the "dry beach."); City of Long Branch v Liu, No A-9
33
-------
ROLLING EASEMENTS
(N.J. 2009) ("The mean high water mark, generally, is
the boundary line that divides private ownership of the
dry beach and public ownership of tidally flowed lands");
and Stephanie Reckford, Limiting the Expansion of the
Public Trust Doctrine in New Jersey: A Way to Protect
and Preserve the Rights of Private Ownership, 36
Seton Hall L. Rev. 249, 249 n.2 (2005) (same).
38 Cf. Orrin H. Pilkey, Jr. and William J. Neal,
editors, Living with the East Florida Shore 25-28
(1984) (explaining that storms erode the beach and
dunes by washing sand offshore, but that after the
storm subsides, fair-weather waves rebuild the beach
and dunes). The vegetation line tracks the inland reach
of the most severe storm of the year, because recently
eroded dunes and beaches typically lack vegetation
until the next year. Id. at 25.
oq
See e.g. Boak & Turner at 690 (showing that the
divide between wet and dry land is inland of mean high
water).
40 The more common terms in the scientific
literature are "high water line" and "wet/dry line." See
e.g. Boak & Turner at 690-697 (finding that the most
commonly used shoreline reference had been the "high
water line", which is sometimes called "wet/dry line").
But "high water line" could easily be confused with
"mean high water line" or "high tide line," which are
based on surveyed elevations. See supra note 36 and
accompanying text. The term "wet/dry line" has been
criticized as imprecise. Id. at 697.
41
Maurice W. Provost, Tidal Datum Planes
Circumscribing Salt Marshes, 26 Bulletin of Marine
Science 583 (1976) (explaining that low marsh extends
up to mean high water, while high marsh extends up to
unusually high tides).
42 See, e.g., T.J. Huisman, F. Van Langevelde, &
W.F. De Boer, Local positive feedback and the
persistence and recovery of fringe Avicennia marina
(Forssk.) vierh. Mangroves 17 Wetlands Ecol.
Manage. (2009) 601, 603 (citing W.F. De Boer et al.,
428 Hydrobiol 187-196 (2000) and P.J. Hogarth, The
Biology of Mangroves. (1999)).
43 See Slade et al, supra note 34, at 59 & 64 n.8
(listing cases from all 23 tidewater state courts defining
the landward boundary of the public trust).
44See, e.g., Frank E Maloney & Richard C Ausness,
The Use and Legal Significance of the Mean High
Water Line in Coastal Boundary Mapping, 53 N.C.
L. REV. 186, 204 (1974); and George M Cole, Tidal
Water Boundaries Symposium on Sovereignty Lands,
20 Stetson Law Review 165, 166 (1990).
4 c
See generally Charles E. Corker, Where Does
the Beach Begin, and to What Extent Is This a Federal
Question, 42 Washington Law Review 33 (1966).
46 Borax Consolidated, Ltd et al. v. Los Angeles,
296 U.S. 10 (1935). The Court's analysis focused on
the distinction between neap high tide, mean high tide,
and spring high tide and held that the ordinary high
water mark referred to the average high tide. The
opinion did not address the question whether wave
runup causes an actual water mark but simply asserted
"This does not mean, as petitioners contend, [that the
ordinary high water mark is] a physical mark made upon
the ground by the waters; it means the line of high
water as determined by the course of the tides," id. at
23, and cited opinions that distinguished various tide
levels. Id, but did not address wave runup or actual
water marks. The case involved Mormon Island within
Los Angeles Harbor, id. at 12, where wave runup is not
significant. Thus the holding did not necessarily create
a rule of law that federal grants extend to the mean high
water line when there is significant wave runup. But a
few federal courts have assumed that Borax created
such a rule along the ocean coast. See e.g., U.S. v.
Washington, 294 F. 2d 830, 834 (9th Cir. 1961) ("the
high-water mark means the line of high water as
determined by the course of the tides, not as
determined by physical markings made upon the
ground by the water. The latter method of making this
determination, which was followed by the district court,
is appropriate only in the case of streams and other
nontidal waters which have no absolute ascertainable
level because of variations of flow from a multitude of
causes.") and Sotomura v. County of Hawaii, 460 F.
Supp. 473, 478-479 (D. Haw. 1978) (relying on Borax
and U.S. v. Washington). Several courts have stated in
passing that Borax implies that federal grants extend to
mean high water along an ocean shore, while deciding
cases that do not depend on whether it does or not.
See e.g. Hay v. Bruno, 344 F. Supp. 286, 287 (D. Or.
1972); California ex re/. State Lands Comm'n v. United
States, 457 US 273, 289 (1982) (J. Rehnquist,
concurring); U.S. v. Alaska, 521 US 1, 23-25 (1997);
and Udall v. Oelschlaeger, 389 F. 2d 974, 975-976
(D.C. Cir. 1968).
47 Some courts have defined "ordinary high water
mark" as the mean high tide line without providing a
reason or indicating a recognition that the mean high
tide line is not a water mark along ocean shores. E.g.
O'Neill v. State Hwy. Dept., 50 N.J. 307, 323-324
(1967); Purdie v. Attorney General, 143 N.H. 661, 664-
667 (1999); and State v. Fain, 259 S.E. 2d 606
(S.C. 1979). Some adopt the rule because (ignoring shore
34
-------
What Can a Rolling Easement Accomplish?
erosion) the mean high tide line can be determined
more precisely than the visual observation of a water
mark. State v. Ibbison, 448 A.2d 728, 732 (R.I. 1982)
(public access case) "The mean-high-tide line
represents the point that can be determined
scientifically with the greatest certainty". Ibbison at 732.
Another common reason has been that the litigants had
asked the court to choose between the mean high tide
line and either a watermark or vegetation mark that was
created by spring high tide, or the annual storm tide that
generally defines the dune vegetation line; neither
litigant proposed the line of ordinary wave runup as the
ordinary high water mark. E.g., Purdie at 664-665 and
Carolina Beach Fishing Pier, Inc. v. Town of Carolina
Beach, 177 SE 2d 513, 516 (N.C. 1970) (takings case).
Finally, courts sometimes pointed to older cases
involving calm waters where the ordinary high water
mark and the mean high tide line were the same, to
conclude that the law had already settled on the use of
the mean high water line. Ibbison at 730-31. The
academic literature on these cases has also focused on
increased sophistication of measuring mean high water
but not on the higher actual water levels caused by
wave runup. E.g., Maloney & Ausness, supra note 44,
at 206 and Cole, supra note 44, at 165-167.
48 Luttes v. State, 324 S.W. 2d 167, 191-192 (Tex.
1958) (holding that Spanish and Mexican grants extend
only to the line of mean higher high tide, while later
grants extend to the mean high tide line).
49 Id. at 192.
50 See infra note 60.
51 La. Civ. Code Ann. Art. 451 (West 1980)
("Seashore is the space of land over which the waters
of the sea spread in the highest tide during the winter
season"). For Texas, see supra note 48. But see
Adams v. Crews, 105 So.2d 584, 593 (Fla. Court of
Appeals 1958) (holding that private rights extended only
to the high water mark under both English and Spanish
Law).
52 In re Ashford, 440 P.2d 76, 77 (Haw. 1968)
(defining seaward boundary of private land as "the
upper reaches of the wash of waves, usually evidenced
by the edge of vegetation or by the line of debris left by
the wash of waves"); Hughes v. State, 67 Wash. 2d
799, 811 (1966) (defining mean high tide line as the
vegetation line and denying landowners the benefits of
accretion). But cf. Hughes v. Washington, 389 U.S. 290
(1967) (holding that federal law, which sets the
boundary at the mean high tide line, governs in the
case of federal grants).
CO
See, e.g., Trustees of Internal Improvement Fund
v. Wetstone, 222 So.2d 10 (Fla. 1969).
In Delaware, Pennsylvania, and Virginia, private
land extends down to mean low water. See Slade etal,
supra note 34, at 69-70. n.22 (citing cases). In Maine
and Massachusetts, private land extends to mean low
water or 100 rods (1650 feet) seaward of the mean high
water line, whichever is more inland. Id. at 70 (citing
cases).
E.g., Borough of Neptune City v. Borough of
Avon-By-the-Sea, 294 A.2d 47 (N.J. 1972) (discussing
borough-owned beach while acknowledging that the
source of the title was not in the record); and Dept. of
Natural Resources v. Ocean City, 274 Md. 1, 7 (1975)
(discussing beach dedications and implied dedications).
See the discussion of avulsion in infra § 2.2.2.
57 Florida's Riparian Act of 1856 transferred title of
submerged lands to any riparian owner who filled those
lands and made improvements "to fill up from the shore,
bank or beach as far as may be desired ... to erect
warehouses or other buildings." Theisen v. Gulf, F. & A.
Railway, 75 Fla. 28, 78 So. 491 (1917). The Butler Act
of 1921 extended those grants to include some lands
that had not been filled, such as the land under a dock.
Jacksonville Shipyards v. Dept. of Natural Resources,
466 So.2d 389, 391-392 (Fla. 1985). Many developers
took advantage of this statute by creating waterfront
communities on what had been wetlands and shallow
waters. See, e.g., G.A. Antonini, D.A. Fann, & P. Roat,
Florida Sea Grant, A Historical Geography of
Southwest Florida Waterways Vol. 1 and 2 (2002)
(pictures, maps, and a discussion of the historic
conversion of shallow estuaries and coastal wetlands to
dry land for development). See also Hayes v. Bowman,
91 So.2d 795 (Fla. 1957) (reconciling the history of
dredge-and-fill developments to the public trust doctrine
in Florida).
58 See Matthews v. Bay Head Improvement Ass'n,
471 A.2d 355, 358 (N.J. 1984) (expanding the public
trust inland along the ocean by recognizing a right to
sunbathe and otherwise enjoy the dry beach between
mean high water and the vegetation line) and State ex
rel. Thornton v. Hay, 462 P.2d 671, 672-74 (Or. 1969)
(under the doctrine of custom, public access extends
inland to the 16-foot contour, which is similar to the
dune vegetation line).
59Slade etal, supra note 34, at 49-50 n.61 (listing
cases for each of the five states).
60 See the references listed in supra notes 44-47.
Uncertainty remains about whether the public access
extends farther inland than mean high water, for two
reasons. First, court opinions have not yet addressed
the paradox of the law requiring modern survey
techniques to implement a centuries-old doctrine of
35
-------
ROLLING EASEMENTS
property law, while scientists continued to rely on visual
observation methods that have always been available.
See supra notes 36, 39, 40, 46, and 47. It is therefore
possible that for uses that depend on the visually
observable shore, future cases in some states will
clarify that the public easement is defined by readily
observable boundaries, even where land ownership
boundaries are based on surveys. Second, there is no
clear rationale for basing public access on the mean
high tide line along beaches where pedestrian passage
is regularly infeasible along the mean high tide line,
given that the actual water mark defines a path where
pedestrian passage is feasible.
61 Slade etal, supra note 34, at 197-199 nn. 39-
40 (listing cases for 9 coastal states).
62 See infra § 3.1.2.2 (discussing Texas Open
Beaches Act). Longstanding use has entitled the public
the right of access along beaches both due to the
doctrine of custom and the doctrine of proscription.
Tex. Nat. Res. Code §61.011. Many of these beaches
have eroded since the public originally obtained those
rights. Although the public access way does not
necessarily migrate inland to the new dry beach as the
shore erodes, see infra note 88 and accompanying text,
the public can independently obtain access to the new
beach (which was formerly dune) through continuous
use. Severance v. Patterson, No. 09-0387 (Tex.
2010). No one has quantified the portion of public
beaches in Texas where access has been lost.
63 See, e.g., City of Daytona Beach v. Tona-Rama
Inc., 294 So.2d 73, 78 (Fla. 1974) (holding that in the
particular area under consideration, the public had an
easement to the privately owned dry sand beach based
on the doctrine of custom).
64 See, e.g., U.S. Army Corps of Eng'rs, Digest
of Water Resources Policies and Authorities 14-1
(1996) (explaining that Public Law No. 84-826
authorized federal erosion control assistance only for
publicly owned shores, or for private shores if such
protection would result in public benefits).
65 See J.L. Sax, Changing Currents: Perspectives
on the State of Water Law and Policy in the 21st
Century: The Accretion/Avulsion Puzzle: Its Past
Revealed, Its Future Proposed, 23 Tulane Environ-
mental Law Journal 305, 306 (2010). See also County
of St. Clair v. Lovingston, 90 U.S. (23 Wall.) 46, 66-69
(1874) (quoting the Institutes of Justinian, Code
Napoleon, and Blackstone for the universal rule that a
boundary shifts with the shore). In England, three 14th
century cases established the rule that gradual
accretions of land belong to the waterfront landowner:
The Eyre of Nottingham Case (1348), The Abbot of
Peterborough's Case (1367), and the Abbot of
Ramsay's Case (1369). Sax at 313-320.
66 See Sax, supra note 65, at 313-334.
67 "'Every proprietor whose land is thus bounded is
subject to loss by the same means which may add to
his territory, and as he is without remedy for his loss in
this way he cannot be held accountable for his gain.'"
Lovingston, 90 U.S. (23 Wall.) at 68 (quoting Mayor of
New Orleans v. United States, 35 U.S. (10 Pet.) 662,
717 (1836)).
68 See, e.g., Stop the Beach Renourishment, Inc. v.
Florida Department of Environmental Protection, 130 S.
Ct. 2592, 2611-2612, 560 U.S. _, 2010
(discussing the Florida law of avulsion) and City of Long
Branch v. Liu, 833 A.2d 106, 363 (N.J. Super. 2003),
affd City of Long Branch v. Jui Yung Liu, No. A-9
(N.J. 2010) (holding that beach nourishment does not
change title from the state to the littoral landowner).
69 Stop the Beach Renourishment, Inc. v. Florida
Department of Environmental Protection, 130 S. Ct. at
2612 560 U.S. at 2010 ("The result under Florida
law may seem counter-intuitive. After all ... property has
been deprived of its character (and value) as oceanfront
property by ...an avulsion.").
70 Professor Joe Sax pointed out that in the
common law, property originally had fixed boundaries
whether or not it was along the shore. Sax, supra note
65, at 311. When the king granted property up to the
shore, that meant up to where the shore was at the time
of the grant. As the law evolved, courts adopted the
idea that boundaries move with a slowly eroding or
accreting shore (rule of accretion), in part because
awarding narrow and slowly evolving strips of land to
the crown seemed inefficient. Id. at 341-343. But the
old rule of fixed boundaries was not changed for those
cases where the King filled open water to create land or
other cases where the creation of land was abrupt
(avulsion), because the reasons for the newer rule of
accretion did not apply to avulsion. Id. at 322, 325 &
342-43.
71 Id. at 321 ("'[T]he ground which was the King's
when it was covered with the waters, is his also when
the waters have left it'" (quoting The Readings of the
Famous and Learned Robert Callis, Esq, Upon the
Statute of Sewers, 23 Hen. VIII c.5, as it was
Delivered by Him at Gray's Inn, In August 1622 (4th
edition, William John Broderip, 1824))).
72 See, e.g., Stop the Beach Renourishment, Inc. v.
Florida Department of Environmental Protection, 130 S.
Ct. 2592, 2611-2612, 560 U.S. _, (2010)
(discussing the Florida law of avulsion) and City of Long
Branch v. Liu, 833 A.2d 106, 363 (N.J. Super. 2003),
affd City of Long Branch v. Jui Yung Liu, No. A-9 (N.J.
2010) (beach nourishment does not change title from
the state to the littoral landowner). Cf. New Jersey v.
36
-------
What Can a Rolling Easement Accomplish?
New York, 523 U.S. 767 (1998) (holding that portions of
Ellis Island created by filling the Hudson River are in
New Jersey because the island is within the New
Jersey side of the river and the doctrine of avulsion
applies to boundaries between sovereigns).
73 Walton County v. Stop Beach Renourishment,
998 So.2d 1102, 1119-1120 (Fla. 2008), affd Stop the
Beach Renourishment, Inc. v. Florida Department of
Environmental Protection, 130 S. Ct. 2592, 560 U.S. ,
(2010) (discussing Florida waterfront access rights, and
how the Florida Beach and Shore Preservation Act
preserves the those rights).
74 E.g., 342 Mass. 251, 173 N.E.2d 273 (1961)
Benjamin Michaelson & others v. Silver Beach
Improvement Association, Inc., Supreme Judicial Court
of Massachusetts, Barnstable (land created by filling
shallow waters as part of a navigation project belongs
to private landowner not the statej and State v. Gill, 66
So.2d 141, 142-43 (1953) (same).
75 "Where a stream, which is a boundary, from any
cause suddenly abandons its old and seeks a new bed,
such change of channel works no change of boundary;
and that the boundary remains as it was, in the centre
of the old channel, although no water may be flowing
therein. This sudden and rapid change of channel is
termed, in the law, avulsion." Nebraska v. Iowa, 143
U.S. 359, 361 (1892).
76 City of Corpus Christi v. Davis, 622 SW 2d 640
(Tex. App. 1981) (concluding that the doctrine of
avulsion should not be applicable to eroding Gulf Coast
Beaches but declining to adopt such a holding because
it is a matter more appropriately addressed by the
Texas Supreme Court). Severance v Patterson, No. 09-
0387 (Tex. 2010). ("This holding shall not be applied to
use the avulsion doctrine to upset the long-standing
boundary between public and private ownership at the
mean high tide line. That result would be unworkable,
leaving ownership boundaries to mere guesswork. The
division between public and private ownership remains
at the mean high tide line in the wake of naturally
occurring changes, even when boundaries seem to
change suddenly").
77 See, e.g., Md. Code Environment §16-201 (a)
(preserving right to reclaim land lost to shoreline
erosion since January 1, 1972); and Walton County v.
Stop Beach Renourishment, 998 So.2d 1102, 1117 (Fl.
2008) ("Significantly, when an avulsive event leads to
the loss of land, the doctrine of avulsion recognizes the
affected property owner's right to reclaim the lost land
within a reasonable time."). See generally 1 Henry
Philip Farnham, The Law of Waters and Water
Rights §74 at 331 (1904). This common law rule
dates back at least to the 17th century writings of
England's Lord Chief Justice Robert Hale. "If a subject
hath land adjoining the sea, and the violence of the sea
swallow it up, but so that yet there be reasonable marks
to continue the notice ... [and] if it be by art or industry
regained, the subject does not lose his propriety, and so
it was held ... though the inundation continue forty
years." Robert Hale, De Jure Maris, in Stuart A.
Moore, A History of the Foreshore and the Law
Relating Thereto, 3d ed. 1888, at 381 (citing Cooke
and Foster, M. 7 Jac. C. B.).
78 See generally CCSP, supra note 3, at 147-149
and 166-168 (discussing tidal wetland protection
regulations with a focus on adapting to sea level rise).
79 See, e.g., Dept. of Natural Resources v. Ocean
City, 274 Md. 1, 14-15 (1975).
80 See Matthews v. Bay Head Improvement Ass'n,
471 A.2d 355, 358 (N.J. 1984) (holding that public trust
access includes the dry beach between mean high
water and the vegetation line). State ex rel. Thornton v.
Hay, 462 P.2d 671, 672-74 (Or. 1969) (holding that
under the doctrine of custom, public access extends
inland to the 16-foot contour, which is similar to the
dune vegetation line). Whether public access derived
from the doctrine of custom migrates inland is unclear.
See infra note 85.
81 See supra note 54.
82 Courts have distinguished the impact of avulsion
on the boundary of tideland from access created for
reasons other than the public trust doctrine. See, e.g.,
Severance v Patterson, No. 09-0387 (Tex. 2010).
83 See infra § 3.2.2.1.
84 This question could be more complicated if
access is acquired when waterfront parcels are large,
and the parcel is subsequently subdivided. If the owner
conveys an easement for public access along the dry
sand beach with language indicating an intent for the
easement to migrate, then such an easement will apply
to the entire parcel, even if it is subdivided.
85Trepanier v. County of Volusia, 965 So.2d 276,
292-293 (Fla. App. 2007) (holding that public easement
resulting from custom does not migrate inland if
evidence does not show that people have customarily
shifted their use of the beach inland as the shore
erodes).
86 "Easement boundaries are generally static and
attached to a specific portion of private property."
Severance v Patterson, No. 09-0387 (Tex. 2010). "As a
general rule, once the location of an easement has
been established, neither the servient estate owner nor
the easement holder may unilaterally relocate the
servitude." Id. (quoting Jon W. Bruce & James W. Ely,
Jr., the Law of Easements and Licenses in Land §
37
-------
ROLLING EASEMENTS
7:13 at 7-30 (2009)). See also P. Burka, Shoreline
Erosion: Implications for Public Rights and Private
Ownership, 1 Coastal Zone Management Journal
175, 182 (1974) (arguing that public easements along
the shore would not migrate inland, with the possible
exception of those reserved under the public trust
doctrine). But cf. infra notes 414-418 and
accompanying text (suggesting that some courts place
a higher priority on achieving the intent of the parties
who negotiated the easement than the specific route
that the easement holder uses to cross).
87 Smith v. Bruce, 241 Ga. 133, 147 (1978) ("Once
an easement in a specific area is conveyed to lot
owners in a beach subdivision as a beach or
recreational area, or such an area has been offered for
dedication for public use and accepted by the public for
such use it may, nevertheless, be lost by gradual
erosion and avulsion.)
88 "Texas does not recognize a 'rolling' easement
on Galveston's West Beach. Easements for public use
of private dry beach property do change along with
gradual and imperceptible changes to the coastal
landscape. But, avulsive events such as storms and
hurricanes that drastically alter pre-existing littoral
boundaries do not have the effect of allowing a public
use easement to migrate onto previously
unencumbered property." Severance v Patterson, No.
09-0387 (Tex. 2010).
89 See generally Maryland Law Review, supra
note 7.
90 Tex. Nat. Res. Code Ann. § 61.017(c) (providing
for public access inland of seawall on North Padre
Island in the aftermath of State of Texas v. Padre Island
Development Corporation (28th Judicial District, July 29,
1974)); and Tex. Nat. Res. Code Ann. § 61.017(d)
(providing for public access landward of a revetment
constructed by the Corps of Engineers). The
pedestrian access is also shown in infra Photo 24.
Q1
New Jersey Administrative Code § 7:7E-8.11.
See also CCSP, supra note 3, at 209.
92 "Owners of docks located on state-owned
tidelands or shorelands must provide a safe,
convenient, and clearly available means of pedestrian
access over, around, or under the dock at all tide
levels." Wash. Code Ann. 332-30-144(4)(d).
no
Bhaskaran Subramanian, Natural Resources
Manager, Riparian and Wetland Restoration, Maryland
Department of Natural Resources, Personal
Communication, June 9, 2010, summarized in email
from Jim Titus to Bhaskaran Subramanian, January 2,
2011.
94 See infra notes 191-192 and accompanying text.
QC
An opinion by the Texas Supreme Court in 2010,
however, implied that implementation of this policy had
exceeded the authority granted by the Texas Open
Beaches Act. See infra notes 167-194 and
accompanying text.
96 See, e.g., infra notes 352 and 355 and
accompanying text (listing statutes that prohibit hard
shore protection structures) and infra §3.1.2 (discussing
the rolling easement for dry beach access along the
Texas Gulf Coast. But see the text accompanying infra
note 274, and notes 266 and 361 (discussing a case
where the tidal wetlands were owned by a private party
and the right to shore protection was decided based on
nuisance law).
97 See Scureman v. Judge, 747 A.2d 62, 68 (Del.
Court of Chancery, Sussex 1999) (rejecting town's
theory that road along the shore had a rolling easement
because roadway was on a specific dedicated parcel of
land rather than on an easement across private land,
and nothing in the conveyance suggested that the
boundaries would roll); Town of South Hero v. Wood,
898 A.2d 756, 762 (Vermont) 2006 (rejecting town's
theory that road along shore had a rolling easement
because an implied dedication of an easement does not
shift without the consent of the servient owner).
98 Cf., e.g., Peter G. Glenn, Implied Easements in
the North Carolina Courts: An Essay on the Meaning of
Necessary, 58 N.C. L. Rev. 223-254 (1980).
99 The easement by necessity only provides an
easement across dry land to provide access to a parcel
that would otherwise lack road access. It does not
provide a right to build a bridge or causeway across
navigable water to an island. Neither rolling easements
nor easements by necessity help in the case where
rising sea level completely cuts off one or more parcels
from the rest of the community with an intervening
channel or tidal wetlands.
100 Kirstin Kanski, Property Law—Minnesota's
Lakeshore Property Owners without Road Access Find
Themselves up a Creek without a Paddle—In Re Daniel
for the Establishment of a Cartway. 30 Wm. Mitchell
L. Rev. 735-52 (2003) (discussing variation among
states as to whether water access is sufficient access to
defeat demand for cartway or easement by necessity
and pointing out that older cases generally find water
access as sufficient while newer cases find water
access as insufficient).
101 McCormick v. Schubring, 267 Ws. 2d 141, 149,
672 N.W.2d 63, (2003) at 11 (holding pedestrian access
through % mile of woods not sufficient access). But see
Stansbury v. MDR Development, L.L.C., 161 Md. App.
594, 871 A.2d 612 (April 4, 2005) (easement by
38
-------
What Can a Rolling Easement Accomplish?
necessity justified when only access available is by boat
or walking along a channel at low tide).
1 n?
The necessity must be apparent at the time the
two parcels are severed , which allows for the inference
that the easement was implied or intended when the
land was subdivided.. See, e.g., Stansbury v. MDR
Development, L.L.C., 161 Md. App. 594, 871 A.2d 612
(2005). The longstanding rule that property boundaries
migrate along with shifting shorelines may lead a court
to hold that shore erosion has long been apparent..
1 m
See infra notes 186-188 and accompanying
text.
104 Assuming that the new sand is similar to what
was already on the beach. The width of the beach
depends on the grain size of the sand and the wave
climate, with fine-grained sands and larger waves both
causing a wider beach. See Per Bruun, Sea Level Rise
as a Cause of Shore Erosion, 88 Journal of
Waterways and Harbor Division. American Society of
Civil Engineers 117-130 (1962).
1 m
See supra § 2.2.1 for a discussion of the
boundaries of public ownership and public access along
tidal shores.
106 In five states, the boundary is mean low water;
and in a few states the boundary is a natural high water
mark that may be above mean sea level due to waves.
See supra notes 51-54 and accompanying text. In a
few places, where states have conveyed submerged
lands to the owners of the adjacent dry land, the
boundary no longer moves with the shoreline. See
supra note 57 and accompanying text.
1D7
The goal of the rolling easement is to prevent
shore protection that would eliminate the intertidal
wetland, beach, or public access. Once the parcel is
submerged, shore protection is only possible if the land
re-emerges and then begins to submerge once again. If
the land re-emerges suddenly (or gradually as an
island), the state is the new owner. If it emerges
gradually and is connected to some other land, it would
belong to the owner of the adjacent land and generally
be subject to whatever conservation easements (if any)
applied to that parcel.
108 A land trust and landowner may agree to elevate
the grade of high marsh, for example, which would be
environmentally preferable to the state filling the land
and would also allow the landowner to retain title to the
land. Living shoreline approaches may also be viable.
But these issues are generally best left to those who
manage the rolling easement when the land
submerges: a current inclination by the state to fill
wetlands would have little bearing on what the state will
want to do 100 years hence.
109 See § 2.2.2 for a discussion of the boundaries of
public ownership and access along tidal shores
110 E.g., U.S. Global Change Research Program,
Global Climate Changes Impacts in the United
States, 88, 109, 152 (2009). Intergovernmental
Panel on Climate Change, Climate Change 2001:
Impacts, Adaptation, and Vulnerability 357-360
(2001). In this context, "retreating shores" includes the
inland migration of floodplain boundaries as well as
wetlands and beaches.
111 E.g., M.L. Schwartz, The Multiple Causality of
Barrier Islands, 79 Journal of Geology 91-94 (1971).
Stephen P. Leatherman, Barrier Island Evolution in
Response to Sea Level Rise: Discussion, 53 Journal
of Sedimentary Research (1983).
112 Other possibilities that we do not consider in this
primer include tidal deltas from new inlets, the land
created as inlets migrate, and new deltas created when
rivers change course.
113 James G. Titus, Greenhouse Effect, Sea Level
Rise, and Barrier Islands, 18 Coastal Management 65,
69 Fig 4 (1990) [hereinafter Sea Level Rise and
Barrier Islands],
114
Id. at 73. U.S. Environmental Protection
Agency, Potential Effects of Global Climate
Change on the United States 131 (1989) [hereinafter
EPA]; CCSP, supra note 3, at 204; and Coastal Areas
and Marine Resources Sector Team, The Potential
Consequences of Climate Variability and Change on
Coastal Areas and Marine Resources 53-56 (U.S.
Global Change Research Program 2000).
115 Richard A Davis, History: Coastal
Geomorphology, in Maurice L. Schwartz (editor),
Encyclopedia of Coastal Science 523 (1995).
Examples include Long Beach Island and New Jersey;
Coney Island, New York. R.A. Davis, R.A. & P.L.
Barnard, in K. Pye, et al. (editors). Coastal and
ESTUARINE ENVIRONMENTS: SEDIMENTOLOGY, GEOMOR-
PHOLOGY AND GEOARCHAEOLOGY. GEOLOGICAL SOCIETY
Special Publication No. 175 293-303 (2000).
116
The first artificial beach project was at Coney
Island in 1922. U.S. Army Corps of Engineers.
Coastal Engineering Manual 1-3-13 (2008). A few
sand replenishment projects took place during the next
few decades, but beach nourishment did not account
for the vast majority of shore protection costs until the
1970s. Id. at 1-3-21. Many Atlantic Coast communities
received emergency beach nourishment after the "Ash
Wednesday Storm" of 1962. See, e.g., Institute for
Water Resources, U.S. Army Corps of Engineers,
Dynamic Sustainability: Shoreline Management on
Maryland's Atlantic Coast 37 (2009). National
39
-------
ROLLING EASEMENTS
Research Council, Beach Nourishment and
Protection 102 (1995).
117 See, e.g., supra note 57 (Florida); Richard A.
Davis, Jr. & Gary A. Zarillo, Human-Induced Changes
in Back-Barrier Environments as Factors in Tidal
Inlet Instability with Emphasis on Florida. U.S. Army
Corps of Engineers 5-8 (2003) (Florida and Texas);
and Karl F. Nordstrom, Paul A. Gares, Norbert P.
Psuty, Orrin H. Pilkey Jr., William J. Neal, & Orrin H.
Pilkey, Sr., Living with the New Jersey Shore 51
(1986) (New Jersey).
118 Fortification of deteriorating barrier islands in
Louisiana has focused on adding sand to the islands
themselves and shallow waters on their bay sides,
rather than to the beaches. See, e.g., Louisiana
Coastal Wetlands Conservation and Restoration
Task Force, Isles Dernieres Restoration East
Island (TE-20) (2002, revised 2010);
http://lacoast.gov/reports/gpfs/TE-20.pdf, cited on
November 1, 2010; Task Force, Whiskey Island Back
Barrier Marsh Creation (TE-50) (2010); Task Force,
East Timbalier Island Sediment Restoration, Phase 2
(TE-30) (2010); and Task Force, Pass Chaland to
Grand Bayou Pass Barrier Shoreline Restoration
(BA-35), (2010).
11Q
See Sea Level Rise and Barrier Islands, supra
note 113.
1 ?n
See supra notes 115 and 116.
191
See Environmental Research Letters, supra
note 14 and CCSP, supra note 3, at 198, 203-204, 213,
& 236-38.
122 See, e.g., M. Burlas, G.L. Ray, & D. Clarke,
The New York District's Biological Monitoring
Program for the Atlantic Coast of New Jersey,
Asbury Park to Manasquan Section Beach Erosion
Control Project. Final Report (2001); and U.S.
Army Engineer District, New York and U.S. Army
Engineer Research and Development Center,
Waterways Experiment Station, Draft
Environmental Impact Statement September 2009,
Beach Nourishment Project, Town of Nags Head,
North Carolina.
19^
E.g., Orrin H. Pilkey & Rob Young, The Rising
Sea (Washington, DC, Island Press. 2009) and CCSP,
supra note 3, at 49, 54.
124 The following factors that contribute to the cost
are all expected to rise: The rate of sea level rise, see,
e.g., IPCC, supra note 2; the amount of sand required
per foot of sea level rise, see, e.g., CCSP, supra note 3,
at 101-102; and the unit cost of sand as least-cost
supplies are exhausted, see, e.g., EPA, supra note 114,
at A-5-32 to A-5-36 (1989). See generally Sea Level
Rise and Barrier Islands, supra note 113. In addition,
shore erosion and sand requirements may respond to
sea level rise with a lag. See EPA at A-5-18 to A-5-20.
125 Such analyses would have to weigh the
environmental importance of the estuarine habit lost
and the potential environmental benefits from restoring
the bulkheaded bay shores to a more natural shoreline,
against the environmental impacts of dredging sandy
shoals on the continental shelf and filling the nearshore
ocean waters.
126 CCSP, supra note 3, at 51-55.
127 Robert Dolan, Paul J Godfrey, & Wlliam E
Odum, Man's Impact on the Barrier Islands of North
Carolina, 61 American Scientist 152-162 (1973).
128 Completely restoring the overwash (and related
windblown processes) would require lowering dune
elevations in many places so that storms would be able
to push sand toward the bay side. Efforts may be
necessary to ensure that roads and buildings do not
block the bayward flow of sand either. When sand
washes from the beach onto the streets, people would
have to stop returning sand to the beach (or to a
landfills) but instead allow it to remain so that it could
eventually blow into the bay.
129 CCSP, supra note 3, at 54-56.
1 ?n
Frances A. Galgono & Stephen P. Leatherman,
Modes and Patterns of Shoreline Change, in Maurice
L. Schwartz (editor), Encyclopedia of Coastal
Science 651,653 (2005).
1 ^1
Highway departments may also attempt to close
inlets to keep roads along the shore intact.
132 See supra note 118.
133 CCSP, supra note 3, at 71-72
1 "34
E.g., Sea Level Rise and Barrier Islands,
supra note 113, at 63-68. See especially id. Tables 3
and 4.
135 Figure 12, infra § 3.4.2, illustrates these
possibilities.
40
-------
CHAPTER 3
LEGAL APPROACHES FOR CREATING A
ROLLING EASEMENT
Most public policy goals can be accomplished
through regulation or contract.136 When land is
involved, altering the land title is usually the most
effective way to make a contract. Hence, the
objective of ensuring that shores migrate inland
can be accomplished through either regulation or a
property right recorded as an interest in land.
A rolling easement can be either (a) a government
regulation that prohibits shore protection or (b) a
property right to ensure that wetlands, beaches,
barrier islands, or access along the shore moves
inland with the natural retreat of the shore.137 A
rolling easement regulation restricts what
landowners are allowed to do, while a property
right can either restrict a landowner's activities or
authorize someone else to use the property for a
particular purpose. A regulation that prohibits
shore protection would enable wetlands and
beaches to migrate inland; because the public trust
boundary generally follows the shore, public access
derived from the public trust doctrine would
migrate inland as well. Conversely, the right to
ensure that wetlands, beaches, or access along the
shore can migrate inland inherently includes the
legal power to prevent shore protection structures,
which would otherwise stop that migration.
We now examine various ways to create a rolling
easement as a regulation (Section 3.1) or a
recorded interest in land (Section 3.2). We then
examine combinations of rolling easements
(Section 3.3) and combinations of rolling
easements with other land use policies that also
encourage a retreat (Section 3.4).
3.1 REGULATION
3.1.1 Rolling Easement Zoning
and Other Local Regulations
Except in parts of Texas,138 a local government has
zoning authority in every coastal community in the
United States. I3,') Zoning typically involves a map
that divides all land into several categories, called
"zones." The land in a given zone need not be
contiguous, but zoning requirements are uniform
within the zone.140 Common names for zones
include agricultural, residential, rural residential,
commercial, commercial miscellaneous, industrial,
conservation, and open space.141 Localities often
publish large tables that list all the activities that
are prohibited, allowed, or allowed only with a
variance or special permit.142 Zoning may control
densities of development, sizes of lots,143 shapes of
land parcels,144 and particular activities on the
land.145 If an activity is prohibited in all zones, it
may be shown as prohibited in the zoning table, or
simply prohibited by ordinance.
Some localities have overlay zones, which are—in
effect—a second set of maps and requirements.146
For example, a floodplain map with associated
requirements for buildings in the floodplain is a
type of overlay zone. The actual requirements are
the same as if every zone were subdivided into two
zones, floodplain and non-floodplain; but it is
often administratively easier to enact a second set
of requirements than to modify each of the zones.
Courts have occasionally rejected overlay zoning,
41
-------
ROLLING EASEMENTS
in effect requiring localities to explicitly subdivide
each zone to achieve the same result.147 For
generality, we assume that a rolling easement is
added to the regular zoning, rather than as an
overlay district.
Consider a locality that has five zones today: open-
space/conservation (O/S), agricultural (A), rural
estate (RE), residential single family (RS), and
commercial mixed use (CM) (see Figure 8a).
Suppose the locality creates a land use map
defining the existing land use, as shown in Figure
8b: The O/S lands are all owned by either a federal
wildlife refuge or The Land Conservancy (TLC). (In
this primer, TLC is a hypothetical local land trust
that that buys and accepts donations of land and
conservation easements for environmental
purposes.) The CM lands are entirely developed,
with a combination of commercial, high-density
residential and single-family homes that could be
converted to a higher density in the future under
the existing rules. The RS and RE are each partly
developed with residential homes, and partly
agriculture, which is a permitted land use in
residential areas. Let us suppose that the locality
decides that the existing development should be
protected, while the A, O/S, and undeveloped RE
lands should not be protected but instead should
be available for wetland migration. Let us also
suppose that no decision is reached regarding
undeveloped RS lands: On the one hand, it maybe
feasible to require an agreement to allow wetland
migration as a condition for future construction;
but on the other hand, protecting the moderate-
density development is more likely to be cost-
effective than protecting the low-density RE. (Table
1 summarizes these planning assumptions.) Figure
8d maps the three categories of shore protection.
Figure 8c shows a simple rolling easement zoning
scheme, which:
• Splits the RE zone into two zones: rural estate
protect (REP) and rural estate retreat (RER)
based on Figure 8d;
• Splits the RS zone into two zones: residential
single-family protection (RSP) and residential
single-family accommodation (RSA);
• Amends the zoning ordinance to add "shore
protection structures" and "increases in land
elevation grades" to the list of prohibited
activities for zones A, OS, and RER.
If the locality is also interested in preserving access
along shores where protection is allowed, it can
amend the zoning to prohibit shore protection
except where a public pathway is immediately
inland of the shore. The logical result will be that
any landowner who wants a building permit for
shore protection will dedicate a public pathway.
For this report, TLC is a hypothetical
local land trust that buys and accepts
donations of land and conservation
easements for environmental purposes.
The actual zoning scheme may have to be more
complicated to avoid unintended consequences. A
community intending to prevent shore protection
will not usually intend to prohibit waterfowl
impoundment dikes in OS lands. Some re-grading
may be necessary for roadbeds. A levee designed to
prevent flooding along a stream 100 feet above sea
level may look like a dike, but it will not prevent
inland migration of wetlands. Re-grading along
hills may be needed for home construction or farm
drainage.
Two common procedures can help avoid
unintended consequences. First, activities that
sometimes have an approved purpose can be
permitted only with a special exception.148 Second,
all the zones can be divided into a coastal zone and
an inland zone, with the rolling easement
restrictions only applying within the coastal zone.
Some localities already have coastal zones within
their land use zoning ordinances.149 Elsewhere,
state laws have created coastal overlay zones, with
state requirements, which we discuss in the next
section.
42
-------
Legal Approaches for Creating a Rolling Easement
43
-------
ROLLING EASEMENTS
(a) Zoning
(b) Existing Land Use
gh-
Density
High-Density
&
The
Land
Conservancy
National
Wildlife Refuge
Wildlife
Refuge
(c) Revised Zoning
(d) Shore Protection Plan
Re(real
A: Zoning B: Land Use
C: Revised Zoning
D: Shore Protection Plan
¦
Commercial/Hlgh-Density Mixed Use (CM)
Protect
RS-P
Residential Single Family (RS) RS-A
Rural Estate (RE)
Accommodate
RE-P
RE-R
Agriculture (A)
Retreat
Open Space and Conservation (0/S)
Wetlands
Adding R, A, or P to an abbreviation means "retreat," "accommodate" or "protect," respectively
Figure 8. Rolling Easement Zoning. Map a shows the original zoning for an example locality. Map b
shows existing land use (including all approved permits). Map c shows a possible revised zoning map that
incorporates the plan for sea level rise, based on the assumptions in Table 1. In this case, the plan is to
protect all existing development, allow shores to retreat along all O/S and A lands, as well as undeveloped
lands with RE zoning, and to defer the decision on undeveloped lands with residential single-family zoning
(designated "accommodation"). Instead of subdividing the zones as in Map c, the locality could adopt a
shore protection overlay zone in states that permit overlay zoning as shown in Map d.
44
-------
Legal Approaches for Creating a Rolling Easement
Table 1. Example Sea Level Rise Plan for Various Zoning and Land-Use Categories
| Planned Response to Sea Level Rise |
Zoning
Existing Land Use
¦juttm
Shore
Commercial Mixed Use
High-Density
Commercial Mixed Use
Residential
V
Residential Single Family
Residential
V
Residential Single Family
Agriculture
Rural Estate
Residential
Rural Estate
Agriculture
Agriculture
Agriculture
Conservation/Open Space
Conservation/Open
Space
Source: See text.
1. Shore protection could be either shoreline armoring (e.g., dikes and bulkheads) or grade elevation
(including beach nourishment).
2. Accommodation implies neither shore protection nor a specific effort to return lands to nature. It may
imply either deferring the decision whether to protect or retreat, or a conscious policy to allow individual
landowners to decide whether to abandon their property or continue to occupy an increasingly wet
coastal zone. In the latter case, rolling easement zoning may be appropriate.
3. Rolling easement zoning would be appropriate in an area where retreat is planned.
45
-------
ROLLING EASEMENTS
Zoning is not the only form of local land use
regulation. Communities that particulate in the
National Flood Insurance Program have floodplain
regulations.150 Some of these regulations sharply
discourage development in floodplains.151 Many
localities also have wetland regulations designed to
avoid harm to beaches and mudflats, as well as
vegetated wetlands. In Massachusetts, the wetland
protection rules for several towns prohibit both
shore protection structures and grade elevation
within 50 feet of the shore, with the explicit
purpose of ensuring that wetlands and beaches
migrate inland as sea level rises.152 Calvert County,
Maryland has cliff retreat regulations that prohibit
cliff armoring, to preserve the habitat of Tiger
Beetles.153
In Massachusetts, the wetland
protection rules for several towns
prohibit both shore protection
structures and grade elevation within
50 feet of the shore, with the explicit
purpose of ensuring that wetlands and
beaches migrate inland as sea level
rises.
3.1.2 State Coastal Management
Land use is generally a regulatory responsibility of
local government.154 But tidal waters and intertidal
wetlands are both owned155 and regulated by the
states. Therefore, most coastal state governments
have issued regulations concerning construction
along the shore and public access. Some states
regulate development of dry lands near the coast,
in effect creating zoning by the state.156
3.1.2.1 Regulating Shore Protection
Virtually all coastal states regulate shore
protection. The objectives of those regulations
vary widely: Several states (e.g., Oregon, Maine,
North Carolina, South Carolina, and Texas)
sharply restrict new hard shore protection
structures along the ocean shores and within the
dunes, but allow them along estuaries.157 New
Jersey reaches the same result by allowing shore
protection structures as long as they are consistent
with the shore protection master plan,158 which
calls for beach nourishment rather than hard
structures along the developed oceanfront. By
contrast, California explicitly allows shoreline
armoring along the Pacific Ocean to protect
"existing structures".159 Rhode Island and
Massachusetts prohibit additional hard shore
protection structures along both the ocean shore
and some estuarine shores, but allow them along
other estuarine shores.160 Grade elevation and
beach nourishment are allowed in parts of
Massachusetts where shoreline armoring is
prohibited; along most of its marsh shorelines, the
land slopes are high enough for wetland migration
to be minimal even without grade elevation. Maine
and Rhode Island explicitly contemplate ecosystem
migration in their regulations for some areas
where structural shore protection is prohibited.161
Some states (e.g., Maryland and Virginia162) regu-
late shore protection as part of their wetlands
regulatory programs. The jurisdictions of those
programs are generally similar to the jurisdiction
of the federal wetlands regulatory program, which
includes wetlands and other areas flooded by the
tides, but not activities on dry land. The Maryland
wetlands statute has long conferred upon littoral
owners a statutory license for structural shore
protection.163 That statute presumably preempts
the ability of local governments to prohibit shore
protection for which a state permit is issued. But it
does not necessarily prevent shore protection
activities taking place outside the jurisdiction of
the statute.164 Thus, it did not prevent one county
from prohibiting the armoring of cliffs which, in
effect, mandated a policy of retreat.165 In 2008,
Maryland enacted its Living Shoreline Protection
Act, under which the Department of Environment
must create maps that differentiate the type of
shore protection allowed.166 In some areas, hard
structures such as revetments continue to be
allowed, while in other areas only nonstructural
measures are allowed, such as living shorelines
and beach nourishment.
46
-------
Legal Approaches for Creating a Rolling Easement
The Texas Open Beaches Act prohibits private
shore protection structures1® as part of its rules
designed to enhance public access to beaches along
the Gulf of Mexico.168 As we discuss in the next
section, Texas has consciously pursued a rolling
easement policy for decades. But the Open Beaches
Act does not prohibit all shore protection. Adding
sand to the beach stabilizes the shore but retains
an open beach. Regulations that implement the act
explicitly recognize approved beach nourishment
projects16® and allow certain small-scale projects.170
3.1.2.2 Public Access and the Removal of
Structures from the Beach
States can ensure that public access migrates
inland either by preventing new construction and
requiring removal of old structures that impair
access, or by amending state law so that it is clear
that public access migrates inland regardless of
how the public access was obtained.171 States often
are engaged in a debate about whether homes
should be abandoned when storms leave them
seaward of the dunes. A common request from
homeowners is permission to temporarily place
geotextile sand bags in front of their homes, until
the government rebuilds the beach, the beach
recovers naturally, or the home is destroyed by a
severe storm or continuing erosion (see Photo 21).
State agencies generally decide whether to grant
such permits.172
Texas is unique in its efforts to preserve public
access along eroding shores. The Texas Open
Beaches Act173 codifies the rolling easement as part
of its rules designed to ensure that the public has
unfettered access to the dry sand beaches along the
Gulf of Mexico.174 Since before statehood, people
walked, rode stage coaches pulled by horses,175 or
drove automobiles over dry sand beaches as if they
were public lands. Texans commonly assumed that
those beaches were owned by the public,176 but in
1958 the Texas Supreme Court held that the
boundary between private and public land177 is the
mean high tide line,178 which is seaward of all the
dry sand beaches and regularly overwashed by
waves. 179 Some owners began building fences
across the dry sand beach, which alarmed the
public.180
Shortly thereafter, the Texas Legislature enacted
the Open Beaches Act.181 The act prohibits fences
or any structure seaward of the dune vegetation
line in those beaches where "the public has
acquired a right of use or easement to or over the
area by prescription, dedication, or estoppel, or
has retained a right by virtue of continuous right in
the public since time immemorial as recognized by
law or custom."182 Courts have found that the
widespread use of the beaches for transportation
and recreation created a public easement to the
dry sand beach in most populated locations.183
Enforcement of the Open Beaches Act eventually
led to the recognition of a rolling easement along
parts of the Texas Gulf Coast.'8-1 The act allows the
state to require removal of structures originally
built landward of the vegetation line once that line
migrates inland of the structure.185 It authorizes
the General Land Office (GLO) to order removal of
any structure that interferes with public use of the
beach or threatens health and safety.186 If the
Photo 21. Geotextile sand bags along the beach in
Nags Head, North Carolina. Although the homes
were on pilings, the geotextile sandbags were needed
to protect the septic tanks. (June 2003). [Photo source:
©James G. Titus, used by permission].
47
-------
ROLLING EASEMENTS
vegetation line migrates inland of a pre-existing
structure (see Photos 22 and 23), then the GLO
sends a notification to the owner that the structure
is subject to an order to remove. Homes are rarely
removed because of such orders, but the absence of
shore protection makes removal by storms
inevitable along the hurricane-prone Gulf Coast as
shores continue to erode. The decision to seek
removal is discretionary18? and is sometimes based
on whether the home significantly blocks public
access188 (e.g., the home is in the middle of the
drivable part of the beach). The statute also gives
the GLO the ability to suspend this order for two
years if storm erosion leaves a house seaward of
the vegetation line, provided that the house is less
than 50 percent destroyed, still on private property
(i.e., landward of the mean high tide line), and not
a threat to health and safety.189 Administrative
rules allow property owners to reclaim as much as
30 feet of the beach by rebuilding dunes after a
storm.190
Although the Open Beaches Act does not use the
term "rolling easement," court opinions
interpreting the act's provisions have held that
there is a rolling easement along some (but not all)
of the coast. A trial court in Galveston originally
used the term in 1964 to describe the seaward
migration of public access along an accreting beach
near a jetty at the entrance to Galveston Bay.191 In
1986, the Texas Court of Appeals endorsed the
state's rolling easement theory that the public's
access along a privately owned beach migrates
inland as the beach retreats.192 For the next 25
years, courts and litigants generally assumed that
the rolling easement applies to all beaches in Texas
with public access.:1® But in 2010, the Texas
Supreme Court held in Severance v. Patterson that
the act does not necessarily create a rolling
easement along the dry beach on West Galveston
Island, or other places where the access has been
obtained by means other than the public trust
doctrine!94 If the vegetation line retreats suddenly
during a storm (i.e., avulsion), then public access
does not retreat-* If the vegetation line retreats
gradually, then public access migrates inland
within a given parcel,196 but it does not migrate
onto the next property back from the shore.197 The
court left open the possibility that the state could
order removal of homes on the beach for
traditional health and safety reasons.198
3.1.2.3 Public Access along Armored Shores
If seawalls and other hard shore protection
structures are unavoidable, a rolling easement can
still be designed to preserve public access along the
shore. Whenever a state issues a permit for a shore
t,
Photos 22 and 23. Two Views of House Encroaching
Seaward of the Vegetation Line along the Texas Gulf
Coast. Surfside, Texas (May 2003). The beach was the
primary means of access. Although these homes were
subject to removal orders, the state did riot actively seek
removal. The homes were destroyed by Hurricane Ike in
2008. Photo source: ©James G. Titus, used by
permission.
48
-------
Legal Approaches for Creating a Rolling Easement
protection structure, it can require as a condition
the dedication of a public path just inland of the
new structure. New Jersey follows this approach,
requiring public paths to be constructed along the
waterfront inland of new bulkheads and
revetments in some locations.199 In Texas, the
Legislature has specifically provided for access to
be preserved inland of a few seawalls by defining
the vegetation line (seaward of which the public
has access) as being landward of the seawalls.200
(See Photo 24.) As we discuss in Chapter 2, a few
other states have policies to prevent private shore
protection structures from eliminating public
access,201 and Maryland takes the position that
shoreline armoring does not eliminate the right to
walk along the shore (although public access may
require walking on a stone revetment).202
3.2 INTERESTS IN LAND
Any land use that can be encouraged or prohibited
by a government regulation can also be managed
by an agreement between the landowner and those
who wish to promote or prevent the same activity.
One way to effectuate such an agreement is
Photo 24. Public access inland of a seawall on
Padre Island, Texas. The beach in front of this
seawall is closed to motor vehicle traffic, and
sometimes even pedestrian access is impractical
because of shore erosion, as shown in Photos 16-17.
Therefore, the state requires public access inland of
the seawall (March 2004). [Photo source: ©James G.
Titus, used by permission].
through a contract in which the owrner promises
TLC (our hypothetical land trust) that she will
comply with the conditions of a rolling easement.
Yet contracts are between people (or corporations),
so a contractual agreement to allow wetlands to
migrate inland would bind the current owner of
the land, but not necessarily subsequent owners.203
If the goal is to prevent the current and all future
owners of the land from holding back the rising
sea, then one must change the title to the property
itself, which is recorded at the local land records
office. Rather than signing a contract to not erect
shore protection structures, for example, the
owner transfers to TLC the property right204 to
erect shore protection structures on the land.
In this primer we use the term "recorded rolling
easement" to refer to any property interest
designed to ensure that shorelines are able to
migrate inland. We refer to the owner of this
property right as the "rolling easement holder."
For some types of rolling easements, the holder
must be a government agency or a qualified land
trust; for other types of rolling easements, the
holder could also be a private citizen or a for-profit
corporation. Depending on the particular type of
rolling easement being discussed, a landowner
may sell, donate, or bequeath a rolling easement to
any eligible holder. Government agencies may also
obtain some types of rolling easements through
eminent domain or as a condition for a permit to
develop land (also known as an "exaction").
The term "recorded rolling
easement" refers to any property
interest designed to ensure that
shorelines are able to migrate
inland as sea level rises.
The law of property offers many different ways for
the owner of a parcel of land to transfer some of
her ownership rights to someone else. Many of
those approaches can create a rolling easement.
Even though the end result is largely the same,
rolling easements can emphasize the absence of
shore protection, migration of the property line, or
49
-------
ROLLING EASEMENTS
preserving access along the shore. This section
divides rolling easements into three categories that
roughly track those three ways of thinking about a
rolling easement:
• Section 3.2.1—Easements, Conservation Ease-
ments, and Covenants. The owner is precluded
from interfering with natural shoreline
migration. As a result, the wetlands or beach
along which the public has access will retreat;
and the boundary line between public and
private property will also retreat. If the land is
elevated (surreptitiously, inadvertently, or
through natural forces), then the submergence
and transfer of title will be delayed. (By
"transfer of title," we mean change in
ownership.)
• Section 3.2.2—Defeasible Estates and Future
Interests in Land. A parcel that is currently (for
example) one meter above mean high water will
be transferred from the existing owner to TLC
when sea level rises one meter. Erecting shore
protection structures or elevating the grade of
the land will not delay the day when ownership
is transferred. TLC can later restore the land to
what its natural condition would have been, or
allow the sea to reclaim it over time.
Anticipating the eventual transfer of the land as
sea level rises, many owners will choose not to
invest in shore protection. The inland boundary
of public access migrates inland as the land is
allowed to submerge.
• Section 3.2.3—Ambulatory Boundaries. As the
shore retreats, boundaries migrate. The owner
is precluded from interfering with the public
access right along the beach. Therefore, no
shore protection structures are built, and
structures that interfere with public access are
removed. The beach, the area along which the
public has access, and the boundary between
private and public property all migrate inland.
Activities that elevate land grades are allowed.
Those options have seen widespread application in
other contexts, but not to address sea level rise.
Given the large number of possible mechanisms,
Section 3.2.4 provides a summary table of our
discussion.
3.2.1 Easements, Conservation
Easements, and Covenants
The law of property has long had two different
mechanisms for neighboring landowners to
formally agree to change how one parcel of land
may be used to benefit the owner of another parcel
of land: easements and covenants. During the 20th
century, legislatures created a special type of
easement known as a "conservation easement."
Easements and covenants both involve agreements
recorded in a land deed that allow one owner
either to use the property of another ("The owner
of parcel A may walk across parcel B") or to
prevent a specific use ("The owner of parcel B will
not erect a building that casts a shadow over the
garden on parcel A during the summer"). But the
law has separate rules for easements and
covenants regarding who can make the agreement,
what the agreement can require, and the
circumstances under which a court can refuse to
enforce the agreement.
As a general rule:
• Easements can enable any individual,
organization, or government agency to secure
private or public access along the shore;
• Conservation easements enable a government
or land trust to prevent shore protection; and
• Covenants enable neighboring landowners and
developers to prevent shore protection. 2°s
We discuss each of these options in turn.
3.2.1.1 What is an Easement?
An easement is a property interest that enables
someone other than the owner of the land to use
the land in a specified way, such as walking or
driving across it, running a power line or water line
over it, or draining water from one's own land.206 If
someone needs to change the contours of her own
land (perhaps for a roadway near the property
line) she may find it convenient to also change the
contours of a neighbor's land, in which case she
may wish to obtain a grading easement from the
owner. If someone wants her property to drain, she
50
-------
Legal Approaches for Creating a Rolling Easement
might obtain a flowage or drainage easement207
entitling her to dig a drainage ditch across a
neighbor's land. Easements that give one person
the right to do something on someone else's land
are known as "affirmative easements."208 Courts
have traditionally allowed owners and other
parties to create a diverse array of affirmative
easements, because ensuring the right of one party
to do something on someone else's property
facilitates commerce.
Easements that give one person the right to
prevent the owner from doing something on her
own land are known as "negative easements."209
Because restrictions of land use were thought to
impair commerce,210 courts traditionally voided
negative easements other than those for light, air,
view,211 lateral support, and drainage212—especially
when they did not directly benefit an adjacent
property.213 (Extremely noxious uses of land could
be stopped as a nuisance.214) During the middle of
the 20th century, there was not always a legally
reliable way for a private landowner to permanent-
ly forgo development or other activities harmful to
the environment.215
3.2.1.2 Rolling Easements as Conservation
Easements
State legislatures responded by enacting statutes
that specifically authorize conservation easements
(as well as other special-purpose negative
easements such as scenic easements and historic
preservation easements).216 Although there is some
variation, these statutes217 generally:
• Allow creation of easements in which the
landowner agrees to avoid specific activities that
might be harmful to the environment;
• Require the conservation purpose for the
restriction to be clearly stated;
• Allow the easements to be temporary or
permanent;218 and
• Limit the ownership of conservation easements
to government agencies and nonprofit
conservation organizations.
A rolling easement can be structured as a
conservation easement with a relatively modest
restriction, such as prohibiting shore protection
structures and/or activities that increase the
elevation of the land surface. Where such
easements are obtained, the public or land trust is
assured that wetlands or beaches can migrate
inland as sea level rises, while the landowner is
assured of the continued enjoyment of her
property until the sea reclaims it. Therefore, in
theory, developers and even some owners of
existing homes may be willing to transfer a rolling
easement for a modest price or as a condition of
obtaining a permit for an important near-term
activity. (For further elaboration on the economics,
see Table 4 on page 108.) This primer uses the
term "shoreline migration conservation easement"
to refer to a rolling easement implemented as a
conservation easement, that is, a conservation
easement that prohibits shore protection but that
otherwise does not restrict the use of dry land.219
3.2.1.3 Covenants: An Approach Available
to Developers and Ordinary Citizens
Landowners may wish to preserve natural
shorelines in neighborhoods where neither conser-
vation organizations nor government agencies are
willing to own and manage conservation
easements. For example, landowners with deep
lots along an estuarine beach may prefer to
tolerate a gradual loss of land rather than spend
tens of thousands of dollars on a revetment that
would also destroy their beach—but only if each
can be assured that her neighbors will not build
revetments either.220 Or a developer may conclude
that such a neighborhood will be best served if
none of the owners are allowed to erect shore
protection. But conservation easements are not an
option because only land trusts and governments
are allowed to own them.
Covenants that run with the land are a common
way to bind landowners by a set of restrictions
with reciprocal advantage to all.221 (A "covenant" is
a contract; "ran with the land" means that the
terms are written into the land deed and bind each
successive owner.) Unlike conservation easements,
51
-------
ROLLING EASEMENTS
which must have a conservation purpose, almost
any reasonable restriction could be required by a
covenant. So a covenant can prohibit shore
protection for navigation222 or even to ensure that
the second row of homes eventually has waterfront
property.
The term "shoreline migration
conservation easement" refers to
a rolling easement implemented
as a conservation easement,
which prohibits shore protection
but otherwise does not restrict
use of the dry land.
Covenants are often divided into two categories:
legal covenants and equitable covenants (also
known as equitable servitudes). This distinction
dates back to before the American Revolution,
when England had two independent court systems
known as "Law" and "Equity."223 As a general rule,
law courts award monetary damages for violating
a covenant,224 while equity courts can order
enforcement of its requirements. 225 Law and
Equity courts also set different criteria for when a
covenant runs with the land. 226 The two court
systems have been merged in all but two coastal
states, but two sets of rules remain.22?
An equitable covenant can be created if a developer
writes a restriction that prohibits shore protection
onto the deeds of all land sold within a subdivision.
Alternatively, neighbors may agree to such a
restriction and record it at the local land records
office.228 In either event, if one of the landowners
or her heirs starts to engage in shore protection,
the other neighbors can go to court to enforce the
agreement with an order to restore the land to its
original condition. As a general rule, however,
courts decline to provide such "equitable relief' if
doing so is inequitable—for example, when the
enforcement does great harm to one party
compared with the benefit to the other party.229 If
the loss of a home harms the homeowner more
than it benefits her neighbors, the traditional
approach of balancing equities will lead a court to
not enforce the rolling easement. On the other
hand, if the owner purchased the land at a
discount, other owners have already given up their
homes to the sea, or vacant land to which the
house can be moved is available, the same court
may view enforcement as equitable.
A legal covenant, by contrast, is generally enforced
regardless of such subjective assessments. Because
the remedy is monetary damages rather than a
court order to dismantle the shore protection, a
legal remedy is often not as effective at achieving
the objective, unless the damages are great enough
to motivate compliance.230 Moreover, a legal
covenant is not always as easy to create as an
equitable covenant. In the case of a developer
placing a restriction on a deed, a legal covenant
would be created. But a simple agreement among
neighbors generally does not create a legal
covenant because legal covenants must be created
through the sale of real property.231 One way to
avoid that problem is for the owners to mutually
convey easements (which qualify as real property)
to walk along the privately owned shoreline within
(for example) 3 feet above mean high water, when
the covenant is created.232
3.2.2 Defeasible Estates and
Future Interests in Land
A completely different way to ensure that eco-
systems and public access migrate inland is for
land ownership to terminate when something
happens. Homeowners usually own land in fee
simple absolute, which means that ownership lasts
forever. An alternative approach is to split the land
title into two periods of time: If a parcel is 4 feet
above spring high water, for example, the buyer
could own the land until the sea rises 4 feet, after
which ownership would be transferred to TLC.
Under such an arrangement, the buyer owns a
defeasible estate while TLC owns a future interest.
Other parcels with different elevations could
transfer when the sea reaches different heights.233
(See Figure 9.)
52
-------
Legal Approaches for Creating a Rolling Easement
53
-------
ROLLING EASEMENTS
N
0
R T H
E R N F 0
R
E
S
T
:
|
8-1
7
Northern
F
a
r m
3
5.3
5 4.9
4.8
4.7
i 1.1 '-MRNI
4.3
4.2
5.1
6.1
03 1
ii ij-.—»_s_pj
r t
j l-
|
3.9
> ,
4
3-9 3.6
3.4
3.2
3
| o,'
5.1
I
!
< |
2.9
4.5
|o!
I
1
1
> 1
4.4
|
!-!
|
2.9
3.4
m 1
2.6
2.7
-" " a
1
2
2.5
2 1
2.4
m
2.1
2,3
Cj> L
Vn « Si-"- ¦
j ;
i I ®.<'-
¦ ]
>
[ 1 ¦ 4
" " P » J -e '
3.4
4.4
LA
4.1
4.2 43
4.4
4.5
4.8
5
-1
73
BACK
BAY
5.2
6.2
11
Z
r i
1
— T
r
9
-n
1 3.8 1 4
' 4.2
1
4,9 1
52 1
5.5 1 6
i H !
>
•- ~ ' r "
1
I i
30
1 2.2 ' 2.6
1 23 ' 3 1 -3:5
3.7
4
4.1 , 4.3
4.5
4.8 i
5 |
6 i
1 f-4 1
1.
i
i"1 ; =u r — ~
. ^ _
-1_
+-
1-
— -i—
r
-1 pH
H a-:s i
1 2.2 I 2.5
1 2.5 1 2.7 1 3.5
f 1 il
4.5
4.5
4.5 1 4.5
|
' 5
I
5.5 1
6 1
1
7 1 8
;l
! 4J
i
i " r17
1.9
1 2.1 ! 2.3
1 | |
I 2.3 ( 2.5 , 3
3.3
3.5
T~ —
4 1 5
i L_
1 6
X
6.5 1
7.5 1
~ 1 "
8 1 9
1 _
1 r Ą
1 t -J
1 u 1.5
1.7
1 lj 1 2
1 2.1 1 2.3 1 2.7
3
3
i
3.5 | 4.5
, 5
j
6 |
7 ,
'I
8 | 8
5
1 \ '
1 j
1 1 1
MB — j- — ~| — ~"j
- - -
j + - -
J- ^
H
-f-
- -h
—H —
1 Ml I 1.2 1
HV ;
1.5
1 1.7 1 1.8
1 2 1 2.3 1 2.5
( La.
2.7
2.8
3 1 3.5
1
1 4
1
!
4.5 1
5 1
6 1
;i
1 1 j
. 0.9 T 1 1.2 .
1.3
| 1,5 i 17
1 1..I
1 2 , 2.3 , 2.5
2.7
3.6
3.8 1 4
4.5
!
5 1
6 )
7 |
l| 1
6.1 LiDAR Grid Cells
h h-
J_ I
i
-. L
l 1J
1 09 1 1 1 1
1.3
1 1.4 ' 1.5
' 2 1 2.2 ' 2.3
2.5
3.6
3.8 , 4
4.5
i
5 .
5.5 !
6 j
• I w
2.2 Parcel Boundary
1 0.9 1 1 1 1.1 1
1.2
1 1.3 ' 1.4
1 1.9 ' 2.1 2.2
2.5
3.5
t |
3.7 | 3.8
4
5 j
5.5 |
- t -
5.5 j
L. _ -IB _ J. ^
jSoythern
F
a
r m
1H Hn
i
I
¦1
1 1
Tidal Wetlands
or Open Water
0.9
0.9 I 1.2
1.4
|
1.4 |
1.6 1
1
m i .2.3,.
\ 1
i
L
Elevations in feet
s
0
U T H
E R N F 0
R
E
s
T
1 fl
Figure 9. Example Scheme Showing Possibility of Reverter Based on Elevations for Two Large
Parcels. In this example, the owner of the farm to the north has been working with a developer on a
specific subdivision proposal. As lots are sold, the owner will retain a possibility of reverter, which she
will transfer to The Land Conservancy. The reversion will be based on a different amount of sea level
rise for each parcel, as shown in the platted lots. The owner of the farm to the south does not plan to
sell during her lifetime, but she has agreed to sell a rolling easement in land for her farm as well.
Without any specific subdivision plan, the southern farmer and TLC have agreed to base the reversion
on elevations estimated by LIDAR. Thirty-meter grid cells are each assigned an elevation, based on the
average of the three lowest 10-meter cells within the 30-meter cell. If the land is never subdivided, the
transfer will take place cell by cell. If the farmer's children eventually subdivide the property, their
developer will have to tailor lot boundaries and site plans to ensure that homes are entirely located
within the part of a lot that reverts last. Alternatively, the children may propose another reversion
scheme similar to that shown for the northern farm, which The Land Conservancy can accept if it is
more beneficial to the environment than the LIDAR-based reversion shown here.
54
-------
Legal Approaches for Creating a Rolling Easement
The eventuality of the land transferring to TLC
would tend to ensure that ecosystems and access
along the shore migrate inland, for at least two
reasons. First, at about the time when a
homeowner would otherwise have to engage in
shore protection to prevent wetlands or the beach
from migrating onto her land, the future interest
will transfer ownership to an organization whose
mission includes ensuring natural shoreline
migration. Second, the prospect of the land
reverting to TLC limits any incentive to build shore
protection, because the owner will lose the land
anyway.234
The common law of property defined several ways
of dividing land ownership into a defeasible estate
and a future interest in land. This section examines
three:
• Buyer owns a fee simple determinable for an
unknown period of time (e.g., until sea level
rises 4 feet), after which title reverts back to the
developer, who retains the possibility of
reverter.
• Buyer owns a fee simple subject to a condition
subsequent unless she does something (e.g.,
erects shore protection) that triggers a power of
termination, at which point the developer can
go to court to demand possession of the land.
• Original owner retains a fee simple subject to a
condition subsequent by transferring to TLC an
executory interest entitling it to take over the
property when something happens (e.g., sea
level rises 4 feet).
Possibility of Reverter. Consider a deed that says
that the developer is granting the land to the buyer
"for as long as it takes sea level to rise 4 feet above
the level that prevailed in the 1980-2001 tidal
epoch." The buyer owns a "fee simple
determinable," which is a type of "defeasible
estate"; that is, an interest in land that may end at
some point in the future.235 The developer retains a
"possibility of reverter" because the property will
revert to the developer if and when sea level rises 4
feet. The developer can sell or donate the
possibility of reverter to TLC or a government
agency, in which case the property will revert to
that entity whenever the sea rises 4 feet. (If some
or all of the land is seaward of the public/private
boundary by that time, ownership will have
already been transferred to the state; and thus will
not be transferred to TLC).
Retaining a possibility of reverter has been
common in the case of land provided for
railroads.236 Owners of farms and other large
parcels were often more willing (i.e., willing at a
lower price) to allow a railroad through their lands
than to sell the land, which could leave the
eventual use unknown and beyond their control.
The railroads preferred to purchase a fee simple
determinable at a lower price because they had no
need for the land beyond operation of the railroad.
Similarly, landowners who wanted to see a church
or school nearby often conveyed land "for as long
as" the church or school operated.237 Conveying
land "for so long as" the sea does not rise enough
to submerge it is analogous to that classic land use
arrangement. A would-be land seller concerned
about the implications of rising sea level may be
more willing to sell if the home will be removed as
the sea threatens it, than if the home will be
protected at the expense of the environment.238
The buyer may prefer a fee simple determinable at
a lower price because she is not interested in
paying extra for the right to maintain a home
below sea level.
Providing for land titles to transfer upon a specific
event has several advantages over a shoreline
migration conservation easement:
• TLC, as the holder of the future interest, does
not have to monitor possible efforts by
landowners to extend their tenure by
surreptitiously adding fill or otherwise
thwarting inland migration of the ecosystem,
because the property reverts regardless. (The
owners can try to extend their tenure by
assisting efforts to slow sea level rise, but doing
so would not interfere with the environmental
purpose of a rolling easement.239)
55
-------
ROLLING EASEMENTS
• TLC does not have a duty to manage the
property, which can be costly for a conservation
easement. (See Chapter 8.) There is no risk that
failure to manage the easement before sea level
rises 4 feet will be deemed an abandonment of
the easement. TLC simply takes over the land
when the time comes (if the land has not
already reverted to the state). But TLC does
have the option of intervening if the landowner
does something that unreasonably threatens its
interest in the land.240
• Under the common law, anyone may own a
possibility of reverter. A community
organization or even the owner of the next
home back may hold the interest—unlike a
conservation easement, which must be owned
by a government agency or a qualified
conservation organization. (Some states have
enacted statutes limiting ownership to charities
or government agencies.)
• Although future sea level rise is uncertain, over
the short ran it is often more predictable than
shoreline erosion.241 Therefore, in the final
decade or so before the property reverts to TLC,
the landowner can plan and invest with a
reasonable understanding of the property's
remaining longevity.242
• Financial mechanisms are likely to eventually
make it possible to hedge against the risk of sea
level rise, adding further predictability to the
risks faced by a homeowner whose title
transfers upon a given sea level.243
• If buyer resistance unreasonably depresses the
value of land subject to a rolling easement, a
possibility of reverter can be drafted to ensure
(for example) that the reversion does not occur
before 75 years hence, without fundamentally
changing its character. Such a time limit may be
more difficult to accomplish with a conservation
easement.244
The most important drawback to the possibility of
reverter is that statutes in some states now limit its
duration to a few decades,245 which is too short for
ensuring that wetlands migrate inland as sea level
rises.
A reversion can be based on shoreline erosion
instead of sea level rise. Along sandy beaches,
elevation alone usually understates how soon the
land will be converted to tidelands and open water.
Thus, a possibility of reverter based on sea level
rise may transfer the land to TLC decades after the
owner erects shore protection. Conversely, if the
shore erodes more slowly than expected, the home
may still be well inland and usable when the future
interest awards the land to TLC.
Power of Termination. Another approach is for the
land to change hands based on what the landowner
does, instead of environmental factors. Whatever
activity can be precluded by a shoreline migration
conservation easement can also be the activity that
triggers a reversion. For example, the property can
revert if the owner undertakes shore protection
without permission of TLC, and fails to remove it
upon TLC's request. The deed can be drafted to say
"...but if the grantee or her heirs construct a
bulkhead, revetment, or any hard shore protection
structure, or deliberately elevate the average
elevation grade of the parcel, then the grantor and
her heirs shall have the power of termination." The
buyer will own a "fee simple subject to a condition"
while the seller retains the "power of termination"
(sometimes called a "right of re-entry").246 The
owner will have a strong incentive to avoid shore
protection: With a shoreline migration easement,
if the owner erects a shore protection structure,
TLC can go to court to seek removal of the
structure and monetary damages to cover the costs
for challenging the violation. But with a power of
termination, TLC can ask the court to award the
property to TLC. Removal of the shore protection
structure and management of the property would
then become the responsibility of TLC.
The Difference between Possibility of Reverter
and Power of Termination. The key difference
between our two example deeds is that the first
deed conveys land for an unknown duration (until
the sea rises 4 feet), while the second deed
transfers the land back to the seller if the buyer
does something (in this case, attempt shore
protection). Courts have generally been suspicious
56
-------
Legal Approaches for Creating a Rolling Easement
of punitive arrangements that cause land to be
forfeited. 247 But they have also distinguished
forfeitures from the natural termination of an
ownership interest when its purpose has been
fulfilled.248 Conveying an estate for the needed
duration (e.g., the life of a railroad), has been
viewed more favorably by courts than
arrangements under which land might be forfeited
for doing something (e.g., selling liquor-
especially where the harm done was far less than
the value of the land being forfeited. 249 The
common law treated the power of termination as a
forfeiture, while the possibility of reverter was
simply a natural expiration.250 During the 20th
century, the concern about punitive forfeitures led
both courts and legislatures in some states to
restrict the ability of property owners to create and
enforce both of these approaches (although
governments and charities are sometimes
exempt).251 In some cases the two approaches have
been merged into a single legal interest.252 Thus to
avoid the possible appearance of a forfeiture,
rolling easements based on future interests in land
should be drafted to distinguish the reversion to
nature intended by the rolling easement, from the
potentially punitive or arbitrary forfeiture that has
traditionally concerned the courts.
Land trusts regularly use conservation
easements, 253 but not future interests in land.254
Under most circumstances, a conservation
easement with a power of termination clause
would seem punitive. Owners who donate or sell
typical conservation easements (or buy property
with an easement already in place) intend to keep
their land and do not generally wish to take the
chance of losing the property due to a possible
disagreement over cutting trees or enlarging a
house. But rolling easements are different: the
entire point is to ensure that the land is given over
to the migrating wetlands and beaches. A transfer
of title from a rolling easement would not be an
unreasonable forfeiture for violating a condition
but rather a fulfillment of the original intent of the
grant.255
Efforts at shore protection signal that the time to
allow the land to revert to nature has arrived. An
owner willing to promise to not prevent the sea
from taking over her land would logically agree
that if her heirs did try to prevent the sea from
taking over the land, then the land would be
awarded to an entity that will ensure that the sea
takes over the land. Courts sometimes avoid a
forfeiture by ordering the owner to do what the
condition requires (e.g., stop selling liquor).256 But
in this case, removing the shore protection causes
the same result as forfeiting the property. The land
becomes submerged, reverts to nature, and
becomes part of the public trust whether it is first
transferred to TLC or a court simply issues an
injunction against the shore protection.
Executory Interest. Rolling easements based on a
possibility of reverter or power of termination are
future interests in land that the original owner
(e.g., the developer) retains when granting the
(less than absolute) fee simple interest to new
owners (e.g., home buyers). Those future interests
can then be sold or donated to a land trust or
government agency. In some cases, the opposite
transaction may be desired. Suppose the developer
cancels the development and sells the entire parcel
to a new owner; and the new owner later wants to
transfer a rolling easement in which she retains the
land until the sea rises 4 feet, after which title goes
to TLC. The net effect is the same as if the
developer had retained a possibility of reverter and
donated it to TLC.257 But in this case, the future
interest does not revert to a previous owner, so it is
called an "executory interest."258
Summary. Table 2 summarizes the defeasible
estates and future interests in land discussed in
this section. As a general rule, courts have been
more inclined to enforce a possibility of reverter
than either a power of termination or an executory
interest.259 It is often possible to create a possibility
of reverter that accomplishes the goals of a power
of termination or executory interest.260 Thus, for
the rest of this primer, wherever we discuss future
interests, we focus on a possibility of reverter
rather than the other two approaches.
57
-------
ROLLING EASEMENTS
3.2.3 Ambulatory Boundaries
In the previous two subsections we have
considered conservation easements that prevent
shoreline armoring and future interests in land
that transfer ownership parcel by parcel. Here we
explore the option of property owners making
agreements to create "ambulatory boundaries,"
that is, boundaries that migrate with a shifting
shore. We have already seen that the boundaries
for both ownership and public access resulting
from the public trust doctrine are ambulatory
(Section 2.2.2), and that for two decades people
assumed that public access acquired by other
means along the beach in Texas is also ambulatory
(Section 3.1.2).
Table 2. Summary of Future Interests In Land Discussed in this Report
¦
Future Interests and Defeasible Estates Discussed In This Section |
Land Trust
Owns
Homebuyer
Owns
Forfeiture or
Termination?
Violates Rule
Against
Perpetuities?1
Example Conveyance
Possibility of
Reverter
Fee Simple
Determinable
Natural
Termination
No
Buyer keeps land until sea rises 4 feet,
then land reverts to TLC.2
Power of
Termination
Fee Simple
Subject to a
Condition
Forfeiture
No
Buyer keeps land unless her heirs build
shore protection, then TLC goes to court to
gain possession.2
Executory
Interest
Fee Simple
Subject to a
Condition
Natural
Termination
Yes
Owner keeps land until sea rises 4 feet,
then land goes to TLC.3
Executory
Interest
Fee Simple
Subject to a
Condition
Forfeiture
Yes
Buyer keeps land unless her heirs build
shore protection, then TLC goes to court to
gain possession.4
Other Interests Provided for Context |
N/A
Fee Simple
Absolute
N/A
No
The entire estate forever.
Reversion
Estate for
Years
Natural
Termination
No
Buyer owns land for 12 years, then land
goes to TLC.5
Remainder
Life Estate
Natural
Termination
No
Buyer owns land for life; land goes to TLC
upon her death.
Notes
1. See Section 4.2.2 for a discussion of the Rule Against Perpetuities.
2. Assumes that developer transfers the future interest to TLC after selling the fee simple to homebuyer.
3. Assumes that owner donates executory interest to TLC.
4. Assumes that developer sells fee simple to homebuyer and transferred executory interest to TLC at the same time.
5. Section 9.2 discusses why TLC and the landowner might agree to replace a conservation easement or possibility of
reverter with a reversion after an estate for years, once submergence appears to be about a decade away.
58
-------
Legal Approaches for Creating a Rolling Easement
We now look at the possibility of voluntary
agreements or changes in the law to accomplish
the same thing for public beach access (outside of
Texas), roads and other infrastructure, wetland
migration, and water-dependent land uses. Our
discussion of this option is shorter than the other
approaches because there is less case law directly
on point.
Public Beach Access. Affirmative easements
generally do not migrate within a parcel, and an
easement sold by the owner of one parcel does not
burden land owned by other people. As we show in
Chapter 2, access along the shore resulting from
the public trust doctrine does migrate with shifting
shores even when previously inland parcels
become waterfront; but in most states, the access
along the dry beach is not based on the public trust
doctrine and probably does not migrate inland.261
For a time, Texas courts held that public access
obtained through other means also migrated as
shores erode, but that rule was eventually limited
to gradual erosion within a parcel.262 The cases
rejecting the rolling easement theory have not
indicated that a rolling easement cannot exist, but
simply that it had not been acquired. 263
In a new community with public beach access, the
developer could dedicate a rolling affirmative
easement on the dry beach (instead of the more
common public beach with fixed boundaries),
before the parcel is subdivided. The deed
conveying the beach access could say that the
easement migrates with the vegetation line, or
extends a fixed distance (e.g., 200 feet) inland of
the mean high tide line and migrates as the mean
high tide line migrates. For this rolling easement to
be effective, it would have to either be dedicated to
the public before the other parcels are sold, or
explicitly reserved in the deed conveying individual
parcels, or both. In existing communities that
either lack public beach access or have a non-
rolling beach access, a government agency could
acquire a rolling beach easement through eminent
domain, a purchase from willing sellers, or an
exaction in return for building permits or beach
nourishment projects.264 Easements for access
always include, by implication, the right to prevent
the landowner from erecting structures that defeat
the easement,1265 so such an easement would also
provide a property right to prevent shoreline
armoring266 (or at least to travel along the shore
inland of any armoring that is erected267). To
ensure removal of pre-existing homes, the
easement could be drafted to make clear that
structures will be removed if they block access,
similar to a policy that Texas has sometimes
followed.268
Roads and Other Infrastructure. The potential
impact of sea level rise on roads along the beach is
similar to the impact on public beach access
obtained by means other than the public trust
doctrine. Erosion of the public roadbed does not
automatically entitle the government to rebuild the
road farther inland on private property, any more
than beach erosion would entitle the public to
sunbathe farther inland along those beaches.
Courts have declined to find that a roadway had a
rolling easement in cases where a rolling easement
was not explicitly in the conveyance, while
implying that the roadway could have been a
rolling easement had that been the clear intent?6^
So in a new or redeveloping community, if a
developer (or planning department) wants to
ensure that the roadway can be relocated inland,
then the initial dedication of the public roadway
easement should clearly specify that it is a rolling
easement which migrates inland as the shore
erodes, whether slowly or by avulsion. Instead of
defining the rolling boundary of public access as
the vegetation line, this approach places the rolling
boundary far enough inland from the vegetation
line for a road as well.
As with rolling affirmative easements along a
beach, a rolling easement for road access is more
difficult to obtain in an existing community. There
are many more landowners, and the land typically
has been developed without buyers expecting that
the road will be relocated landward. Nevertheless,
obtaining such easements may be feasible if beach
erosion is not likely to threaten the road for several
decades, especially if existing development is set
59
-------
ROLLING EASEMENTS
back from the street so that relocating the road
would not immediately require moving houses.
One possible complication with a rolling roadway
easement is how to handle the unpredictable
fluctuations in the shoreline. Public access along a
dry beach can respond instantaneously to
shoreline migration, but roads and other
infrastructure are fixed assets. The rolling
boundary probably would have to be a significant
distance inland from the dune line, for at least two
reasons.
• The seaward edge of the rebuilt road would
need to be somewhat inland from the dunes, so
that the road need not be rebuilt every few years
as the shore erodes.
• The landward edge of the rebuilt road would
need to be somewhat seaward of the public
access boundary, so that a modest temporary
advance of the shore into the sea (by accretion
or avulsion) would not leave the rebuilt road
landward of the boundary when it moves
seaward.
Other precautions may be necessary to address
possible accretions or avulsions of new land. The
easement conveyance could make it clear that the
government may only pave roads seaward of the
rolling boundary, but that the public also has
access to any roadway originally built within the
public easement, even if the boundary later
migrates seaward of the road. Dune maintenance
can move the vegetation line seaward even if the
beach itself does not accrete. To prevent such
activities from requiring an eventual seaward
relocation of the roadway, the easement could
include all land that is either, for example, within
100 feet from the vegetation line or within 300 feet
from the mean high water line.
Other infrastructure along shorelines can also be
dedicated with rolling easements, such as bicycle
trails, sidewalks, and public utilities, as well as
private driveways and utility connections.
Rolling Boundaries between Landowners. Instead
of an easement, it may sometimes be advantageous
for the actual property line to migrate inland. A
governmental entity may be certain that it will
have a variety of public uses for a parcel along the
water, but not be able to articulate all of those
needs in a proposed easement. Or a private owner
who intends to operate a waterfront facility in an
area with a retreat policy may need some
assurance that the business can continue as the
shore erodes. In such cases, a developer can
convey a parcel in fee simple with a boundary that
is, for example, 300 feet inland of the mean high
tide line, and clearly state that the landward
boundary migrates with the mean high tide line.
Subsequent purchasers of inland parcels within the
development would be subject to this rolling
boundary. For most practical purposes, their risk
of eventual relocation would be the same as the
risk of anyone who buys land in a development
subject to a rolling easement, except that the
inland migration of the rolling waterfront
business—rather than the wetlands or beach-
would provide the immediate impetus for
relocation.270
Similarly, a fringing marsh that is currently 200
feet wide, for example, can be preserved if a
landowner conveys to TLC all land within 200 feet
inland of the mean low water mark, specifying that
the boundary migrates as the low water mark
migrates. Some of that land will be below mean
high water and hence (in most states) publicly
owned. But if some of this land is also high marsh
(above mean high water and privately owned), the
rolling boundary will ensure that these wetlands
remain within the ownership of TLC. Moreover, if
a shore protection structure or fill project prevents
the wetlands from migrating inland as the mean
low water boundary retreats, the inland boundary
of the TLC lands will migrate onto dry land, even
though the fill will prevent the mean high tide line
(and hence the public trust land) from migrating
inland. TLC could then restore the land to its
natural elevation and/or remove the structures.
As with a recorded rolling easement, the
ambulatory boundary of any purchased
conservation lands can only migrate as far as the
60
-------
Legal Approaches for Creating a Rolling Easement
inland boundary of the parcel whose owner
conveyed this tract, because owners can only
convey what they own.
Public Trust Doctrine and other Legal Doctrines.
A landowner or government agency may go to
court and ask for an easement or a property line to
be adjusted inland, or for a shore-protection
structure to be removed, on the grounds that the
rolling easement is already part of the common
law.27' Such a holding is beyond the power of state
and local governments, conservancies, and citizens
to necessarily achieve. But the possibility that this
will happen is part of the context of any rolling
easement policy. The common law sometimes does
evolve to address new situations. In Texas, the
state government originally persuaded courts to
recognize that public easements along the shore
are "shifting and rolling easements" based on the
state's common law, not the Texas Open Beaches
Act.272 Florida courts have also implied that
easements may roll under limited circumstances,
based on the common law.273
In Washington State, a Native American tribe
persuaded a court that there is a rolling easement
along shores where the United States owns the
tidal lands in trust for the tribe. The court balanced
the interests of the property owners on the
landward and seaward sides of mean high water,
and suggested that the right to shore protection of
the upland owners is limited by the interests of the
tribe in the landward migration of the tidelands.274
Although the laws of different states have many
similarities, there are also differences in how
littoral property rights have evolved.
The public trust doctrine has occasionally been
construed as limiting the property rights of
landowners who obtain public trust lands, if the
sovereign's intent was ambiguous when the land
was transferred.2^ Hence it is possible that in
some states this doctrine would be construed as
implying that when the state land office (or King)
granted the land to the original owner, the
government did not vest the owners with a
property right to hold back the sea, which would
have thwarted the intent of the original decision to
retain the tidelands in trust for the public. The
reason that governments, land trusts, or citizens
may want to consider recorded rolling easements
to preserve wetlands and beaches is not that
property owners otherwise have a right to hold
back the sea, but rather that (a) there is legal
uncertainty about this question, which a rolling
easement can resolve, and (b) whether there is a
property right or not, (i) land trusts, individuals,
and governments without regulatory authority can
prevent shore protection by obtaining rolling
easements, and (ii) even agencies with regulatory
authority may find the necessary community
consensus easier to achieve with a rolling
easement than through regulation.
Statutes and State Constitutions. Property rights
are a matter of state law. While state courts
generally determine what property rights are, state
legislatures can adjust property rights as needed
unless precluded by the state constitution, in
which case the state constitution can be
amended.276 For example, a statute or state
constitutional amendment could amend a state's
public trust doctrine to provide public access to the
dune vegetation line however it may retreat.
Legislatures are generally reluctant to alter
property rights because doing so might require
paying "just compensation" to the affected
property owners.277 Nevertheless, legislatures have
consciously altered property rights in states that
limited the longevity of future interests in land,278
and federal legislation authorizes conversion of
abandoned rail lines to multi-use trails even where
land is supposed to revert when the railroad stops
operating.279 The potential near-term costs of
compensating landowners would have to be
weighed against the long-term costs of the
alternative policies (e.g. shore protection or
hazard-mitigation buyouts).
3.2.4 Summary of Rolling Property
Interests
Table 3 summarizes the recorded rolling easement
options examined in this primer. The most
appropriate option depends largely on the
61
-------
ROLLING EASEMENTS
objectives of the rolling easement and whether a
government, land trust, neighbor, or developer is
attempting to ensure that ecosystems or access
migrate inland. Nevertheless, in most cases, more
than one option is available that could serve the
purpose. As the final column shows, however, none
of the options can be guaranteed to achieve the
objective under all circumstances. As we discuss in
the next section, combinations of rolling
easements may be more reliable than a single
option. Careful drafting, study of the law in a given
state, and management of the easement once it is
created can all increase the likelihood of success.
3.3 COMBINATIONS OF ROLLING
EASEMENTS
No legal approach is completely reliable, so often a
few approaches operate in tandem to ensure that
the goal is obtained. Conservation easements
sometimes include a clause that transfers the
easement from one land trust to another if the
original land trust fails to properly enforce the
easement.280 Sometimes conservation easements
are acquired in lands that cannot be intensely
developed under existing zoning. Possible reasons
include:
• The cost of purchasing an easement tends to be
less in areas where development is not expected
(e.g., more landowners are willing to donate
easements);
• Low-density zoning sometimes results from a
community process that recognizes the same
environmental or preservation reasons to
refrain from development that motivate
conservancies to seek an easement; or
• Transferable development rights programs may
provide someone with the right to build
additional units in a developed area in return
for permanently refraining from developing a
low-density area, with conservation easements
being a common mechanism to ensure that an
area is permanently preserved.281
Even though the conservation easements preserve
lands that would remain undeveloped anyway
through zoning, the easements provide a longer
term guarantee compared with zoning, which often
changes in response to increased market demand.
Conversely, lands with conservation easements can
be zoned for agriculture, conservation, or open
space. Usually the easements do not encompass all
the land in an area because some owners choose
not to transfer their property rights. If a large
portion of the land is already subject to
conservation easements, however, localities are
often reluctant to allow intensive development
within the inholdings. Subdivisions in the middle
of an agricultural area can have adverse effects on
farming.282 Concentrating development within
growth corridors decreases the cost of providing
water, sewer, roads, and other services; and the
owners have less of a reasonable expectation of
being able to subdivide and develop their land in
areas where development of other land has been
prevented, than along the fringes of existing
development.
These general principles would also apply to
rolling easements. We briefly discuss five
combinations: rolling easement zoning of land that
is already subject to recorded rolling easements;
rolling easement zoning of land subject to federal
or state regulations that discourage shore
protection; recorded rolling easements on land
already subject to restrictive zoning; covenants on
subdivided parcels of land where a developer has
already conveyed a rolling easement on the entire
development; and a combination of a conservation
easement with a possibility of reverter.
3.3.1 Rolling Easement Zoning of
Land Already Subject to Recorded
Rolling Easement.
Even if title to all of the property in an area is
restricted with a rolling easement, rolling
easement zoning can be useful. A private
conservancy may need help enforcing the rolling
easement; and local residents who see activity
inconsistent with an eventual retreat may be more
likely to contact their local government than
complain to a land trust. Legal challenges to con-
62
-------
Legal Approaches for Creating a Rolling Easement
Table 3. Sur
nmary of Re
•V/IiM*] Pr
corded Rolling Easement Options
Type of
Purpose
[interest |
[objective |
|caveat |
Shoreline
migration
conservation
easement
Government or
land trust
Conservation
or recreation
Prohibit shore protection. May
also have provisions for
removing homes.
May be costly to
enforce unless
carefully drafted.
Legal
covenant
Developer,
maybe a
neighbor
Any
Prohibit shore protection or
provide for access to migrate
inland. But court cannot enforce
the agreement; only awards
provable damages for failure to
comply.
Strict rules for when
covenant can be
created known as
"privity." Damages
only.
Equitable
covenant
(equitable
servitude)
Developer,
maybe a
neighbor
Any
Prohibit shore protection or
ensure that access migrates
inland.
Easier to create than
legal covenant, but
court may decide not
to enforce if harm to
owner is greater than
benefit to neighbor.
Future
interest in
land1
Anyone
Limit duration
of land
ownership
Terminate ownership when sea
rises or shore retreats enough
to submerge parcel.
Abolished in some
states. Careful
drafting needed to
show purpose.
Rolling
affirmative
easement
Neighbor or
state
Any
Access along the shore
migrates inland; remove
structures that block access
Must be clear about
intention to migrate
inland.
Rolling
boundary
Neighbor
Any
Boundary between landowners
migrates with shore; preserve
width of road or conservation
buffer.
Few examples other
than for public trust
lands.
action abate
nuisance or
quiet title in
court
Neighbor or
state
Abate
nuisance or
enforce a
right
Private owner asks court to
prevent shore protection or
allow access along shore based
on common law.
Requires a court to
make new law, which
courts usually decline.
Rolling
conservation
easement2
Government or
land trust
Conservation
or recreation
Amend existing conservation
easements to also prohibit
shore protection.
May be costly to
enforce unless
carefully drafted.
Transferable
development
rights3
Government
Any
Compensate owner who yields
land to rising sea, with right to
develop new coastal lot.
Difficult to define
where to transfer the
development.
Notes
1. Table 2 on page 58 lists several
2. Discussed in Section 3.3.
3. Discussed in Section 3.4.
different types of future interests.
63
-------
ROLLING EASEMENTS
servation easements and future interests in land
sometimes succeed,283 in which case zoning can
provide a legal backstop.
One way to combine rolling easement zoning with
recorded rolling easements would be for the local
government to identify lands whose titles are
subject to a rolling easement, and create a new
retreat zone which would be subject to rolling
restrictions. Alternatively, if a significant portion
of all lands in an area have recorded rolling
easements, it may be appropriate for zoning to
restrict shore protection in the entire area.
Otherwise, as sea level rises, the shore could
become a patchwork with some land protected and
other land submerged.
This combined approach is not yet possible, both
because little if any coastal land is subject to
recorded rolling easements. We mention this
option here because the potential for rolling
easement zoning might be relevant when
conservancies and governments consider recorded
rolling easements.
A related option that may be practical sooner
would be rolling easement zoning of lands already
subject to conservation easements (which do not
necessarily roll).284 A new zone could be created by
identifying low-lying areas where most lands have
conservation easements, and adding a retreat
overlay zone (or adding additional zones to reflect
a retreat as shown in Figure 8 on page 31). Such an
approach would probably be more practical for
jurisdictions where new conservation easements
roll, than in areas where shore protection is so
valued by landowners that a waiver of the right to
shore protection would be a deterrent to providing
a conservation easement.285
3.3.2 Rolling Easement Zoning of
Land Subject to Federal and State
Regulations that Discourage
Shore Protection
Another example where rolling easement zoning
would be particularly easy to justify would be lands
where state or federal regulations already prohibit
or discourage shore protection. Calvert County,
Maryland's cliff retreat regulations,286 for example,
prohibit cliff protection in areas where shore
protection would threaten an endangered species
protected by federal law. State regulations
sometimes prohibit structural shore protection;
zoning the adjacent lands for retreat could help to
ensure that development is consistent with the
existing state requirements. Similarly,
development in existing nontidal wetlands is
generally discouraged by federal wetland
protection programs. Nevertheless, these areas are
sometimes developed. Given the government
interest in wetlands, subjecting nontidal wetlands
to a rolling easement would be a compromise
between prohibiting development and allowing
development with shore protection.287
3.3.3 Recorded Rolling Easements
on Dry Land with Restrictive
Zoning
If existing laws prohibit shore protection (or at
least shoreline armoring), then landowners have a
reduced expectation of a right to hold back the sea
and will tend to be more willing to restrict their
titles with a rolling easement than in areas where
shore protection is not restricted. Therefore the
willingness of landowners to transfer a rolling
easement should be greater there than in areas
where the right to hold back the sea is established.
Yet an eventual relaxation of government
regulations is possible;288 so recording a rolling
easement can add additional certainty to the
eventual shoreline migration.
Another near-term opportunity would be to obtain
rolling easements on land where development is
prohibited or restricted to very low densities. Low-
density zoning such as Maryland's Critical Areas
Act makes purchase of rolling easements relatively
feasible because the cost of protecting 20 acres of
farmland with a single home may be high
compared with the alternative of farmland
gradually converting to marsh. 289 Yet as long as
64
-------
Legal Approaches for Creating a Rolling Easement
shore protection is allowed, there is some risk that
it will occur.
3.3.4 Covenants along with
Conservation Easements or
Possibility of Reverter
If a developer retains a recorded rolling easement
on a parcel and then transfers the easement to a
land trust or government agency, the rolling
easement holder will be able to enforce the
restrictions. By adding covenants with similar
restrictions to the deeds of each parcel when the
land is sold, members of the community will also
have a right to enforce the terms. Like other
combinations, this approach creates a legal
backstop in case the land trust is unable to enforce
the rolling easement. This approach can make
negotiations more complicated if, for example, a
land trust and a property owner agree to modify
the requirements.290 On the other hand, engaging a
community in the negotiations can ultimately
increase community acceptance of the policy.
3.3.5 Conservation Easements
along with a Possibility of
Reverter
Shoreline migration conservation easements and
possibilities of reverter have different benefits and
risks. The trend in state law to restrict the
possibility of reverter—if continued—could
invalidate that type of rolling easement. Failure to
properly enforce a conservation easement may
enable a future owner to assert that the interest
has been abandoned. The hostility of courts to
forfeitures might lead a court of equity to refuse to
order the removal of a home under a conservation
easement even if the terms of the easement
provide for such a removal. If shorelines erode
more rapidly than expected, a possibility of
reverter based on sea level might not transfer title
until after an owner erects shore protection.
Subjecting a given parcel to both a conservation
easement and a possibility of reverter would be
more likely to achieve the particular conservation
goal than either of these instalments by itself. In
some cases, the tax consequences depend on the
order in which these two transactions take place,
in which case transferring the conservation
easement before creating a possibility of reverter
would be less vulnerable to having the tax
deduction disallowed.291
3.4 COMBINATION WITH OTHER
COASTAL POLICIES
Although rolling easement policies are narrowly
tailored to ensure a natural migration of
shorelines, other mechanisms are more commonly
implemented to foster retreat. Moreover, a policy
originally implemented for other reasons can
become either a de facto retreat policy or at least a
significant incentive for retreat. Here we consider
policies that prevent or limit coastal development;
transferable development rights with a focus on
migrating barrier islands; and cluster
developments.
3.4.1 Setbacks and Other Limits
on Development
Regulations and conservation easements that
prevent or limit coastal development make future
shore protection less likely in some places by
discouraging investment that would otherwise
make shore protection cost-effective. Although
public officials generally do not expect shore
protection in these areas,292 protection is still
possible. Rolling easements that explicitly prevent
shore protection may be generally acceptable to
landowners there, who do not expect to engage in
shore protection anyway.
3.4.1.1 Rolling Easements on Land with
Regulatory Limits on Development
Erosion-based setbacks for new development are
required in several coastal states.293 For example,
new construction may have to be located inland
from the dune vegetation line a distance of at least
40 times the annual erosion rate. These policies
clearly contemplate that shores will erode for the
65
-------
ROLLING EASEMENTS
next few decades, but they leave open the question
of whether homes will be removed or shores
protected once the erosion buffer is consumed.
Rolling easements can resolve that uncertainty in
favor of a gradual retreat.2'14
Fixed setbacks, size restrictions, and density
restrictions. Several states limit development near
the shore. In most undeveloped areas, Maryland
limits construction to one home in 20 acres295
within 1,000 feet of the tidal wetlands—and
prohibits most construction within 200 feet of the
shore.296 Elsewhere, the state prohibits construction
within 100 feet of the shore.297 North Carolina
limits the size of new buildings immediately along
the coast to 5000 square feet.298 Many other states
have fixed setbacks.299
Density and size restrictions do not necessarily
create the same expectation as erosion-based
setbacks that property will be abandoned to the
sea. But they can decrease the economic
justification for shore protection, making it more
economically feasible to purchase recorded rolling
easements or more politically feasible to adopt
rolling easement regulations.
Fixed setbacks are often enacted to create an
undeveloped buffer between development and
tidal wetlands or open waters00 The setbacks also
tend to delay the need to choose between shore
protection and loss of waterfront homes. Although
shoreline erosion reduces the size of the buffer,
losing the buffer may still be preferable to shore
protection, which eliminates wetlands seaward of
the buffer. Placing a rolling easement on the buffer
itself would often be relatively straightforward. A
rolling easement on development inland of the
buffer may also be practicable if, for example, the
buffer is likely to take a century or so to erode. The
effect would be similar to a rolling easement with a
"safety valve,"301 with a long-term retreat but no
home threatened until the buffer is submerged.
Subdivision with deep shorefront lots and a
setback. In areas where the land has a steep slope,
it may be possible to subdivide land so that part of
each parcel will survive a few centuries even with a
high sea level rise scenario. Such a subdivision can
ensure that ecosystems are able to migrate inland,
especially if combined with a setback policy.
Adding a rolling easement to such lands has no
immediate impact on land use, but decreases the
risk that the owner will eventually erect a shore
protection structure to protect her backyard.
Shorefront parks can have an impact similar to a
setback. The main difference is that with a setback,
the waterfront owner pays for the land that is
placed off-limits to development, while the public
pays when there is a waterfront park. Unless the
park has boundaries well inland of any conceivable
future shoreline, a rolling easement on the land
inland of the park will be needed to ensure that
ecosystems and public access migrate inland after
the sea consumes the parkland.
With all these policies, one caution is in order:
Governments generally should avoid purchasing
rolling easements by eminent domain in
combination with regulations that reduce the value
of an easement. If a court concludes that the
government has issued a regulation that reduces
property values as part of an effort to take the land
through eminent domain, it will either invalidate
the regulation or award the owner the fair-market
value of the land before the regulation.302 Thus it
would not be advisable for a government to
purchase a rolling easement shortly after issuing a
rolling easement regulation. (An independent
purchase by a private land trust would not face this
constraint.) Conversely, if a government takes a
rolling easement as part of an activity that
enhances land values (e.g. beach nourishment), a
court will generally consider both the reduced land
value from taking the easement and the increased
value from the associated project.303
3.4.1.2 Rolling Conservation Easements
Conservation easements currently prevent some
owners from developing coastal lands. Many of
these lands are farms. The farmer agrees not to
subdivide the property for development but
continues to farm, with a specific limitation on the
amount of residential structures that can be built
66
-------
Legal Approaches for Creating a Rolling Easement
on the property. As with regulatory restrictions on
development, conservation easements make shore
protection less likely. But conservation easements
do not necessarily prohibit shore protection. In
some cases they explicitly allow shore protection
structures, 304 dikes, 305 and drainage, 306 often
because the model easement promoted by state
agencies previously encouraged such language.307
Rolling conservation easements are traditional
conservation easements with both immediate
conservation benefits and a provision ensuring
that ecosystems migrate inland, generally by
prohibiting shore protection.308 To ensure that
ecosystems can eventually migrate onto lands
preserved by new conservation easements, some
states have modified their standard conservation
easement model language to explicitly prevent3'0''
(or at least be silent about) shore protection.310
Therefore, an increasing proportion of new
conservation easements in the coastal zone are
likely to be rolling conservation easements.
Several approaches can ensure that wetlands and
beaches can migrate onto dry land that is currently
subject to non-rolling conservation easements:
• The landowner and easement holder agree to an
amendment that converts the conservation
easement to a rolling conservation easement by
striking provisions that allow shore protection,
and adding the same restrictions as would be
found in a shoreline migration easement.
• The landowner transfers a shoreline migration
easement (or possibility of reverter) to the
holder of the existing conservation easement.
• The landowner transfers a shoreline migration
easement (or possibility of reverter) to an
organization other than the land trust that holds
the existing conservation easement.
The first option appears to be the most
straightforward, especially in states where the
model language for new easements implies a
rolling conservation easement. But modifying
easements can sometimes be problematic.311
3.4.2 Transferable Development
Rights
To avoid or reduce the adverse economic impact
on a landowner from sharply restricting
development, some localities have adopted
transferable development rights (TDR) policies.312
In their simplest forms, these policies divide a
jurisdiction into a sending area (where
development is discouraged) and a receiving area
(where development is encouraged).313 The receiving
area is zoned for relatively high-density development,
while the sending area is zoned for agriculture and
very low-density housing, e.g., l home per 10 acres.
Under traditional zoning, landowners in the 10-
acre zoning area have often complained that the
zoning harmed them economically relative to
owners in the high-density area,314 and that the
eventual 10-acre home lots did not preserve
agricultural land as intended. Under a TDR policy,
owners would be compensated for the
downzoning, for example, with development rights
to build 10 housing units in the receiving area
(beyond what the zoning allows) for every 10 acres
of land placed off-limits to development.315
Provided that there is demand for additional units
in the receiving area,316 most owners would prefer
to sell their development rights rather than build
one home on 10 acres.
TDR policies can be used to decrease the hazards
from sea level rise by designating a coastal retreat
zone as the sending area:
• A locality may decide to concentrate coastal
growth in a coastal protection zone while
discouraging it in a coastal retreat zone.317 In
that case, the retreat zone would be a sending
area and the protection zone would be the
receiving area for transferable development
rights. The greater density in the receiving area
would also improve the economics of shore
protection there.
• A locality may decide to discourage
development in the coastal retreat zone but
attempt to channel it inland rather than into a
coastal protection zone.
67
-------
ROLLING EASEMENTS
In the ordinary TDR scheme, the land in the
sending area where development is foregone
remains undeveloped. In a coastal TDR scheme,
however, the sending area may already have some
development; and the policy could be designed to
prevent additional investment that would make
shore protection more likely. For example, a
barrier island with moderate-density small
cottages may be in the midst of a conversion to
high-end housing. A TDR scheme could provide
transferable development rights in return for
placing the property under a rolling easement and
avoiding any increases in the building footprint (or
usable floor area). Another possibility is for owners
to exchange rolling easements for a transferable
development rights that will not take effect until
their homes are lost to the rising sea. On a
migrating barrier island, the receiving area could
be the bay side of the island, so that the
development right effectuates the relocation of
oceanfront residents.
3.4.3 State Management of Public
Trust Lands to Facilitate Barrier
Island Migration
Barrier island towns that wish to relocate inland
with the landward migration of the island itself
would need cooperation of the state government,
which owns the lands beneath the tidal waters.
Unlike the typical TDR scheme, the receiving area
would be lands that are—at least initially—publicly
owned. Here we consider two rolling easement
approaches for migrating barrier islands:
• Replacement of land lost on the ocean side with
similar parcels of newly created land on the bay
side; and
• Transfer of development rights so that the
landward migration gradually replaces low-to-
moderate-density development on the ocean
side with a combination of high-density
development and open space on newly created
bayside lands.
While rolling easements along an eroding shore
would involve restrictions of shore protection or
grading, facilitating the landward migration of a
barrier island would involve conversion of shallow
waters or wetlands into developable dry land. In
many states, environmental regulations prevent or
discourage the filling of navigable waters.318 The
purpose of those rules was historically to halt the
previous practice of converting large portions of
back barrier bays into development, not to prevent
a gradual landward migration of barrier islands.
Nevertheless, existing rules do not have an
exception for barrier island migration; so they
currently prevent it. The environmental
implications of creating new land on the bay side
would depend on opportunities to mitigate other
environmental stressors,319 whether the bay is wide
or narrow, and whether the bay will also migrate
onto the mainland.320
The question whether landward migration of
barrier islands would be better or worse for the
environment than the alternatives is beyond the
scope of this report. Instead, we attempt to
describe a few ways that such a migration could be
organized, so that the desirability of a landward
migration can be better evaluated.
Parcel-by-Parcel. Under Roman Law, if "the
violence of the stream sweeps away a parcel of
your land and carries it down to the land of your
neighbor, it clearly remains yours...."321 Although
courts have never extended that principle to the
case where a hurricane washes a parcel from the
ocean to the bay side of an island, the same
framework could apply to barrier islands. Rolling
easements could facilitate the landward migration
of a barrier island in ways similar to the retreating
shores we have already examined—except that they
must address the advancing bay shore, as well as
the retreating ocean shore. The mechanics of an
advancing bay shore would in some ways be the
mirror image of the rolling easement along the
ocean shore.
68
-------
Legal Approaches for Creating a Rolling Easement
I
l
_ L
B2
j
l
A2 I C1
I
I
1
1
i
B1
A1
c
B
A
E2
r 1
LL
CM
Q
E1
D1
F
E
D
H2
G)
ro
c_
L J
H1
r
G1
L
J
H
G
Back Barrier Bay
Figure 10. Sketch of Parcel Boundaries for Hypothetical Rolling Easement Arrangement on a
Migrating Barrier Island. Under the traditional common law of property, if the state wanted to
facilitate landward migration, it could sell the owners of parcel A a future interest in the currently
submerged parcel A1 that transfers ownership (for example) when 75% of parcel A is seaward of the
dune vegetation line and parcel A has been transferred to the state; and a future interest in parcel A2
that similarly transfers as parcel A1 is eroded and transfers to the state.
To illustrate how rolling easements might facilitate
landward migration of a barrier island, we start
with a possible approach under standard property
law for a newly developed barrier island. Figure 10
shows hypothetical parcels, with solid lines
showing proposed subdivision lots and dashed
lines showing possible future lots if the island
migrates inland. One approach is to structure
rolling easements as a possibility of reverter, in
which the reversion is based on shoreline erosion,
as discussed in section 3.2.2. The chief difference
is that, in addition to parcel A reverting from the
buyer to the state as the shore erodes, the buyer
would also receive a future interest in parcel Ai
that vests when parcel A is submerged. To address
the eventual loss of lot Ai as well, the interest in
Ai could terminate as the shore erodes, and the
buyer would also receive a future interest in parcel
A2, which (i) would vest after both A and Ai have
submerged and (ii) terminate as the shore erodes,
and so on. Alternatively, the buyer might receive
(i) parcel A in fee simple absolute subject to a
shoreline migration conservation easement, which
prevents shore protection, (ii) a future interest in
parcel Ai that vests when parcel A is submerged,
which would also be subject to a shoreline
migration easement, and so on. In a state where
future interests are no longer feasible, the owner
might initially purchase all of the parcels
(A, Al, As,...) in fee simple, with conservation
easements that prohibit (i) shore protection along
the ocean, (ii) occupancy of more than one parcel,
and (iii) filling that makes the island wider than a
specified width.
With a newly developed (or redeveloped) barrier
island, buyers would have notice that the nature of
their homes will change over time. Bayfront home
C will eventually lose its water access when lot Ai
becomes developed, but once lot B is vacated in
favor of lot Bi, C will be along the ocean. In
existing towns, by contrast, those who inhabit the
69
-------
ROLLING EASEMENTS
bay sides of barrier islands have no reason to
expect the considerable disruption that could occur
from creating developable lots between their
homes and the bay. Because these barrier islands
were not developed with the expectation of a
landward migration, property law (rather than
deeds drafted by a developer and state land office)
would govern who owns any newly created land.
Most state courts follow the traditional common
law rule and treat lands filled by the state as an
avulsion, which awards land to the state. 322 But
several state courts view it as an artificial
accretion, partly because it is unfair for the state to
deprive a littoral landowner of her waterfront
access. 323
If the state owns the newly created land, it could
sell the land to the highest bidder or transfer
parcels to those who lose land on the ocean side,
possibly at a reduced cost (see Figure 11). In effect,
the rolling easement would provide new land on
the bay side to offset land lost on the ocean side.
One challenge for this approach would be that the
previous bayfront owner would lose the waterfront
benefits of her property. While generally harmful
to bayfront interests, it would be particularly
harmful to marinas, yacht clubs, parks, harbor
facilities, and conservation lands324 that depend on
bayfront access. If the land is sold at fair market
value, those facilities could buy the new waterfront
land and sell some of their old land. But this option
might not be affordable to community
organizations. Relocating harbors can be costly.
Moreover, the new bayfront land that the facilities
would have to buy would command a higher price
than the formerly bayfront land that they would
sell. In effect, the premium associated with
waterfront property would shift to the newly
created land. The problem of shifting waterfront
premiums could be avoided if the state swapped
the new bayfront land for what had been bayfront
land, and transferred the former bayside land to
the displaced oceanside owners.
If the newly created land is owned by the bayfront
owner, the loss of bayfront ownership will not be
an issue. The bayfront owner could sell the newly
created lot to someone else, such as the former
oceanfront owner (Figure 11c), possibly retaining
an easement for access to the water (Figure nd), or
move her house to the new bayside lot and sell (or
rent) the former bayfront lot to someone else
(Figure lie). Without modification, such a policy
could leave the bayfront owner in possession of the
entire width of the island from ocean to bay once
the ocean shore eroded up to today's bayfront
parcel. Even if the bayfront owner subdivided the
newly created land, the economic effect of barrier
island migration would be to award the land to the
bayfront owner. The apparent inequity of
effectively giving the entire migrating island to the
bayfront owners could lead states to condemn the
rights to any artificially accreted lands before
reclaiming land from the bay.
As an alternative, the bayfront owners could
negotiate an arrangement with the state in which
the oceanward boundary of the bayfront owner's
land becomes ambulatory, so that once a new
bayfront lot is created, the bayfront owner takes
title to that lot—but yields the pre-existing lot,
which would become available to the state,
possibly to transfer to the ocean front owner losing
her lot to beach erosion. Such an approach would
protect the bayfront owner's access—but owners
with waterfront views who do not own property
immediately along the water might feel they were
losing near-access to the bay. Another problem is
that this approach would involve repeatedly
moving bayfront facilities 50-100 feet bayward
every time an oceanfront lot was lost to the ocean
and a new bayside lot created.
70
-------
Legal Approaches for Creating a Rolling Easement
(a) Initial case
(b) Island becomes narrower
(c) Avulsion: New land on bay side awarded to the state
(d) Avulsion: New land awarded to state but littoral right protected
\Y
(e) Accretion: New land on bay side awarded to the bay side landowner
Figure 11. Four Options for the Fates of the Oceanfront and Bayfront Homes on a
Developed Barrier Island if Shore Protection along the Ocean Becomes Economically or
Environmentally Unacceptable. The initial case (a) shows the cross section of a developed
barrier island. If sea level rises, (b) some barrier islands become narrower as the ocean side
erodes and the bay side becomes submerged. An alternative is to create a new bayside parcel
to replace the parcel lost on the ocean side. In most jurisdictions, state courts would award this
newly created lot to the state under the doctrine of avulsion. The state could (c) provide the new
lot to the owner of the oceanfront lot. In some states, the original bayfront owner would still
have the right to bay access (d), which in this case could mean continuing to have a dock with a
boat. Alternatively, the state could award the newly created bayfront lot to the original bayfront
owner (e) in return for the formerly bayside lot, which could be provided to the original
oceanfront owners.
71
-------
ROLLING EASEMENTS
Larger-Scale Reclamation. Less frequent but
larger-scale land reclamation would allow greater
flexibility to achieve community goals. Rather than
moving homes piecemeal as small areas of bay are
filled, it may be more cost-effective to create an
entire city block bayward of existing development,
and allow people inhabiting the existing bayside
block of land to move their homes bayward to the
new block to maintain their pre-existing distance
to the bay. In addition to largely preserving
existing waterfront access and views, shorefront
facilities would only have to be relocated every
time a block of land eroded, rather than every time
a parcel of land eroded.
Alternatively, larger scale reclamation along with a
TDR policy can encourage a more sustainable
redevelopment, for example, by replacing existing
low-to-moderate-density housing with a
combination of high-density development and
open space or conservation lands. Figure 12 shows
three examples of how transferable development
rights could facilitate the landward migration of a
developed barrier island. Under natural
circumstances, many barrier islands would narrow
as they migrated inland. In Figure 12b, the creation
of new bayside land is less than half the land lost to
oceanside erosion. The new land is thus developed
more densely. In this example, the original bayside
park's boundaries also migrate landward, but leave
less residential land between the park and the
ocean than before. Another alternative is to open
new conservation-oriented parks on some of the
newly created bayside land, and leave the original
park's oceanward boundary where it had been
(Figure 12c).
A final possibility is to use transferable
development rights to return (for example) half of
the island to nature. In Figure i2d, new bayside
lands are created on the eastern half of the island,
but very little new land is created on the western
half (and that land is wetlands similar to what
might have been created naturally had human
activities not disabled the overwash process). All
new development takes place on the eastern half of
the island. A gradual depopulation takes place on
the western half of the island, with no new
development. As the shore erodes, eventually there
will be no homes along the western end of the
island; so that end of the island could be returned
to nature. Possibly an inlet will eventually separate
the undeveloped west end from the developed east
end. Similarly, transferable development rights
could facilitate shifting all development on one
island to an adjacent island. Such a redevelopment
scheme could increase the amount of natural
barrier island habitat, reduce the amount of ocean
shoreline requiring costly shore protection, and
increase the economic feasibility of protecting the
island to which the development is transferred.
3.4.4 Cluster Development
Cluster development is a common way to preserve
open space, albeit on a much smaller scale than
transferable development rights. Rather than
convert a parcel to a subdivision with uniform
density, a developer sets aside a portion of the land
for a permanent park or preserve, while developing
the rest of the parcel at a higher density. 325
Sometimes condominium apartment buildings,
townhouses, or row houses are built on land that
would otherwise have free-standing single-family
homes, so that the development occupies a small
fraction of the parcel. If the parcel is large enough,
a cluster development can leave substantial land
vacant for wetland migration—provided that a
rolling easement is placed on the land that remains
vacant as a result of the cluster. (See Figure 13.)
72
-------
Legal Approaches for Creating a Rolling Easement
a. Initial Condition
Back Bay
Ocean
b. Island Narrows: Bay shore advances less than ocean shore erodes
Back Bay
Ocean
c. More Open Space: Half of new land retained by state public trust.
Back Bay
Ocean
d. Smart Growth: Return one end to nature, higher density elsewhere
——- Back Bay
.
•••••••• ¦
^ ¦ ¦ ¦ • . .
. Ą t . . • , , , .... . . ,
— . • . .
' .. ¦
« ¦¦ " ¦¦**¦¦¦¦„.¦ MM ¦ •* J
• * ¦ • . • . . \ • " ......
Ocean
Legend
Existing Residential Unit
New or Relocated Residential Unit
Single-Unit Commercial
t 1 Multi-Unit Commercial orCommunity
Parks and Conservation
Figure 12. Options for Changing Land Use on a Retreating Barrier Island. The large buildings
depicted in blue provide a reference for how far north the island migrates, (a) shows the existing
land use pattern. One possibility is (b) increased density and creating less bayside land than the
area lost to oceanside erosion, because under natural conditions, most barrier islands would
narrow. If the original area is maintained (c), additional parks and conservation land could be
created. Finally, (d) one portion of the barrier island could be entirely left to natural processes with
no new construction or shore protection, as displaced owners move to the other end, which
becomes more densely populated.
73
-------
ROLLING EASEMENTS
Now
Cluster
Development
Residential
Zoning
Legend
Future
Shore protection for homes
Shore Protection
Rolling Easement
Residential Unit
Shore Protection Line
Road within Subdivision
Tidal Wetlands
Open Water
Previous Shoreline
Figure 13. Cluster development increases the feasibility of rolling easements. With a cluster
development, no homes will be lost as sea level rises, and wetlands will be able to migrate inland
along most of the shore, especially if the undeveloped portion of the development has a rolling
easement. With residential zoning, shore protection also means that no homes will be lost, but most
of the wetlands will be lost. A rolling easement with residential zoning will allow more wetland
migration than the cluster development, but many homes will be lost.
74
-------
Legal Approaches for Creating a Rolling Easement
NOTES AND REFERENCES
136 Unilateral voluntary measures motivated by
altruism, environmental ethics, religion, or the desire to
be a good citizen are important, but they are outside the
scope of this handbook.
137 See CCSP, supra note 3, at 248 (glossary
definition of "rolling easement").
138 In Texas, municipalities have zoning authority,
Tex. Loc. Gov't Code Ann. §211, but counties only
have such authority in a few places, such as parts of
Padre Island in Cameron and Willacy counties. See
also Jennifer Evans, Guide to Texas Zoning (College
Station, Texas A&M Real Estate Center 1999). Most
undeveloped and lightly developed lands are not within
a municipality.
1
Roger A. Cunningham, Land-Use Control—The
State and Local Programs, 50 Iowa L. Rev. 367, 368
(1965) .
140 Standard State Zoning Enabling Act § 2.
141
See, e.g., Prince George's County [Maryland]
Zoning Code § 27-441.
142 See, e.g., id.
143 Standard State Zoning Enabling Act § 1.
144 See, e.g., Prince George's County [Maryland]
Zoning Code §27-441 at 14 (specifying zones where
flag lots are allowed or not) and Prince George's
County [Maryland] Subdivision Regulations § 24-
138.0 (flag lot specifications). A flag lot is a parcel with
no true front yard along the street, with a narrow strip
for a driveway to connect the parcel to the street. A
sketch of such a lot often resembles a flag (the main
parcel) on a pole (the driveway).
14^5
Standard State Zoning Enabling Act §§ 1-2.
146 Julian Conrad Juergensmeyer & Thomas E.
Roberts, Land Use Planning and Control Law, §
4.21, Hornbook Series, West Publishing (1998). See
also John R. Nolan, Well Grounded: Using Local
Land Use Authority to Achieve Smart Growth, 209-
213 (Environmental Law Institute, 2001).
147
E.g., Marble Technologies, Inc. v. City of
Hampton, 690 S.E. 2d 84, 88-90 (Va. 2010) (rejecting
an overlay zone based on map boundaries delineated
under the Coastal Barrier Resources Act, based on the
Dillon Rule) and Farmers for Fairness v. Kent County,
2007 Del. Ch. LEXIS 56 (Del. Ch., May 1, 2007)
(holding that the Coastal Zone Protection Overlay
Ordinance violated the uniformity requirement of the
zoning statute).
148 A special exception is a use permitted within a
zoning district, but subject to certain, specific
conditions. A public hearing is necessary for collecting
the necessary information on whether the exception will
be granted. See, e.g., Standard State Zoning
Enabling Act §7 (authorizing a Board of Adjustment to
grant special exceptions) and Prince George's
County [Maryland] Zoning Code § 27-441 (allowing
some uses only with a special exception). A common
standard for "determining whether a requested special
exception ... should be denied is whether there are
facts and circumstances that show that the particular
use proposed at the particular location proposed would
have any adverse effects above and beyond those
inherently associated with such a special exception use
irrespective of its location within the zone." Schultz v.
Pritts, 291 Md. 1, 22 (1981).
149 See e.g. Critical Areas Commission for the
Chesapeake and Atlantic Coastal Bays, Frequently
Asked Questions, http://www.dnr.state.md.us/critical
area/faq.html#18, (undated) (explaining that localities in
Maryland have generally incorporated Chesapeake Bay
Critical Area Act limitations into their zoning); Town of
Eastham, Massachusetts, Zoning By-Laws: Flood
Plain Zoning; and Marble Technologies, Inc.. v. City of
Hampton, 690 SE 2d 84, 88-90 (Va. 2010).
1
See e.g. Federal Emergency Management
Agency, The National Flood Insurance Program,
http://www.fema.gov/plan/prevent/floodplain/index.shtm
(cited on February 1, 2011) ("Currently over 20,100
communities voluntarily adopt and enforce local
floodplain management ordinances that provide flood
loss reduction building standards for new and existing
development.")
151 See, e.g., CCSP, supra note 3, at 209-210
(discussing two counties in Delaware that prohibit
subdivisions and discourage new construction in the
100-year coastal floodplain).
1 ^9
Town of Chatham Wetlands Protection
Regulations, §§ 202(3)(c), 203(3)(c), 206(3)(b)
(prohibiting grading and construction within 50 feet of
beaches, dunes, or salt marshes). But cf. id. § 205
(3)(a)(1) (allowing hard shore protection structures
along banks above wetlands and beaches for homes
built or approved before 1978).
153 See, e.g., infra notes 165 and 286, and
accompanying text.
154 E.g. Hope, Inc. v. County of DuPage, III., 717 F.
2d 1061, 1077 (7th Cir. 1983) (citing Euclid v. Ambler
Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303
(1926)). See also 83 AM. JUR. 2d Zoning and Planning
§ 9 (2005).
75
-------
ROLLING EASEMENTS
1
See Slade et al, supra note 34, at 44 n.58
(listing cases from all 23 tidewater state courts defining
the landward boundary of the public trust). In Delaware,
Maine, Massachusetts, Pennsylvania, and Virginia,
private land extends down to mean low water. See id. at
69 n.22. But even there, the public has access rights for
hunting, fishing, fowling, and navigation, and the state
acts as trustee for these public property rights. Id. at 70
n.23
156 See e.g., CCSP, supra note 3, at 226-227
(Maryland); id. at 206-209 (New Jersey); and
California Coastal Commission, California Coastal
Commission: Why It Exists and What it Does (2008).
157 See infra notes 352 and 355.
158 NJAC§7.7E-7.11(e).
159 Cal. Pub. Res. Code § 30235. By "existing
structures," that statute means those built before the
statute was passed in 1976. See generally Todd T.
Cardiff, Conflict in the California Coastal Act: Sand and
Seawalls, 38 Cal. W. L. Rev. 255 (2001); and Meg
Caldwell & Craig Holt Segall, No Day at the Beach: Sea
Level Rise, Ecosystem Loss, and Public Access along
the California Coast, 34 Ecology L.Q. 533, 546 (2007).
The California Coastal Commission has a wide range of
possible tools for limiting the extent to which future
development and redevelopment makes shore
protection likely. Id. at 544-550.
160 See infra note 355.
161 E.g., Rhode Island Coastal Resources
Management Program §§ 210.3(B)(4) and 210.3(C)(3)
(prohibiting structural shore protection to allow wetlands
to migrate inland as sea level rises); and 06-096 Me.
Code R. §355 (5) (requiring all projects to be located
and designed based on shore erosion and flooding from
a 2-foot rise in sea level).
162 See, e.g., CCSP, supra note 3, at 227.
163 See Maryland law review, supra note 7, at
1302-03 n. 87; 1309 n. 121; 1368 n. 367; 1376 n. 407;
and 1377 n. 412. See also Md. Code Ann. Envir. §16-
201 (1998), substantially amended in 2007.
164 Whether such a statute would pre-empt rolling
easement zoning is unclear. The statute does not
guarantee a right to elevate land surfaces or force
localities to elevate roadways, so it seems possible that
a locality could enact rolling easement zoning and
enforce some restrictions while being unable to enforce
other restrictions (unless the statute was amended).
See infra note 286 and accompanying text
(discussing Calvert County cliff retreat policy). The
Calvert County Cliff retreat policy can be reconciled with
the statutory right to shore protection in Md. Code Ann.
Envir. §16-201 (2009). The county requires landowners
to allow the cliff to retreat, while the state provides the
right to protect the shore, which is below the base of a
cliff. One could build a revetment to protect the base of
a cliff while enabling the cliff itself to retreat. This is
rarely done because owners are primarily concerned
with the land and buildings at the top of the cliff.
Moreover, these local regulations were designed to
further the objectives of the Endangered Species Act
which would preempt the state law. But cf. note 286
(discussing plans to relax rules prohibiting cliff
armoring).
166 House Bill 973-1978, codified in Md. Code Ann.
Envir. §16-201 (c)(1)(i). See also Maryland
Department of the Environment, Proposed Living
Shoreline Regulations (2010). When this publication
went to press, the state had not yet published the final
regulations.
167 Tex. Nat. Res. Code Ann. § 61.013.
168 Id. §61.011(a)..
169 31 Tex. Admin. Code § 501.26.
170 Id. § 15.12(f).
171
Statutes that change littoral property rights
sometimes require compensation; conversely efforts to
avoid taking property sometimes prevent the goals of a
statute from being achieved. Compare Stop the Beach
Renourishment, Inc. v. Florida Department of
Environmental Protection, 130 S. Ct. 2592, 2599, 560
U.S. , - 2010 (discussing a Florida statute that
changed coastal property rights) with Severance v
Patterson, No. 09-0387 (Tex. 2010) (citing statutory
provision that explicitly disclaims any intent to "take
rights from private owners" or affect land titles in any
way). See infra § 4.1.3 for additional discussion of
regulatory takings of property.
172 See, e.g., Tex. Admin. Code 501.26(b); Shell
Island Homeowners Ass'n v. Tomlinson, 517 S.E. 2d
401, 403 (NC 1999); and Maryland Law Review, supra
note 7, at 1377 (discussing denial of a request for a
permit to place geotextile containers along a beach in
South Carolina).
173 Tex. Nat. Res. Code Ann. § 61.011 (a).
174 The statute's explicit prohibition of hard
structures, procedures for removal of homes seaward of
the vegetation line, and explicit recognition of the inland
migration of public access are all characteristics of a
"rolling easement" as we use the term in this handbook.
Texas courts have often used the term to narrowly refer
to the inland migration of the public right to access
along the privately owned dry beach. The extent to
which the Open Beaches Act codified that aspect of a
rolling easement has been litigated extensively, and
was limited by the Texas Supreme Court in Severance
76
-------
Legal Approaches for Creating a Rolling Easement
v Patterson, No. 09-0387 (Tex. 2010) ("[Ejexisting
public easements in the dry beach ... do not migrate or
roll landward to encumber other parts of the parcel or
new parcels....").
175 Seaway Co. v. Att'y Gen. 375 S.W.2d 923, 936-
37 (Tex. Civ. App., writ refd n.r.e.).
176 Mike Ratliff, Public Access to Receding
Beaches, 13 Hous. L. Rev. 984, 993-94 (1976).
177 Luttes v. State, 324 S.W.2d 167, 187 (Tex.
1958).
178 For grants before Texas' independence from
Mexico, the high tide line refers to mean higher high
water. Luttes 324 S.W.2d at 167, 191. For later grants,
it is mean high water. Id. at 169. In most locations,
every other high tide is higher than the previous tide.
Mean higher high water is the average of all the higher
high tides, while mean high water is the average of all
the high tides.
17Q
See § 2.2.1, supra, for an illustration and
definition of the mean high water line, dry beach, and
related terms.
180 Ratliff, supra note 176, at 993-94 .
181 Tex. Nat. Res. Code Ann. § 61.011 (a).
182 Id. §61.013.
183 See, e.g., Seaway Co. v. Att'y Gen., 375 S.W.2d
923, 936-37 (Tex Civ. App. 1964, writ refd n.r.e.);
Matcha v. Mattox, 711 S.W.2d 95, 101 (Tex. Civ. App,
1986 writ denied); and Feinman v. State, 717 S.W.2d
106, 113 (Tex. App. 1986, writ refd n.r.e.).
184 Feinman, 717 S.W. 2d at 110-11.
185 Id.
186 Tex. Nat. Res. Code Ann. §61.0183(a) and
§61.018(a).
187 Id. §61.013(b).
188 Brannan v. State, No. 01-08-00179-CV (Tex.
App.-Houston [1st Feb. 4, 2010, pet. filed).
189 Tex. Nat. Res. Code Ann. § 61.0185.
190 Id. §§ 15.13(e)(13) and 15.13(g)(1). The fill may
extend up to five feet seaward of the home. Tex. Admin.
Code. §§15.13(f)(3-4).
1Q1
"The Galveston court described the area subject
to public rights as a shifting and rolling easement."
P. Burka, Shoreline Erosion: Implications for Public
Rights and Private Ownership, 1 Coastal Zone
Management Journal 175, 182-83 (1974) (citing
Galveston East Beach, Inc. v. State of Texas, No.
97,893 (10th Dist. Ct. Galveston County, Texas 1964)).
192 Feinman v. State, 717 S.W.2d 106, 108-111
(Tex. App. 1986, writ refd n.r.e.).
193 See e.g. Matcha v. Mattox, 711 S.W.2d 95, 101
(Tex. Civ. App. 1986, writ denied); Feinman, 717
S.W.2d at 113, and Brannan v. State, No. 01-08-00179-
CV, (Tex. App.-Houston [1st Dist.] Feb. 4, 2010, pet.
filed). See also Severance v. Patterson, 566 F. 3d 490,
493, 499 (5th Cir. 2009).
194 "The State cannot declare a public right so
expansive as to always adhere to the dry beach even
when the land the easement originally attached to is
eroded ... We have never held the dry beach to be
encompassed in the public trust ..." Severance v
Patterson, No. 09-0387 (Tex. 2010) "A few states have
declared that long-standing property principles give the
state (and therefore, the public) the right to all
beachfront property or the right to use even privately
owned beachfront property ... [ujnlike the West Beach
of Galveston ... [where] private owners who purchased
beach properties obtained title without limitation on
private rights of ownership and without encumbrances
for public use." Id. Texas common law applies to lands
that became privately owned after Texas became
independent from Mexico. This case did not address
land granted before Texas Independence, where the
Spanish civil law applies. Id. § 2.
195 "Although existing public easements in the dry
beach of Galveston's West Beach are dynamic ... these
easements do not migrate or roll landward to encumber
other parts of the parcel or new parcels as a result of
avulsive events." Id.
196 "Easements for public use of private dry beach
property do change along with gradual and
imperceptible changes to the coastal landscape." Id.
1Q7
"New public easements on the adjoining private
properties may be established if proven pursuant to the
Open Beaches Act or the common law." Id.
198 The rolling easement would still apply to the
boundary between public and private land (i.e., the high
tide line). The case only concerned lands conveyed
after Texas Independence (common law), id. leaving
open whether the rolling easement still applies more
generally to lands conveyed during Mexican rule (civil
law).
199 New Jersey Administrative Code § 7:7E-8.11.
See also CCSP, supra note 3, at 209.
200 Tex. Nat. Res. Code Ann. § 61.017(c) (providing
for public access inland of seawall on North Padre
Island in the aftermath of State of Texas v. Padre Island
Development Corporation (28th Judicial District, July 29,
1974); Tex. Nat. Res. Code Ann. § 61.017(d) (providing
for public access landward of a revetment constructed
by the Corps of Engineers).
201 See supra notes 90-92.
77
-------
ROLLING EASEMENTS
909
See supra note 93 and accompanying text.
203 R.E. Boyer, B.H. Hovenkamp, & D.S.F. Kurtz,
The Law of Property (West Publishing Company,
Hornbook Series 1991) [hereinafter Hornbook on
Property],
204 Transferring the property right to erect shore
protection does not mean that there is a right to shore
protection, only that the landowner is transferring
whatever rights she may have to shore protection.
on *5
Covenants can also provide for access, but
there is no advantage to using a covenant instead of an
easement for such a purpose.
206 Hornbook on Property, supra note 203, at
308. Black's Law Dictionary, 7th ed., 99 (1999).
207 E.g., Seminole County v. Mertz, 415 So.2d 1286
(Fla. App. 1982) (while the civil law provides owner of
high ground an easement for the natural flow of water
over lower ground and allows for reasonable
enhancements, upland owner must purchase an
easement from lower owner if the water is diverted from
its natural path). See also W.B. Nathan, Drainage
Easements: Caught in the Mire of Alabama Common
Law, 33 Cumb. L. Rev., 659, 675 (2002-2003)
(governments can obtain drainage easements by
eminent domain).
208 Hornbook on Property, supra note 203, at
310.
209 Id.
91 n
Dana & Ramsey, supra note 19, at 13.
211 Tara J. Foster, Securing a Right to View:
Broadening the Scope of Negative Easements, 6 Pace
Envtl. L. Rev., 275-279 (1988).
919
Agreements to refrain from blocking the flow of
water can be viewed as part of the downstream owner's
duty under an affirmative drainage easement.
OHO
Conservation easements are generally
"easements in gross" (which give rights to a specific
individual), rather than "easements appurtenant,"
(where rights go to any owner of a specific parcel).
While easements appurtenant are permanent, courts
have traditionally treated easements in gross as
contracts with the owner that expire upon the owner's
death. Dana & Ramsey, supra note 19, at 14.
914
William L. Prosser, Nuisance without Fault, 20
Tex. L. Rev. 339, 410-420 (1942). Cf. Pendergrast v.
Aiken, 236 S.E. 2d 787, 796-97 (N.C. 1977) (adopting
the rule of reasonable use based on the law of nuisance
in cases involving surface water drainage).
215 Federico Cheever, Public Good and Private
Magic in the Law of Land Trusts and Conservation
Easements: A Happy Present and a Troubled Future,
73 Denv. U. L. Rev. 1077, 1080-82 (1996).
216 Dana & Ramsey, supra note 19, at 17-21.
217 See, e.g., Uniform Conservation Easement
Act, National Conference of Commissioners on
Uniform State Laws, 1982.
218 To receive a tax deduction, however, the
conservation easement must be permanent. 26 C.F.R.
§ 1.170A-14(a) (2010).
91Q
Authors have used the term "rolling conservation
easement" to mean different things. The Nature
Conservancy has used it to refer to conservation
easements that both have a traditional conservation
purpose on the land to which they apply, and allow for
those values to shift. We adopt TNC's usage in this
report. Others have used the term "rolling conservation
easement" to refer to conservation easements whose
primary (or sole) objective is to enable shorelines to
migrate inland. E.g., D. Kreeger, J. Adkins, P. Cole, R.
Najjar, D. Velinsky, P. Conolly, & J. Kraeuter,
Partnership for the Delaware Estuary, Climate
Change and the Delaware Estuary: Three Case
Studies in Vulnerability Assessment and Adaptation
Planning 54 (PDE Report No. 10-01 2010). We use
the term "shoreline migration conservation easement"
instead.
990
The owners benefit from the continued existence
of a beach in their neighborhood, while each loses
some land in front of her home. The implications for a
landowner are similar to the benefits from setbacks,
where each owner loses the use of some land but
benefits from neighbors refraining from use as well. Cf.,
Richard K. Green, Land Use Regulation and the Price
of Housing in a Suburban Wisconsin County, 8 J.
Housing Econ. 144, 156 (1999) (finding that increasing
the setback from a street by 10 feet increased property
values 6-8 percent).
991
Robert C. Ellickson, Alternatives to Zoning:
Covenants, Nuisance Rules, and Fines as Land Use
Controls, 40 U. Chi. L. Rev. 683, 713-719 (1973).
Gerald Korngold, The Emergence of Private Land Use
Controls in Large-Scale Subdivisions: The Companion
Story to Village of Euclid v. Ambler Realty Co., 51 Case
W. Res. L. Rev. 617 (2001).
999
An example of a navigation purpose would be
prohibiting shore protection structures so that neighbors
would have a beach for launching small boats or so that
anyone would have a refuge to land a boat in an
emergency.
990
See e.g., Wlliam H. Rehnquist, The Prominence
of the Delaware Court of Chancery in the State-Federal
78
-------
Legal Approaches for Creating a Rolling Easement
Joint Venture of Providing Justice, 48 Business Law
351 (1992).
994
Hornbook on Property, supra note 203, at
373-385.
225 Id. at 385-98.
226 Id. at 322-324.
997
The two states are New Jersey and Delaware.
See Boro. of Avalon v. N.J. Dept. of Environmental
Protection, 959 A.2d 1215 (N.J. App. Div. 2008)
(recounting that Borough filed complaint in chancery
division on issue related to public beach access) and
Rehnquist, supra note 223, at 351-352.
228 Hornbook on Property, supra note 203, at
323-325.
229 Id. at 326, 398.
Another challenge with legal covenants is that
the plaintiff must present evidence that quantifies the
damages.
90H
Horizontal privity of estate generally means that
the covenant can be traced back to when the particular
interest in land had a common owner. The privity of
estate required for a legal covenant is met if the
covenant accompanies the conveyance of the property
interest to which it relates. Hornbook on Property,
supra note 203, at 310.
909
See id. at 376 (discussing situation where privity
of estate for covenant is created along with an
easement).
233 Id. at 83-85.
904
Planning will be even easier if title changes on a
date certain. It is possible that in the final decade or so,
the parties will agree to revise the deed so that title
changes on a date certain, based on a forecast of sea
level rise. See infra note 595 and accompanying text.
90c
Hornbook on Property, supra note 203, at 83-
85.
236 See, e.g., National Wildlife Federation v. ICC,
850 F.2d 694, 705 (D.C. Cir. 1988).
237 See, e.g., O. L. Browder, Defeasible Fee Estates
in Oklahoma—An Addendum, 6 Okla. L. Rev. 482,
482-84 (1953).
238 The seller could be motivated by personal
concern about the environment, environmental permit
requirements, or the adverse impact of shore protection
on adjacent parcels that she also owns.
239 In some estuaries, tidal gates may be erected to
slow the rate at which mean high water rises. Although
a single landowner is not likely to substantially slow the
rate of global sea level rise, coastal landowners
collectively could become a powerful force for reducing
greenhouse gases.
240 Under the doctrine of waste, TLC has the option
of monitoring the property to ensure that the owner
does not do anything to harm its possibility of reverter.
The doctrine of waste is an equitable doctrine of
property law designed to prevent someone in temporary
possession of a piece of property, such as a life tenant,
from using the property in a way that unfairly harms the
value of the estate that will eventually be transferred to
a future interest holder. See Restatement of
Property: Future Interests 189, 193 (1936) (detailing
the action that the owner of a future interest can take
when the owner of the present estate engages in
threatening conduct). The Restatement implies that if
the contingent interest is likely to vest, the current
estate holder's duty to the reversionary interest holder is
(essentially) to manage the property as if she were the
owner of the entire estate. See, e.g., Restatement of
Property: Future Interests 140, 193. The future
interest holder has no duty to take action under the
doctrine of waste; she simply risks losing whatever she
might have saved by taking action.
941
Storm erosion is less predictable than gradual
submergence by rising sea level. Although the average
annual mean tide level can also fluctuate, the 19.6-year
running average that would be used to calculate sea
level in a given year fluctuates less.
949
The predictability of the property's longevity
would be even greater if title were to change on a date
certain. Converting a defeasible estate into an estate
that transfers (for example) 10 years hence could be a
final step in the management of such a rolling
easement. See note 595 and accompanying text.
940
Daniel Alexandre Bloch, James Annan, & Justin
Bowles, Applying Climate Derivatives to Flood Risk
Management (June 20, 2010). Available at SSRN:
http:// ss rn. co m/a bst ract= 1627644.
244 The Uniform Conservation Easement Act allows
easements to specify time limits. Federal tax laws,
however, disallow deductions unless the easements are
perpetual, which might include taking effect
immediately, see infra note 473. Land trusts generally
do not accept conservation easements that do not take
effect until a remote date in the future. In this case,
there is a possibility (albeit unlikely) that a home will be
threatened before 75 years. A remote contingency that
would destroy the conservation value does not
disqualify the easement. 26 CFR §1.170A-14 (g)(3); but
it is unclear whether an unlikely contingency that would
postpone—but not destroy—the conservation value
would be viewed more or less harshly. A conservation
easement that prohibits shore protection but allows a
home to remain for 75 years is less likely to lose its tax
deductibility than a conservation easement that allows
shore protection for 75 years
79
-------
ROLLING EASEMENTS
04c
See infra note 390 and accompanying text.
246 Hornbook on Property, supra note 203, at 85-
87.
247 Joseph Story, 2 Commentaries on Equity
Jurisprudence as Administered in England and
America 544-547 §§ 1314-1316 (1839) ("Where a
penalty or forfeiture is designed merely as a security to
enforce [an] obligation," equity will ensure that the
obligation is met, but will not assist with a forfeiture that
causes one party to suffer a loss that is disproportionate
to the loss of the other party). Livingston v. Tompkins, 4
Johns, Ch. 415, 8 Am. Dec. 604 (1820); Jones v.
Guaranty & Indemnity Co., 101 U.S. 622, 628 (1880)
("A court of equity abhors forfeitures, and will not lend
its aid to enforce them."); Nielsen v. Woods, 687 P.2d
486, 489 (Colorado Court of Appeals, 1984). ("[E]]quity
will not enforce a forfeiture [of land due to possibility of
reverter] if the party insisting upon it may be made
whole otherwise.") Cf. Restatement (Second) of
Contracts: Liquidated Damages and Penalties § 355
(1981) (a contract clause with liquidated damages
greater than the actual damages that were reasonably
expected to result from a breach is unenforceable
because it is a penalty). U.C.C. 2-718 (2001) (limiting
liquidated damages to a reasonable expectation of
actual damages).
248 See Hornbook on Property, supra note 203, at
156 §§ 15-16. A fee simple determinable with a
possibility of reverter is generally conveyed for a
specific purpose whose duration is unknown, such as
for the purposes of a school or railroad, e.g., McDougall
v. Palo Alto etc. School Dist., 212 Cal. App. 2d 422
(1963). Equity would have no reason to intervene to
stop the reversion, because reversion is not punishment
for closing the school or the railroad, but simply the
natural termination of the estate which had been
conveyed for a specific reason. By contrast, equity may
intervene to stop a forfeiture resulting from the failure to
comply with a condition, to ensure that neither party is
subject to hardship. Davis v. Gray, 83 U.S. 203, 230-31
(1873). See also supra note 247.
249 The preference for conveyances of duration for a
purpose over forfeitures has generally been
accomplished by looking directly at the forfeiture issue
regardless of how the interest is defined. Because (for
example) the conveyance of land for a school can either
be expressed as providing the land for the needed
duration or as threatening a forfeiture as punishment for
closing the school, some scholars have suggested that
today there is little difference other than some of the
rights flowing from each interest. See, e.g. Frona
Powell, Defeasible Fees and the Nature of Real
Property, 40 Kansas Law Review 411, 415-410 (1992)
(suggesting that the chief distinction is the mechanism
for how the estate terminates and not discussing the
difference in purpose for the two estates). Allison
Dunham, Possibility of Reverter and Powers of
Termination—Fraternal or Identical Twins? 20 U. Chi. L.
Rev. 215, 225-229 (1953) (discussing the difference
between the natural termination of an estate and a
forfeiture, and how courts struggle when the intent of
the parties diverges from the deed language as
drafted).
The "power of termination/right of re-entry" cannot
be sold in some jurisdictions. Hornbook on Property,
supra note 203, at 164, and can be viewed as waived if
the owner fails to take legal action. Id. at 165.
Contingent remainders and executory interests are
vulnerable to the common law Rule Against
Perpetuities. Id. at 168. See infra § 4.2.2.
Hornbook on Property, supra note 203, at
184.
251 See infra note 390-398 and accompanying text.
252 Cal. Civ. Code § 885.020 ("Every interest that
would be at common law a possibility of reverter is
deemed to be and is enforceable as a power of
termination").
E.g., Julia D. Mahoney, Perpetual Restrictions
on Land and the Problem of the Future, 88 Va. L. Rev.
740, 741 (2002) (citing Land Trust Alliance, 1998
National Land Trust Census and Julie Ann Gustanski,
Protecting the Land: Conservation Easements,
Voluntary Actions, and Private Lands, in Julie Ann
Gustanski and Roderick H. Squires, eds., Protecting
the Land: Conservation Easements Past, Present
and Future (Washington DC, Island Press, 2000)).
OC 4
One exception is that conservation easements
sometimes include a clause that transfers the easement
from one land to another if the first land trust fails to
fulfill its responsibilities. See infra note 280 and
accompanying text.
255 One who designs a rolling easement based on
future interests must be prepared for possible
skepticism of the arrangement, even though the
traditional reasons for the skepticism do not apply to a
rolling easement. Traditionally, reversions were usually
based on how the landholder used the property, such
as a railroad. See, e.g., Preseault v. ICC, 494 U.S. 1,
9-10 (1990). Although closing a railroad is a "natural
termination," it is still based on decisions by the owner.
The rising sea is truly a natural termination that does
not depend at all on what the owner does.
Nevertheless, a conveyance that lasts "for so long as
the grantee does not build and maintain a shore
protection structure without the permission of the
grantee" might seem to punish the grantee for the shore
protection structure. A conveyance that lasts "for so
80
-------
Legal Approaches for Creating a Rolling Easement
long as the grantee is able to use the property without
erecting a shore protection structure" more clearly
indicates that the reversion is based on duration of a
specific land use rather than punishment for a single
errant action. And "for so long as the sea level is less
than 4 feet [above a benchmark]" is even more clearly
an attempt to tailor the duration of the estate to natural
factors.
See supra note 247. See also Powell, supra
note 249, at 425-26 (discussing cases where courts
avoided a forfeiture by construing language that
appeared to intend a power of termination or possibility
of reverter as only being a covenant).
See Hornbook on Property, supra note 203, at
176-79 (discussing how the same result can occur
either by directly transferring an executory interest to X
or by retaining a possibility of reverter and later
conveying it to X).
258 See Hornbook on Property, supra note 203, at
169-173. If the owner wants a tax deduction, a
shoreline migration easement may be preferable
because the IRS does not generally allow deductions
for donations of a future interest in land, unless that is
all the donor owns in the particular parcel.
259 In general, executory interests are subject to the
common law Rule Against Perpetuities, which provides
that the interest must be guaranteed to vest (if ever)
within 21 years of the death of a party named in the
deed, Hornbook on Property, supra note 203, at
213-215. That period could often be too short for a
rolling easement, especially if sea level rises more
slowly than expected. Several states have repealed or
reformed this rule. Although charities are sometimes
exempt, the reform efforts have not considered
environmental or historic preservation as specific
purposes. See infra § 4.2.2.
260 E.g., instead of donating a rolling easement as
an executory interest, the owner could transfer a fee
simple determinable to her son, and retain a possibility
of reverter. She could then donate that possibility of
reverter to The Land Conservancy and her son could
later transfer the fee simple determinable back to her.
Although this superficially seems to be an easy way to
always defeat the Rule Against Perpetuities, that rule
was meant to prevent complicated arrangements that
keep land within a family indefinitely by allocating
ownership interests based on various contingencies.
See, e.g., Angela M. Vallario, Death by a Thousand
Cuts: The Rule against Perpetuities, 25 J. Legis. 141,
142-145 (1999). The rule was never intended to
prevent environmental conservation or other transfers
resulting from the natural termination of a particular use.
If the son retains the fee simple determinable, the
donation of the possibility of reverter will be tax
deductible. If he gives it back to his mother, then
deductibility depends on how the IRS views the
transaction. It will be deductible if the IRS looks
narrowly at the donation as the entirety of her interest
(possibly because of its conservation purpose) but it will
not be deductible if the IRS looks broadly at the entire
transaction.
?61
See supra § 2.2. But c.f. Trepanier v. County of
Volusia, 965 So.2d 276, 292-293 (Fla. App. 2007)
(holding that the doctrine of custom could support a
rolling easement theory if there was evidence that the
custom was for the easement to migrate inland).
262 See supra notes 167-197 and accompanying
text.
263 See supra note 97 (cases holding that roads did
not have a rolling easement) and Severance v.
Patterson, No. 09-0387 (Tex. 2010). See also
Trepanier, 965 So.2d at 292-293 (whether public
easement resulting from custom migrates inland would
depend on whether the evidence showed that people
had customarily shifted their use of the beach inland as
the shore erodes).
264 See infra note 568 (citing a letter from the Texas
Attorney General about new state requirement for
waterfront owners to provide the state with rolling
easements before beach nourishment can proceed).
265 46 A.L.R. 1459. See, e.g., Collins v. Alabama
Power Company, 214 Ala. 643, 108 So. 868. (citing the
rule that the owner of the servient estate must abstain
from acts interfering with the proper enjoyment of the
easement by the owner of the dominant estate); Brown
v. Alabama Power Company, 156 So.2d 153 (Ala.
1963) (issuing injunction against building a house that
would obstruct drainage easement owned by power
company); and Phillips v. Watuppa Reservoir Co., 184
Mass. 404, 68 N.E. 848 (1903) (holding that an
easement to flood certain land precludes servient land
owner from filling land if doing so prevents the flooding).
266 E.g. U.S. v. Milner, 583 F. 3d 1174, 1190 (9th
Cir. 2009) (in a case where boundary between two
private parties is mean high water, "[ojnce the shore
has eroded so dramatically that the property owner's
shore defense structures fix the ambulatory boundary,
the upland owner cannot expect to permanently
maintain the boundary there without paying damages to
the tideland owner or working out an agreement with
the tideland owner.")
267 Cf. supra § 3.1.2.3 (discussing policies that
preserve public access inland of shoreline armoring that
impairs or eliminates access seaward of the public trust
boundary).
81
-------
ROLLING EASEMENTS
268 See "Background" section in Brannan v. State,
No. 01 -08-00179-CV, (Tex. App. Houston [1st Dist.]
Feb. 4, 2010, pet. filed). That policy may be revised in
the aftermath of Severance v Patterson, No. 09-0387
(Tex. 2010).
269 See Scureman v. Judge, 747 A.2d 62, 68 (Del
Court of Chancery, Sussex 1999) (rejecting town's
theory that road along the shore had a rolling easement
because roadway was on a specific dedicated parcel of
land rather than on an easement across private land,
and nothing in the conveyance suggested that the
boundaries would roll); Town of South Hero v. Wood,
898 A.2d 756, 762 (Vermont) 2006 (rejecting town's
theory that road along shore had a rolling easement
because an implied dedication of an easement does not
shift without the consent of the servient owner).
?7f)
Just as rolling easements along the beach often
have some flexibility to allow people to continue
occupying a home that encroaches onto the beach, an
ambulatory boundary between two private landowners
could include provisions for sharing the use of the land
where feasible.
271 E.g., Feinman v. State, 717 S.W.2d 106, 113
(Tex. App. 1986) writ ref'd n.r.e.). Parts of this opinion
were later overruled in Severance v Patterson, No. 09-
0387 (Tex. 2010) ("We disapprove of courts of appeals
opinions to the extent they are inconsistent with our
holding in this case"), but the rolling easement still
applies under some circumstances. Id.
272 See Burka, supra note 191, at 182-83 (1974)
(citing Galveston East Beach, Inc. v. State of Texas).
273 See supra note 85.
274 See supra note 266.
See, e.g., Slade etal., supra note 34, at 177—
180.
276 Some states have codified aspects of the public
trust doctrine in statute (e.g. La. Civ Code Ann. Art.
451) or a state constitution (e.g. Wash. Const. Art. 17
§1) The Texas Open Beaches Act specifies in great
detail the migration of public access rights along the
shore, see supra § 3.1.2.2, but it explicitly states that it
does not alter property rights. See supra note 171, and
accompanying text.
077
For example, in Severance v. Patterson the
Texas Supreme Court held that the legislature had
been careful to avoid altering property rights in passing
a statute that codifies a rolling easement in some
circumstances. "In 1969, the Legislature's Interim
Beach Study Committee, chaired by Senator A.R.
Schwartz of Galveston County, confirmed the view that:
[The Open Beaches Act] does not, and can not,
declare that the public has an easement on the
beach, a right of access over private property to
and from the State-owned beaches bordering on
the Gulf of Mexico. An easement is a property
interest; the State can no more impress private
property with an easement without compensating
the owner of the property than it can build a
highway across such land without paying the
owner.
Severance v. Patterson, No. 09-0387 (Tex. 2010)
(quoting Legislative Beach Study Commission, 65™
Legislative Session, Footprints on the Sands of
Time 17 (1969), emphasis added by the court). See infra
§§4.1.3 and 4.2.1 for a discussion of takings and just
compensation.
278 See supra notes 390-396 and accompanying
text.
279 See Preseault v. ICC, 494 U.S. 1 (1990).
280 Dana & Ramsey, supra note 19, at 35. Although
these clauses are sometimes called "reverter clauses,"
they are actually executory interests, but exempt from
the Rule Against Perpetuities, which does not apply to
transfers between two charities.
281 James T.B. Tripp and Daniel J Dudek, Institu-
tional Guidelines for Designing Successful Transferable
Rights Programs, 6 Yale J. on Reg. 369, 373 (1989)
and Juergensmeyer et al., infra note 312, at 451
(discussing Montgomery County, Maryland). But see id.
at 447 (transferable development rights programs
involve the recording of a covenant running with the
land).
282 Residents of the subdivisions often try to curtail
some of the farming activities, which has led every state
to pass "right to farm" legislation. Terence J. Centner,
Governments and Unconstitutional Takings: When Do
Right-to-Farm Laws Go Too Far? 33 B. C. Envtl. Aff.
L. Rev. 87, 87-88 (2006).
283 See §4.2 and 8.1, infra.
284 This approach may also have a lower
administrative burden than amending existing
conservation easements that do not role. See infra
notes 382-386 and accompanying text.
285 See e.g., infra note 307
286 Calvert County Zoning Ordinance (revised,
June 10, 2008), Article 8, Environmental Requirements:
Section 8-2.02, Shoreline and Cliff Areas on the
Chesapeake Bay, Patuxent River, and their tributaries.
Available at: http://www.co.cal.md.us/residents/building/
planning/documents/zoning/default.asp. Cited February
1, 2011. See also CCSP, supra note 3, at 219. Officials
have recently decided to relax these rules so that most
of the threatened homes will not be lost. See, e.g.,
Christy Goodman, Homeowners near Cliffs May Get
82
-------
Legal Approaches for Creating a Rolling Easement
Some Relief, Washington Post, October 27, 2010, and
to provide financial assistance to others whose homes
will be lost. See, e.g., Meghan Russell, Cliff Dwellers
Sent Packing, Southern Maryland News, December
31, 2010
287 Without a rolling easement, the nontidal
wetlands may be converted to dry land and remain dry
through shore protection. Alternatively, they may be
placed off limits to development, and remain as nontidal
wetlands until the year X, when they will be submerged
and become tidal wetlands. Wth a rolling easement and
a permit to develop, the nontidal wetlands would
become dry land, but still convert to tidal wetlands in the
yearX.
288 See, e.g., supra note 286.
289 See supra note 149 and accompanying text,
(discussing prospects for shore protection of lands
where development is restricted by Maryland's Critical
Area Act). See also Environmental Research
Letters, supra note 14, Table S4.
290 For example, the owner and land trust could
agree to remove the home on a specific date. See infra
notes 595-596 and accompanying text.
291 See infra note 443. Cf. also Alan F. Rothschild
Jr., Planning and Documenting Charitable Gifts, 20
Probate and Property (American Bar Association
2006), (discussing a case where donating a
conservation easement first and then donating a fee
simple interest with a restriction would have resulted in
much greater tax savings than the taxpayer's donation
of the land with the restriction).
See Environmental Research Letters, supra
note 14, at 3 and Tables S2-S5.
293 See CCSP, supra note 3, at 236 (explaining that
erosion-based setbacks in North Carolina 30-60 times
annual erosion rate); Maryland Law Review,, supra
note 7, at 1334 (South Carolina, 40 time erosion rate);
N.J. Admin. Code §7:7E-3.19 (factor of 30 or 60). Cf.
Maui (Hawaii) Planning Commission, Shoreline Rules
for the Maui Planning Commission, §12-203-6 (i) (50
times erosion rate). Kaua'i County (Hawaii) Code §8-27
(2008) (40 feet plus 70 or 100 years times erosion rate,
depending on whether building footprint is less or
greater than 5000 square feet).
294 Owners of homes that may be removed 30-40
years hence might require some compensation; but
owners of the next row back are less likely to require
compensation, because (a) loss of the property is more
remote and (b) for a period of time the house would be
oceanfront as a result of the rolling easement. The
near-term benefit from becoming oceanfront would
often exceed the cost of losing the home a few decades
later. See infra notes 303 and 446 and accompanying
text.
295 Md. Code Regs. § 27.01.02.05(C)(4).
296 Md. Code Ann. Nat. Res. § 8-1808.10(b) (2009).
The required setback is only 100 ft. for new construction
on pre-existing lots.
297 Md. Code Regs. § 27.01.00.01 (C)(1-2). For
further discussion, See CCSP, supra note 3, at 225-
227.
298 See CCSP, supra note 3, at 96.
299 N.J. Admin. Code § 7:7E-3.25 (d) (prohibiting
development within 100 feet of a water body in areas
within the 100-year flood plain); N.J. Admin. Code §
7:7E-3.28 (prohibiting development within 300 feet of
coastal wetlands unless development has no significant
impact and is mitigated). Virginia generally requires a
100-foot setback along Chesapeake Bay, except for
water-dependent activities and lots subdivided before
2002. See CCSP, supra note 3, at 227.
300 See, e.g., CCSP, supra note 3, at 226-227
(discussing setbacks that preserve water quality in
Chesapeake Bay); id. at 214 (Delaware coastal bays);
id. at 197 (New York); id at 207 (New Jersey).
See infra notes 473 and 503 and accompanying
text (discussing rolling easements with a safety valve, in
which, for example, no matter how rapidly the land is
submerged, the rolling easement will not require
abandonment of a home during the next 75 years).
302 E.g., Riggs v. Long Beach Township, 538 A.2d
808 (N.J. 1988). Just compensation depends on how
close the relationship is between the regulation and the
acquisition. When governments condemn land, just
compensation does not include the diminution of value
resulting from unrelated regulations. For example, if
land is downzoned from residential to agricultural to
preserve an agricultural district, but later the land is
condemned for an airport, the value of the downzoning
need not be included in just compensation. Alan
Romero, Reducing Just Compensation for Anticipated
Condemnations, 21 Journal of Land Use 153, 195
(2005). But if the downzoning was undertaken to secure
a lower price for the land, then the downzoning is
unconstitutional. See, e.g., In re Elmwood Park Project
Section 1, Group B, 136 N.W.2d 896, 900 (Mich. 1965)
(holding that city may not deliberately reduce the value
of private property to deprive owner of just
compensation). As a result it would require
compensation. Diego Gas & Elec. Co. v. City of San
Diego, 146 Cal. Rptr. 103,110 (Ct. App. 1978) (holding
that downzoning land to decrease its value as a prelude
to acquiring property makes the zoning part of the
condemnation); and Grand Trunk W. R. Co. v. City of
83
-------
ROLLING EASEMENTS
Detroit, 40 N.W.2d 195, 200 (Mich. 1949). Just
compensation includes a decline in value resulting from
activities in preparation for the condemnation, Romero
at 190-93. Rolling easement regulation followed by
purchasing rolling easements would be similar to a
locality that downzones land to preserve open space,
but years later decides to acquire the land for
conservation or preservation purposes. The two actions
are more closely related than preserving open space
and later building an airport, though not part of the
same project.
303 See, e.g., Bauman v. Ross, 167 U.S. 548, 575-
84 (1897) (reviewing state procedures for calculating
just compensation from partial takings and holding that
it is within the authority of Congress to direct that
calculations of just compensation deduct benefits
resulting from the project that gives rise to the partial
taking); United States v. River Rouge Improvement Co.,
269 U.S. 411, 415-416 (1926); and Washington
Metropolitan Area Transit Authority v. One Parcel of
Land in Montgomery County, Md., 691 F.2d 702, 704
(4th Cir. 1982). See also Sydney Goldstein, Economic
Evidence in Right-of-Way Litigation, 50 Geo. L. J. 205,
209-212 (1961) (discussing offsets for benefits to
property in state just compensation rules).
304 "...Grantor may (2) place soil, rock, other earth
materials, vegetative matter, and compost reasonably
necessary for the purpose of combating erosion or
flooding..." Maryland Environmental Trust/Rural
Legacy Model Easement (ll)(E)(2) (2001). Cited on
March 26, 2004 at http://www.dnr.state.md.us/rural
legacy/easement.pdf.
See id., which clearly allows an earthen dike.
306 Id. § (ll)(F). "Excavation of Materials. No
excavation of materials is permitted...Notwithstanding
the previous sentence, Grantor may excavate materials
(1) for Agricultural use...(2) reasonably necessary for
the purpose of combating erosion or flooding."
307 During the first few years of the 21st century, the
model easement for Maryland included the right to
shore protection because officials from Maryland
Environmental Trust believed that failing to protect the
right to shore protection would discourage people from
granting conservation easements. See id.
308 More generally, a rolling conservation easement
is a conservation easement that can migrate as the
environmental conditions giving rise to the easement
migrate. The easements are sometimes used on timber
lands. See, e.g., Robert Eshleman, Letters to the Editor,
Sierra County Prospect (August 8, 2010).
309 Virginia Department of Conservation and
Recreation, Sample Conservation Easement Language,
2010. Available at:
http://www.dcr.virginia.gov/land_conservation/tools02e.
shtml (allowing repair of existing shore protection
structures but prohibiting new shore protection
structures). For the Maryland model easement, the
language quoted in supra note 306 remains but the
language quoted in note 304 has been removed.
OH Q
Although conservation easements must be
permanent for their donation to be tax deductible,
restrictions can be added whenever the two sides agree
to do so, since additional restrictions are essentially the
same as adding a new easement to the old easement.
311 See infra § 4.2.2
OH O
Julian Conrad Juergensmeyer, James C.
Nicholas, & Brian D. Leebrick, Transferable Develop-
ment Rights and Alternatives after Suitum, 30 Urb. Law
441, 448-454 (1998).
313 Id. at 446-448.
314 Id. at 443-446.
315 Id. at 446-448.
OH C
Some TDR schemes have failed because there
was no demand for development in the receiving area.
Id. at 455.
317 This appears to be the case for the Florida Keys.
The growth management scheme for Monroe County
Florida encourages growth to be transferred from Tier 1
keys to Tier 3 keys (with Big Pine Key in the middle).
See, e.g., Monroe County (Florida), A New Era in
Growth Management: A Layman's Guide to
Residential ROGO (Rate of Growth Ordinance) (2009).
ROGO is more complicated than an ordinary TDR
scheme because it reduces overall growth through a
point system. Points are awarded for retiring lots in Tier
1, and it takes far fewer points to obtain a permit to
develop in Tier 3. Id.
318 CCSP, supra note 3, at 168.
319 The new parcels could have living shorelines
instead of the bulkheads often found today on the bay
sides of barrier islands. Wherever the existing bay side
is wetlands or seagrass, such habitat may also need to
be re-created inland.
oon
If the mainland shore is protected, then barrier
island migration will narrow and possibly eliminate the
bay. But if the mainland is low-lying and not protected,
then any loss of shallow water habitat on the bay side of
the barrier island will be more than offset by the
creation of new habitat along the retreating mainland
shore.
287 See Sax, supra note 65, at 329 and 357 (quoting
Institutes of Justinian, liber 2, title 1, at §21).
322 See supra notes 66 to 73. Some state laws that
award the land to the public trust also preserve the
84
-------
Legal Approaches for Creating a Rolling Easement
original bayfront owner's right to access. See supra
note 73
323 See supra note 74.
Because most conservation areas on barrier
islands extend from the ocean to the bay, this is usually
not an issue. But in a few cases, the ocean side is
developed while the bay side is a conservation area,
such as the lands owned by the U.S. Fish and Wildlife
Service in Nags Head and The Nature Conservancy in
Kitty Hawk, both of which are in Dare County, North
Carolina. To date, there has been no effort to find new
home sites for lost homes in Nags Head, where
development is only a few houses wide. There has
been an effort, however, to ensure that the roadway
along the entire length of the barrier island is
maintained as the shore erodes.
325 Randall Arendt, Basing Cluster Techniques on
Development Densities Appropriate to the Area, 63
Journal of the American Planning Association 137—
145 (1997). See also Williamson County Regional
Planning Comm'n v. Hamilton Bank of Johnson City,
473 U.S. 172, 176-177 (1985) (discussing cluster
development).
85
-------
ROLLING EASEMENTS
86
-------
CHAPTER 4
CHOOSING THE APPROACH:
IS THERE LEGAL AUTHORITY?
Rolling easements are government regulations or
transfers of property rights that decrease or
eliminate the continued use and enjoyment of
coastal property as sea level rises. Designing a
rolling easement policy requires deciding:
• The specific rights that will be altered, and
• The legal approach used to alter those rights.
Before specifying the rolling easement in detail, a
threshold question is whether there is legal
authority for the preferred legal approach. Or more
generally: for which options is there currently legal
authority? Such authority may be constrained for a
number of reasons:
• The common law of property limits the ability of
private parties to voluntarily transfer some
property rights;
• State laws have abolished or limited options
that the common law allowed;
• State law limits the power of local governments;
and
• The federal constitution prevents property from
being taken for a public purpose without just
compensation; some state constitutions do so as
well.326
In this chapter327 we summarize some of the issues
that must be examined to determine whether there
is legal authority for a particular approach.
Because property law and the authority of
regulatory agencies vary by state—and sometimes
even within a state—all we can do here is
summarize some of the issues that must be
investigated before proceeding, with a few
examples for clarification. Although federal
constitutional rights are uniform throughout the
nation, whether a rolling easement takes property
(requiring compensation) would depend on
whether title to coastal property includes a right to
hold back the sea, which is a matter of state law.
4.1 REGULATORY ROLLING
EASEMENTS
The federal government regulates conversion of
wetlands to water or dry land;328 but land use
regulation is a matter for state and local
governments.329 Local governments usually have
the authority to regulate the use of dry land.330
State governments are trustees under the public
trust doctrine for most intertidal lands and open
water.331 Rolling easements regulate land use to
preserve the state's public trust resources; so
rolling easement regulation could be the
responsibility of either local or state governments.
4.1.1 Local Government
The power of local government to solve particular
problems with particular solutions varies. Broadly
speaking, in "home rule" states, the state
constitution332 or a statute333 has provided local
governments with broad authority to act except
where a specific statute limits local discretion. In
non-home-rule states,334 a local government may
only take action where it has a specific legislative
grant of authority.335 Whether or not a state has
home rule, in all but five coastal states,336 a
19th century holding known as the Dillon rule337
87
-------
ROLLING EASEMENTS
requires courts to resolve ambiguities about local
authority against the locality having the authority.
The Dillon rule can sometimes lead a court to hold
that a locality lacks the authority to solve new
problems that were not specifically addressed in an
enabling act. Virginia is unusually strict about
applying the Dillon rule.338
All coastal states have granted the power to
regulate land use through zoning to at least one
level of local government (although no local
government has zoning authority in parts of
Texas).339 The type of locality with the zoning
power varies. The southern agricultural states,
with geographically dispersed populations, have
had strong county governments since colonial
times; and the western states later adopted strong
county government as well. 340 In New England
states, by contrast, town governments regulate
land use and county governments have no role.341
In New York, New Jersey, and Pennsylvania, towns
have strong regulatory powers, but counties are
responsible for overall planning, coordination, and
much of the infrastructure.342
4.1.1.1 Rolling Easement Zoning
Zoning is typically required to accomplish the
purposes of a locality's comprehensive plan for
land use. Therefore, two questions will typically be:
• Does sea level rise fit within the authorized
purposes for comprehensive planning?
• Do the restrictions fit within the zoning
authorization?
In Virginia, for example, the statute authorizes
local comprehensive plans to indicate where
existing lands may be abandoned, locate future
waterways, and designate lands for conservation,
recreation, drainage, and floodplains. 343 The
statute authorizes zoning ordinances "to provide
for... safety from flood....for the preservation of
agricultural and forest lands and other lands of
significance for the protection of the natural
environment."344 Any locality can create zones and
regulate "the use of land, buildings, structures,
and other premises for agricultural, business,
industrial, residential, flood plain and other
specific uses."345 Zoning ordinances must include
"adequate provisions for drainage and flood
control." 346
These statutory provisions explicitly allow
localities to regulate land use and structures to
prevent flooding and conserve the environment.
But they do not explicitly allow the localities to
take specific measures to prevent environmental
and flooding problems caused by sea level rise. Nor
does the statute explicitly say that the locality can
regulate efforts to change land elevations. Because
Virginia strongly adheres to the Dillon Rule, a local
government in Virginia may wish to ask counsel
(or the State Attorney General) for an opinion on
whether shore protection structures and adding fill
to raise land elevations are among the activities
that could be regulated under these provisions.
Even if grade elevation and shoreline armoring are
the types of activities that a locality is authorized to
regulate, one must evaluate whether a more
specific statute takes away that power. Most states
have wetland protection laws which sometimes
have specific requirements for shore protection.34?
In Virginia, the local wetlands board has the
authority to issue permits for shore protection
structures built within the wetlands; so the
authority for rolling easement zoning stops at the
water's edge. Seaward of that point, shore
protection requires a case-by-case decision by a
local wetlands board.348 Presumably, most wet-
lands boards will be reluctant to authorize the
filling of wetlands for shore protection in places
where zoning prohibits shore protection on dry
land; but regulatory uncertainty is increased by the
divided authority. That uncertainty is further
compounded by federal regulations, which
generally discourage shore protection within
vegetated wetlands while allowing it along
beaches.349 A Maryland statute specifically provides
a right to control shoreline erosion; so rolling
easement zoning by a locality to ensure that shores
erode (for example, along Chesapeake Bay beaches)
88
-------
Choosing the Approach: Is There Legal Authority?
would be generally preempted by state law.35° But
the statute does not address gradual inundation of
dry lands, so rolling easement zoning that
prohibits grade elevation is not preempted. Along
bodies of water with wetland shores, rolling
easement zoning could ensure that the low dry
lands gradually become wetland, while the
statutory right to control shore erosion may permit
the landowner to install sills, biologs, and other
structures that prevent the seaward edge of the
marsh from eroding.
4.1.1.2 Other Sources of Authority
In those cases where a local government lacks
zoning authority to prohibit shore protection, it
may have other authority to do so. In Texas, for
example, the Legislature has provided all localities
with broad authority to mitigate flood damages,351
even though most county governments lack zoning
authority.
4.1.2 State Agencies
State legislatures have plenary authority to
regulate both land use and activities in the
intertidal zone. Some legislatures have enacted
statutes that prohibit or discourage new shore
protection structures.'352 Most coastal states have a
permit program for shore protection structures, as
either part of their wetlands program (because
many of these structures are in or adjacent to
wetlands) or a separate program (because many of
them are along mudflats or beaches).353
Administrative agencies have different degrees of
legal authority to enact a regulatory rolling
easement policy. By definition, administrative
agencies (like localities) lack such authority if the
state provides a statutory right to shore
protection.354 On the other hand, administrative
agencies in some states have been given broad
latitude to issue regulations to preserve the coastal
environment, and shore protection structures have
been prohibited by state regulations in specified
areas, mostly along ocean shores.355
4.1.3 Constitutional Takings
Questions
Even if state law provides the local government or
state agency with the authority to enact a rolling
easement regulation, the regulation might require
compensation under the "takings clause" of the 5th
Amendment of the U.S. Constitution, which states:
"...nor shall private property be taken for public
use, without just compensation."356 A complete
review of the takings question for regulatory
rolling easements is beyond the scope of this
primer. Here we provide a few overview issues.
Under recent holdings by the U.S. Supreme Court,
a court would consider three general categories in
deciding whether a regulation that prohibits shore
protection35? would be a taking:
• If owning land does not include a right to hold
back the sea358 then a rolling easement
regulation35'' is not a taking.360
> This question has only been addressed in a
few states.361
> The Court has not specifically articulated
how property rights evolve over time.362
• If there is a right to hold back the sea,363 then a
taking will result under either of two situations:
> If the regulation requires the owner to
tolerate a permanent physical occupation, no
matter how small, it is a taking.364
> If the regulation completely destroys the
property's value, then it is a taking.365
o The Supreme Court has held that there
was not a complete destruction of value
where a regulation prevented all use of
most of a large parcel but still allowed a
single home on part of the land.366 Thus, if
a rolling easement regulation applies to
part—but not all—of a parcel, a taking is
unlikely under that test,
o The Supreme Court has held that
preventing all use for a time qualifies as a
temporary taking—but it has not looked at
the opposite case where a regulation
prevents use after a distant time in the
future.367
89
-------
ROLLING EASEMENTS
• If there is a common law right to hold back the
sea368 and the regulation does not completely
destroy value, then the takings question is
decided under a general balancing about
whether the regulation goes too far, also known
as the Penn Central test.369 The criteria for this
test are malleable and evolving, but primarily
based on the magnitude of the economic impact
compared to the owner's reasonable
investment-backed expectations.37°
If a rolling easement regulation is a constitutional
taking, it will not necessarily be invalid. A
regulation may include a provision for paying just
compensation, in which case the property owner
must seek the compensation through that process
before filing a takings claim 371 Alternatively, a
government may choose to provide a variance
(rather than pay compensation) wherever the
restriction would otherwise be a taking, and
thereby preclude all takings claims."'72
As a general rule, even if the taking of a rolling
easement required just compensation, for a parcel
that will not be threatened by sea level rise for a
century, the just compensation would be a very
small percentage of today's property value.373
Moreover, land that was not originally along the
shore would receive the economic benefit of being
along the shorefront for a period of time before
being lost to the rising sea. That benefit would
generally be subtracted from what the government
owed,374 potentially reducing just compensation to
zero for those parcels.375
4.2 INTERESTS IN LAND
4.2.1 Constitutional Takings
Question
One of the primary reasons for obtaining a
recorded rolling easement is that the legal
uncertainty surrounding a possible regulatory
takings claim can be avoided. If the landowner
sells or donates a rolling easement, then the
takings question is entirely avoided. Sometimes
localities obtain easements as a condition for a
permit, a process known as an "exaction." Under
existing holdings, an exaction of a rolling easement
in return for a permit to develop vacant land is not
a taking, provided that (a) the rolling easement
mitigates a type of harm otherwise caused by the
development,376 and (b) this mitigation is roughly
proportional to the harm expected from the
development.377 One paper has argued that
exacting a rolling easement that prohibits shore
protection meets this test because such a permit
condition merely ensures a natural transformation
that would occur if the development did not take
place,378 but an exaction of another type of rolling
easement could be a taking under other
circumstances.379 Whatever the merits of a takings
claim may be, they are litigated at the time of the
exaction,380 and hence provide more legal certainty
than a regulation, which need not be litigated until
the property is threatened decades later.
4.2.2 Does State Property Law
Allow Creation of the Rolling
Easement Needed?
Just as government agencies must have legislative
authority for their regulations to have the force of
law, a property interest much be legally recognized
for a court to enforce it. In this section we focus on
conservation easements, future interests in land,
ambulatory (moveable) boundaries, and rolling
affirmative easements.
4.2.2.1 Conservation Easements
Traditionally, the common law did not recognize
conservation easements as property. But statutes
enacted during the 20th century now authorize
conservation easements;381 and land trusts can
readily design shoreline migration conservation
easements to fulfill the requirements of those
statutes. Some issues will arise, however, if a land
trust and the landowner want to amend an existing
conservation easement that does not roll so that it
becomes a rolling conservation easement.
Land trusts have developed a comprehensive
framework for evaluating possible amendments to
conservation easements.382 Often amendments
90
-------
Choosing the Approach: Is There Legal Authority?
occur because a landowner wants to do something
that is prohibited by a conservation easement, but
the proposed activity either has a negligible
adverse impact on achieving the conservation
purpose of the easement, or the owner is willing to
amend the easement to prohibit an activity that
would have a more severe impact on the
conservation value. Land trusts are generally
advised to ensure that amendments:
• Comply with applicable law;
• Serve the public interest consistent with the
land trust's mission;
• Do not undermine the conservation purpose;
• Do not undermine the intent of the grantor,
donor, or funding source;
• Do not diminish the actual conservation values
from the easement; and
• Do not unreasonably enrich the landowner.383
To ensure compliance with applicable law, The
Nature Conservancy seeks approval from a state's
Attorney General before amending an easement
(which can delay the process considerably).384
Converting an existing conservation easement into
a rolling conservation easement would generally
satisfy all those criteria. Adding the restrictions
associated with preventing shore protection would
either increase the conservation values of the
easement by (for example) ensuring that
farmlands become wetland, or have no impact (if
the landowner was not going to hold back the sea
anyway). The public interest is clearly served, and
no one is enriched. The Nature Conservancy does
not seek approval of the Attorney General for
amendments that merely add restrictions.385
If the sole purpose of a conservation easement was
to maintain the area of farmland in a given region,
however, prohibiting shore protection might tend
to undermine the intent. The parcel may remain
farmland longer without the restriction (though
there is no guarantee that the farm would be
protected from the rising sea even without the
rolling easement). Thus the amendment could be
viewed as having positive and negative impacts on
conservation. If the resulting moderate legal risk386
was unacceptable, creating a new shoreline
migration easement could accomplish the same
result; but the holder of the conservation easement
might be reluctant to accept the shoreline
migration easement because of its duty to uphold
existing easements. (Finding a second land trust to
accept the new easement might be difficult).
Nevertheless, in a state where the model easement
discourages shore protection, the clear public
policy in favor of allowing wetlands to migrate
inland will make it difficult to challenge a rolling
conservation easement created by amendment.
One can reasonably assume that the original
purpose of this conservation easement was to
prevent development and thereby ensure that the
land will be farmed for as long as the land exists,
not to encourage the owner to eventually protect
the land with a dike.
4.2.2.2 Defeasible Estates and Future
Interests
Defeasible estates and future interests (e.g.,
property changing hands when sea level rises a
given amount) have long been recognized by the
common law of property. Nevertheless, how a
court would treat a particular scheme depends on
state property law. For example, the common law
"Rule Against Perpetuities" would void TLC's
interest in a deed that said "to buyer but if sea level
rises one meter above the sea level of the 1980-
2001 tidal epoch, then to TLC." 3,87 But the rule
would not void the interest in a deed that said "to
buyer for so long as sea level is less than one meter
above the 1980-2001 tidal epoch and then the
property reverts back to the grantor,"388 and the
seller can donate or sell that possibility of reverter
to TLC. Anyone considering a rolling easement set
up as a future interest in land should evaluate
whether it would be subject to the Rule Against
Perpetuities.
91
-------
ROLLING EASEMENTS
During the 20th century,
about one-third of the
coastal states enacted
statutes that limit the
ability of property owners
to create a possibility of
reverter.389 One state
has abolished the gen-
eral right to create a
possibility of reverter.390
The most common re-
strictions are requiring
the interest holders to
re-record their interests
periodically,391 limits on
the duration of any
newly created possibility
of reverter,392 and limits
on the period of time
for claiming the land
after the event that
triggers the reversion
(see Figure 14).393
Statut ory Reform of the Possibility of Reverter
Abolished, except for government
and charities
Time limit of 21-60 years
Time limit, except for government
and charities
Statutoiy reporting requir ements
Common law applies
Figure 14. Statutory Reform of the Possibility of Reverter. Almost
half of the coastal states have enacted statutes that limit the use of
defeasible estates and future interests. Some states require the holder of
a future interest to re-record her ownership or forfeit it. A few states limit
the duration for some types of interest holders. In Maryland, a
government agency can retain a possibility of reverter without a time limit.
Many of these statutes,
however, have exceptions if the possibility of reverter
is held by the government or a charity.394 Some
statutes say that although the property will no
longer revert when the owner breaches a condition,
the court will enforce the restrictions.395 New York
also has an exception when the reversion is
triggered by something other than how the land is
used396 (e.g., a rise in sea level), suggesting a desire
to avoid forfeitures while respecting an owner's
right to convey property for a natural duration.
Federal land agencies appear to have clearer legal
authority to purchase and own rolling easements
than other parties. Due to the Supremacy Clause of
the U.S. Constitution, 397 federal agencies can buy
particular interests in land as needed, whether or
not they are recognized by state property law.398
4.2.2.3 Ambulatory (Movable) Boundaries
Property boundaries usually have fixed surveyed
location, but not always. Land along the shore is
the most common exception. Under the public
trust doctrine, various states define the rolling
boundary between private and public land as the
dune vegetation line, the ordinary high water
mark, the mean high tide line, or the mean low tide
line.3" If a private entity owns the tidelands, the
high water mark can be the boundary between
private parties. 400 And in at least one case,
property lines have moved along with slow
landslides.401 Because judges (rather than people
drafting land deeds) originally defined these
boundaries as ambulatory,402 the legal authority
for these ambulatory boundaries has not been
seriously in doubt.
Are landowners free to subdivide existing parcels
(or convert existing fixed boundaries) using an
ambulatory boundary? Because this has rarely
been done, the answer is unclear, and what courts
decide may vary from state to state (unless the
legislature specifically authorizes an ambulatory
boundary). Some issues to consider include:
92
-------
Choosing the Approach: Is There Legal Authority?
1. Does the ambulatory boundary comply with
local land use regulations? Subdivision
regulations that govern the shapes and sizes of
parcels generally do not prohibit setting
boundaries based on shorelines.403 But they
often set a minimum width, and the migrating
boundary would eventually leave the lot
narrower than that minimum. Restrictions on
the shape of parcels sometimes have
exceptions for conservation purposes 404 or
necessity due to topography.405 Will the same
reasoning apply to lots that become too narrow
as the shore retreats?
2. If the ambulatory boundary might eventually
leave a parcel out of compliance, is the
arrangement prohibited? Does the mere
possibility that a parcel might one day become
too small invalidate the subdivision? Or does
subdivision of land comply with the regulation
if the landowner promises to either obtain a
variance or transfer a parcel that becomes too
small?
3. Would the boundary comply with the state
law of property? Courts have sometimes been
hostile to ambulatory boundaries, based on a
long-standing maxim that the boundaries of
land must be well-defined combined with the
assumption that an ambulatory boundary is
not as well defined as a fixed boundary.406
Those cases, however, have generally presented
a court with a question about whether a
boundary automatically migrates based on the
law of property, not whether landowners are
free to voluntarily create an ambulatory
boundary.4°7 Some cases rejecting ambulatory
boundaries have cited the fact that the land
titles had not specifically stated that the
boundary rolls,408 or they had implied that the
boundary does not roll.409
4. Can the same result be achieved by creating
an affirmative easement that rolls rather than
an ambulatory property line? Some cases have
suggested that a rolling affirmative easement
has a stronger basis in property law than an
ambulatory property line for a roadway.410
4.2.2.4 Affirmative Easements that Roll.
It is likely that adjacent landowners are free to
negotiate a rolling affirmative easement in at least
some coastal states. After Severance v. Patterson,
the Texas General Land Office announced that it
had suspended a beach nourishment project along
West Galveston Island until beachfront owners
conveyed rolling easements for beach access,411 and
the court implicitly recognized that a rolling
easement can be a property interest under Texas
Law.412 Other courts that declined to find that an
easement rolls have indicated that if there were
evidence of intent to roll, then the easements
under consideration would roll. 413 The best
possible evidence of intent would be specific
language in a deed.
In states where the law has not squarely addressed
whether affirmative easements can roll, the
traditional rules of easement law generally support
the ability to negotiate a rolling easement:
• The extent of ways granted may be defined by
the express terms of the deed.414
• When the easement does not specify the route
but specifies the use, then the easement is for
whatever width is reasonably necessary given
the purpose.415
• Some traditional rules tend to prevent an
easement from rolling if it does not specify
otherwise,416 which implies that it could roll if it
does specify otherwise.
• If a private way becomes impassable, the
easement holder has no right to go on other
lands unless the owner of the land is bound to
make repairs.417 That rule implies that the
easement could be drafted to allow the
easement holder to go on other lands.
• When an easement is conveyed by deed without
specifying the route, the selection of the route is
by the easement holder, as long as she is
reasonable.418
A few rules have discouraged courts from finding
that there is a rolling easement:
93
-------
ROLLING EASEMENTS
• Some cases have suggested that easements have
a fixed location even though property lines
themselves may be ambulatory, implying that a
property line is more likely to roll than an
access way.
• Once the route is fixed, the holder may not
unilaterally change the route.4"'
Those rules, however, were applied when courts
faced questions about how to construe ambiguous
easements, not about whether an easement could
specifically be drafted to ensure that it rolls. A
holder is not unilaterally changing the route, for
example, if the terms of the easement provide for
the route to migrate.
If an easement is needed for sole access to a home
or business, a court will generally find an easement
by necessity so that the owner can build a
driveway.420 Parties are also able to negotiate the
particular route for an easement by necessity.421 It
follows that if a particular way will be repeatedly
washed out, then the parties can negotiate how the
way of necessity will change. Honoring the terms
of express language in a deed is more reasonable
than ordering an alternative that no one
contemplated.
4.2.3 Authority to Obtain a
Rolling Easement
4.2.3.1 Private Entities
If a rolling easement is structured as a shoreline
migration conservation easement, then the general
restrictions for ownership of those instruments
will apply. Qualified conservation organizations (as
well as governments) have legal authority to hold
conservation easements, while private citizens and
for-profit corporations do not.422 In most coastal
states, anyone can hold a rolling easement
structured as a defeasible estate, although statutes
often provide charities with greater flexibility.423
Any person or corporation can hold covenants and
ordinary common law easements.424
4.2.3.2 Local Government
A locality may come to possess a rolling easement
through any of the following mechanisms:
• Purchasing the easement from a willing seller,
• Receiving a donated rolling easement from
either the landowner or a qualified conservation
organization,
• Acquisition through eminent domain,
• Exaction as a permit condition.
Local governments interested in obtaining a rolling
easement would have to address two questions: (a)
Is the interest sought recognized as property by
state law, and (b) does the local government have
authority to obtain such an interest in the manner
chosen?
If the method of creating the rolling easement
complies with a state's conservation easement
enabling act, then the easement is property. The
Uniform Conservation Easement Act425 allows
conservation easements to be created using any
means by which other easements can be created.
Eleven coastal states426 have adopted the act,
although some have altered that provision.42?
Among the 13 coastal states with other
conservation easement enabling statutes, some
explicitly allow easement creation by any
manner,428 some do not explicitly address how the
easement is created,429 and others limit it.430 None
of the statutes explicitly say whether a
conservation easement can be created through
exaction. Presumably an exaction would be a
permissible mode of creation wherever the statute
allows "any means." But an exaction might not be
permissible where the statute excludes eminent
domain431 or requires the easement to be created
voluntarily.432
As with regulatory authority, the power of local
governments to create conservation easements
varies. In some states, the power of eminent
domain is sharply limited, while in other states it is
much broader. Similarly, some states provide
localities with the authority for transferable
development rights, while others do not. Localities
94
-------
Choosing the Approach: Is There Legal Authority?
may lack the power to exact an easement even if
property law recognizes exacted conservation
easements.
In states where the conservation enabling act does
not allow conservation easements to be created
involuntarily, it may be possible to obtain a rolling
easement structured as a traditional future interest
in land if eminent domain authority includes such
interests. Moreover, in some cases a developer or
other property owner may choose to sell or donate
a rolling easement to obtain community support
for a project. Some care may be necessary to
ensure that the voluntary nature of the easement is
well-established, lest it appear be an exaction in a
state that does recognize exacted conservation
easements as property. 433
95
-------
ROLLING EASEMENTS
NOTES AND REFERENCES
326 Some states also have statutes that limit the
economic burden of a regulation on private property.
See, e.g., John D. Echeverria & Thekla Hansen-Young,
The Track Record on Takings Legislation: Lessons from
Democracy's Laboratories, 28 Stan. Envtl. L. J. 439
(2009) (discussing property rights legislation in Florida
and Oregon).
327 Conversations with Skip Styles (Virginia
Wetlands Watch) and Jessica Grannis (Georgetown
University Law Center) about a planned legal case
study of Virginia, while the author was developing the
outline for this primer, provided some key insights for
this chapter, such as the need to evaluate the authority
that states provide local governments, and the
challenge of the Dillon Rule in Virginia. See Andrew C.
Silton & Jessica C. Grannis, Stemming the Tide: How
Local Governments Can Manage Rising Flood Risks,
Georgetown Climate Center (Review draft 2, 2010).
328 33 U.S.C. § 1344.
329 See Hornbook on Property, supra note 203, at
430.
330 E.g., Hope, Inc. v. County of DuPage, III., 717
F.2d 1061, 1077 (7th Cir. 1983) (citing Euclid v. Ambler
Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303
(1926)); and 83 Am. Jur. 2d, Zoning and Planning § 9
(2005).
331 E.g., Arnold v. Mundy, 6 N.J.L. 1, 76-77 (Sup.
Ct. 1821); Martin v. Lessee of Waddell, 41 U.S. (16
Pet.) 366, 410 (1842); and Shively v. Bowlby, 152 U.S.
1, 16 (1894). For further details, see supra § 2.2.1 and
Slade etal. et al., supra note 155.
The state constitutions of Hawaii, Maine,
Louisiana, Rhode Island, and Oregon provide home
rule to all political subdivisions, while those of
California and Washington provide home rule to cities.
Vermont League of Cities and Towns, Candidate
Bulletin 8/02, Local Government Autonomy (2002).
The state constitutions of Alaska, Connecticut,
Maryland, Massachusetts, New York, Pennsylvania,
South Carolina, and Texas provide home rule to at least
some political subdivisions, once enabling legislation is
passed. Delaware, Florida, Georgia, New Hampshire,
New Jersey, and North Carolina have passed statutes
providing political subdivisions with home rule. Id.
Alabama, Mississippi, and Virginia do not
provide for municipal home rule. See id.
OOE
Jesse Richardson Jr., Meghan Zimmerman Gough,
& Robert Puentes, Is Home Rule The Answer?
Clarifying the Influence of Dillon's Rule on Growth
Management 9-13 (Discussion Paper, The Brookings
Institution Center on Urban and Metropolitan Policy,
Washington, DC, 2003).
336 Alaska, Massachusetts, New Jersey, Oregon,
and South Carolina. Richardson et al., supra note 335,
at 41-46.
007
"It is a general and undisputed proposition of law
that a municipal corporation possesses and can
exercise the following powers and no others: First,
those granted in express words; second, those
necessarily or fairly implied in or incident to the powers
expressly granted; third, those essential to the declared
objects and purposes of the corporation, not simply
convenient, but indispensable. Any fair, reasonable
doubt concerning the existence of the power is resolved
by the courts against the corporation, and the power is
denied." 1 Dillon on Municipal Corporations §237
(5 ed. 1911). This holding was first adopted by the Iowa
Supreme Court in an opinion written by Dillon in Clark v.
City of Des Moines, 19 Iowa 199 (1865). Most other
states soon adopted that holding, quoting the Dillon
Rule verbatim.
338 Richardson etal., supra note 335, at 45.
339 See supra notes 138 and 139.
340 J. Edwin Benton, County Government, in Jack
Rabin (editor), Encyclopedia of Public Administration
and Public Policy 1, 261-262 (2003).
341 Id.
342 Id.
"The comprehensive plan shall be general in
nature, in that it shall... indicate where existing lands or
facilities are proposed to be extended, widened,
removed, relocated, vacated, narrowed, abandoned, or
changed in use as the case may be.... each locality
shall develop a transportation plan that ...shall include
... waterways... The plan, with the accompanying
maps... may include, but need not be limited to....the
designation of areas ... conservation; active and
passive recreation; public service; flood plain and
drainage; and other areas." Virginia Code § 15.2-2223
344 Virginia Code § 15.2-2283.
345 Virginia Code § 15.2-2280.
346 Virginia Code § 15.2-2241 (3).
347 See infra notes 352 and 353 and accompanying
text.
348 See e.g. CCSP, supra note 3, at 227.
349 Reissuance of Nationwide Permits, 72 Fed. Reg.
11183 (March 12, 2007) (explaining that nationwide
permit 13 allows for bank stabilization structures,
provided that no material is placed in a special aquatic
96
-------
Choosing the Approach: Is There Legal Authority?
site). Special aquatic sites include vegetated wetlands
40 CFR§ 230.41.
350 Compare Md. Code Ann., Envir. § 16-201
(2010) (shore protection is a permissible activity) with
supra note 286 and accompanying text (Calvert County
regulations prohibit cliff protection). See also supra note
165.
No court has examined whether (a) the rolling
easement cliff retreat policy in Calvert County is pre-
empted by the state law, (b) the state law would be pre-
empted by the county's attempt to comply with the
federal Endangered Species Act, or (c) the cliff
armoring regulated by the county is inland of the
jurisdiction of the state rule. Shore protection methods
that do not slow cliff retreat would not be prevented by
the county regulations. See also supra note 347.
351 Tex. Water Code Ann. § 16.315. Localities are
authorized to mitigate flooding by "...(13) adopting
permanent land use and control measures with
enforcement provisions that are not less stringent than
the criteria for land management and use adopted by
the director; (14) adopting more comprehensive
floodplain management rules that the political
subdivision determines are necessary for planning and
appropriate to protect public health and safety...."
352 E.g. S.C. Code Ann. §48-39-290 (B)(2)
(prohibiting new seawalls along Atlantic Ocean). Tex.
Nat. Res. Code Ann. §61.013 (discouraging all
structures that interfere with coastal processes along
the Gulf of Mexico).
353 See, e.g., the discussions of mid-Atlantic state
regulatory programs in CCSP, supra note 3, at 194-
238.
354 See, e.g., supra notes 159 (California) and 163
(Maryland), and accompanying text. Although a
California statute guarantees a right to shoreline
armoring to protect "pre-existing" structures in
California, the state's Coastal Commission has the
authority to regulate how shore protection is pursued,
and the statute also directs the Commission to avoid
armoring for new (post-1976) structures. See Cardiff,
supra note 159 and Caldwell & Segall, supra note
159.
ore
See, e.g., Rhode Island Coastal Resource
Management Program §210.3(B)(4) and §300.7(D)
(2007) (prohibiting structural shore protection along
barrier beaches and a single class of estuarine shores).
Compare 310 Mass. Code Regs. §10.28 (3) (prohibiting
hard shore protection along dunes) with 310 Mass.
Code Regs. §10.30 (3) (allowing hard shore protection
along banks to protect homes built before 1978).
Compare 15A N.C. Admin. Code § 7H.0308(a)(1)(B)
(prohibiting structural shore protection on the ocean
beach) with 15A N.C. Admin. Code § 07H.0208(b)(7)
(allowing bulkheads and revetments along estuaries
provided that they are inland of existing wetlands). See
also 06-096 Me. Code R. §355(E) (2010) (prohibiting
shore protection along dunes) and 31 Tex. Admin. Code
§ 501.26(b) (prohibiting seawalls that protect individual
properties but allowing seawalls landward or the dune
vegetation line provided that there is a funded beach
nourishment project that will prevent the beach from
narrowing). Compare Oregon's Statewide Planning
Goals & Guidelines, Goal 18: Beaches and Dunes
OAR 660-015-0010(3) (allowing permits for oceanfront
protection structures only where development or
subdivision occurred before 1977) with id. Goal 17:
Coastal Shorelands, OAR 660-015-0010(2) (requiring
fill above the ordinary high water mark and erosion
control structures to minimize adverse impacts on water
currents, erosion, and accretion patterns).
356 U.S. Constitution, Amend. V. Although the Bill
of Rights originally applied to the federal government,
the 14th amendment extended the requirement to pay
just compensation to state and local governments.
Chicago, Burlington & Quincy Railroad Co. v. Chicago,
166 U.S. 226,235-41 (1897).
-3C7
Or keep a pre-existing home on the beach.
Or keep a pre-existing home on the beach.
359 E.g., policies that prohibit shore protection as
discussed in § 3.1.2.1, supra.
360 "Where the State seeks to sustain regulation that
deprives land of all economically beneficial use, we
think it may resist compensation only if the logically
antecedent inquiry into the nature of the owner's estate
shows that the proscribed use interests were not part of
his title to begin with." Lucas v. South Carolina Coastal
Council, 505 U.S. 1003, 1027 (1992).
See e.g., Stevens v. City of Cannon Beach, 854
P.2d 449 (Or. 1993) (holding that prohibiting a seawall
was not a taking in a case where other beneficial use
was possible, because longstanding public right to
access along the shore meant that building a seawall is
not part of the property owner's title to begin with). See
infra notes 266 & 361 and the text accompanying infra
note 274 (discussing U.S. v. Milner in Washington
State, where the tidal wetlands were owned by a private
party and the right to shore protection was limited
based on nuisance law). Cf. Wlson v. Commonwealth,
597 N.E. 2d 43 (Mass. App. 1992) (failing to rule on the
underlying takings claim when homes in Chatham were
lost due to government delays in decision on permit for
revetment).
A few states explicitly say that property owners
can hold back the sea, see, e.g., notes 159 & 163 and
accompanying text, but that may be a revocable
97
-------
ROLLING EASEMENTS
statutory license rather than a compensable property
right, see, e.g. Maryland Law Review, supra note 7, at
1376 n.407. See also Martin J. McMahon, "Annotation,
Liability for Diversion of Surface Water by Raising
Surface Level of Land," 88 A.L.R. 4th 891, 897-98
(1991) (noting that some jurisdictions follow the
"common-enemy doctrine," under which every
landowner "has an unqualified right to fend off surface
waters as the landowner sees fit without being required
to take into account the consequences to other
landowners"). The right to shore protection is not
necessarily absolute. The Milner court cited the
common-enemy doctrine but held that the right to shore
protection must be balanced against the tideland
owner's right to inland migration of tidelands. A
regulation is probably not a taking if it goes no farther
than the balancing a court would undertake in a
nuisance case between private landowners. Lucas v.
South Carolina Coastal Council, 505 U.S. 1002, 1029
(1992).
An intermediate appellate court opinion in North
Carolina rejected a hotel's takings claim based on land
loss resulting from the denial of a shore protection
permit. Shell Island Homeowners Ass'n v. Tomlinson,
517 S.E. 2d 406 (N.C.App. 1999). The permit denial
was not a physical invasion because natural processes
rather than actions by the state caused the land loss. Id.
at 415. It was not a regulatory taking because the hotel
continued to operate, id. at 415, and the plaintiff had
ample notice of the no-armoring rule before the hotel
was built, id. at 416. With the decline of the notice rule
after Palazzolo v. Rhode Island, see infra note 362, it is
unclear whether that court would find a taking in a case
where all beneficial use of the property was lost.
362 Before Palazzolo v. Rhode Island, 533 U.S. 606
(2001), courts and commentators generally accepted
"the Notice Rule" under which a takings claim based on
a regulation was—in effect—extinguished upon sale
under the theory that activities prohibited by the
regulation would not be among the property rights the
owner has purchased, since she had notice that the
property did not include those rights. Steven J Eagle,
The Regulatory Takings Notice Rule, 24 U. Haw. L.
Rev. 533, 533-534 (2002). In Palazzolo the Court held
that such a rule would be an unfair burden to owners
who wished to sell (or died) before the claim was
litigated, because the value of their claim would be lost.
The court did not say, however, that regulations that
alter the rights associated with land titles must always
require compensation. 533 U.S. at 626-30.
363 Or keep a pre-existing home on the beach.
364 Loretto v. Teleprompter Manhattan CATV Corp.,
458 U.S. 419 (1982). Although a governmental flooding
of land is a physical occupation, a court would have to
decide whether a rolling easement is more like a
regulation requiring an owner to allow people to cross
her property (which would be a physical invasion) or a
regulation prohibiting an owner from building a fence to
keep people out.
Lucas v. South Carolina Coastal Council, 505
U.S. 1003, 1027 (1992).
366 Palazzolo v. Rhode Island, 533 U.S. 606, 630-
632 (2001).
367 Cf. Esposito v. South Carolina Coastal Council,
939 F.2d 165, 170 (4th Cir. 1991) (holding that a taking
does not occur when a regulation today prospectively
eliminates the right to rebuild a house should it ever be
destroyed by a storm, because existing uses can
continue and the impact on those uses is speculative).
See also Maryland Law Review, supra note 7, at 1350
(arguing that the doctrine of nonconforming use
supports the theory that rolling easement regulations
are not a taking). In Severance v. Patterson, 566 F. 3d
490, 498-99 (5th Circuit 2009), the 5th circuit certified
several questions about the authority of the rolling
easement to the Texas Supreme Court, which held that
neither the common law nor the statute provided
authority for the rolling affirmative easement challenged
in that case. See supra §3.1.2.2. Had the Texas
Supreme Court upheld the rolling easement as based
on the Texas Open Beaches Act, then future takings
cases in Texas would have to examine whether it is
possible to bring a takings challenge of a rolling
easement statute enacted long before a property is
threatened, when the plaintiff waits until the property is
actually threatened. Similar questions await any state
that explicitly changes the doctrine of accretion or
avulsion. If such a case involves a rolling easement for
beach access, the statute of limitations may bar such a
challenge the grounds that the physical invasion occurs
when the property interest is taken; but the just
compensation when the interest is taken would often be
small. A continued refinement of the takings "notice
rule" may be necessary for statutes that prohibit shore
protection. See supra note 362.
368 Or keep a pre-existing home on the beach.
369 Penn Central Transp. Co. v. New York City, 438
U.S. 104 (1978).
370 Lingle v. Chevron USA, Inc., 544 U.S. 528, 539-
40 (2005).
071
Wlliamson County Regional Planning Comm'n
v. Hamilton Bank of Johnson City, 473 U.S. 172, 194-
197 (1985).
372 Id. at 186-194.
373 See infra §§ 5.2.1 and 5.2.2 (discussing the
valuation of a rolling easement); Maryland Law
98
-------
Choosing the Approach: Is There Legal Authority?
Review, supra note 7, at 1385-86 (discussing just
compensation for a rolling easement), and id. at 1396-
98 (roughly calculating just compensation for a
nationwide rolling easement policy).
374 See supra note 303.
The State of Texas has argued that buyers of
parcels near—but not yet along—the beach already
consider the eventuality of owning waterfront property
as a result of the rolling easement:
The majority's opinion also destroys fixed
expectations dating back over a century. As the
majority itself explains, the public has used the
beach since the 1830s. Slip op. 7. This practice has
given rise to parties purchasing second- and third-
row properties on the expectation that they would
have access to the beach.
Severance v. Patterson, Joint Motion for Rehearing for
Defendant-Apellees 11 (No. 09-0387. Supreme Court
of Texas, December 10, 2010).
376 Nollan v. California Coastal Comm'n, 483 U.S.
825, 837 (1987) (unless an exaction "serves the same
governmental purpose as [would a] development ban,
the building restriction is not a valid regulation of land
use but 'an out-and-out plan of extortion."'(quoting J. E.
D. Associates, Inc. v. Atkinson, 121 N. H. 581, 584, 432
A.2d 12, 14-15 (1981))).
377 Dolan v. City of Tigard, 512 U.S. 374, 391
(1994) ("city must [ensure] that the required dedication
is related both in nature and extent to the impact of the
proposed development")
378 See Maryland Law Review, supra note 7, at
1359-1361 (arguing that even a dedication may have a
sufficient nexus and rough proportionality to satisfy the
constitutional tests for exactions); id. at 1339-1347
(arguing that setting aside land to ensure that access
migrates inland if a seawall is built has both nexus and
rough proportionality); and id at 1358 n.322 & 1360
(arguing that rolling easements have a substantial
nexus and that neither rolling easements nor setbacks
must meet the exactions test because there is no
physical invasion).
379 Exacted conservation easements are rare. J.
O. Lippman, The Emergence of Exacted Conservation
Easements, 84 Neb. L. Rev. 1043, 1102-1106 (2005).
As a result, the Supreme Court has not had occasion to
rule on whether they would be evaluated under the
regulatory takings test (since there is no physical
invasion) or the more stringent physical invasion test
(since an interest in land is exacted). An affirmative
beach-access rolling easement in return for a building
permit would clearly be a physical invasion, and would
bear some similarity to the facts in Nollan 483 U.S. at
838-842 (holding that requiring access along the dry
beach in return for a building permit is a taking).
Nevertheless, requiring that existing access will roll
inland rather than be blocked by a new home as the
shore erodes, would have a much tighter nexus with the
building permit, than requiring immediate access to the
dry beach as in Nollan. See Maryland Law Review,
supra note 7 at 1343-45, 1358.
380 Applicants generally challenge permit conditions
before accepting a permit and proceeding with the
development. See, e.g., Nollan v. California Coastal
Comm'n, 483 U.S. 825, 828-829 (1987) (summarizing
plaintiffs challenge of exaction before filing the takings
claim). If that challenge fails, then they may proceed
with a takings claim. Williamson County Regional
Planning Comm'n v. Hamilton Bank of Johnson City,
473 U.S. 172 (1985). The statute of limitations for
bringing such a claim varies. The Tucker Act
authorizing governmental payment for constitutional
takings, 28 U.S.C. §1491, has a six-year statute of
limitations. 28 U.S.C. § 2501. In states that lack a
specific statute of limitations for takings claims, courts
have held that the limitations period is the same as the
period for similar injuries to real property. See, e.g.,
Frustuck v. City of Fairfax, 212 Cal. App. 2d 345, 374
(Court of Appeals, 1st Appellate Dist) (holding that the
statute of limitations for constitutional takings is the 5-
year statute of limitations for adverse possession rather
than the 3-year period for trespass) and Baker v.
Burbank-Glendale-Pasadena Airport Authority, 705
P.2d 866, 867-868 (Cal. 1985) (applying Frustuck v.
City of Fairfax); Webb v. Greenwood County 229 S.C.
267, 273-74 (1956) (using the statute of limitations for
damage or injury to real estate); and Klumpp v.
Borough of Avalon, 202 N.J. 390, 397 (N.J. 2010)
(adopting 6-year statute of limitations for injury to real
estate because the 30-year period for adverse
possession is too long to wait before bringing a takings
case). See also 139 A.L.R. 1288 and 30 A.L.R. 1190
(citing cases with statutes of limitation for takings).
The statute of limitations period does not start
until the claim arises. A regulatory takings claim
generally cannot be considered until (1) all the
administrative appeals have been exhausted to reach a
final decision on the permit request, and (2) the plaintiff
is unable to receive just compensation from the state
government. Williamson County Regional Planning
Comm'n v. Hamilton Bank of Johnson City, 473 U.S.
172 (1985).
381 See supra § 3.2.1.
382 Land Trust Alliance, Amending Conservation
Easements (2007)
383 Id. at 32.
384 Id. at 48.
99
-------
ROLLING EASEMENTS
385 Id. at 48.
386 See id. at 55 (suggesting a moderate risk for
amendments that affect conservation purposes both
positively and negatively).
387 Hornbook on Property, supra note 203, at
177-179. A commonly cited summary of the Rule
Against Perpetuities is: "No interest is good unless it
must vest, if at all, not later than twenty-one years after
the death of some life in being at the creation of the
interest." John Chipman Gray, Rule Against
Perpetuities, 4th ed. 199 (1942). The objective of the
rule was primarily to prevent landowners (particularly in
their wills) from creating situations in which land may
change hands in unpredictable ways based on how
people used the land, whether a remote descendant
had children, or other unpredictable factors. The Rule
does not apply to future interests in which the land
reverts back to an original owner; that owner's title is
already vested. Reversion after a term of years is
similarly viewed as vested because it is certain that the
number of years will pass.
388 Id. at 179.
389 See supra notes 247-253 and accompanying
text for a brief discussion of the law's longstanding
discomfort with future interests in land.
390 New Hampshire (H.B. 1270, Chapter 228
(2008)) completely eliminates the possibility of reverter
except for charities and land trusts. California has
converted all possibilities of reverter to the similar
interest known as power of termination. Cal. Civ. Code
§ 885.020. See supra notes 246-252 and
accompanying text (discussing power of termination).
391 E.g. N.Y. Real Prop. § 345(4) (requiring an
interest holder to re-register interest every 9 to 10 years
or forfeit it); and Cal. Civ. Code § 885.030 (every 30
years).
392 E.g., R.I. Code § 34-4-19 (20 years); Md. Code
Ann., Real Prop. §6-101 (30 years); N.C. Gen. Stat.
§ 41-32 (60 years); Florida Real and Personal Property
Code § 689.18 (21 years); and Oregon Code § 105.770
(30 years). The statutes regulating possibility of reverter
have no time limit for Massachusetts, New York, Virginia,
and California. See Va. Code Ann. § 8.01-255.1; Mass.
Code Regs., Ch. 260 § 31A; N.Y. Real Prop. § 345;
and Cal. Civ. Code § 885.030, respectively.
393 E.g., Va. Code Ann. § 8.01-255.1 (10 years).
394 See, e.g., New Hampshire H.B. 1270 Chapter 228
(2008) (government and charities); R.I. Code § 34-4-20
(to the state, a railroad or utility; or for public, charitable
or religious purposes); N.Y. Real Prop. § 345 (to
governmental entity or for reversion on a lease of
communication, transportation or transmission lines);
Md. Code Ann. Real Prop. §6-105 (exception if
government reserves possibility of reverter); N.C. Gen.
Stat. §41-32 (owned by government or charity);
Florida Real and Personal Property Code § 689.18
(governmental, educational, literary, scientific, religious,
public utility, public transportation, charitable or
nonprofit corporation); and Cal. Civ. Code § 885.030
(oil, gas, mineral extraction).
395 N.Y. Real Prop. § 345(9)(a) (2010); and
Florida Real and Personal Property Code
§689.18(7).
396 N.Y. Real Prop. § 345(9)(b) (2010). Oregon
Code 105.770 does not specifically exempt events
unrelated to the land's use, but it only applies to "a
special limitation or a condition subsequent, which
restricts a fee simple estate in land," which would not
include a rise in sea level.
397 U.S. Const. Art. VI § 2.
398 U.S. v. Albrecht, 364 F.Supp 1349 (D. N.D.
1973) affd 496 F.2d 908 (8th Circ. 1974) (federal
government may obtain conservation easements not
recognized by state property law).
399 See supra § 2.2.
400 U.S. v. Milner, 583 F. 3d 1174, 1190 (9th Cir.
2009) (holding that where boundary between two
private parties is mean high water, "[o]nce the shore
has eroded so dramatically that the property owner's
shore defense structures fix the ambulatory boundary,
the upland owner cannot expect to permanently
maintain the boundary there without paying damages to
the tideland owner or working out an agreement with
the tideland owner").
401 Linda Aurichio et al. v. Howard D. Menashe,
A121073, (Court of Appeals of California, First
Appellate District, Division Four, May 12, 2009) (not to
be published in official reports) (adjusting boundary
between private landowners to reflect migration of
structures and landscaping on slowly sliding lands,
based on the doctrine of relative hardship).
402 See Sax, supra note 65, at 313-343.
403 The regulations sometimes prohibit flag lots (i.e.,
a lot with very little frontage on a public road other than
a driveway) unless there is no practical alternative. See,
e.g., Prince George's County [Maryland] Zoning
Code. §24-138.01.
404 E.g., Prince George's County Zoning Code §
27-441 (b) (allowing flag lots in a conservation
subdivision).
405 Charleston SC Subdivision Regulations
§8.7.4 (2010) (allowing flag lots "when the buildable
100
-------
Choosing the Approach: Is There Legal Authority?
area of a parcel is restricted due to the presence of a
natural resource...").
406 Dona R. Christie. Of Beaches, Boundaries, and
SOBS. 25 Journal of Land Use 35, 36 (2009).
407 See, e.g., Scureman v. Judge, 747 A.2d 62, 68
(Del Court of Chancery, Sussex 1999), People v.
William Kent Estate Co., 242 Cal. App. 2d 156 (1966),
and Trs. of Internal Improvement Fund v. Ocean Hotels,
Inc., 40 Fla. Supp. 26, 32 (1974).
408 See e.g. Town of South Hero v. Wood, 898
A.2d 756, 762-764 (Vermont) 2006 (distinguishing from
case in Texas applying a statute that implicitly provided
for a rolling easement).
409 See e.g. Scureman v. Judge, 747 A.2d 62, 68-
69 (Del. Court of Chancery, Sussex 1999).
410 See e.g. id. (declining to apply the rolling
easement concept to a roadway because the road was
on a dedicated parcel rather than an easement).
411 Ian White, GLO says no to 'static' easements on
West End, Galveston County Daily News (November
26, 2010). "Because it is illegal for the state to spend
taxpayers' money on private land, [the holding in
Severance v. Patterson] throws into doubt the land
office's legal position should it place any sand on an
area of beach [that courts] eventually rules to belong to
an individual homeowner." Id. "Without a perpetual,
rolling easement granted by the property owners, the
project cannot move forward." General Letter from
Jerry Patterson, Commissioner, Texas General
Land Office (December 2010) (sent to people who
inquired about the suspension of planned beach
nourishment in the aftermath of Severance v.
Patterson).
41 ?
In Severance, the court stated that the public
beach easement along West Galveston Island rolls as
long as shore erosion is gradual (at least within a given
parcel) which implies that an easement that rolls with a
gradually retreating shore would be a recognized
property interest. Because it would be more practical to
negotiate, inspect, and enforce an easement that rolls
with the shore regardless of the cause of shore erosion,
it follows that a rolling easement would be a recognized
property interest in Texas.
413 See supra notes 85 and 261
414 Emory Washburn, A Treatise on the American
Law of Easements and Servitudes 239 (Little Brown
and Company, Boston 1873)
415 Id. at 258.
416 Easements may be extinguished by an Act of
God. Id. at 656. Once established, an easement may
not be relocated by dominant tenant. Id.
417 Id. at 683.
418 Id. at 238.
419 Id.
420 Id. at 235-238.
421 Id. at 237-238.
See supra § 3.2.1 Easements, Conservation
Easements, and Covenants
423 See supra note 395 and accompanying text.
424 The holder generally must own land nearby,
however, for the easement to "run with the land" (i.e.,
bind subsequent owners of the land). See notes 209-
213 and accompanying text (easements) and § 3.2.1.4
(covenants).
40c
National Conference of Commissioners on
Uniform State Laws (1982).
426 Ala. Code §35-18-1 et seq (2010); Alaska
Stat. § 34.17.010 et seq. (2010); D.C. Code §42-201
et seq. (2010); Ga. Code Ann. §44-10-3 (2009); La.
Rev. Stat. Ann. § 9-1271 et seq. (2010); 33 Me. Rev.
Stat. §476 et seq. (2010); Miss. Code Ann. of 1972
§89-19-1 et seq. (2009); Or. Rev. Stat. Ann.
§ 217.715 et seq. (2010); S.C. Code Ann. § 27-8-10 et
seq. (2009); Tex. Code Ann. § 183.002; and Va. Code
Ann. § 10.1-1009 et seq. (2010).
427 The Georgia Uniform Conservation Easement
Act adds "except that a conservation easement may not
be created or expanded by the exercise of the power of
eminent domain." Ga. Code Ann. §44-10-3. The
Virginia code adds: "A holder may acquire a
conservation easement by gift, purchase, devise or
bequest." Va. Code Ann. § 10.1-1010.
428 E.g., N.C. Gen. Stat. § 121-37 and Delaware
Conservation Code § 6902. New Jersey mentions
condemnation explicitly: "A conservation restriction
[can],..be acquired in the same manner as other
interest in land [and] may be acquired by gift, purchase
or devise and, in the case of the State or local unit, by
condemnation." N.J.Stat. Ann. § 13:8B-1.
429 E.g., Md. Code Ann., Real Prop. §2-118;
Florida Real and Personal Property Code § 704.06.
430 E.g., Cal. Civ. Code § 815.2(a). "A conservation
easement is an interest in real property voluntarily
created and freely transferable in whole or in part for
the purposes stated in Section 815.1 by any lawful
method for the transfer of interests in real property in
this state." Florida Real and Personal Property
Code § 704.06 excludes acquisition by eminent domain.
401
A court may have to investigate the legislative
intent. If the intent of precluding eminent domain is to
prevent involuntary creation of conservation easements,
101
-------
ROLLING EASEMENTS
then exacted conservation easements are not
permissible unless they are viewed as voluntary. If the
intent is to control government expenditures, then the
restriction does not prevent an exacted conservation
easement.
The Supreme Court cases on exactions have
treated them as involuntary and hence, as potential
takings. See, e.g., Nollan v. California Coastal Comm'n,
483 U.S. 825, 837 (1987) (the "permit condition ... is 'an
out-and-out plan of extortion.'" (quoting J. E. D.
Associates, Inc. v. Atkinson, 121 N. H. 581, 584, 432
A.2d 12, 14-15 (1981))). Although that opinion is
binding on whether an exaction is a taking under the
U.S. Constitution, it does not control how a state court
interprets the word "voluntary" in an easement enabling
statute.
That concern can be avoided if the developer
conveys the rolling easement to a land trust.
102
-------
CHAPTER 5
ADVANTAGES AND DISADVANTAGES
OF ROLLING EASEMENTS
The academic literature on responses to sea level
rise has been relatively enthusiastic434 about
rolling easements because they are likely to cost
society less than other ways to ensure that
wetlands and beaches migrate inland.4-' Actual
implementation of the concept, however, depends
on the perceptions of property owners, developers,
land trusts, and regulatory agencies. For voluntary
measures, both sides of the transaction have to
view it as beneficial—or at least not objectionable.
For regulatory measures, if either the public or a
class of property owners views the approach as
harmful, it may be politically impractical. In this
chapter we examine the advantages and
disadvantages of rolling easements for the
community at large (Section 5.1) and the owners of
coastal lands that would eventually give way to the
rising sea (Section 5.2).
5.1 TO THE COMMUNITY AT
LARGE
The advantages to the environment and
community of a rolling easement depend on
whether the land would otherwise (Section 5.1.1)
be protected or (Section 5.1.2) be given up to the
rising sea, as well as the procedures for
implementing such policies. In many cases, it is
impossible to be sure today what would happen
without a rolling easement. Given that we do not
know what the future would otherwise hold, it may
be useful to consider all of the possible outcomes,
and then evaluate whether the expected outcome
from a rolling easement is preferable to the range
of possibilities without a rolling easement.
5.1.1 If Shore Protection is
Expected Otherwise
If the land would otherwise be protected, then
rolling easements can help a community to:
• Enable shoreline habitats to adapt naturally to
the rising sea, sustaining wetlands, beaches, and
species that depend on them for survival (see
Photos 25 to 27);
• Avoid increased taxes to pay for elevating
infrastructure or dikes with pumping systems;
• Avoid loss of waterfront views caused by a dike
or seawall (see Photo 28), or the loss of access
for launching small boats from the shore;
• Mitigate eventual intra-community fights about
whether to protect certain vulnerable areas,
because a plan is negotiated when the
consequences are far enough in the future for
people to be reasonable;436
• Avoid hazardous habitation of lands below sea
level;
• Reduce flood insurance rates if the National
Flood Insurance Program community rating
system gives community credit for planning for
sea level rise;437 and
• Promote community awareness and dialogue
about long-term sea level rise.
103
-------
ROLLING EASEMENTS
Photos 25 to 27. Rolling easements can help
sustain species that depend on wetlands for
survival. Top: Moliie Beattie Coastal Habitat
Community on Mustang Island, Texas. (March 2004).
Middle: Marsh along the shores of Aransas Bay,
Rockport Texas (March 2004). Bottom: Two men
harvesting shellfish at low tide from mudflats in Murrell's
Inlet, South Carolina (April 2004). Photo source:
©James G. Titus, used by permission.
The resulting disadvantages include:
• Initial costs of obtaining rolling easements and
continuing costs of inspecting and managing
them;
• Costs associated with relocating homes or
abandoning them and finding new homes;
• Non-economic costs of relocation;^8
• The need to resist political pressure to abandon
the retreat policy; and
• Litigation costs when owners attempt to avoid
the terms of the rolling easement.
5.1.2 If Retreat Will Occur with or
without a Rolling Easement
If the land will otherwise be given up to the rising
sea, the advantages and disadvantages depend on
whether the area would be developed and later
abandoned, or simply remain undeveloped.
If the land will otherwise be kept undeveloped
solely because of future shoreline change, 439 a
rolling easement policy can help the community to:
• Avoid having to choose between
> A large-scale purchase of expensive coastal
lands or
P* Constitutional takings challenges (some of
which may be successful) and continual
efforts by landowners and their allies to
repeal or obtain exceptions to the no-
development policy;
• Avoid having to pick a particular elevation (or
distance from the shore) for a setback line
inland of which development will be allowed
(creating problems if and when the shore
retreats to that point);
• Maintain the property tax base until the land is
submerged, by allowing the land to become
developed; and
• Enable more people to live within walking
distance of the shore rather than having to drive
or enjoy the shore less often.
The possible disadvantages of rolling easements
compared with preventing development include all
104
-------
Arl\/antanp<; anrl niQarh/antpnpQ rvf Rnllinn Fa<;pmpnt<;
Photo 28. Dikes and Seawalls Can Block Views of the Beach and the Water. Sea Bright, New Jersey
(August 2003). Photo source: ©James G. Titus, used by permission.
of the disadvantages listed in Section 5.1.1 (costs of
managing the easement, relocation, moving, and
lost buildings) as well as one other important
disadvantage: Some governments may eventually
decide to relax rolling easement regulations. And
some landowners may challenge recorded rolling
easements in court rather than acquiesce in the
submergence of their homes. Although a well-
drafted rolling easement would survive legal
challenge, land trusts may have to spend
considerable resources defending them (unless
they are drafted to ensure that the landowner pays
all of the costs of any unsuccessful legal
challenges). By contrast, if development is
prevented, shore protection will be very unlikely.
Another possible disadvantage is that the initial
cost to a local government of obtaining rolling
easements may be greater than the initial cost of
preventing development. In some cases the only
way to obtain rolling easements would be to
purchase them, while regulations preventing
development in the low-lying lands could be
accomplished without a constitutional taking of
land requiring compensation. In such cases, the
total social cost to the community would still be
greater for preventing development than for a
rolling easement, because the landowner who loses
the benefits of the development is also part of the
community. But if a locality's budget is
constrained, it may prefer to achieve a given
objective with the least expenditure of its own
funds (and regulate) rather than spend more
public funds to adopt a policy with a lower total
social cost (purchase rolling easements).
If the land will otherwise be developed but later
abandoned to the rising sea, a rolling easement
can:
• Diminish eventual intra-community fights
about whether to protect certain vulnerable
areas because a plan and legal requirements will
already be in place;
• Reduce unexpected losses from economic and
emotional investments in properties that are
unexpectedly abandoned by owners who were
planning to remain for a long time;
• Avoid the hazards associated with substandard
shore protection that subsequently fails (see
Photo 29), and the human toll from an
unexpected community abandonments
105
-------
ROLLING EASEMENTS
Photo 29. Living Below Sea Level Can Be Hazardous if Shore Protection Fails. Downtown New Orleans
after the failure of dikes along the Industrial Canal. (Aerial view from a U.S. Navy helicopter. August 31, 2005.
• Lower flood insurance rates if the National
Flood Insurance Program community rating
system gives the community credit for planning
for sea level rise;442
• Promote community awareness and dialogue
about long-term sea level rise; and
• Enable a community to avoid having to choose
between
> a large-scale buyout of land and structures or
'P the political and legal challenges associated
with ordering people to abandon homes in
which they wish to stay (which may require a
buyout as well).
There are relatively few disadvantages to adopting
a rolling easement policy for those areas which, in
the absence of a rolling easement, would still
be developed and abandoned—other than the
short-term administrative cost of choosing the
policy now instead of later. With or without rolling
easements, land will be developed, and later the
structures will be removed. The only difference is
that with rolling easements, people have decades
of notice that the land will be abandoned. With this
eventuality, rolling easements decrease (but do not
eliminate) intra-community conflict about the
retreat policy, costs associated with removing
structures, and losses of community infrastructure.
5.2 TO LANDOWNERS
5.2.1 The Tax Advantages When
Donated
The tax benefits from conservation easements are
well established, and land trusts take considerable
care both to inform potential donors about tax
rules and to ensure that their own operations
conform to the tax code so that tax deductions for
their donors are not jeopardized. A tax-deductible
donation of a possibility of reverter, by contrast,
106
-------
Advantages and Disadvantages of Rolling Easements
would often not be practical; 443 so this section
focuses on shoreline migration conservation
easements. (The tax implications of an affirmative
rolling easement for beach access would be
similar.444) We start with some background about
the tax implications of conservation easements in
general, and then look at how those concepts apply
to rolling easements. This chapter does not
provide tax advice, and its analysis of tax laws
cannot be used to avoid tax penalties.
5.2.1.1 Conservation Easements
For standard conservation easements, both the
land trust and the landowner generally assume
that without the conservation easement, the land
may eventually become developed and lose key
environmental functions.445 With that assumption,
the conservation easement benefits the public and
the environment by maintaining the
environmental functions of the property in its
natural state. The property owner loses the
opportunity to develop the land, which reduces its
market value. But the tax code provides several
tax advantages, which are generally worth a
significant fraction (e.g. 50 percent) of the decline
in market value. An investor-landowner who is
planning to eventually sell or develop the land will
be unwilling to provide a conservation easement
unless the land trust will make up the difference
(e.g. pay for the diminution in value minus the tax
savings). But a landowner with no intention of
selling or developing could view the tax savings as,
in effect, a reward for a conservation ethic that he
is already following; so he may gladly donate an
easement. Owners concerned about both
conservation and the value of the estate they pass
on to their heirs may require some payment, but
less than what an investor would require.446
There are two primary sources of tax savings for
most property owners. First, the donation of an
easement is a charitable contribution44? equal to its
fair market value, 448 which is generally the
diminution in land value resulting from the
restrictions.449 Although the deduction is limited to
30 percent of one's adjusted gross income, the
deduction can be spread out over many years.450
Second, the diminution in value lowers the
assessment for property taxes.451 These two
provisions can, in effect, refund about half the
value of a donated easement to the property
owner. In addition, property subject to a
conservation easement may be partly excluded
from the inheritance tax, for those with estates
large enough to be subject to that tax;452 and in
some states conservation easements entitle the
landowner to a lower property tax rate.
This chapter does not provide tax
advice, and its analysis of tax laws
cannot be used to avoid tax penalties.
The size of these tax incentives, in effect, can
overcompensate some landowners given their
objectives. If the land would not have been
developed for decades anyway, the conservation
easement has no impact during the next several
decades. And yet the owner is compensated by the
tax system based on market value, which assumes
the owner could develop now. As a numerical
illustration, consider the owner of a farm assessed
at $1,000,000 whose profits from farming only
justify a property value of $200,000.453 The
diminution in value from a conservation easement
(and hence the income tax deduction) would be
$800,000. If the landowner plans to not develop
the property in his lifetime, which he assumes to
be 30 more years, from his standpoint the
conservation easement means that upon his death
his heirs would inherit a farm worth $200,000
instead of $1 million. At a 5 percent rate of return,
$185,000 today would grow to $800,000 by that
time, so paying the owner $185,000 today would
compensate him for the expected decline in the
value of his estate. In some cases, the income tax
savings from the $800,000 tax deduction alone
would be worth more than $185,000.454 In other
cases, the decline in property taxes combined with
the income tax deduction would be worth more
than $185,000. Table 4 provides the details for a
hypothetical owner in the 33 percent income tax
bracket (federal and state) and a property tax rate
of 1 percent of market value. In this case, the tax
107
-------
ROLLING EASEMENTS
Table 4. Numerical Illustration of the Tax Consequences of a Conservation Easement
(assuming constant dollars and 5 percent rate of return unless otherwise stated)
Owner's original plan: do not
develop, and leave property to
children upon death in 30 years
Place land under conservation
easement, and leave property to
children upon death in 30 years
Land Value
1,000,000 1
200,000 1
Annual Property Tax
10,000 2
2,000 2
Income Tax Deductions
Property Tax
10,000
2,000
Charitable Contribution
Years 1-16 3
-
50,000 3
Years 17-30
-
-
Annual Income Tax Benefit
Years 1-16
3,300 4
17,160 5
Years 17-30
3,300 4
660 4
Present Values of Taxes Minus Tax Benefits 6
Property Taxes Paid
153,725 7
30,745 7
Minus Savings From Income Tax Deduction for:
Charitable Contribution
-
(185,976)®
Property Tax
(50,729)7
(10,146)7
Total Taxes, 5% rate of return
102,995
(165,377)
Total Taxes, 3% rate of return
131,323
(189,284)
Value of Tax Savings from Conservation Easement Invested After 30 years
Charitable Contributions9
843,967
10
Property Tax Savings
350,752
Total Tax Savings, 5% rate of return
1,194,719
Total Tax Savings, 3% rate of return
788,533
Value of the Estate 30 Years Hence11
Assuming 5% rate of return
1,000,000
1,394,719
Assuming 3% rate of return
1,000,000
988,553
NOTE: This table excludes reduced inheritance taxes, which may be substantial in some cases.
1. Hypothetical values.
2. Assumes that property tax is 1 percent of assessed value.
3. Assumes that owner's adjusted gross income is $166,667/year and that owner donates easement on % of the
property every 4 years, with each deduction spread out over a 4-year period.
4. Value of deductions for property taxes, assuming 33 percent combined federal, state, and local marginal tax rate.
5. Value of deductions for charitable contribution and property taxes, assuming 33 percent marginal income tax rate.
6. Discount rate is 5 percent unless stated otherwise.
7. Calculated as the present value of a 30-year stream of property taxes or income tax deductions for property taxes,
at a 5-percent discount rate.
8. Calculated as the present value of a 16-year stream of income tax savings from the charitable contribution.
9. Assumes that the 16-year stream of income tax savings is invested at a 5% rate of return.
10. Assumes that the property tax savings (net of any higher income taxes) is invested at a 5% rate of return.
11. Calculated as Land Value plus Total Tax Savings
108
-------
Advantages and Disadvantages of Rolling Easements
savings (if invested) would grow to between
$800,000 and $1,200,000 over the 30-year period
(constant dollars), depending on the discount rate,
which would be roughly comparable to (or slightly
more) than the decline in market value from the
conservation easement. If the tax savings alone are
greater than the value of what the landowner gives
up, economists might say that the tax system
"overcompensates" the landowner.
The overcompensation occurs because there is a
class of property owners who are, in effect, already
giving something to society by not developing their
land now. But they are not getting a tax deduction
for that sacrifice. By agreeing to never develop
their land, they are given a tax deduction for both
the additional sacrifice and for the current
sacrifice. As a result, the total tax savings can be
greater than the value of the additional sacrifice,
providing some compensation for the sacrifice the
owner is already making. In the extreme case
where the owner and his heirs would never
develop or sell the land anyway, the tax savings are
very attractive.
5.2.1.2 Rolling Easements
Unlike the typical conservation easement, a rolling
easement is likely to have a small impact on the
land's market value and the resulting tax savings,
except for very low-elevation or erosion-prone
properties whose demise is relatively imminent.
The present value of protecting an eroding farm
that would otherwise be gradually consumed over
a 300-year period would be about 7 percent of the
farm's value (assuming, for example, a 5 percent
discount rate);455 the diminution in value from a
rolling easement should be the present value of the
lost property minus the cost of the shore
protection. In areas where development is unlikely
or precluded by existing policies, the cost of shore
protection may greater than the land value,456
which is why shore protection is rare in many rural
areas.457 The rolling easement would not lower the
market value of such land; so donating it should
neither create a tax deduction nor lower the
assessed valuation for purposes of the property
tax.
For home lots, by contrast, the diminution in value
from a rolling easement is likely to be
unambiguous—albeit small. For example, at a
5 percent discount rate, the certain loss of a home
fifty years hence reduces the property value by
9 percent if shore protection would otherwise be
free.458 If the shore protection cost would be 1/6 of
the property value459 fifty years hence, the rolling
easement would reduce the property's value by
about 7.5 percent.460 On a $500,000 home, this
would be a deduction of $37,500, worth about
$12,500 for someone in the 33 percent income tax
bracket. One may also obtain property tax savings
of a few hundred dollars per year (e.g., a 7.5
percent reduction on a property tax bill of a few
thousand dollars). More typically, however, if the
loss of the home will be one hundred years hence
(with similar shore protection costs), then the
rolling easement will reduce the property value by
about $3,000, below the $5,000 threshold
requiring an appraisal to document the value of the
deduction.461 These estimates of the market value
of a rolling easement each assume that landowners
would protect their property without the rolling
easement. There is some chance, however, that
shore protection is not a property right, and that a
government agency would not allow shore
protection.462 These calculations also assume that
buyers and sellers all have the same expectations
about the risk of sea level rise to the property.
The actual impact of a rolling easement on market
value could be greater if (for example) potential
homebuyers fear a higher rate of sea level rise than
commonly assumed, or if they simply resist
purchasing lands subject to the easement/463 The
impact could be less if the market tends to
underestimate the expected loss from improbable
events, which some studies imply.464 Those cases
where the impact on market value is empirically
greater than suggested by standard formulas
would be particularly good candidates for donated
rolling easements, because the donor's tax
deduction would be greater than the true impact of
the rolling easement on the property.465 Cases
where the market value is less than the intrinsic
value would be better candidates for purchased
109
-------
ROLLING EASEMENTS
rolling easements, because the price would be
lower—or exacted rolling easements, because a
trivial impact on property values would meet less
resistance from developers, and be less likely to
require substantial just compensation even if it
were found to be a taking.
To the extent that tax incentives motivate
donations of conservation easements, land trusts
are likely to find donations of rolling easements
more difficult to obtain than donations of standard
conservation easements. For some owners, the fair
market value of a conservation easement is many
times what it would take to induce them not to
develop their land because they do not want to
develop anyway. So if the tax system provides an
inducement equal to 30-50 percent of the decline
in their property value, it is a good deal for them.
For donations of rolling easements to be attractive
based on tax savings alone, there would have to be
a class of landowners who are already inclined to
avoid shore protection, and would therefore view
the tax benefits of a rolling easement as more than
enough compensation to formally agree to avoid
shore protection. But there is probably not a large
class of homeowners or developers with a strong
commitment to seeing their property submerged
below a rising sea.466
Nevertheless, rolling easements could provide tax
savings sufficient to induce owners to donate them
if the guarantee of future shoreline migration
persuades land trusts to accept conservation
easements for land where they would otherwise
not be willing to accept them. Consider, for
example, the owner of a $1 million lot with one
home on one acre, which can be subdivided into
five lots. If the owner subdivides and puts four of
the lots under a conservation easement, the tax
consequences will be similar to the case of the
$i million farm we just discussed. (See Table 4.)
Today, the owner would probably be unable to find
a land trust willing to accept a conservation
easement on this property, because the
conservation value of keeping one acre of
moderate-density housing from becoming higher-
density is minimal. A land trust (or government
agency) attempting to ensure wetland migration,
however, may be willing to accept a rolling
easement on the parcel with a condition of no
additional development—especially if the one-acre
lot is adjacent to an area the trust is already
preserving, and several owners are all interested in
the same arrangement. In such a case, the tax
benefits from an $800,000 decline in market value
would become available. In this example, the
donation of rolling easements would partly
compensate landowners on moderate-density
residential property for resisting market forces
that would otherwise lead to dense development
where shore protection would be inevitable. This
result could also be achieved with transferable
development rights (as discussed in Section 3.4.2).
Moreover, if markets were to substantially
overvalue rolling easements due to buyer
resistance, the tax benefits could even justify
donating a rolling easement that did not restrict
development. For example, at a 5 percent rate of
return, the present value of losing a $200,000
parcel 150 years hence would be $132. Yet real
estate experts may advise people against buying
homes with rolling easements, which might (for
example) depress the market value by 5-10 percent.
If such a market impact could be substantiated by
a qualified appraisal,467 then the resulting tax
deduction of $io,ooo-$20,ooo could be viewed as
overcompensation by someone who expected his
family to keep the property until the end,
especially if he was more doubtful than the
conventional wisdom about either future sea level
rise or the feasibility of shore protection. But until
valuation studies are available, appraisers will have
to account for uncertainty by using standard
economic formulae (such as the Black-Scholes
method for valuing options468) which do not
assume irrational buyer resistance, using an
estimate of the probability distribution of future
sea level rise.
110
-------
Advantages and Disadvantages of Rolling Easements
5.2.2 When Sold at Fair Market
Value
By definition, a rolling easement sold for fair
market value is not a charitable contribution. The
tax consequences of a rolling easement are similar
to the consequences whenever one sells part of his
land: If the land has appreciated, then there may
be a taxable capital gain; and the market value of
the remaining property declines by the sale price,
which in turn should reduce the assessed valuation
and property taxes proportionately. Because
rolling easements are new, however, some tax
assessors may be reluctant to recognize the
resulting decline in fair market.469 Nevertheless, a
tax assessor would be more likely to rely on the
results of an actual sales transaction than to rely
on the estimate of an appraiser; so sales of
easements are more likely to reduce property taxes
than donations.
5.2.3 Exacted Rolling Easements
Easements exacted as a permit condition are
unlikely to provide tax benefits, but the permit
itself would be a substantial benefit to a developer
who transfers a rolling easement. Exacted rolling
easements would not be charitable contributions,
because they would be transferred in exchange for
something of value (the permit). Real estate taxes
are unlikely to decline, because the permit
enhances the property value. Nevertheless, an
exacted rolling easement could still benefit a
developer more than it costs. Just as a buyer of
rolling easements can adjust the purchase price to
the level necessary to induce a sale, a land use
authority committed to ensuring landward
migration of wetlands may be able to adjust what
is awarded by the permit. A small increase in
allowable density, for example, could be sufficient
inducement for a developer to voluntarily transfer
a rolling easement on the property.470
Other advantages to a developer are possible. Most
lots in the typical coastal development would not
be along the water, and some potential buyers of
non-waterfront land may be more attracted to the
idea of a community with a sustainable vision of its
response to sea level rise than they are put off by
the fact that in the very long run, their homes
would be submerged—perhaps because other
communities with no plan for rolling easements
are not necessarily safer. Moreover, the eventual
loss of their homes may471 only occur after a period
during which their land would be waterfront; in
many cases, the value of owning waterfront land
for a few decades would be greater than the cost of
completely losing the land thereafter.472 Those
buyers who are not concerned about sea level rise,
by contrast, may view the rolling easement as
costing nothing because they do not expect the sea
to rise much within their planning time horizon.
Risks to a developer are also possible. No one
knows whether an extreme buyer resistance to
rolling easements will arise, though fear of this
being the case might deter some developers. There
is little evidence of an irrational buyer resistance in
Texas, where most—but not all—property along the
Gulf of Mexico has been subject to a rolling
easement which has been regularly enforced.
Nevertheless, if buyer resistance unreasonably
depressed the value of land subject to a rolling
easement, it could be reasonable to add a safety
valve. For example, in a neighborhood where land
is unlikely to be submerged for 75 years,
restrictions could provide that the home will not
have to be abandoned during the next 75 years.
Such a provision would have a minimal impact on
the environmental result of the rolling easement,
while assuring the buyer that the rolling easement
will not disrupt his enjoyment of the land for at
least the next 75 years. This safety valve might
threaten the deductibility of a donated
conservation easement, 473 but exacted rolling
easements would not be tax-deductible anyway.
111
-------
ROLLING EASEMENTS
NOTES AND REFERENCES
434 See, e.g., IPCC, supra note 110, at 368-369;
U.S. Global Change Research Program, supra note
110, at 87; Caldwell & Segall, supra note 159; Donna
McMahon, The Republic of George's Island: One Man
against the Elements, 442 Nature 222 (2006); Megan
Higgins, Sea Level Rise Impacts on Beaches and
Coastal Property, 1 Sea Grant L. & Pol'y J. 43, 51
(2008); and Mark Stallworthy, Sustainability, Coastal
Erosion and Climate Change: An Environmental Justice
Analysis, 18 J. Environmental Law 357-373 (2006).
40c
See generally Maryland Law Review, supra
note 7.
436 Cf. generally, John Rawls, A Theory of Justice
(1971)
437 "The CRS has been developed to provide
incentives for communities to go beyond the minimum
floodplain management requirements to develop extra
measures to provide protection from flooding." National
Flood Insurance Program, Flood Insurance Manual
CRS-1 (May 2005).
438 The human toll from relocation depends partly
on whether it is well planned or occurs unexpectedly.
Gradual abandonment can cause blight. "If homes are
destroyed during a storm, communities can be severely
disrupted by the sudden absence of neighbors who
previously contributed to the local economy and sense
of community. People forced to relocate after disasters
are often at increased risk to both health problems and
depression." CCSP, supra note 3, at 100 (references
omitted).
439 If the land is certain to remain undeveloped, the
retreat pathway is likely with or without rolling
easements along most parts of the U.S. coast. See
Environmental Research Letters, supra note 14.
440 Supreme Court holdings on the takings clause
have generally been designed to discourage the
government from pursuing social goals by singling out a
few property owners to pay the cost of achieving public
purposes that could more reasonably be achieved by
spending government funds and sharing the burden
among all taxpayers. Dolan v. City of Tigard, 512 U.S.
374, 396 (1994). Regulations that generally benefit
most or all property owners provide a reciprocal
advantage to all. See generally Armstrong v. United
States, 364 U.S. 40, 48 (1960). Abraham Bell & Gideon
Parchomovsky, Takings Reassessed, 87 Va. L. Rev.
277, 278 (2001) (explaining that courts and scholars
have struggled to draw a principled boundary between
valid exercises of the police power and regulatory
takings); Nollan/Dolan? Andrew W. Schwartz,
Reciprocity of Advantage: The Antidote to the
Antidemocratic Trend in Regulatory Takings, 22 UCLA
J. Envtl. L. & Pol'y 1 (2003); and Joseph L. Sax,
Takings and the Police Power, 74 Yale L.J. 36, 69
(1964). Basic nuisance law and a possible reading of
Penn Central imply that a taking is less likely when the
social benefit of a restriction is greater than the cost to
the landowner. However, the regulatory takings cases
do not currently require that a given objective be met at
the least cost.
441 See supra note 438
442 See supra note 437.
443 I.R.C. § 170(f)(3) disallows deductions for a
contribution of "less than the taxpayer's entire interest,"
with a few exceptions that do not apply. A developer
who retains a possibility of reverter can take the
deduction because the possibility of reverter is all that
remains after selling the fee simple determinable to
homebuyers; however, such "donations" may be
business expenses anyway, especially if the possibility
of reverter is exacted as a permit condition.
Landowners who intend to retain a fee simple
determinable while transferring a possibility of reverter
to a land trust would generally own nothing but the
possibility of reverter for a period of time during which it
is donated to the land trust, supra note 260, and
seemingly qualify for the deduction. But the IRS may
look at the transaction as a whole, which is a donation
of less than the entire interest.
444 See I.R.C. §170(h)(4)(a)(i) ("For purposes of
this subsection, the term "conservation purpose"
means...(i) the preservation of land areas for outdoor
recreation by, or the education of, the general
public....")
445 See, e.g.., Debra Wolf Goldstein, The
Heritage Conservancy, Using Conservation
Easements to Preserve Open Space: A Guide for
Pennsylvania's Municipalities 27 (2002) [hereinafter
Heritage Conservancy],
446 For example, if the owner is provided a payment
that, if invested along with the tax savings, will grow
enough to equal the diminution in value by the time of
the landowner's expected death, the owner can leave
his heirs an estate with the same value as if he simply
refrains from development and does not attach a
conservation easement to the property.
447 I.R.C. §§ 170(a), 170(f)(3)(B)(iii), & 170(h).
448 26 C.F.R. §1.170-1 (e).
449 The value of the easement donated is calculated
as the difference between the market value before and
after the conservation easement is created. See, e.g.,
Hilborn v. Commissioner, 85 T.C. 677, 688 (1985).
450 I.R.C.§170(b)(1)(B)(i). The deduction can be
carried over for the next five years. I.R.C.§170(b)(1)(B).
112
-------
Advantages and Disadvantages of Rolling Easements
The total charitable deduction is limited to 1.8 times the
taxpayer's adjusted gross income. Id. If the total value
of a conservation easement is 3.6 times one's gross
income, one may donate a conservation easement
worth 1.8 times the adjusted gross income one year,
and donate a conservation easement on the rest of the
property 6 years later,
4*51
See, e.g.,, Daniel C. Stockford, Property Tax
Assessment of Conservation Easements, 17 B. C.
Envtl. Aff. L. Rev. 823, 831 n.47 (1990) (listing
statutes that specifically require a reduction in assessed
valuation of land subject to a conservation easement for
Connecticut, Florida, Georgia, Maine, Maryland,
Massachusetts, New Hampshire, New Jersey, North
Carolina, Pennsylvania, and Virginia). Nevertheless,
land trusts often warn potential donors that their
assessment for property taxes may not decline as much
as the market value declines. Id. at 826.
452 26 U.S.C. § 2031 (a) and (c).
In Stotler v. Commissioner, for example, the tax
court accepted a landowner's claim that a conservation
easement reduced the value of a coastal property by 91
percent. 53 T.C. 973 (1987).
454 A taxpayer with adjusted gross income of $2.5
million at the 40% marginal (federal and state) income
tax rate could deduct the entire $800,000 during the
year of the donation, for an income tax savings of
$320,000. But a taxpayer with an adjusted gross
income of $100,000 could only deduct $30,000 per
year, and the marginal tax rate would be lower. See
supra note 450.
At a discount rate of 5%, a farm with profits of
$50,000/year would be worth $1,000,000. If the farm
lost 1/300 of its land each year and hence profits
declined by $166.67 each year, then the present value
of the income stream would be $930,000 (7 percent
decline). At a 3% discount rate, the present value
would be $890,000 (11 percent decline).
456 E.g., preventing an entire farm from being
eroded or inundated would often cost more than
$70,000.
4C7
See, e.g., Environmental Research Letters,
supra note 14.
458 I.e., 1/(1,0550)=0.087, which is approximately 9
percent. Although shore protection is not free, if it is
subsidized with no cost to the landowner, then it does
not lower the fair market price of a rolling easement.
459 A typical revetment costs about $200/foot, so a
100-foot revetment would cost about $20,000. See,
e.g., Sorenson et al., 1986. Trucked-in sand often costs
approximately 50 cents to one dollar per cubic foot.
Therefore, elevating a 10,000-square-foot lot by one
foot would cost $5,000-$10,000. Elevating homes can
cost tens of thousands of dollars.
460 If the cost of shore protection 50 years hence
would be one-sixth the current property value, then the
present value of the future shore protection cost
avoided would be one-sixth of the present value of
losing the property, calculated in note 458 (about 1.5
percent), and the net impact on today's property value
would be the difference.
461 26 C.F.R. § 1.170A-13(c)(2)(i)(A).
462 If one could assess the probability that a court
would find that there is no right to shore protection (A)
and that the government would not allow shore
protection (B), then the value of a rolling easement
should be further discounted by that likelihood (A times
B), in the case of a donation to a land trust. If an
easement is purchased by the very agency that could
issue the permit for shore protection, the value need
only be discounted by the likelihood that there is no
right to shore protection (A).
463 Cf., Ben Lanskink & Ward Lanskink, Appraisals
and Consulting, Diminution in Value, Injurious
Affection: Non-Visible Easements (Toronto 2010)
(buyer resistance to easement that did not affect use of
existing property caused 14 percent reduction in
property value); and P.J. Rohan, The Model
Condominium Code: A Blueprint for Modernizing
Condominium Legislation, 78 Colum. L. Rev. 587, 595
(1978) (warning of buyer resistance to poorly
understood condominium restrictions).
464 E.g., H. Kunreuther & M. Pauly, Neglecting
Disaster: Why Don't People Insure against Large
Losses? 28 Journal of Risk and Uncertainty 5-21
(2004); and K. J. Arrow, Risk Perception in Psychology
and Economics, 20 Economic Inquiry 1-9 (1982).
465 This assertion assumes that the owner intends
to retain the property until submergence, or will sell it to
someone who correctly values the implication of the
rolling easement. For additional discussion on how tax
deductions for contributing conservation easements can
be greater than the actual impact on the donor. See
supra notes 446-451, Table 4, and accompanying text.
466 There may be a significant number of oceanfront
landowners who would be willing to provide an
affirmative rolling easement to allow access along the
dry beach seaward of the dune, as long as such an
easement did not have priority over their own use of the
land, such as dune maintenance and keeping a home
that encroaches seaward of the dune. Such easements
might not significantly reduce property values and
hence may have a negligible tax benefit. They might
even benefit the property. See supra note 411
(discussing suspension of beach nourishment in West
113
-------
ROLLING EASEMENTS
Galveston until waterfront landowners conveyed rolling
easements).
467 The IRS requires appraisals to be based on
comparable sales information where it is available. 26
C.F.R. § 1.170A-14(h)(3)(i). There is generally not a
resale market for conservation easements themselves
because the primary value of a conservation easement
does not accrue to the easement holder but to society
and posterity. IRS rules require considering comparable
sales of properties with and without the restriction. Id.
But reliable information is often unavailable because the
potential for development varies site by site. Even if a
neighbor has sold an easement to a land trust, the sale
might not be comparable. The future loss of a property,
by contrast, would be a straightforward function of
elevation and projected sea level rise—and shore
protection costs are easily estimated. Appraisals often
include adjustments for differences between the
properties when those differences are readily
quantified. See, e.g., Stotler v. Commissioner, 53 T.C.
973 (1987). Therefore, the market value of a rolling
easement can probably be substantiated by a
comparable sale for other properties with similar
elevations, with differences in the market price of the
property providing the basis for adjusting the market
price of a rolling easement. For a discussion of the
economics of qualified appraisals, see James Boyd,
Kathryn Caballero, & R. David Simpson, The Law and
economics of Habitat Conservation: Lessons from an
Analysis of Easement Acquisitions (Resources for the
Future Working Paper No. 9932, 1999)
468 Fischer Black & Myron Scholes, The Pricing of
Options and Corporate Liabilities, 81 The Journal of
Political Economy 647-654 (1973). Because the
value of a rolling easement declines exponentially with
the year by which the land will be submerged, the high
end of the uncertainty range for sea level rise
dominates the value of a rolling easement.
469 Cf. supra note 451.
470 The increase in density required to offset the
impact of the rolling easement depends on the profits
per unit, and the impact of a rolling easement on
property values. This type of inducement is the
temporal equivalent of transferable development rights.
The period extending from now until whenever the
property becomes threatened is the receiving epoch,
while the more distant future is the sending epoch.
Given the relative present values of a rolling easement
and a development permit, a fairly small number of
additional units should generally be sufficient
inducement for a developer to place a rolling easement
on all but the most low-lying (but easily protected)
lands.
471
This scenario would occur on an eroding shore
or along estuaries with at least a small slope
proceeding inland. In areas with ridges or natural
levees along the shore and minimal erosion, the inland
parcels could be submerged while waterfront parcels
remain habitable.
472 For example, at a 3 percent discount rate, the
value of a 26-year estate is slightly greater than half the
value of owning the land forever (i.e. fee simple
absolute). Therefore, if the premium for being waterfront
doubles the value of the land, one would be slightly
better off with a waterfront lot that will be lost in 24
years than a nonwaterfront lot that will be retained
forever. At a 5 percent discount rate, the break-even
point would be 17 years. But cf. supra notes 463-465
and 467-468 and accompanying text (no research is
available on whether markets would overvalue or
undervalue rolling easements, and suggesting that
donations are appropriate if markets overvalue while
purchases or exactions are appropriate if markets
undervalue the easements).
473 The requirement for the restrictions that apply in
perpetuity may also imply that they must not be
postponed significantly. Cf. 26 C.F.R. § 1.170A-14(g)
(disallowing deduction for a remainder interest if the
current tenants are allowed to undertake activities that
reduce the conservation purpose of the donation in a
subsection defining the general requirements of "in
perpetuity"). Allowing a home to remain on site for 75
years, however, is not the same as allowing shore
protection for 75 years; so allowing the home to remain
for 75 years may be consistent with the conservation
objective.
114
-------
CHAPTER 6
DEFINING HOW IT WILL WORK
If rolling easements look promising and one has
the legal authority, then the next step is to
carefully plan the specifics about how it will work
and where it should apply. This chapter addresses
two key specifications of a rolling easement:
1. What is the boundary that rolls inland?
2. What restrictions should be imposed on the
land inland and seaward of that boundary?
Chapter 7 considers where rolling easements might
be most useful. Finally, chapters 8 and 9 examine
the process for ensuring compliance, with a focus
on recorded rolling easements.
6.1 THE ROLLING DESIGN
BOUNDARY: WHICH RESOURCES
AND RIGHTS ROLL INLAND?
A rolling easement can be based on whichever
definition of shoreline is most appropriate for
achieving the objectives of the policy. Rolling
easements can use more than one rolling design
boundary if, for example, it is important to prevent
seawalls or new buildings on the beach, but the
easement holder or government regulator can
tolerate existing homes on the beach until they
regularly stand under the runup of ocean waves
(see Figure 2 on page 16). More generally, a rolling
easement can be designed to ensure that wetlands
and beaches have room to migrate inland and that
either:
• Existing public access (or a particular coastal
ecosystem) along the shore migrates inland
(Section 6.1.1);
• The area of public access (or habitat) initially
shrinks before migrating inland. The public's
access along the shore currently includes some
areas inland of the rolling boundary; so as the
shore erodes, the area of public access will
decline until the rolling boundary reaches the
existing inland limit of public access, after
which public access will migrate inland.
Alternatively, conservation areas currently
preserve areas inland of the rolling boundary;
so the area of shoreline habitat will decline until
the rolling boundary is inland of what is now a
buffer, at which point habitat zones will migrate
inland (Section 6.1.2); or
• The rolling boundary is set landward of the
current public access boundary, so the public
will have more access along the shore than it
has today (Section 6.1.3).
How each of these goals is achieved will depend on
the existing inland boundary of public access or
regulatory authority, and whether that boundary
or a more seaward boundary migrates under the
public trust doctrine (see Table 5). We discuss each
of these three possible objectives in turn. We also
briefly consider property rights issues and look at a
few rolling easement approaches based on
elevation or the passage of time, rather than a
rolling design boundary.
115
-------
ROLLING EASEMENTS
116
-------
Defining How It Will Work
Table 5
Example Options for the Rolling Design Boundary for Various Combinations of the
Public Trust Boundary and Inland Extent of Public Access or Regulatory Jurisdiction
Existiru
3 boundaries
Options for Rolling
Design Boundary
1 Jurisdiction: 1
1 r
access or i
Places where
Issues (e.g. mechanism for
egulation? |
this
Basis for
Rolling
Boundary
rolling easement or
¦Hi Extends 1
|Which?|l to
combination
applies
[Rolling 1
|Boundary |
notable aspect of the
outcome)
The protected habitat or public access boundary will migrate inland as the shore retreats.
Mean high
water
R
Spring high
water
Estuaries in
many states
Spring high
water
Easement or
wetland
regulation
Rolling easement that
prevents shore protection.
Dune
Vegetation
Line
A
Dune
Vegetation
Line
New Jersey,
Louisiana, and
Hawaii
Dune
Vegetation
Line
Common
Law
Regulation or easement
that prohibits shore
protection.
Mean high
water
A
Dune
Vegetation
Line
States other
than NJ, LA,
and HA.
Dune
Vegetation
Line
Example new
statute
Possible taking in some
cases
Mean high
water
A
Dune
Vegetation
Line
Texas
Dune
Vegetation
Line
Easements
for beach
nourishment
New policy. Until 2010
state assumed property
law was the same as in
NJ, LA, HA.
Mean high
water
A
Mean high
water
Estuaries in
many states
Mean high
water
Common
Law
Regulation or easement
that prohibits shore
protection.
The protected habitat or area of public access will shrink at first and migrate inland thereafter
Mean high
water
A
Dune
Vegetation
Line
Developed
beaches in
many states
Mean high
water
Common
Law
Pedestrian access along
ocean shore becomes
impractical as access
gradually narrows from dry
beach to areas covered
with waves
Mean high
water
A
Dune
Vegetation
Line
Same as
above
Actual
observed
average high
water mark
Easements
or example
new law
Pedestrian access narrows
but remains. Courts might
find that public trust
doctrine always provided
access to actual water
mark.
Mean high
water
R
Spring high
water
Estuaries in
many states
Mean high
water
Common
Law
Rolling boundary from
nuisance law.
The protected habitat or area of public access is extended inland as part of the new policy
Mean high
water
A
Mean high
water
Several states
in places with
"private
beaches"
Dune
Vegetation
Line
Easements
for beach
nourishment
Similar to existing federal
policy which requires
public easement before
beach nourishment, except
the easement would roll.
A = Public access is the focus o
R = Habitat protection (e.g. land
f the design boundary.
use restriction) is the focus of the design boundary.
117
-------
ROLLING EASEMENTS
Photos 30 to 32. Shore protection structures
can block the inland migration of mudflats,
vegetated wetlands, and estuarine beaches.
Top: a retaining wall along tidal flats in Westchester
County, New York (March 2003). Middle: a bulkhead
along a tidal marsh in Monmouth, New Jersey
(September 2003). Bottom: a bulkhead along South
Jamesport Beach in Riverhead, New York
(September 2006). Photo source: ©James G. Titus,
used by permission.
6.1.1 All Existing Resources and
Boundaries Roll Inland
Preserving Beaches and Wetlands. The most
commonly examined474 approach to rolling
easements is to use one or more boundaries that
are already established. The rolling easement just
ensures that the boundaries roll inland, typically
by preventing shore protection.4^ Most existing
regulatory rolling easement policies along ocean
beaches prevent shore protection structures on or
seaward of the dunes, but show flexibility on
removal of buildings that are on the beach as a
result of erosion,476 unless they encroach seaward
of the boundary between public and private land
(often the mean high tide line). Many of the same
states have rolling setback policies that limit new
construction within a given distance inland of the
dune vegetation line.477
Rolling easement policies along marshes are rare.
The design boundary is generally the upper edge of
tidal wetlands,478 or a given distance inland of the
marsh.479 Shore protection structures can block
the inland migration of mudflats, vegetated
wetlands, and estuarine beaches (see Photos 30
to 32). If preserving intertidal habitat is the goal, a
policy can prohibit structures seaward of the
inland edge of the particular habitat (e.g. below
spring high water). If the goal is to preserve both
tidal wetlands and a 50-foot buffer along the
wetlands, structures can be prohibited within
50 feet of the landward boundary of the tidal
wetlands. If the goal is to avoid flood damages or
preserve floodplains, a rolling easement policy can
prohibit new or rebuilt structures in the 10-year
(or any other frequency) floodplain. In these three
examples, a rolling easement could either require
removal of all structures seaward of (or touching)
the rolling design boundary, or allow
nonconforming structures that were landward of
the boundary when built to remain for a defined
period or until repairs are necessary. Shore
protection structures, however, will have to be
removed regardless because they defeat the
fundamental purpose of the rolling easement.
118
-------
Defining How It Will Work
Public Access. A rolling easement does not always
have to explicitly address public access to ensure
that it migrates inland. Along estuaries, public
access is generally up to the mean high water line
according to the public trust doctrine480; as long as
human activities allow the intertidal zone to
migrate inland, the public will continue to have
pedestrian access, albeit inland. Public access
extends to mean high water along many ocean
beaches as well.48' (See Figure 3 on page 1 and
Section 2.2.2.) But along oceans, mean high water
is out where small waves break during high tide,
making pedestrian access impractical. This limited
public access will automatically migrate inland,
such as it is. In a few states, the public trust
doctrine provides access up to the dune vegetation
line.482 As long as the dunes can migrate inland,
the public access will follow in those states.483
Even in states where the public trust doctrine only
provides access below mean high water, the public
has access along some beaches up to the dune
vegetation line, for reasons other than the public
trust doctrine. In such places, a rolling easement
must expressly articulate that access up to the
vegetation line will migrate inland as the
vegetation line migrates; otherwise, the line of
public access will not migrate and the public access
way will eventually narrow.484 In the case of a
shoreline migration conservation easement, the
landowners will often be most concerned about
restrictions on shore protection and requirements
to remove the buildings as the shore retreats.
Owners may be willing to agree to provisions
allowing the public access way to migrate inland, if
they are satisfied with the restrictions on shore
protection and maintaining their homes.
For government regulations, by contrast,
migrating public access (beyond what would
happen automatically from the public trust
doctrine) can raise property rights issues. In
Texas, there was some confusion from 1986 until
2010 about whether the boundary of the public's
legal right to access along the beach migrates
inland with the dune vegetation line, or if the
boundary remains fixed where it was when public
access was established. The state's policy was that
the access migrates inland, and the state assumed
that it was simply implementing a longstanding
public access right that had been explicitly
codified.485 But in 2010, the Texas Supreme Court
held that although the mean high water line (which
defines land ownership) is a rolling boundary, the
public access boundary does not roll.486 In effect,
the court held that the state's policy to ensure that
dry beach access is a rolling easement had reset the
rolling design boundary inland from mean high
water to the dune vegetation line, without a
statutory basis for doing so.487 After the court
ruling, the state suspended planned beach
nourishment projects until beachfront landowners
agreed to transfer rolling easements on their
properties,488 which would have been unnecessary
under the previous interpretation of Texas law.
Roads and other shorefront land uses. As with
public access, a rolling easement meant to ensure
that roads, utilities, parks, or waterfront businesses
are able to migrate inland must explicitly say that
the boundary migrates inland, and specify the
shoreline with which they migrate. If a 50-foot
roadway about 70 feet inland of the beach is the
objective, for example, then the rolling easement
could provide for a road easement to all dry land
within 120 feet inland of the vegetation line. In
this case, nonconforming structures may also have
to be removed if they encroach more than (for
example) 10 feet because they will become road
hazards and otherwise defeat the purpose of the
rolling roadway easement.
6.1.2 The Area of Habitat or
Public Access Initially Shrinks
before Migrating Inland.
Some landowners negotiating shoreline migration
easements may agree to forgo shore protection, but
not agree to the automatic inland migration of all
existing legal and natural boundaries. State or
local governments may conclude that the inland
migration of some boundaries is essential to
putting a community on a retreat pathway, but
that requiring other boundaries to migrate inland
119
-------
ROLLING EASEMENTS
would unreasonably interfere with private
property rights. In either case, the rolling
easement that results will provide for an initial
narrowing of the public resources along the shore,
after which the remaining rolling boundaries will
migrate inland with the retreating shore.
Public Access. Along beaches to which the public
has access for reasons other than the public trust
doctrine, the boundary of public access is generally
a fixed line. Existing rolling easement regulations
in such areas generally do not ensure that the
boundary of public access migrates inland. As a
result, the portion of the beach to which the public
has access might narrow until the public trust
boundary^ reaches the fixed line of public access.
From that day on, public access will migrate
inland; but it would only include the public trust
lands. The public's ability to use the beach would
be impaired—especially if homes remain seaward
of the dune vegetation line (see Photos 33 to 35).
As a practical matter, public access up to the dune
vegetation line has often been established based on
the longstanding use of the beach, under various
legal doctrines.49° If the public continues to use
the beach up to the dune vegetation line, then
public access along the shore could migrate inland,
not as a matter of law, but through the repeated
re-establishment of new public easements.491
Landowners are entitled to prevent trespassing.
Whether they do so depends on the energy of the
wave environment, because posting signs or fences
is impractical, hazardous, and often prohibited
along shores with substantial waves (compare
Photos 36 and 37 with Photos 33 to 35).
Nevertheless, homes standing on the beach tend to
discourage pedestrian access.
A conscious recognition that the public access line
does not roll inland with the dune vegetation line
would not necessarily mean that access along the
shore must eventually be reduced to only those
areas belowr mean high water. Some landowners
may agree to allow the public to walk along the
shore some distance seaward of the dune line,
which could be set sufficiently inland of mean high
water to provide a reasonable pedestrian way, but
Photos 33 to 35. Most states show
flexibility on removal of buildings on the
beach as a result of erosion. Top: Westerly,
Rhode Island (March 2003). Middle: Kitty
Hawk, North Carolina (June 2002). Bottom:
Folly Beach, South Carolina (April 2004).
Photo source: ©James G. Titus, used by
permission.
120
-------
Defining How It Will Work
sufficiently seaward of the vegetation line to not
interfere with the owners' use of their property. In
many states, courts have not explicitly decided
whether the public has access to the part of the
beach between the average high water mark (or
wet/dry line) and mean high water; so it is possible
that in some states where private ownership
extends down to mean high water (or even mean
low water) the common law would allow access
below the average high water mark. 492 Thus a
regulation that sets the public access line as the
average high water mark might not interfere with
existing property rights, and a shoreline migration
easement that sets public access accordingly may
be viewed as a clarification rather than setting the
access line seaward of where the law requires.493
Wetlands. The state as property owner can
prohibit construction and other activities on public
trust wetlands, typically low marsh. Regulations
restrict the conversion of privately owned tidal
wetlands to dry larid.w a state may be able to
persuade a court to order removal of shore
protection that blocks the inland migration of
public trust tidal wetlands under the common law
of nuisance.495 if so, a regulation that requires the
same thing does not impair property rights. But
that argument does not apply to shore protection
that prevents privately owned dry land from
becoming privately owned high marsh. Although
no court has decided the question, a state or local
government might decide that it lacks the
authority to ensure the migration of high marsh,
and accordingly set the rolling design boundary at
mean high water. As a result, the high marsh
would be lost while the low marsh continued to
migrate inland. Similarly, a landowner negotiating
a shoreline migration easement might agree to
forgo shore protection but not to remove the home
until it is submerged at low tide. Such an
arrangement would enable the public access line
and wetlands to migrate inland, but the building
line would—in effect—be reset to mean low water,
before rolling inland.
The accommodation pathway496 can also narrow
habitat or public access initially, before migrating
inland. (Accommodation is a general response to
sea level rise in which people continue to occupy
an area but shore protection is precluded.4'17) For
purposes of shore protection, the rolling design
boundary along an estuary may be the upper edge
of wetlands. But the boundary defining removal of
homes may be well seaward of the upper edge of
Photos 36 arid 37. Where the wave ciimate is reasonably light, landowners are better able to
discourage trespassing on the dry beach. Left: fences along the dry beach of Long Island Sound
(Knollwood Beach, Connecticut; March 2003). Right: a sign along the shore of Orient Harbor near the
eastern end of Long Island. (Orient, New York; September 2006). Photo source: ©James G. Titus, used
by permission.
121
-------
ROLLING EASEMENTS
tidal wetlands (e.g. mean low water)—or might not
roll at all.
6.1.3 Inland Redefinitions of
Public Access and Other
Boundaries
As a general rule, a rolling easement policy need
not be the occasion to reset the shoreline boundary
defining where the public has access. The purpose
of the rolling easement is to ensure that the inland
boundary of shoreline habitat or public access
migrates inland along with the retreating shore,
not to push that limit father inland relative to the
shore. Nevertheless, a rolling easement policy can
also be adopted as part of a government policy or
private transaction that clarifies or modifies the
public access boundary for other reasons. In many
states, for example, the public has greater access
along the ocean than along other bodies of
water;498 eventually a uniform set of rules may be
adopted in a given state. Shore protection policies
and projects often re-define the private/public
boundary from mean high water to the dune
vegetation line, to ensure that publicly funded
beach nourishment is only provided to beaches
that are open to the public.4'1'' Rolling easements
can also be part of such transactions.500
Along estuarine shores, even though the public
(usually) owns up to mean high water, a policy
designed to allow wetlands to migrate inland may
require structures to be removed once they
encroach seaward of the tidal wetlands, which
generally extend to spring high water (or
farther).501
6.1.4 Property Rights Issues
The question of what the design boundary should
be for environmental and safety reasons is
different from the question regarding payment to
landowners. A rolling easement policy under which
the existing public-trust boundary migrates inland
might not require compensation under the
U.S. Constitution or the common law (especially in
an undeveloped area) because this boundary has
migrated inland for centuries, and landowners do
not have an expectation of maintaining a home
that stands in state-owned waters. A policy that
provides for the inland migration of public access
obtained by other means is more likely to alter
property rights and require compensation. The
Texas Supreme Court, for example, limited the
situations in which the dry beach easement rolls
inland, relying on the Legislature's intent to not
alter property rights; but it also explicitly stated
that the holding did not apply to the public/private
boundary established by the public trust
doctrine.502
Resetting the public/private boundary inland of
where it is today would be even more likely to
require compensation. Along estuarine shores, a
rolling easement that requires removal of a home
on privately owned wetlands above mean high
water would interfere more with the reasonable
expectations of a landowner than would a
requirement to remove a structure standing in
shallow water or the publicly owned wetlands
below mean high water.
6.1.5 Alternatives to a Rolling
Design Boundary
A rolling easement policy can also be based on
time or migration of the shoreline. For example,
instead of prohibiting shore protection without
qualification—which existing rolling easement
policies typically do—an easement or regulation
could allow shore protection for a specific period
(e.g., 75 years) to provide some assurance of
property value.503 Such a qualification may be
particularly appropriate if shore protection is
unlikely to be needed before then anyway, because
the environmental result is likely to be the same as
if there were no qualification. But ensuring that the
rolling easement will not take the property for two
generations can help make a potential home buyer
more willing to buy land subject to the easement,
and hence make a developer more willing to place
rolling easements on an entire development.
Structures can also be prohibited based on time
alone. For example, the existing shoreline could be
122
-------
Defining How It Will Work
surveyed and a seaward limit line could be
specified to move inland by five feet per year. Such
a predetermined rate would only roughly
correspond with the natural shore migration, but it
would provide property owners with certainty
regarding their land tenure. This approach may be
useful for lands likely to be vulnerable within a few
decades, during which time a community may be
willing to temporarily provide beach nourishment
or artificial wetland accretion if shorelines migrate
faster than assumed.504 Existing setback policies
already use a linear extrapolation of historic
erosion rates to prevent construction on land likely
to be eroded.
Finally, a rolling easement policy can be based on
sea level. Restrictions could be based on the
elevations of land relative to the rising sea.
Alternatively, land could revert to another owner
when the sea rises to a particular level.505 In this
case, if entire parcels revert at once, one would
have to pick a single elevation to represent
vulnerability to sea level rise. Alternatives include
the average elevation of the parcel and the
elevation of the home site. If a survey shows the
home site to be 4 feet above the upper edge of low
marsh vegetation in an area where the boundary
between low and high marsh is recognized as mean
high water, then a 4-foot rise in sea level would
submerge the home site in the absence of shore
protection. In such a case, the deed might specify
that the land reverts when sea level rises 4 feet
above the current level.506
One could pick a nearby station where NOAA
regularly measures sea level, and specify (for
example) that when average annual sea level rises
4 feet above sea level for the current tidal epoch as
measured by NOAA at that station (or the nearest
station if NOAA later changes procedures), the
land will revert. Alternatively, a deed might
transfer title based on measured sea level relative
to a benchmark elevation. If the home site is 7 feet
above the North Atlantic Vertical Datum, then the
deed might specify that when mean high water at
that location reaches an elevation of 7 feet above
the North Atlantic Vertical Datum, the land
reverts.507 In the former case, creation of the
rolling easement requires agreement regarding the
current land elevation relative to sea level, to
establish a baseline; but over time it would be
relatively easy for all of the parties to keep track of
(or prove to a court) how much sea level had risen
at the NOAA tide station.508 In the latter case, the
deed could be drafted based on an elevation survey
(or lidar elevation data), but it may be necessary to
install a tide gauge and collect data for a suitably
long period of time to determine sea level at that
location.
6.2 RESTRICTIONS IMPOSED BY
THE ROLLING EASEMENT
6.2.1 Seaward of the Rolling
Design Boundary
Whether by regulation or interest in land, the most
essential part of a rolling easement is the set of
rights transferred from the coastal landowner to
the local government or land trust. Seaward of the
boundary, the rights potentially altered concern:
• Limits on shore protection;
> Ban on shore protection structures,
> Allow grade elevation?
> Allow beach nourishment?
> Material for grade elevation (if allowed);
• Ban on new structures of any type;
• Excavation;
• Removal of structures (stated period of time
before structures must be removed)
> Homes and other primary buildings,
> Utility buildings,
> Structures that alter shoreline processes
whether or not originally intended as shore
protection (e.g., retaining walls, driveways)
> Other structures;
• Management of structures (before removal is
due)
> Repair rules,
> Access rules,
> Rules for relocation within parcel,
123
-------
ROLLING EASEMENTS
> Timing for removal,
> Rules on who can use them,
> Rent for the temporary continued use;
• Transfer of title (in the case of interests in land);
• Public access (in the case of rolling easements
intended to ensure access);
• Permissible uses once the land becomes
submerged (in areas where submergence does
not transfer title to the state public trust);
This list highlights two key decisions: (i) whether
to prevent all shore protection or just shoreline
armoring; and (2) whether and when to require
removal of buildings. Existing rolling easement
policies generally allow ocean beach nourishment
because adding sand to the system can offset
erosion without impairing access along the beach.
But placing soil onto wetlands can destroy them;
and grade elevation inland of the wetlands
prevents them from migrating inland. A rolling
easement can be designed to remove buildings as
soon as the building encroaches seaward of the
rolling boundary or as late as never, with many
possibilities in between. The ti ming of the required
removal could depend on both the objective of the
rolling easement and the logistics of removing
homes and businesses from developed areas.
Removal of homes need not be the goal of every
rolling easement. A community's plan might be to
follow the accommodation pathway rather than
retreat, in which case allowing homes to remain
when an area becomes marsh or open water would
be consistent with the plan (see Photos 38 and 39).
Similarly, a key objective might be to ensure that
low-lying waterfront owners do not elevate land or
build dikes in ways that would slow drainage and
increase flooding of adjacent lands that are slightly
higher. Finally, even in an area where the ultimate
goal is to retreat, a local government or land trust
might assume that it lacks the resources or
political ability to eject people from their homes,
and prefer to let the state resolve this issue once
the land is seaward of the public/private boundary;
that eventuality would be ensured by the
prohibition of shore protection. In all these cases,
the rolling easement makes an eventual retreat
more likely without actually forcing it to occur.
Even if the purpose of the rolling easement is to
ensure that the entire footprint of human activities
moves inland, some flexibility in the timing can
reduce litigation costs, and help the landowner
Photos 38 and 39. Homes standing in tidal waters. A rolling easement would not necessarily require immediate
removal of homes seaward of the rolling design boundary. Left: Gulf of Mexico, near Surfside. Texas (March 2006),
Right: Forbes Bay, Elizabeth City (October 2002). Photo source: ©James G. Titus, used by permission.
124
-------
Defining How It Will Work
more than it harms the environment. Especially
along a south-facing shore, marsh grasses can
grow next to and even under a home elevated 10 to
12 feet above spring high water. Even if the home
did impair marsh grasses, it might cover a very
small part of the parcel. Yet to the landowner,
continuing to have the home until his children (or
grandchildren) are grown could make the required
relocation far more palatable. If a storm destroys
the house in the meantime, an owner is generally
more willing to accept the need to move than if
ejected by a court, and the economic damages
attributable to the rolling easement are much
less.5°9 These reasons for not immediately ejecting
the owner when the property encroaches seaward
of the rolling boundary do not necessarily mean
that the flexibility should be in the original
easement document. It may be more efficient for a
rolling easement to have a specific requirement to
remove the home once there is an encroachment,
and then allow for renegotiation of the terms, if
both parties agree, once submergence becomes
imminent.510
6.2.2 Landward of the Rolling
Design Boundary
The objective of a rolling easement is to ensure
that resources seaward of the rolling boundary can
migrate inland. But the uses of land that is inland
of that boundary matter because that land will
eventually be seaward of the boundary. Rights
landward of the boundary that might be
transferred include:
• Restrictions on grading;
> No grading that increases land elevation,
> Limited to a fraction of the property?
> Allowed for driveway (Photos 40 and 41)?
> Allowed for advanced septic system?
> No foreign material brought in for grading,
p No additional drainage ditches (which can
allow saltwater into soils),
> Excavation allowed to lower grade to create
wetland habitat?
• Restrictions on construction;
> No construction within a specified distance
landward of the rolling easement boundary,
> Design specifications for mobility,
dismantling, or returning to nature without
removal;
• Vegetation management;
p No trees with large roots (whose degradation
can cause subsidence),
> No shade trees,
> No fertilizer, and
• Limits on species of domestic animals allowed.
Photos 40 and 41. Restrictions on grade elevations might need an exception for driveways. Left: Swan Quarter,
North Carolina (October 2002). Right: Middle Hooper's Island, Maryland (April 2005). Photo source: ©James G. Titus,
used by permission.
125
-------
ROLLING EASEMENTS
Most important is prevention of activities that tend
to nullify the rolling easement. If the goal is
landward migration of wetlands, then increases in
the elevation grades of the dry land would be, in
effect, a form of shore protection. Some adjust-
ments of grade may be needed for the temporary uses
of land, such as leveling a roadway (see Photos 40
and 41) or installing an advanced septic system in
an area with a high water table. Restricting foreign
(off-site) material for grading would prevent the
average grade from being elevated and would
maintain the preexisting soil type.
The premise of a rolling easement is that the owner
will continue to use the land in a way consistent
with an eventual retreat. The owner is assumed to
be in a better position than the government or land
trust to judge whether an investment with a limited
useful life is worthwhile. Thus, the greater the
restriction on construction landward of the
boundary, the more the restriction resembles a
setback rather than a rolling easement.
Nevertheless, a rolling setback may be needed to
preserve the integrity of the rolling easement.
Buildings511 or septic systems,512 for example, are
often set back from wetlands 50-150 feet; hence a
rolling easement might require relocation of
septic systems within 50-150 feet of the easement
boundary or prohibit repairs to any system likely
to be within 50-150 feet during the typical
lifetime. Moreover, the drain fields from septic
tanks generally must be at least 18 inches above
the water table to perform properly,51s so a rolling
easement might require relocation or replacement
with another type of system once the water table
reaches a particular elevation (see Photo 42).51+
Photo 42. Mounds-based septic system next to house. Along the back side of Pickering Beach,
Delaware (March 2009). Photo source: ©James G. Titus, used by permission.
126
-------
Defining How It Will Work
NOTES AND REFERENCES
474 See, e.g., Maryland Law Review, supra note 7,
at 1316 Fig 3 (showing all boundaries migrating inland).
475 See supra § 3.1.2.1.
476 See, e.g., Tex. Nat. Res. Code Ann. §61.0185
(providing for two-year delay in proceedings to remove
from the beach a house that was previously landward of
the vegetation, as long as it is not seaward of mean
high tide); CCSP, supra note 3, at 173 (pictures of
homes standing on the public beach at Kitty Hawk,
North Carolina over a 1-year period); and infra Photo 35
(picture of homes standing on the dry beach at Folly
Beach, South Carolina). See also Hirtz v. State of Tex.,
773 F. Supp. 6 (S.D. Texas 1991) ("The owners may
lose their houses and their land entirely, and they have
to allow public access over what used to be exclusively
theirs, but they do not have to neglect the maintenance
of what is actually there now.") That opinion was later
vacated on purely procedural grounds. Hirtz v. State of
Tex., 974 F. 2d 663 (5th Cir. 1992).
477 See supra note 293 and accompanying text.
478 Rhode Island's rules prohibit shore protection
along dunes, Rhode Island Coastal Resources
Management Program Rules § 210.7(D)(2); coastal
barriers, id. § 210.2(D)(4); wetlands in Class 1 waters,
id. § 210.3(C)(3); and beaches along Class 1 and 2
waters, id. § 210.1(C)(2). Construction along dune
areas must be set back 30-60 times the annual erosion
rate plus 25 feet inland of the crest of the primary dune,
id. §§210.7 (C)(2) and 210.7(A)(2), but there is no
similar setback for wetlands.
479 See, e.g., supra note 152 and accompanying
text (discussing towns in Massachusetts that restrict
grade elevation and shore protection within 50 feet
inland of tidal wetlands)
480 See supra notes 43-54 and accompanying text.
481 See, e.g., State v. Ibbison, 448 A.2d 728, 732
(Rl, 1982). See also supra notes 46-47 and
accompanying text.
482 See supra note 51 (Louisiana), 52 (Hawaii and
perhaps Washington), 58 (New Jersey and perhaps
Oregon) and accompanying text.
483 See supra § 2.2.2.
484 See supra notes 83-88 and accompanying text.
485 See supra § 3.1.2
486 Id. The confusion resulted largely because the
Open Beaches Act did not explicitly provide for the
inland migration of the public easement along the dry
beach as shores eroded, but instead directed the state
to defend the public easement consistent with existing
property rights. State officials and intermediate courts
assumed that the common law easement along the dry
beach migrated inland, but in 2010 the Texas Supreme
Court held that it did not (under most circumstances).
And because the statute explicitly adopted the common
law easement boundaries rather than explicitly
providing for inland migration, and expressly said that it
has no impact on land titles, the holding that the public
dry beach easement did not roll under the common law
implied that the statute had not created a rolling
easement either. Had the statute explicitly redefined
how the boundary migrated—at the risk of changing
pre-existing property rights which were somewhat
unclear—then by 2010, it would have been clear for 50
years that coastal property was subject to a rolling dry
beach easement.
487 Id.
488 See, e.g., supra note 411 and accompanying
text.
489 In many states, the inland extent of public trust
access is unclear along beaches where the average
high water mark is well inland of the mean high water
line. What is clear, however, is that public trust access
does not extend all the way to the vegetation line. See
supra § 2.2.1.
490 See supra note 62-64 and accompanying text.
491 See e.g. Severance v Patterson, No. 09-0387
(Tex. 2010) ("New public easements on the adjoining
private properties may be established if proven
pursuant to the Open Beaches Act or the common
law").
492 The traditional public trust doctrine gave the
public access up to the ordinary high water mark, and
courts have generally held that the public has access to
the entire wet beach. Court opinions defining "ordinary
high water mark" as mean high water have focused on
the difference between spring high water and mean
high water, and not addressed the tendency for mean
high water to be tens of feet seaward of the average
high water mark. The cases have defined mean high
water as the line that separates the wet beach from the
dry beach, seemingly unaware that the wet/dry line is
well inland of mean high water. See generally, supra
§2.2.1.
493 See supra notes 43-49 and 60, and
accompanying text (citing court opinions that define the
inland boundary of public ownership as mean high
water but have left open the possibility that public
access may extend farther inland).
494 See e.g. 33 U.S.C. § 1344.
495 See, e.g., Maryland Law Review, supra note 7,
at 1371-1374 (arguing that a tideland owner could seek
removal of a bulkhead as a nuisance) and supra notes
127
-------
ROLLING EASEMENTS
266-400 (discussing case where tribe owning tidelands
sought removal of shore protection structure under
nuisance law).
496 See supra §1.1.
497 See supra § 1.1 for a brief discussion of the
accommodation and other pathways
498 See e.g. Tex. Nat. Res. Code § 61.01 (defining
"public beach" as beaches along the Gulf of Mexico)
and McDonald v. Halvorson, 780 P.2d 714, 724 (Or.
1989) (holding that the doctrine of custom which
provides the public access along dry sand beaches on
the Pacific Ocean does not apply to other beaches).
499 The U.S. Army Corps of Engineers requires that
the public have access along and to any beaches that
are nourished as part of a federal project. U.S. Army
Corps of Engineers, Digest of Water Resources
Policies and Authorities 14-1: Shore Protection,
EP-1165-2-1 (Washington, DC 1996). See also CCSP,
supra note 3, at 121-122. Florida fixes the boundary at
the mean high water line, and then claims all land
created seaward of that line under the doctrine of
avulsion. See, e.g., Walton County v. Stop the Beach
Renourishment, Inc., 998 So.2d 1102, 1107-1109,
1115-1118 (Florida 2008).
500 See, e.g., supra note 411 and accompanying
text (citing a new policy in Texas which requires
waterfront owners to convey a rolling easement on their
lands before the state will place sand onto their
privately owned beaches).
501 See, e.g.,, J.G. Titus & J. Wang, Maps of Lands
Close to Sea Level along the Middle Atlantic Coast of
the United States: An Elevation Data Set to Use While
Waiting for LIDAR, in J.G. Titus & E.M. Strange
(editors), Background Documents Supporting
Climate Change Science Program Synthesis and
Assessment Product 4.1, EPA-430-R-07-004 9 & 27
(2008) (winds rather than tides determine the extent of
tidal wetlands in nanotidal estuaries, and even in
microtidal areas lands that are flooded irregularly by the
winds can have tidal wetlands).
502 Severance v. Patterson, No. 09-0387 (Tex.
2010).
Depending on how it is structured, such a safety
valve may have tax consequences. See supra notes
244 and 473.
504 To avoid various uncertainties, a property owner
and a land trust or local government may prefer to
negotiate a specific abandonment date once
submergence becomes imminent enough to predict with
reasonable accuracy. See infra note 595.
505 See supra § 3.2.2.
506 In this situation, the entire parcel would transfer
to the rolling easement holder at the same time as
when the public trust doctrine would transfer ownership
of the house site to the public (in most states).
Regulations prohibiting grade elevation could enable
wetlands to migrate inland before the reversion. In
such a case, the easement holder would only own the
portion of the parcel above the house site.
Alternatively, a possibility of reverter could transfer
ownership when spring high water submerges the home
site; such a case would in effect, reset the rolling design
boundary inland (or design plane upward).
cnj
For a discussion of reference elevations and
their relationship to wetlands and sea level rise, see
Titus & Wang, supra note 501, at 6-24. That report
includes a diagram similar to the figure in supra Box 2,
but with the reference elevations also displayed. Id.
at 7.
508 See e.g. Chris Zervas, Sea Level Variations
of the United States: 1854-2006. (National Oceanic
and Atmospheric Administration 2009). The NOAA
website regularly updates sea level for stations around
the United States.
509 The cost of post-storm relocation would only be
the cost of vacant land, rather than the cost of land and
structure.
CH Q
See infra notes 595-596 and accompanying
text.
511 See, e.g., CCSP supra note 3, at 214 (Delmarva
Peninsula) and 226-227 (Chesapeake Bay).
512 Town of Duxbury, Massachusetts,
Supplementary Rules & Regulations to the State
Environmental Code: Title 5, 310 CMR 15.000 (150
feet from wetlands).
513 See, e.g., CCSP supra, note 3, at 174-75.
ci A
The most common alternative system involves
building a small mound, so the parties would have to
consider whether allowing the minor grading for such a
system would be preferable to the alternatives. See,
e.g., CCSP, supra note 3, at 174-175.
128
-------
Defining How It Will Work
129
-------
CHAPTER 7
DEFINING WHERE TO APPLY THE
ROLLING EASEMENT
Where should wetlands, beaches, and public access
along the shore move inland? This chapter
examines some of the issues that localities and
conservation organizations might consider. (The
ultimate answer to the question depends on how
all these factors are weighed, which is beyond the
scope of this primer.)
7.1 DEFINING WHERE RETREAT
IS PREFERABLE TO SHORE
PROTECTION
There is both a private and public interest in
whether a particular area is protected or given up
to the rising sea. Most of the dry land along the
shore is privately owned, while most shallow
waters and intertidal lands are owned by the states
(in trust for the public). Coastal hazards such as
erosion and storms directly threaten the financial
interests (and occasionally the safety) of private
landowners, but public infrastructure is also
threatened. Government programs often subsidize
shore protection to prevent threats to private
property515 and cover the losses that do occur with
flood insurance.516 Severe storms often threaten
public health, commerce, and the environment.
The private and public interests in shore
protection may be aligned or they may diverge.
They tend to be aligned in areas that are either
very densely populated or very lightly populated.
In densely developed coastal cities where land
values are high, and private landowners and
governments generally agree that shore protection
is justified by both private investment and the
welfare of the community.517 In rural areas, neither
governments nor landowners tend to be interested
in shore protection of land that is mostly farm and
forest.518 The cost of shore protection is often
greater than the value of the land that could be
saved, making it a bad investment for the
landowner. The government often has little reason
to fund shore protection, because the slow loss of
undeveloped land in rural areas does not cause
perceptible harm to the state or the nation, while
shore protection could harm the environment by
preventing the inland migration of wetlands and
beaches.
The private and public interests may diverge, by
contrast, along moderately developed ocean
beaches and estuarine shores—for opposite
reasons. Along some barrier islands and spits, the
cost of shore protection is greater than the value of
the property that would be protected.519 As with
undeveloped farmland, shore protection would be
a bad investment for the landowner. But
government agencies often decide that shore
protection has a social value greater than its
cost,520 and undertake publicly funded shore
protection, with or without the support of adjacent
landowners.521 For example, in most states, erosion
reduces the portion of the dry beach to which the
public has access, while beach nourishment
increases it. (See Section 2.2.)
Conversely, there are also cases where shore
protection is a worthwhile investment to the
landowner but counterproductive to society. For
example, a group of homeowners would logically
be willing to each spend $200,000 to delay the
130
-------
Defining Where to Apply the Rolling Easement
loss of their $600,000 homes by 20 years,522 but
doing so might not be a good investment for
society overall. Perhaps the loss of those homes
would otherwise increase the property values of
the next row of homes by $325,000 (i.e., from
$275,000 to $600,000) because they would now
be waterfront. In that case, the shore protection
would only be deferring a social cost of $275,000
($600,000 minus $325,000), which would not be
worth a current expenditure of $200,000.523
Alternatively, perhaps shore protection would
eliminate wetlands which serve an important
ecological function, or would eliminate access
along an important recreational beach. Or perhaps
the least expensive measure of shore protection
would be a dike which the community would
gradually fortify as sea level rises, to the point
where the entire community would eventually be
below sea level and vulnerable to catastrophe
during a severe storm.
Retreat policies have generally been implemented
in two different types of situations:
• Shore protection has unacceptable impacts on
public access and the environment.
• The cost of shore protection is high compared to
the value of the assets likely to be lost as the
shore retreats.
The decision to prohibit structures that harm
beaches,524 access along beaches,525 or eroding-cliff
habitat526 can be viewed as a policy judgment that
the value of the natural shore is greater than the
net value of the private property lost to the rolling
easement.527 The merits of implementing a rolling
easement will generally not depend on whether
there is a right to hold back the sea (the Coase
theorem makes this general point for other
regulatory policies.528) If owning land does not
inherently include a right to shore protection,
retreat policies might be implemented without
compensating landowners—but few governments
will consciously give up taxable lands or anger
property owners for the sake of a policy whose
social benefits are less than the costs. Conversely,
if there is a property right to shore protection, then
logically a locality or conservancy should be willing
to purchase the rolling easement from the property
owner to preserve a natural resource whose value
is greater than the price of the rolling easement
(which would be the property owners' expected
loss from not holding back the sea). This does not
mean that adoption of a retreat policy is equally
likely whether or not there is a right to shore
protection—especially if the costs are likely to be
high. But if the policy is considered with sufficient
lead time for the immediate costs to be low, then
whether to actually adopt the policy should
logically depend on whether the benefits are
greater than the costs, but not on who would have
to pay several decades later if this generation does
not adopt a policy.
The case for a retreat policy is different for areas
where shore protection would be unlikely even
without a policy (see Section 5.1.2). At first glance,
there seems to be no need for a retreat policy in
areas where development is uneconomical (e.g.,
unbridged islands) or shore protection is not cost-
effective. But an explicit retreat policy might be
worthwhile, for several reasons:
• State and local governments may want to
discourage unwise investments that put
communities at risk. Property owners may
undervalue the likelihood of property loss; or
the community may wish to avoid hazards or
nuisances that individual property owners are
willing to take on.
• Where no lands seem certain to be protected, a
local government may prefer to designate some
lands for protection and others for retreat, both
to improve prospects for environmental
preservation in some areas and to define an
area with improved economics for shore
protection. (That approach is similar to smart-
growth policies and other approaches to land
use planning where some lands are designated
for agriculture and open space while others are
designated for extensive infrastructure and
other services.529)
• A conservancy may prefer the certainty that a
particular ecosystem will migrate inland over
having to rely on property owners abandoning
131
-------
ROLLING EASEMENTS
lands that do not seem worth protecting today,
but might be so in the future.
• The cost of implementing a retreat policy is low
in an area where no one expects shore
protection today. Changing economics could
make development and shore protection more
likely in the future, by which time the cost of
adopting a retreat policy would be high.
Although the need for a retreat policy seems less in
areas where retreat is likely anyway, benefits may
eventually accrue; and the cost of complying with
regulations or purchasing easements there would
be relatively low.
For localities interested in preparing for sea level
rise, one of the most urgent tasks is to define the
lands likely to be armored, elevated, or yielded to
the rising sea. 530 In the context of a standard
zoning ordinance, such a decision would involve
designating shore protection, grade elevation, and
retreat zones (see Figure 8 on page 44). In many
coastal areas, planning and community processes
have already weighed the need for development
against the need for open space and conservation
land. The same planning process could also decide
between armoring, elevation, and retreat, although
it might be reasonable to supplement that process
with an environmental assessment of areas where
the inland migration is most important.531 Areas
where wetland migration is a priority may include
habitat for endangered species and places where
potential migration of habitat is greatest. How
state and federal policies should modify local
choices is beyond the scope of this primer; but a
possible precedent is existing land use policy,
where localities make most of the initial site-
specific decisions, while private, state, and federal
acquisition programs often preserve lands that
could be developed under local regulations.
7.2 DEFINING WHERE ROLLING
EASEMENTS ARE PREFERABLE
TO OTHER MEASURES FOR
ENSURING A RETREAT
The three most commonly evaluated legal
approaches for implementing retreat are (in
decreasing degree of interference with private land
use):
• Limit or prevent construction (setback);
• Rolling easements; and
• Curtail subsidies and rely on market forces
(laissez-faire).
Figure 15 shows scenarios about how those options
may play out over time, from the perspective of a
single property owner. Figure 16 provides an
aerial view that compares the initial restrictions
associated with a setback policy to the later loss of
homes resulting from a rolling easement policy.
The setback approach is usually preferable if it is
feasible, because rolling easements are more
administratively complex. Maryland limits
development to one home in 20 acres along most
shores that had not been developed by the 1980s?32
The low-density development makes shore
protection relatively unlikely.533 In un-developed
areas where land slopes are steep, it may be
possible to ensure that all buildable lots created by
new subdivisions have a house site at least 15-20
feet above the tidal wetlands. Even there, a rolling
easement would provide additional assurance that
wetlands will be able to migrate inland;534 but the
policy that keeps the low land vacant makes retreat
likely with or without the rolling easement. (The
previous section considers whether vacant lands
should be a high priority for retreat because rolling
easements are more feasible, or a low priority
because rolling easements might not be necessary.)
132
-------
Defining Where to Apply the Rolling Easement
Prevent Development
Here's $10,000 and you can keep
grazing cattle. ^
i"
J» <
Defer Action
Here's your building permit.
No Strings Attached.
Rolling Easement
Today
Your deed says that you will
not try to hold back the sea.
Soon 2020
Figure 15. Three Approaches to Ensuring That Wetlands Can Migrate Inland. In each case, the
land starts and ends as vacant farmland. This figure assumes that the public rather than the
property owner bears the cost. Under the Prevent Development approach, the value of using the land
for development is signified by the upfront cost of buying a non-development easement. Under the
Defer Action approach, it is ultimately necessary to buy the entire land and structure (figure and
caption continued on next page).
133
-------
ROLLING EASEMENTS
Here's $400,000. Good luck
with your new home.
I'm glad we built that bulkhead.
E3
You had cheap rent and I made a
profit; but the house must be
abandoned.
The Sea Will Erode This House
in 15 years.
2060
That's Okay. I
plan to rent it out.
2040 2055
(Figure 15 continued). With rolling easements, a house must eventually be abandoned as well, but the
eventuality has been incorporated into the expectations of the owner, who forgoes renovations. The
cartoon does not include the cost of purchasing the easement, because its present cost would be trivial
enough that it could easily be included as a permit condition for building or subdivision.
134
-------
Defining Where to Apply the Rolling Easement
Relying on market forces may be effective in some
locations. But rolling easement policies would
generally be more effective wherever property
values are greater than the cost of shore
protection. Even where shore protection costs are
greater, a rolling easement may be an effective tool
for warning owners not to expect government-
funded shore protection.
In most coastal states, no one can confidently
predict whether a takings claim will succeed if a
government policy forces people with homes along
estuarine shores to abandon homes to the rising
sea. Rolling easements may be a useful way to
avoid or mitigate such claims.
• A purchased or donated rolling easement
eliminates the risk of a successful takings claim
because the government or easement holder
compensates (or receives through donation) the
interest that might otherwise be taken.
Depending on how it is acquired, a rolling
easement may require a small payment today—
but that payment provides legal certainty in
what would otherwise be an uncertain legal
environment.535 The fair market value of a
rolling easement will be small, except possibly
in cases where property loss is imminent.
• Obtaining a rolling easement as an exaction in a
permitting process would usually—but not
always—prevent a takings claim."'"'6 Regardless,
it would provide legal certainty"'"'7 because the
takings claim would have to be litigated at the
time of the exaction,538 rather than decades
hence when a home is threatened.
• A regulatory or legislative rolling easement can
also mitigate the eventual takings claims. Laws
that initially change property rights or prohibit
shore protection become part of the background
principles of property law sooner539 or later,540
and become part of the expectations of people
who buy land. Thus, the takings claims are
unlikely to be viable for land that changes
ownership at least a few times between the day
the regulation is issued and the day the property
becomes threatened decades later. Clarifying
the "rules of the game" could also mitigate
eventual takings claims by providing
landowners with increased certainty and thus
reduce the possible harm from unpredictable
regulatory requirements.
Finally, there may be several miscellaneous
categories of land in a given jurisdiction where
rolling easements are most practical. Land that will
be created by accretion or avulsion in the future is
water today, and hence it should be relatively
uncontroversial to issue regulations today that
prohibit private shore protection on these lands.541
If such parcels ever become land, it will be because
shores were allowed to migrate. So ensuring that
such processes continue to operate would be
analogous to the common law rule of accretion and
reliction, whose justification for awarding accreted
land to the waterfront landowner is that such an
owner would also lose title to eroded lands.542
Similarly, when a government agency issues a
permit to fill privately owned wetlands for
development, it could include a rolling easement as
a permit condition.543 Another possibility is that
whenever the government transfers land to private
parties, a rolling easement could be retained on the
lands.
135
-------
ROLLING EASEMENTS
Public Trust Township , Setback City
¦
Open Water
Area where waves
ran up at high tide
Dry sand beach above
the washing waves
¦
Dimes
Landward boundary
of public access
Public Trust Township , Setback City
Public Trust Township < Setback City
Figure 16. Comparison of Rolling Easement and Setback Policy. The hypothetical Public
Trust Township has a rolling easement policy, while Setback City requires homes to be set back from the
shore 40 times the annual erosion rate, (a) Initially, four lots in Setback City are seaward of the setback
line and hence undevelopable, (b) After 40 years, the shore erodes as expected, requiring homes to be
removed in Public Trust Township; but the most vulnerable lots in Setback City were never developed, so
no homes need to be removed, (c) Another 40 years of shore erosion requires another row of homes to be
removed in Public Trust Township. In Setback City, some of the homes remain standing on the beach
because there is no policy for removing existing homes; those that have been destroyed are not rebuilt
under the 40-year setback policy. The public easement along the dry beach gradually retreats inland in
Public Trust Township, while in Setback City the public gradually loses beach access (assuming that
Setback City is not in one of the few states where the public trust doctrine grants access along die entire
dry beach) (see Section 2.2).
136
-------
Defining Where to Apply the Rolling Easement
NOTES AND REFERENCES
515 See, e.g., CCSP, supra note at 3, at 165-166
(discussing federal and state subsidies for beach
nourishment).
See, e.g. id. at 151-155 (discussing the
implications of sea level rise for the federal flood
insurance program) and Heinz Center infra note 604
(quantifying the implications of shoreline erosion for the
federal flood insurance program).
517 See, e.g., CCSP, supra note 3, at 98, and
Environmental Research Letters, supra note 14, at 2,
5, and Tables S3-S5.
518 See CCSP, supra note 3, at 98, and
Environmental Research Letters, supra note 14, at
2. But see Jim Titus, Does Sea Level Rise Matter to
Transportation Along the Atlantic Coast in Department
of Transportation, The Potential Impacts of
Climate Change on Transportation 12-14 (2002)
(showing photograph of a dike protecting a farming area
in Tyrrell County, North Carolina, and map from a study
of the likelihood of shore protection by Walter Clark et
al., which depicts farming areas in North Carolina where
dikes are expected or have been constructed) and
CCSP supra note 3 at 88 (discussing farming areas
along Delaware Bay and the Delaware River that were
protected by dikes until the 20th century).
ch q
For example, the beach nourishment along the
northern New Jersey shore cost $10 million per mile of
beach. U.S. Army Corps of Engineers. Sandy Hook
to Barnegat Inlet, Beach Erosion Control Project,
Fact Sheet (2009). Along part of this coast in (northern
Sea Bright) there is only a single row of houses along
the bay side of the barrier island. Id. But New Jersey
Route 38 runs along the shore and protecting the road
was important. Delaware has nourished beaches to
preserve habitat for horseshoe crabs. CCSP, supra
note 3, at 206.
con
See, e.g. NOAA, supra note 13 at section on
"Benefit-Cost Analysis" and id. § "Recreational Value of
Beaches."
co 1
See, e.g., Donna Weaver, Harvey Cedars' Dune
Fight May Strain Finances, Atlantic City Press (July
2, 2010) (homeowners who objected to dune
reconstruction that would block view of the ocean
awarded more than $100,000 for grading easement).
See also Walton County v. Stop Beach Renourishment,
998 So.2d 1102, 1104 (Fla. 2008), affirmed 130 S. Ct.
2592, 560 U.S. , ( 2010) (discussing shorefront
landowners who unsuccessfully sought to challenged a
permit for a beach nourishment project and also
unsuccessfully claimed that the project would be a
taking without compensation)
522 The value of delaying the $600,000 loss from
today to 20 years hence would be $268,000 to
$374,000 at a 3 to 5 percent discount rate.
523 The value of delaying the $275,000 loss from
today to 20 years hence would be $122,000 to
$171,000 at a 3 to 5 percent discount rate.
524 See supra § 3.1.2.1.
525 See supra §3.1.2.2.
526 See supra notes 165 and 286.
527 We assume here that the social value of the land
is diminished by the expected cost of shore protection,
even if the market value of the land is not. That is, the
value of preserving a natural shoreline is greater than
the value of the assets threatened by sea level rise
minus the cost of shore protection. In a perfect market,
the expected cost of shore protection is reflected in a
lower property value.
528 Ronald Coase, The Problem of Social Cost, 3 J.
L. & Econ. 1 (1960).
See, e.g., U.S. Environmental Protection
Agency, What is Smart Growth? EPA-231-F-01-001A
(2001).
530 CCSP, supra note 3, at 145, 171-176 and
Environmental Research Letters, supra note 14.
CO 1
The general restriction on filling tidal wetlands
has obviated the need to set priorities on which
wetlands should not be filled, so assessments of the
relative importance of specific wetlands are usually
unavailable. But the likelihood that wetlands will be
allowed to migrate inland in some areas but not others
may create a need for such evaluations.
coo
See supra notes 295-297 and accompanying
text.
533 See supra note 289.
C04
People may otherwise erect shore protection to
keep their back yards..
535 Here we are referring only to the uncertainty
about a successful takings claims. It still may be
possible to challenge either the creation of the rolling
easement itself, see supra § 4.2.2, or its continuing
viability, see supra § 8.2.
coo
See supra note 376. Davidson et al. point out
that dedication of roadways and other conditions in
return for subdivisions and rezoning has been upheld in
several cases. Jonathan M. Davidson, Ronald Rosen-
berg, & Michael C. Spata, Where's Dolan: Exactions
Law in 1998, 30 Urb. Law 683, 684-85 (1998). Unlike
those cases, the rolling easement has a common law
nuisance basis as well. See U.S. v. Milner, 583 F. 3d
137
-------
ROLLING EASEMENTS
1174, 1190 (owner oftidelands below mean high water
has legally recognized interest in shore protection).
537 See supra note 535
coo
See supra note 380 and accompanying text.
coq
A law that explicitly takes a property right may be
a constitutional taking when enacted, entitling
landowners to just compensation based on the current
market value of what is taken. For a parcel not likely to
be threatened for a century or more, the just
compensation is likely to be trivial—especially in an
undeveloped area where the economic feasibility of
eventual shore protection is unclear. See supra § 4.1.3.
540 Before Palazzolo v. Rhode Island, 533 U.S. 606
(2001), courts and commentators generally accepted
"the notice rule" under which a takings claim based on a
regulation was—in effect—extinguished upon sale
under the theory that activities prohibited by the
regulation would not be among the property rights the
owner has purchased, since he had noticed that the
property did not include those rights; see Eagle, supra
note 362, at 533-534 (2002). After Palazzolo, the
takings claim does not instantly vanish upon sale. But
the issue of shore protection may not be a fundamental
property right similar to development (which arose in
Palazzolo) or keeping a home already built (which
arose in Severance v. Patterson) for purposes of the
notice rule, because the state has a competing property
interest in the public trust tidelands otherwise eliminated
by shore protection. Statutory rights to shore protection
may create an investment backed expectation that
relies on shore protection; while a regulatory rolling
easement would remove that expectation for
subsequent purchasers of the land. Legislation that
protects the migrating boundary while protecting the
upland owner against a forfeiture could be adopted by
courts as a reasonable balancing of the interests and
thus become part of the title to coastal property through
ordinary applications of nuisance law.
C41
South Carolina's setback rule generally prohibits
development of land created by accretion or avulsion
during the last 40 years. S.C. Code Ann. § 48-39-280. If
a variance is granted (e.g., because otherwise a taking
result) then any construction is subject to a rolling
easement rule. S.C. Code Ann. §48-39-290 (D).
See supra note 67 and Sax, supra note 65, at
308 (quoting Blackstone). The reasoning against the
notice rule in Palazzolo (unjust enrichment of the
government at the expense of the landowner who
cannot sell his takings claim) would apply less (if at all)
to land that did not exist when the rule was created.
C40
Such a permit condition would meet the
Supreme Court's current standard for exactions. See
supra § 4.2.1 for details on those standards. There is a
very clear nexus between allowing someone to convert
wetlands to dry land and requiring that eventually they
allow natural forces to convert the dry land back to
wetlands. If the permit condition only applies to the
land that is filled, there is a strict proportionality, which
more than meets the standard for rough proportionality.
138
-------
139
-------
ROLLING EASEMENTS
CHAPTER 8
MANAGING THE ROLLING EASEMENT
Like all restrictions of land use, a rolling easement
requires a conscious effort by the property owner
to comply, and by the regulatory agency or
easement holder to monitor and enforce
compliance. For most lands potentially submerged
by a rising sea, the submerge date is at least several
decades in the future—and often centuries.
Therefore, management of a rolling easement
involves two distinct phases:
• From now until submergence becomes
imminent. During this period, the main purpose
of the rolling easement is to manage
expectations, ensuring that landowners and
other stakeholders expect the eventual loss of
the land to the sea. A rolling easement might
also prevent or discourage certain activities,
such as grade elevation.
• The endgame. The main purpose of the rolling
easement is conversion of the property from dry
to wet, by preventing shore protection. The
endgame may also involve remediation of
previous alterations to the land, such as removal
of structures and lowering the grade if it has
been elevated.
This chapter examines the first phase, which will
account for most of the time during which a rolling
easement governs. The final chapter looks at the
endgame.
We focus on rolling easements implemented as
conservation easements, though many of the
considerations would apply to regulations,
interests in land, and ambulatory boundaries.
Conservation easements require monitoring and
enforcement, both to ensure that the expected
conservation benefits occur and to create a record
sufficient to prove that the owner has not
abandoned the easement, in case the landowner
attempts to invalidate it. The holder of a future
interest (such as a possibility of reverter, or
remainder interest in a life estate) generally has a
legal right under the "doctrine of waste" to prevent
the landowner from undertaking activities that
would unreasonably diminish the value of his
interest^ but the holder has no legal obligation to
do so.545 Although government regulations are not
invalidated by an agency's failure to inspect and
enforce them, after a period of time, construction
that takes place without a permit is often treated as
if it has been granted a permit. Thus, the
management requirements of a rolling easement
depend on whether it is implemented by
regulation, conservation easement, or future
interest.546
"Submerge date" refers to the day the
rolling design boundary migrates inland
of the main building on a parcel of land
subject to a rolling easement.
Anyone intending to create or manage a rolling
easement should consider the extensive literature
on managing conservation easements, 547 but we
make no attempt to summarize that body of
140
-------
Managing the Rolling Easement
knowledge here. Instead, we examine a few areas
where managing a rolling easement is different
from the typical conservation easement. We
examine inspection and enforcement of shoreline
migration conservation easements (Section 8.1)
and possible attempts by landowners to have a
court invalidate the easements (Section 8.2),
with a few considerations about regulatory rolling
easements (Section 8.3).
8.1 INSPECTION AND
ENFORCEMENT OF
CONSERVATION EASEMENTS
In general, conservation easements have short-
and long-term costs for acquisition, management,
and enforcement. In addition to the purchase
price, the transaction costs of obtaining an
easement can be thousands of dollars.For the
typical conservation easement, a careful baseline
environmental assessment is done at the beginning
of the process,55° and once the easement has been
legally executed and recorded in the local land
records office, the easement holder will visit the
property on a periodic basis, usually annually, to
ensure that the landowner is complying with the
terms of the easement.551 If violations are
discovered, the easement holder will attempt to
negotiate a satisfactory solution, and if that fails,
go to court. 552 Although managing and enforcing
easements is one of the core activities of many land
trusts, the expected costs of doing so often deter
them from accepting easements from every
potential donors
A key challenge is to design rolling easements so
that their annual inspection and management
costs are substantially less than the costs for the
typical conservation easement, because rolling
easements will often involve smaller parcels whose
environmental benefits are decades or centuries in
the future. How to best address that challenge will
depend on whether one is attempting to allow a
beach to migrate inland, or to ensure that a large
low area is eventually submerged to become
wetland. Shore protection structures are easily
noticed from the water or a walk along the shore,
which could keep inspection costs low along
eroding beaches. But grade elevation can be more
difficult to detect unless someone sees the material
brought in or surveys the land elevation.
Less frequent inspections may be a way to keep
costs low.554 Table 6 provides an example list of
provisions that could be included. In this case, the
environmental benefits of the rolling easement are
decades (or centuries) in the future, and each
easement is likely to cover a relatively small area of
land. Ordinarily a land trust would be very
satisfied if the annual management cost was $250
per easement because the lots tend to be fairly
large. But in the case of a rolling easement, if the
lot is originally hundreds of acres, it can generally
be subdivided. In a typical coastal area with
quarter-acre lots, a cost of $250 per parcel would
be $i,ooo/year per acre. Although the
environmental services from an acre of marsh
might justify management costs of $i,ooo/year,555
it would be virtually impossible to justify spending
that much to ensure that an acre of wetlands could
be created 100 years hence: At a 3 percent rate of
return, for example, $i,ooo/year would
accumulate to $625,000 per acre after a century-
far greater than any estimate of the value or
restoration cost of tidal wetlands. Therefore, the
cost of managing rolling easements on land that is
still decades away from being submerged must be
far less than $250 per parcel.
It should be possible to design rolling easements so
that the annual cost is much lower than with
standard conservation easements:
• Inspection would be easier: While conservation
easements prohibit many land uses that
interfere with the conservation value, the rolling
easement merely restricts shore protection.556
• Inspection need not be as frequent for a rolling
easement until submergence is imminent.
Why would a rolling easement require less
frequent inspections? Primarily because violations
need not be discovered immediately to achieve the
conservation objective. 557The typical conservation
141
-------
ROLLING EASEMENTS
easement is transferred to ensure a continuing
environmental contribution from the property; so
it warrants a detailed annual inspection. Rolling
easements, by contrast, are transferred to ensure
that the land eventually becomes submerged.
If the rolling easement prohibits elevating the land
so that wetlands can migrate inland, then when the
submerge date arrives, the land elevation must not
be higher than it is today. But if the owner does
elevate the grade, it does not matter when the
problem is discovered, as long as it is noticed
several years before the submerge date so the land
can be re-graded down to the original elevation.
Occasional communication is advisable to
discourage violations and explain the
consequences; but that is less costly than on-site
inspection. (An inspection upon sale of the
property is advisable to avoid litigation over
responsibility for undiscovered grade elevation.)
Once a property is finally threatened by the rising
sea, the environmental benefits of the rolling
easement will be more imminent and justify a
greater management cost. By the time the low-
lying land becomes submerged, the landowner is
likely to be different from today, and the prospect
of losing a home could provide a substantial
incentive to cheat on the terms. Thus drafting an
"endgame" is important for a rolling easement (see
Chapter 9), unlike most conservation easements,
where provisions for termination would threaten
the tax deductibility.558
8.2 ATTEMPTS TO INVALIDATE
THE ROLLING EASEMENT
The owners of land with conservation easements
sometimes go to court seeking to have those
easements weakened or invalidated so they can do
things that the easement prohibits.559 In some
cases, interpretations diverge regarding the intent
of the easement, and the owner's primary objective
is to manage the land according to his own
interpretation. 56° But in other cases, the owner
does not want to comply with the easement at all
Table 6. Partial List of Provisions for a
Shoreline Migration Conservation Easement
1. Landowner (or easement holder) conducts an
initial survey of ground elevations.
2. Owner promises to avoid increasing the grade
elevation of any land before it becomes
submerged, and to avoid erecting any shore
protection structures that have the effect of
preventing shore erosion, flooding, or inundation
of the land on the parcel. No foreign materials for
grading will be brought into the property other
than gravel required for construction.
3. If grade increases are discovered by the holder or
the landowner more than 30 years before the
land is expected to be submerged, the other will
be notified. The parties will negotiate in good faith
a schedule for re-grading the land back to
baseline elevation as soon as practicable, but in
no case less than 10 years before that part of the
land is expected to become submerged. If grade
increases are discovered by the holder or the
landowner less than 30 years before the land is
expected to be submerged, a similar process
applies, but the deadline for re-grading will be the
midpoint between the discovery and the time
when the property is expected to be submerged.
The landowner will pay all costs associated with
the violation.
4. Landowner will obtain a new elevation survey
from a qualified surveyor before any subdivision,
and immediately after construction of any
buildings larger than 200 square feet, notify
holder of the construction and provide a copy of
the survey.
5. An elevation survey will take place before the
land is sold, with buyer notified of any
discrepancies between current and baseline
elevation.3
6. Landowner will notify holder if and when any part
of the property is flooded by spring high tide or
tidal wetland vegetation is found.
7. Holder will notify landowner if and when holder
reasonably expects the land will become
submerged within the next 20 years, and propose
a date for inspection funded by holder within 1
year of such notice. Holder will also propose to
landowner a schedule of future inspections no
more frequent than once per year and no less
frequent than once per decade until the property
becomes submerged.
a. This requirement protects the buyer.
142
-------
Managing the Rolling Easement
and seeks to have it invalidated, arguing that
circumstances have changed,561 the easement
holder has abandoned the easement, 562 or the
easement was never valid under state law.563
Much of the literature on managing conservation
easements focuses on enforcement and defending
against attacks on an easement's validity.564 We
briefly examine some of the reasons that standard
conservation easements are sometimes challenged
long after they are negotiated, and apply those
general considerations to the specific challenges of
a rolling easement. Many possible legal arguments
for invalidating the standard conservation
easement would not apply to a shoreline migration
conservation easement—but the motivation for
challenging a rolling easement would be the same
if not greater.
1. The land—and perhaps the conservation
easement as well—has been purchased or
inherited by people who did not
participate in the original easement
conveyance. New owners of the land may
not even be sympathetic to the restrictions
of the easement.565
Given the very long-term nature of rolling
easements, the people who own the land when it is
finally submerged will rarely be the owners who
negotiate the rolling easements. If there are
comparable properties nearby that are not subject
to a rolling easement, then as the submerge date
approaches (e.g., appears to be 10-20 years away),
economists would expect the property with the
rolling easement to sell at a substantial discount
compared with the other property. Such a discount
should logically attract potential buyers who are
willing to abide by the restriction, such as people
who intend to rent the property and view it as a
pure investment, or elderly people who do not
expect to live past the submerge date and want an
affordable coastal home. The greater the discount,
the less likely a given owner will feel cheated by the
restrictions in the rolling easement. Thus, the
holder (and governmental entities that want to see
an orderly retreat) have a substantial incentive to
publicize the implications of the rolling easement.
This publicity encourages those who do not wish to
give their home up to the sea to buy other land not
subject to a rolling easement.
Yet the discount may tempt some investors to
purchase the property and then try to remove the
restriction and thereby make a profit. Some
owners have sought to invalidate the restrictions
from rolling easements even though the reason
they had valuable waterfront property was that
(formerly) seaward neighbors had yielded homes
to the sea/'66 Because some people will challenge
the restrictions, those designing a rolling easement
must consider measures to reduce the likelihood
that a challenge will succeed.
2. The new landowners and easement
holders agree with the restrictions of the
easement but interpret the words
differently from the original parties, and
thus no longer have a meeting of the
minds.
It should not be difficult to draft the easement
conveyance so that it leaves no doubt that the
rolling easement prohibits any activity that tends
to slow the natural shoreline processes that erode
or submerge the dry land. Nevertheless, rolling
easements tailored to address only the problems of
today could lead to a divergence of expectations
later. For example, if the purpose is to allow
marshes to migrate inland, and global warming
allows mangroves to displace the marsh, a
landowner may argue that circumstances have
changed to the point of invalidating the easement.
A showing that marsh is unlikely to "migrate" onto
the property (either because marsh vegetation
takes hold via processes other than migration, or
because the land is likely to subside into open
water before marsh vegetation takes over) may
also be used to attack a rolling easement with the
stated purpose of allowing marsh migration. Thus,
the easement's statement of purpose should be
written to broadly address the inland migration of
some form of intertidal or shallow-water system,
or emphasize preservation of the natural shoreline
process. (Failure to do so, however, would not
always be fatal due to the doctrine of cypres.567)
143
-------
ROLLING EASEMENTS
Misunderstandings may also arise regarding the
type of shore protection that is prohibited. The
rolling easement in Texas was intended to ensure
an open beach, not to ensure that the barrier
islands migrate inland. Thus, as sea level rises, all
dry land on a barrier island could be elevated with
beach-quality sand without undermining the
purpose of the Texas Open Beaches Act.568 But
consider a sandy beach below a 5- to-io-foot bluff
with a flat plateau along an estuarine shore. If a
land trust accepts a rolling easement that prohibits
shore protection structures but allows beach
nourishment and/or living shoreline approaches to
shore protection, the easement may preserve the
existing habitat for many decades. Yet once sea
level rises enough to submerge the entire bluff,
landowners behind the bluff would usually want to
prevent their lands from becoming tidal wetland,
by elevating the grade of the land. Under the
terms of the easement, they can do so unless the
easement also includes a provision that prevents
grade elevation of the land behind the bluff. Those
drafting the rolling easement should thus decide at
the outset whether the intention is to allow the
bluff to eventually become submerged, or merely
to retain a beach along the shore.
3. The passage of time may change the
context and function of the easement.
Species migration or development may
radically alter the benefits of preserving a
given parcel. Is the new function covered
by the easement?
Traditionally, courts of equity have refused to
enforce equitable servitudes (equitable covenants)
when circumstances have changed to the point
where enforcement is unreasonable or
impracticable.569 Several scholars have objected to
this "doctrine of changed circumstances" because
it promotes uncertainty about the stability of
agreements;570 but courts have continued to use
the doctrine for equitable servitudes in general."'71
Under the doctrine of cy pres, however, if
circumstances change when charities are the
beneficiary, courts have long tried to reformulate
the original terms to serve a similar purpose rather
than invalidate the agreement, and that approach
is generally followed with conservation
easements.572 Nevertheless, changed circumstances
may be a justification to void a conservation
easement57'' unless a statute says otherwise. ~>74
Although habitat fragmentation can occur in the
coastal zone, there is a general recognition that
even relatively small areas of tidal wetlands,
mudflats, beaches, or shallow water have
ecological value. Similarly, although a changing
climate can alter a habitat and the species that
inhabit it, the general need for tidal habitat is
recognized at all latitudes and for both pristine and
polluted environments. Therefore, continued
development or changing climate need not
fundamentally undermine the validity of the
rolling easement drafted to preserve the natural
shore. But if the rolling easement is drafted to
focus too narrowly on today's environment, the
landowner and easement holder may gradually
develop different opinions about what is restricted.
4. The owner may have stopped complying
with the requirements without being
challenged by the holder for such a long
time that, for all practical purposes, the
holder has abandoned the easement.
Although the statutes that authorize conservation
easements generally allow them to have whatever
duration the parties choosep5 the Internal Revenue
Code only allows tax deductions if the easements
are in perpetuity.^6 To preserve the tax status of
easements, land trusts generally draft conservation
easements so that a landowner and holder cannot
terminate the easement by mutual consent without
obtaining a court order. 577 Nevertheless, the
common law of property has long recognized that
just as an easement can be obtained through
prescription, 578 it can be lost through
abandonment. The test is generally a clear
indication of intent to no longer use the easement,
or conduct inconsistent with continuing the
easement,1579 such as tolerating construction by the
landowner that blocks use, over a sufficiently long
period.580 "Acts evincing an intention to abandon
must be unequivocal."581 A statement that there is
144
-------
Managing the Rolling Easement
no intention to abandon the easement may be
sufficient to defeat a claim of abandonments82
For a standard conservation easement, the annual
inspection provides very strong evidence that the
easement has not been abandoned. Conversely,
because the easement conveyance documents often
provide for an annual inspection, the failure to
inspect would be evidence that the easement has
been abandoned. As discussed in the previous
section, annual inspections are unnecessary for
rolling easements on property not yet threatened
by rising sea level; so failure to inspect would not
be strong evidence of an intention to abandon. As
long as the holder does what a reasonable holder of
a rolling easement would do, it will be difficult to
show that the rolling easement has been
abandoned. As with all conservation easements,
carefully drafting what is expected is important. A
land trust might—at first glance—prefer to have
the right to an annual on-site inspection in the
decades before submergence becomes imminent.
But including such a right in the conveyance could
be risky if there is no plan to actually make those
visits. Less costly means of reminding owners of
their obligations under the rolling easement
should be sufficient to show that the easement has
not been abandoned.
5. Other Doctrines
The legal and planning literature addresses other
ways that conservation easements can be attacked.
The common law has long disfavored conveyances
that restrict the use of land—especially long-term
restrictions. The conservation easement enabling
acts were designed to reverse those common law
tendencies so that the free market can put land
into permanent conservation status. But those
statutes generally leave an opening for courts to
intervene where necessary.5®3
8.3 ROLLING EASEMENT
ZONING AND OTHER
REGULATORY APPROACHES
Unlike property interests, failure of a government
agency to inspect or otherwise enforce a regulation
does not void the regulation. Yet enforcement
includes many of the same considerations. In
Texas, management of the rolling easement
includes mandatory notifications about the rolling
easement to purchasers of coastal property,
warnings about technical encroachments, and
litigation over serious encroachments. Landowner
awareness helps to discourage long-term
investments in property with short remaining
lifetimes, and to induce voluntary compliance,
though many owners still resist orders to abandon
the premises.
145
-------
ROLLING EASEMENTS
NOTES AND REFERENCES
544 See supra note 240 and accompanying text.
545 Here we are assuming that the possibility of
reverter transfers title upon a physical event such as a
given rise in sea level. If it transfers upon an action of
the landowner (such as building a shore protection
structure) then the land trust must inspect the property
and take it over if the owner takes the action, or risk
losing the property due to the adverse possession by
the owner.
546 For a future interest, the owner generally must
file its claim within a reasonable time (usually the period
specified in the statute of limitations for adverse
possession). But cf. note 393 (statute requiring interest
holders in Virginia to file within 10 years). In some
states, the owners must re-file their interest in the
property every 10-30 years. See supra note 394 and
accompanying text.
C47
Those considering regulatory rolling easements
and future interests in land would have to address
issues that do not arise with conservation easements,
but all of the issues that arise with conservation
easements would be relevant, even if the specific legal
rules are different.
548 More states recognize perpetual conservation
easements than allow future interests in land to extend
in perpetuity. Moreover, the requirements for managing
conservation easements are at least as great as for
future interests.
549 See, e.g., Heritage Conservancy, supra note
445, at 8.
CCf)
See, e.g., id. at 14 and Leslie Ratley-Beach,
Managing Conservation Easements in Perpetuity,
Land Trust Alliance 66 (Washington, DC 2009).
EC.I
Heritage Conservancy at 30; and Ratley-
Beach at 70.
CEO
Heritage Conservancy at 8 and 31; and
Ratley-Beach at 255-314.
ECO
Land trusts typically solicit a donation from the
landowner in order to offset some of the expected cost
of monitoring and enforcement. See, e.g., Jessica E.
Jay, Land Trust Risk Management of Legal Defense
and Enforcement of Conservation Easements: Potential
Solutions 6 Envtl. Law. 468 note 111 (2000) and Land
Trust Alliance, Practice 11 A: Funding Easement
Stewardship, in Land Trust Standards and Practices
5 (2004) (costs of managing an easement can be
significant, a land trust can not accept a conservation
easement whose environmental benefits are small
compared to the cost of managing the easement).
Here we are referring primarily to shoreline
migration conservation easements created to ensure
that wetlands gradually migrate onto nearby low land.
Shoreline migration easements that prohibit shoreline
armoring along eroding beaches would be very easy to
inspect.
555 E.g., R. Costanza, S.C. Farber, & J. Maxwell,
Valuation and Management of Wetland Ecosystems,
1 Ecol. Econ. 335 (1989) (reporting that annual
services from wetlands in Louisiana are about $250-
$500/year). Frederick Bell, The Economic Valuation of
Saltwater Marsh Supporting Marine Recreational
Fishing in the Southeastern United States, 21
Ecological Economics 243-254 (1997) (annual
services of about $125 and $800/year from west and
east coasts of Florida, respectively).
Although the purpose of a rolling easement is to
prevent shore protection, Chapter 6 includes some
possible restrictions landward of the rolling design
boundary, or more precisely, landward of the primary
design boundary but seaward of a rolling setback line.
If such restrictions are included, inspections would have
more to look for and hence require additional effort.
557 In addition, owners generally have little incentive
to violate a rolling easement decades before the
submerge date.
CCD
A conservation easement typically has unlimited
duration, unless the instrument creating it says
otherwise. See, e.g., Uniform Conservation Easement
Act, National Conference of Commissioners on Uniform
State Laws (1982). To be eligible for federal tax
benefits, the restriction must be in perpetuity. I.R.C.
§§ 170 (h)(2)(C), 170(f)(3)(B)(iii), & 170(h)(5)(A).
ECQ
Melissa K. Thompson & Jessica E. Jay, An
Examination of Court Opinions on the Enforcement and
Defense of Conservation Easements and Other
Conservation and Preservation Tools: Themes and
Approaches to Date, 78 Denv. U. L. Rev. 373 (2001).
560 Thompson & Jay at 389-408.
561 See, e.g., Unif. Conservation Easement Act
§3, comment (1981) and N.Y. Envtl. Conserv. Law
§49-0307(1).
coo
See, e.g., Meghan Ryan & Michelle Godfrey,
The Durability of Conservation Easements in Georgia,
9 Land Use Clinic Paper 2-4 (2008). Available at:
http://digitalcommons.law.uga.edU/landuse/9. See also
infra notes 579-582.
563 E.g., Thompson & Jay at 382-389 (examining
three cases that challenged the existence of a valid
conservation easement).
146
-------
Managing the Rolling Easement
564 For example, in Ratley-Beach, supra note 550,
approximately one-third of the book addresses record
keeping and policies that help prepare for litigation, and
another third addresses correcting violations and
defending easements against attempts to invalidate
them.
565 A survey of 200 land trusts found that 64
percent of the legal challenges to conservation
easements involved landowners who were not part of
the original agreement. See, e.g., Adena R. Rissman,
Conservation Easement and Defense in the Land Trust
Community, 30 Saving Land, 24, 25 (Winter, 2011).
566 Cf., Severance v. Patterson, 566 F. 3d 490. (5th
Circuit 2009). The plaintiff owned lots that are
waterfront today but were not waterfront when the
Texas Open Beaches Act was passed in 1959. Id. at
494 ("[l]n 1975, the State obtained a judgment ... that
an easement existed on a strip of beach seaward of
Severance's land"). Thus, the plaintiff owned waterfront
lots because the owners of seaward lots had given up
their lots to the advancing Gulf of Mexico shore. The
Texas Supreme Court did not directly hold that the
plaintiff was not subject to the rolling easement,
because it had been asked by the federal court to
answer specific questions about Texas law; but it was
clear from the opinion that the court was issuing a new
rule under which the rolling easement would not apply
to her situation. Severance v. Patterson, No. 09-0387
(Tex. 2010) "The dissent further dismisses Severances
grievance as a gamble she took and lost by purchasing
oceanfront property in Galveston." Id.
See, e.g., Uniform Conservation Easement
Act § 3 at 63-64 (official comment) and Dana &
Ramsey, supra note 19, at 39-40.
568 Texas currently requires property owners to
convey a rolling easement before the state will proceed
with beach nourishment along privately owned
beaches, supra note 411. Federal policy has led many
states to require public easements to the beach before
proceeding with a beach nourishment project, see
supra note 64 and accompanying text, but only Texas
requires a rolling easement.
569 See e.g. Carol M. Rose, Servitudes, Security,
and Assent: Some Comments on Professors French
and Reichman, 55 So .Cal. Law. Rev. 1403, 1410—
1413 (1982). The doctrine of changed circumstances
rarely applied to easements at common law. Richard
Epstein, Notice and Freedom of Contract in the Law of
Servitudes, 55 So. Cal. L. Rev. 1353, 1364 (1982).
Because conservation easements have characteristics
of both equitable covenants and traditional easements,
the law governing then draws from the traditional rules
for both instruments.
570 John A. Lovett, Property and Radically Changed
Circumstances, 74 Tenn. L. Rev. 463, 469 (2007) (citing
articles by Robinson, Epstein, Rose, and Alexander).
See also Glen O. Robinson, Explaining Contingent
Rights: The Puzzle of Obsolete Covenants, 91 Colum.
L. Rev. 546, 572-79 (1991); Epstein, supra note 568, at
1364-68; and Rose at 1412-13. But see Gregory S.
Alexander, Freedom, Coercion and the Law of
Servitudes, 73 Cornell L. Rev. 883, 898-900 (1998).
571 According to the Restatement of Property:
§ 7.10 Modification and Termination of a Servitude
Because of Changed Conditions
(1) When a change has taken place since the creation
of a servitude that makes it impossible as a
practical matter to accomplish the purpose for which
the servitude was created, a court may modify the
servitude to permit the purpose to be accomplished.
If modification is not practicable, or would not be
effective, a court may terminate theservitude.
Compensation for resulting harm to the
beneficiaries may be awarded as a condition of
modifying or terminating the servitude.
(2) If the purpose of a servitude can be accomplished,
but because of changed conditions the servient
estate is no longer suitable for uses permitted by
the servitude, a court may modify the servitude to
permit other uses under conditions designed to
preserve the benefits of the original servitude.
(3) The rules stated in § 7.11 govern modification or
termination of conservation servitudes held by
public bodies and conservation organizations, which
are not subject to this section.
Restatement (Third) of Property: Servitudes.
§ 7.10 (2000).
The Restatement has different rules for
conservation easements (which it calls "conservation
servitudes") than for the general equitable servitude:
§ 7.11 Modification and Termination of a Conservation
Servitude Because of Changed Conditions
(1) If the particular purpose for which the servitude was
created becomes impracticable, the servitude may
be modified to permit its use for other purposes
selected in accordance with the cy pres doctrine,
except as otherwise provided by the document that
created the servitude.
(2) If the servitude can no longer be used to accomplish
any conservation purpose, it may be terminated on
payment of appropriate damages and restitution.
Restitution may include expenditures made to
acquire or improve the servitude and the value of
tax and other government benefits received on
account of the servitude.
147
-------
ROLLING EASEMENTS
583 Cheever, supra note 215, at 1098-1100.
(3) If the changed conditions are attributable to the
holder of the servient estate, appropriate damages
may include the amount necessary to replace the
servitude, or the increase in value of the servient
estate resulting from the modification or termination.
(4) Changes in the value of the servient estate for
development purposes are not changed conditions
that permit modification or termination of a
conservation servitude.
Id. §7.11.
573 Id.
C74
For example, New York provides that "[a]
conservation easement... may only be modified or
extinguished" for [five reasons including] "the easement
can no longer substantially accomplish its original
purposes or any of the purposes set forth in section 49-
0301 of this title" for easements owned by the state in
Adirondack or Catskill park. But for easements held by
conservation organizations in those parks, as well as all
easements outside of those parks, the statute only lists
the other four reasons. N.Y. Envtl. Conserv. Law
§49-0307 (2010).
C7C
Uniform Conservation Easement Act § 2.
576 26 U.S.C. § 170(h)(2)(c) and § 170(h)(5)(A). See
also 26 C.F.R. § 1.170A-14(a).
577 Cf. 26 C.F.R. § 1.170A-14(g)(6)(i). There is an
exception for when the objectives are impossible to
achieve, as long as any proceeds are devoted to
accomplish the same objective. 26 C.F.R. §1.170A-
14(c)(2).
578 An easement by prescription is created in spite
of the wishes of the landowner, if another party (or the
public) openly uses the property without permission,
continuously without interruption, for a period of time
equal to the statute of limitations in a given state.
Hornbook on Property, supra note 203, at 312.
579 E.g., Enos v. Casey Mountain, Inc., 532 So.2d
703, 705 (Fl. App. 1988).
580 E.g., Mumaw v. Roberson, 60 So.2d 741 (Fla.
1952) (rejecting a claim of an easement in a case
where a fence and improvements had long blocked
platted road to a lake).
581 E.g., Gerbig v. Zumpano, 7 NY 2d 327, 331
(1960) ("Nonuser alone, no matter how long continued
can never in and of itself extinguish an easement
created by grant").
582 Ma. & Pa. RR. Co. v. Mer.-Safe, Etc., Co., 166
A.2d 247 (Md. 1960) (citing Canton Co. v. Baltimore &
O.R. Co., 99 Md. 202, 57 Atl. 637 (1904)).
148
-------
149
-------
ROLLING EASEMENTS
CHAPTER 9
THE ENDGAME:
MANAGING THE TRANSITION
Given the uncertainties about how much the sea
will rise, it is possible that a given parcel of land
that seems vulnerable today will not be
submerged—at least within the next few centuries.
Perhaps global warming will be reversed and the
sea will rise more slowly or even begin to fall.
Perhaps the sea will simply rise more slowly than
the rate that seems prudent to plan for today. If
this is the case, then the owner of the parcel will be
able to retain the land after all. The holder of the
rolling easement will have accomplished nothing
for having managed the rolling easement on that
parcel; but this is a risk that land trusts and
governments will often be willing to take.584 Like
all precautionary measures, the rolling easement
proves to be worthless only if there is some very-
good news: The sea rose so slowly that the adjacent
coastal wetlands were not submerged and hence
did not need this property for the habitat to
survive.
Assuming that sea level continues to rise, however,
most dry land within a few meters above the tidal
wetlands today will eventually become submerged
Figure 6 (on page 29) depicts a possible scenario
for a home along a wetland shore. Driveways and
sidewalks are removed as the wetlands advance,
but the preexisting home remains. Storms are less
likely to destroy a home along a wetland shore
than a home along the ocean, so the home
continues to stand. Eventually, the home is
standing seaward of mean high water and hence is
on state-owned land. The fate of the building after
that point is not necessarily part of the rolling
easement but instead depends on how the state
regulates nonconforming structures standing in
state-owned tidal wetlands or open water.
Nevertheless, one option may be for the state to
allow continued occupation for a limited time, in
return for an escalating rent based on the fair
market value of the location. The increasingly
imminent abandonment and escalation of costs
associated with a structure in the wetlands would
tend to cause a gradual decline in the market value
of the property.
That is just one of many scenarios. This chapter
examines how they may play out, starting at the
time when submergence appears to be sufficiently
imminent to affect decisions by the landowner,
continuing with measures that the rolling
easement can require in preparation for the
submergence, and finally looking at the actual
submergence and conversion of the property from
dry land to publicly owned wetlands and waters.
150
-------
The End Game: Managing the Transition
9.1 WHEN THE TERMS OF THE
ROLLING EASEMENT START TO
AFFECT DECISIONS BY THE
OWNER
A key economic and policy justification for rolling
easements is that they cost less than either
preventing development or failing to plan.
For the typical coastal parcel, submergence by the
rising sea is so uncertain and far in the future that
it has no practical impact on how an owner uses
the land, whether or not there is a rolling
easement. If development is cost-effective, the
owner may develop, and thereby derive more use
from the land than leaving it undeveloped.
Although a no-development easement would limit
the owner's ability to profitably use his land, a
rolling easement would not. The main impact of
the rolling easement is likely to be the occasional
reminders from the land trust or government
entity that the land is subject to a rolling easement.
Twenty to forty years before submergence. As
time passes and sea level rises, however, the
submergence will eventually become close enough
at hand to matter to an owner. Different owners
(and potential owners) will have different time
horizons, expectations, and preferences:
• The current owner of a given home may decide
that a growing family requires a much larger
house. He may decide to sell rather than
enlarge the current home because he wants the
house to last for many decades.
• A possible home buyer may consider purchasing
this home with plans for a major upgrade to the
house to meet his needs for the rest of his life,
which he assumes to be about 50 more years. If
the home is likely to be submerged in 30-40
years, he may be reluctant to buy it.
• If he does buy the house, he may be reluctant to
spend the time and money on the upgrade,
knowing he will have to find another home and
possibly manage another renovation. If the
renovation is likely to pay for itself in resale
value, he may still go ahead with the expansion
and plan to move out 10-15 years later. But for
most home addition projects, the costs are not
recouped in higher resale values. So even if the
property is likely to survive a few more decades,
this particular owner is unlikely to pursue the
renovation.
• People more likely to purchase this house may
include (a) a homebuyer willing to consider a
more modest renovation with a shorter payback
period, (b) an investor-landlord only interested
in short-term modifications that pay for
themselves, or (c) a home buyer who is satisfied
with the current house.
As time passes, fewer and fewer people will be
inclined to add major additions that do not pay for
themselves; those who find their homes
insufficient will sell to investors or home buyers
who are satisfied with the house as it is. The
periodic reminders about rolling easements from
the land trust or government agency to owners—as
well as clear warnings to buyers from realtors585—
could help ensure that people do not make
investments inconsistent with the eventual
abandonment of the property. This does not mean
that no major renovations will take place—some
people have the resources to build a new home
likely to be destroyed 10 years hence. But most
people with those resources still prefer a home
likely to last longer unless they cannot obtain a
similar parcel of land without the risk.
Ten to twenty years before submergence. Once
submergence is only 10-20 years away, projects
that would otherwise be economically justified will
start becoming difficult to justify because of the
reduced time for recouping an investment.
Therefore, relatively few people are likely to buy
homes with the intention of making major
modifications. Most new purchasers are likely to
be investors intending to rent the property or
people satisfied with the home as it. Regular
maintenance and repairs, including re-roofing, will
still be worthwhile; so the neighborhood need not
become blighted.
151
-------
ROLLING EASEMENTS
The final decade. The composition of homes is
likely to shift from owner-occupied to rental
property. As people die or sell their homes, most
homebuyers will not want a home with such a
limited lifetime. Investors may be more flexible if
there is a profitable opportunity: In resort areas,
rentals are generally weekly or seasonal. Few
people base a decision to rent a particular house on
whether they can return the following year. Even
in non-resort areas, leases longer than one year are
rare for homes. Therefore, the property value to a
landlord-investor should only decline as the
present value of future rents declines.
The possibility of blight could be serious if an
entire neighborhood is expected to be submerged
within a decade. Re-roofing may give way to spot
repairs; new wiring, new plumbing, and new
windows or doors are all less likely. Even painting
may seem like a low priority. The increasing
preponderance of rental property could further
discourage upkeep. In beach resorts, however,
where shore erosion rather than inundation
threatens homes, the risk of blight will be less. If a
row of homes is lost each decade, for example,
there will be a mixture of homes whose loss is
imminent next to homes that are about to become
waterfront, next to homes that are not threatened
for a few decades. The high premiums associated
with oceanfront property provide an incentive for
landowners to maintain their homes until the end.
9.2 ACTIONS REQUIRED OR
ENCOURAGED BY THE ROLLING
EASEMENT
Notice and inspection will be increasingly
important as submergence becomes imminent.
As with all conservation easements, a key task for
the rolling easement holder or local government
will be to periodically remind landowners of the
requirements. This is important both to prevent
owners from violating the terms of the easement,
and to discourage them from doing things that are
inadvisable given those terms. A major renovation
would increase the temptation to legally challenge
(or cheat on) the requirement to refrain from shore
protection; a decision to not renovate, by contrast,
would help to settle the owner's expectations of the
eventual abandonment. Clear warnings from
realtors (particularly buyers' agents who discuss
possible problems before the first visit) can
discourage those unwilling to comply with the
easement from even considering the property,
making it more likely that the land will be bought
by someone who is able to fit the eventual
abandonment into his plans. No matter what the
easement holder does, some people may take the
chance of purchasing the land and then attempting
to evade the terms of the easement. But most likely
they would do so as a matter of economic
speculation, which they would drop once there is
no economic benefit from pursuing the matter. The
purchaser who is never informed of the terms, by
contrast, may come to oppose the rolling easement
for more than economic reasons and thus be
willing to take on legal costs (and impose legal
costs on the holder) even when there is no
economic benefit from doing so. Hence, ensuring
that purchasers are truly aware of the terms of the
easement will becomes increasingly important as
the submerge date approaches.
In Section 8.1, we suggest that routine inspection
might not be necessary for most of the duration of
a rolling easement because shore protection is both
unlikely and generally harmless several decades
before submergence. Once submergence becomes
152
-------
The End Game: Managing the Transition
imminent, however, inspection is important so
that any violations can be cured before they
matter. If a shoreline migration conservation
easement586 is designed to ensure that wetlands
migrate inland, then once submergence of part of
the parcel is expected within about a decade, the
holder should inspect the ground elevations to
ensure that land grades have not been artificially
elevated over the years. If grade elevation has
taken place, the holder can require the owner to re-
grade the land back to the original elevation so it
will become submerged as originally agreed.58?
Whether the parcel is along an eroding beach or a
wetland shore, the inspection can also look for
structures built for another purpose but likely to
have an effect similar to a shore protection
structure (e.g., retaining wall, paved elevated
driveway).
The practical necessity of noticing violations before
the submerge date is likely to create legal reasons
for frequent inspections as well.588 Legal duties are
often based on what a reasonable person should
do. It is reasonable for a rolling easement holder
to pay more attention to lands about to be
submerged than to those that are on high ground
and still some distance from the shore. Although
periodic reminders should be sufficient to show
that the easement holder has not abandoned the
easement, more frequent inspections might help
an easement holder to address a number of legal
issues regarding specific violations:
• Statute of Limitations. The statute of
limitations period to prove a specific violation is
generally shorter than the prescriptive period
necessary to prove abandonment, and is often
based on the statute of limitations for breach of
contract.589 In many states, an easement holder
must go to court within three or four years590 of
when the holder knows or should know about
the violation.591 A periodic inspection schedule
could clarify when the holder should know
about violations. Thus frequent inspections can
reduce the risk that a court will decline to order
a remedy on grounds that the holder should
have known about it sooner.
• Evidence to prove shore protection. Over time
memories fade and witnesses move or die. A
witness who has seen dump trucks bringing
topsoil to the property could provide compelling
testimony that the grade has been elevated.592
Yet a land trust will not generally look for such
witnesses until a violation is noticed.593
• Likelihood that a court orders a remedy. Even
if a violation is proven, the doctrines of
estoppel, waiver, and laches are sometimes
advanced as reasons for a court to not order a
remedy.594 The rationale for these doctrines is
that enforcement is unfair if the landowner
made an investment while reasonably relying on
the easement holder's apparent intent to not use
the easement to block the project. Frequent
notice should be sufficient to prove that it was
unreasonable for an owner to assume that the
land trust would not object if the land is
elevated. Still, some types of notice are easy to
overlook. An on-site inspection is strong
evidence that the landowner had notice that the
holder takes the restrictions seriously.
The decade before submergence may also be a
good time to begin negotiations on the endgame
for the easement, especially with a shoreline
migration easement owned by a land trust.
Although a rolling easement can outline the basic
set of responsibilities, the actual transition may
involve details that cannot all be anticipated when
the instrument is originally negotiated. The
parameters of any such negotiations would
depend, most of all, on whether the rolling
easement will terminate the landowner's use of any
buildings on the property.
If the rolling easement terminates use of any
building once it is seaward of the rolling design
boundary, it may be advantageous to both parties
to set a specific transfer date. If it is clear (for
example) that the land will be submerged over a
period starting in 6 years and ending in about 20
years, and that the home's location will be
submerged in 10-12 years, both parties may
benefit by replacing restrictions based on the
rolling design boundary, with specific language
that will transfer title to the land (for example)
153
-------
ROLLING EASEMENTS
12 years hence. The landowner's title could be
converted to an "estate for years" with a duration
of 12 years, with the rolling easement converted to
a remainder interest that vests 12 years hence.595
Most landowners—particularly those residing on
the property—would benefit from eliminating the
uncertainty about their tenure; and both parties
would be spared the time invested in annual
inspections and protracted negotiations. 5<)6 If
violations need to be cured, both parties may
benefit by simply transferring the property on the
date when it would have been submerged but for
the violation, instead of re-grading the land down
to the original elevation and then transferring it on
that date anyway. 59?
If a rolling easement allows continued occupation
after the home is seaward of spring high water,
then property owners will have little reason to
convert their land title into an estate for years. But
in most cases, the landowner's right to occupy a
home will end once the home is seaward of the
public trust boundary—for example mean high
water. At that point, the negotiations will be
similar to the situation where a home must be
abandoned as soon as it is within the wetlands,
except that the negotiated transfer date (and
possibly the negotiations) will be later.
Rolling easements are likely to allow continued
occupation of homes in areas where the public
trust boundary does not roll,598 and in areas where
the comprehensive plan calls for an
accommodation pathway. Negotiations would be
very different. They might involve an inducement
to abandon the home given the increasing costs of
continued occupation, or they might simply focus
on how the wetlands would be managed.
The likelihood of negotiating the details of the
endgame depends on what happens to similar
properties nearby. If adjacent properties have
already been abandoned under similar
arrangements, owners are likely to generally
assume that the terms of the easement are binding,
and negotiate the details in good faith. If other
properties have been abandoned under different
arrangements—or if this is the first parcel to be
submerged—then some owners are likely to resist
the requirement to abandon the property, or at
least resist the timing specified in the rolling
easement.599
When the holder of a rolling easement is a
government agency, then landowners can also
make a political appeal against enforcing the
easement. If the environmental, safety, and
budgetary benefits of allowing the shore to retreat
are generally accepted, then such appeals will
generally fail. For example, Texas has generally
declined to provide more than temporary relief in
response to requests for exemptions from its
rolling easement policy. A record of repeated
reminders about the easement and efforts to
negotiate in good faith may also help agencies
resist such pressure. Nevertheless, to mitigate the
perceived hardship, some sort of financial payment
may be necessary.
9.3 FINANCIAL ASSISTANCE
FOR RELOCATION
Termination payments could range anywhere from
no compensation to something close to full
compensation. Providing full compensation would
largely defeat the purpose of the rolling easement:
Even without the rolling easement, a local
government could purchase the land at market
value through eminent domain; providing full
compensation would take away the incentive to
154
-------
The End Game: Managing the Transition
avoid excess investment. Similarly, if one expects
flood insurance to pay for the eventual loss of the
home, much of the rolling easement's incentive to
avoid unwise investments will be lost—unless the
expected insurance payments are fully covered by
insurance premiums (which is not the case
today600).
Under the Texas rolling easement policy, the state
generally offers landowners approximately
$50,000 for home relocation costs.601 State law
allows the Texas General Land Office to remove
some homes encroaching seaward of the dune
vegetation line, but the state usually allows
continued occupation until either a storm destroys
the house or the house is seaward of the mean high
tide line, which is the boundary between public
and private property.602 If the home is occupied
until it is destroyed by a storm, flood insurance
may pay the entire value of the structure (though
not the land). Thus, the state's enforcement
flexibility substantially increases the likely
financial compensation—and enables most owners
to enjoy the property several more years.
Some researchers have taken this approach one
step farther: Professor Joe Sax proposed creating a
surety bond or "sinking fund" for compensating
landowners by requiring annual payments well in
advance of the submerge date. The proceeds could
be invested and provided to the owner when the
land is abandoned.603 With the blessing of the
Federal Emergency Management Agency, The
Heinz Center proposed a modification to the flood
insurance program based on erosion-hazard
mapping, in which higher flood insurance
payments would accrue over 50 years sufficient to
pay for the eventual loss of the structure.604 Under
the Heinz Center approach, the government would
continue to assume the risk of sea level rise; the
owner would receive fair market value of the
structure605 (though not the land) regardless of
whether the higher premiums were sufficient to
cover the payment. But assuming an accurate
estimate of the submerge date,606 this approach
would force owners of vulnerable property to pay
for the expected cost of sea level rise. Under
FEMA's current procedures, rates on a given
property neither anticipate nor respond to
increasing vulnerability; so the premiums paid by
other policy holders must cover those increased
costs. 6°7
If the Sax proposal is implemented as a bond, in
which the property owner is provided the proceeds
upon abandonment, then the landowner, not the
government, will assume the risk of sea level rise.
If the property lasts longer than expected, then the
owner will get a payment worth more than the
property. But if sea level rises more rapidly and/or
the owner continues making upgrades as the
submerge date approaches, then the bond will be
less than the property value (though it still will
tend to mitigate the apparently harsh effect of an
owner having to give up property without a
payment). The logic of such a fund is that, like
insurance, it converts the risk or eventuality of the
loss of one's home into a relatively modest annual
payment. For example, if a rolling easement
requires a payment equal to 1.3 percent of a
home's value and the payment increases 3 percent
per year, then it will be sufficient to cover the cost
of the property in 40 years at a 3 percent rate of
return. Given the various programs that benefit
coastal landowners, a required annual payment
into a buyout fund may be less politically difficult
than uncompensated enforcement of the rolling
easement.
If a land trust or landowner thinks that an eventual
financial payment would help facilitate the
endgame, provisions for such a fund can be
included in the terms of the rolling easement. The
landowner may be concerned that if his heirs still
own the land when it is submerged, they might not
have the money to buy a similar property inland.
In such a case, he could ask that, instead of paying
him for the rolling easement, the land trust invest
the same amount in a trust fund, which can be
transferred to the owner upon abandonment. Or
the transferring owner could even provide those
proceeds himself. If the easement holder
(especially a government agency) is more
concerned than the landowner about a bond being
155
-------
ROLLING EASEMENTS
available, the easement could specify that the
owner must start to make annual payments some
number of years before the estimated
submergence, based on (for example) a percentage
of the assessed market value.
A variant of this approach would be a payment
from the landowner to the easement holder in lieu
of having to remove the home when it first
becomes seaward of the rolling design boundary.
Such an option could be included either in the
original easement conveyance608 or negotiated as
the submerge date approaches. For example, a
shoreline migration easement could prohibit shore
protection and require immediate relocation of the
house once it is seaward of the upper edge of tidal
wetlands. The easement could also specify, or the
parties may negotiate, an arrangement under
which the owner can retain the home for a certain
number of years after marsh takes over the land on
which it stands, provided that the owner makes an
annual payment into a fund, with some or all of
those proceeds refunded when he abandons the
parcel.
A final version of this approach is shown in
Figure 6 (on page 29). In that case the rolling
easement prohibits shore protection but does not
require the home to be removed when it is in the
wetlands. Eventually, however, the public/private
boundary will move inland of the house. At that
point, the state will own the land by operation of
the public trust doctrine, and neither the
landowner nor the easement holder will have any
property interest in the portion of the parcel on
which the home rests. The state will have both a
property interest and an environmental interest in
removing the structure, but also face political
pressure to allow the home to stay. One option
would be to for the state to charge an escalating
rent for continued occupation6^ possibly with the
intention of refunding some or all of the proceeds
upon abandonment.
Managing some sort of trust account would
increase the administrative costs of the rolling
easement. An account management fee similar to
what custodians of retirement funds charge could
defray those costs. Sometimes the funds might
have undesirable tax consequences.610 Whether
the additional administrative burden is worthwhile
is a judgment that the land trust would have to
make.
Instead of a cash payment, providing a new parcel
of land may be feasible in some circumstances. In
the case of an oceanside lot on a barrier island, a
newly created lot on the bay side may sometimes
be a reasonable solution.611 Some owners would
willingly move a home to the safety of the bay side
rather than insist on occupying a house seaward of
the dune line, with both the ocean and the
easement holder threatening to enforce the rolling
easement.
9.4 AFTER THE LAND IS
SUBMERGED
If the sea continues to rise, the shore retreats, and
the rolling easement works as intended, eventually
the entire parcel will be seaward of the rolling
design boundary. In some cases, the rolling
boundary will also be the boundary between the
private dry land and the public trust tidelands. In
other cases, the rolling boundary (e.g. spring high
water or the dune vegetation line) will be inland of
the public trust boundary. But eventually the
public trust boundary (typically mean high water)
will migrate inland of the entire parcel, and the
land will no longer be privately owned.
156
-------
The End Game: Managing the Transition
If the rolling easement does not require removal,
the home might continue to stand on publicly
owned wetlands. The owner will have no property
right to keep the building there, and the state can
require its removal. If the state does not do so,
then either the former landowner or the land trust
will own the home, depending on the type of
rolling easement.612 If the land trust owns the
house, it will be free to remove the structure. The
situation in which people continue to inhabit
homes standing in the water in areas preserved by
rolling easements seems unlikely to become
widespread.
Once the land becomes submerged and the
buildings have been removed, the mission of the
rolling easement will be accomplished in most
cases. If the rolling easement is a possibility of
reverter, the land will revert to the land trust or
local government, which can manage it for
conservation until it is transferred to the public
trust. If state regulations or rolling easement
zoning prevent shore protection, the government
agency can then turn its attention to the next
parcel inland, which may still be inhabited. Once
the land reverts to the public trust, shoreline
migration easements will be extinguished along
with the owner's title to the land. In those
relatively few cases where submerged lands have
been conveyed to private parties, where the land
does not necessarily revert to the public trust, the
rolling easement will remain in force. At this
point, it may have little practical significance aside
from preventing the wetlands or shallow waters
from being filled (which is generally discouraged
by federal or state regulations anyway).
This is not to say that the parcel will remain under
water forever. Migrating barrier islands, changing
inlets, switching river deltas, earthquakes, or
storms might create land once again at this
location. But with few exceptions, title to any new
land here would either go to the state (if the land
was created by avulsion) or the owner of another
parcel of land that gradually extended here
through accretion.
When the rising sea finally reverses and begins to
drop, the law may have to evolve to better allocate
rights along a generally advancing shore, just as
rolling easements are designed for a generally
retreating shore. We do not address that possibility
here. The mirror image of the rolling easement
may confront communities along the Great
Lakes613 or other shorelines along falling lakes,
long before it becomes an issue for the shores
along tidal waters.
157
-------
ROLLING EASEMENTS
NOTES AND REFERENCES
584 Conservation easements are a form of risk
management. They are often obtained in areas where
there is no certainty that the land would otherwise be
developed, because landowners who are certain that
they want to develop the land do not to donate such
easements. Either sea level rise or development could
prove to be less than indicated by the best available
projections.
585 See, e.g., Tex. Nat. Res. Code Ann. §61.025
(requiring a warning to all purchasers of coastal
property that shore erosion may move the public beach
to where the house is now, in which case the state of
Texas may force the buyer to remove the house and
pay for that removal); and S.C. Code Ann. § 48-39-330
(requiring disclosure to purchasers of property seaward
of the setback line that they may be affected by the
setback line). Often warnings come at the end of the
process of searching for a home, by which time a buyer
may already feel committed to buying the home, and
disregard the warning.
586 Under the doctrine of waste, the owner of a
possibility of reverter may have the power to stop such
grade elevation, if the title transfers upon a given rise in
sea level. If title transfers upon shore protection, the
holder will have to take precautions to find such
violations or risk losing title to the land through adverse
possession.
587 See, e.g., supra Table 6 (suggesting an initial
elevation survey).
588 This paragraph draws upon a memo to EPA
prepared by Leslie Ratley-Beach, Sylvia Bates, and
Rush Shay of the Land Trust alliance concerning the
importance of frequent inspections. See generally
Ratley-Beach, Sylvia Bates & Rush Shay, RE: Review
Request: Draft Primer on Rolling Easements (email
from Leslie Ratley-Beach to Jeremy Martinich of EPA,
November 1,2010).
589 Id.
590 Id.
See generally Lynn M LoPucki, Statute of
Limitations in Warranty, 21 U. of Fla. L. Rev. 336
(1968). Butcf. Cheever, supra note 215, at 1098 n.109
(noting that the statute of limitations in at least one state
does not directly articulate the discovery rule, which
tolls the statute of limitations from the time of a violation
until the time when the injured party knows or should
have known about it).
c oft
Comparing the original survey with the existing
elevation of the land may still be the most reliable way
to measure how much the elevation has changed. But
a witness to the grade elevation would help to prove
that the survey evidence is correct and that the grade
elevation did not result from winds or flood waters
depositing material.
593 The admissibility of evidence is often a
consideration that prompts land trusts to undertake
regular inspections. Ratley-Beach et al, supra note
588. If written records rather than memories are the
primary evidence that grade elevation has taken place,
the records could be challenged as hearsay. See e.g.
Fed. R. Evid. 801 and 802. But records maintained in
the course of business, such as regular inspections,
would generally be admissible under the business-
records exception to the hearsay rule. Id. Cf. Fed. R.
Evid. 803(6). The most important written record for a
rolling easement would be the original survey which
would be part of the original conveyance and hence not
hearsay. If a survey takes place each time the land is
sold, the subsequent surveys should also be admissible
either because they are not hearsay either (e.g. they
have been accepted by the owner and are signed by
the buyer and hence an admission about the condition
of the land) or they are a business record.
Nevertheless, if a land trust wants to introduce as
evidence photos or records of its visual observations
about whether the grade had been elevated, the
hearsay exception for business records may allow
evidence from regular annual surveys that would not be
allowed for one-time surveys. Whether decadal
inspections would be treated as business records is
less clear.
594 Id.
Converting a possibility of reverter into an estate
for years would be relatively straightforward because
the land trust would be trading one type of future
interest for another. If the land trust holds a
conservation easement, it will generally be necessary to
persuade a court that this change serves the
conservation interest. A court's willingness to accept
such a change may depend on how the court views
uncertainty and measures designed to reduce litigation
costs. If the costs of obtaining such court orders were
too high, another option would be to exchange
forbearance by the conservancy from then until the
projected submerge date in return for the remainder on
an estate for years. During most (or all) of that period,
the forbearance would have no environmental
significance because the submerge date would not yet
have arrived.
596 IRS regulations appear to allow modifications of
the instrument consistent with the objectives, and even
allow for judicially approved sale as long as the
proceeds are used for the same purpose. 26 C.F.R.
§ 1.170A-14(g)(6)®.
158
-------
The End Game: Managing the Transition
CQ7
For example, there may be value in having low-
lying habitat just above wetland elevation.
598 E.g., areas where the submerged land has
already been sold to private landowners.
599 For example, in Severance v. Patterson, the
parcels were in the second row back from the beach
when the Open Beaches Act was adopted, but along
the Gulf when the case was filed. The owner
challenged the application of the law to her home on the
grounds that the public easement did not necessarily
roll onto her property, and the court agreed. See supra
note 566.
600 See CCSP, supra note 3, at 151-154 (showing
that under grandfathering policy, flood insurance rates
do not increase when sea level rise makes a given
property more hazardous).
601 Texas Department of Public Safety. State of
Texas Hazard Mitigation Plan 2010-2013, 194 (2010)
(discussing relocation under the Coastal Erosion
Planning and Response Act). See also Severance v.
Patterson, 566 F. 3d 490, 494 (2009) (plaintiff was
offered relocation assistance of $40,000 for two
structures in 2006).
602 See § 3.1.2 (discussing the Texas Open
Beaches Act). As this report went to press, the state
had not yet made any changes in its relocation
assistance policy in light of the Texas Supreme Court's
opinion in Severance v Patterson, No. 09-0387 (Tex.
2010).
603 Joseph L. Sax, The Fate of Wetlands in the
Face of Rising Sea Levels: A Strategic Proposal, 9
UCLA J. ENVTL. L. & POL'Y 143, 148 (1991).
604 The Heinz Center, Evaluation of Erosion
Hazards with forward by James Lee Witt, Director,
Federal Emergency Management Agency (2000), 156-
172, 178.
605 Here we are assuming that the value of the
structure is less than the maximum coverage per
structure. The maximum coverage is $250,000,
44 CFR § 61.1, but there have been several proposals
to raise it.
606 The Heinz Center proposal did not explicitly
address accelerated sea level rise, but revising the
basic approach to do so would be relatively
straightforward. With or without accelerated sea level
rise, however, shoreline retreat over a 50-year period is
uncertain. Transferring a 50-year risk from property
owners to the flood insurance program based on a
forecast is not necessarily the most efficient way to
discourage unwise investments, but it would incorporate
risks into decisions more than the current approach.
See CCSP, supra note 3, at 151-154.
607 See supra note 600.
608 Such a provision is essentially an option for
continued habitation in return for a payment. If included
as part of the original easement, such a provision could
be attacked as a violation of the Rule Against
Perpetuities. But a land trust that wanted to stay on
good terms with the property owner may be reluctant to
attack a provision that it originally negotiated with the
property owner. Cf. supra notes 259, 260, and 387.
609 Several states rent public trust tidelands for a
variety of water-related purposes. New Jersey requires
those wanting to build a dock to lease the wetlands and
shallow waters over which the dock will be built. See,
e.g., New Jersey Department of Environmental
Protection, PUBLIC ACCESS IN NEW JERSEY: The
Public Trust Doctrine and Practical Steps to
Enhance Public Access 23-25, 41 (undated) . Several
states lease tidelands for aquaculture or mineral
extraction. Slade et al, supra note 34, at 249-255. In
Mississippi, the Secretary of State has the discretion to
award or deny a tidelands lease for a gaming casino.
Columbia Land Dev., LLC v. Secretary of State, 868
So.2d 1006, 1011-1016 (Miss.2004).
610 For example, if a cash refund is expected
eventually, then a "donation" of a rolling easement
would really be a "bargain sale."
611 See supra § 2.5.
612 Under a shoreline migration easement, the
landowner would be likely to own the building; with a
future interest, the land trust would own it.
613 See, e.g. , James R. Angel & Kenneth E. Kunkel,
The Response of Great Lakes Water Levels to Future
Climate Scenarios with an Emphasis on Lake Michigan-
Huron, 36 Journal of Great Lakes Research 51-58
(2010) (75 percent of all simulations showing drop in
lake levels through the year 2080, with 25 percent
chance that the drop could be 50-70 centimeters).
159
-------
ROLLING EASEMENTS
GLOSSARY
Access, Lateral
Right to walk or otherwise move along a shore,
once someone has reached the shore.
Access, Perpendicular
Legally permissible means of reaching the shore
from dry land.
Access Point
Place where anyone may legally gain access to the
shore; usually a park, the end of a public street, or
a public path. A place where perpendicular access
is provided.
Accommodation
One of three general pathways by which society
can respond to rising sea level or shoreline erosion,
in which no effort is made at shore protection
while human activities continue to occupy an
increasingly wet environment. This approach is
most common for a small rise in sea level that does
not warrant the major investments or relocations
necessitated by the retreat and shore protection
pathways.
Accretion
1. Gradual and imperceptible advance of a
shoreline into the sea. 2. Legal doctrine under
which property lines that follow the shoreline
move with the changing shore when that change is
gradual and imperceptible, whether the shore
erodes or accretes. 3. Wetland Accretion.
Affirmative Easement
See easement.
Armoring
See shoreline armoring.
Astronomical Tides
Tides that result from gravitational forces of the
moon and sun on ocean waters.
Average High Water Mark
1. In this report, the average upper reach of the
waves during all the high tides over the course of
the year. 2. The average position of the wet/dry
line along a sandy beach. 3. The upper reach of the
waves during a day with average seas and the
average high tide.
Avulsion
1. Loss or gain of lands bordering on the seashore
by sudden or violent action of the elements,
perceptible while in progress, or caused by human
activities. Often refers to the sudden and rapid
change in the course and channel of a boundary
river. 2. Legal doctrine under which property lines
that follow the shoreline do not move with the
changing shore, when that change is sudden and
perceptible.
Barrier Island
Long, narrow coastal landform composed of sand
that is essentially parallel to the shore and usually
separated by wetlands; protects inland areas from
ocean waves and storms.
Barrier Island Migration
Whole-scale movement of a barrier island or
barrier spit in response to sea level rise, changes in
sediment supply, storm surges or waves, or some
combination of these factors.
Barrier Island Raising
Combination of beachfill and grade elevation in the
area landward of the beach. The landward portion
is rarely elevated as a large-scale operation.
Individual lot owners sometimes import fill to
raise their lots, especially if the lots are prone to
flooding.
Beach
Unconsolidated material that covers a gently
sloping zone, typically with a concave profile,
extending landward from the low water line to the
place where there is a definite change in material
or physiographic form (such as a cliff), or to the
line of permanent vegetation (usually the effective
limit of the highest storm waves); a shore of a body
160
-------
Glossary
of water, formed and washed by waves or tides,
usually covered by sand or gravel and lacking a
bare rocky surface.
Beach Nourishment
Addition of sand, usually dredged from offshore, to
an eroding shoreline to enlarge or create a beach
area, offering both temporary shore protection and
recreational opportunities. Putting sand where
there is none necessarily raises the elevation, but
engineered beaches can be designed to have a
volume and height that a natural beach would
never attain. Also known as "beachfill" and "sand
replenishment."
Bluff
Elevated landform, such as a cliff, composed of
partially consolidated and unconsolidated
sediments, typically sands, gravel, and/or clays.
Breakwater
Offshore structure (such as a wall or jetty) that, by
breaking the force of the waves, protects a harbor,
anchorage, beach, or shore area.
Bulkhead
Vertical wall along the shore designed either to
create a vertical shore for navigation purposes, or
to prevent erosion in areas with minor wave
action.
Buyer Resistance
Reluctance of a potential purchaser to pay what a
product is worth for reasons that appear to be
based on intuition or emotion rather than a
rational assessment of the product's value. The
requirement that the price be discounted because
of a feature by an amount far in excess of any
reasonable expectation of the cost of that feature,
e.g., requiring a price discount of $1,000 because
of a clause that may require a payment of $500.
Civil Law
A system of law derived from Roman Law as
codified by the Institutes of Justinian. The civil
law governs most of Europe, and South America,
other than former British Colonies, as well as parts
of Asia and Africa. Unlike common law, judges do
not make law under the civil system. In the United
States, Louisiana is the only state that (partially)
follows the civil law today. But some land grants
conform to the civil law rather than the common
law, in states that were once ruled by France or
Spain. In particular, the public trust extended
farther inland under the civil law than the common
law.
Coastal Zone
Area extending from the ocean inland across the
region directly influenced by marine processes.
Common Law
The system of law developed by English judges and
adopted by most states, based on precedent and
case law, in which judges make decisions on
specific cases, generally on matters where no
statute clearly applies, and each judge attempts to
rule in a manner consistent with how previous
courts have addressed similar facts.
Conservation Easement.
A negative easement in gross whose restrictions
promote conservation. Ownership is generally
limited to government agencies and qualified
nonprofit land trusts.
Contour Interval
Difference in elevations of adjacent contours on a
topographic map. The smaller the contour interval,
the more precise the map.
Covenant Running with the Land
Agreement concerning use of a parcel of land
between an owner of the parcel and an owner of a
nearby parcel, which binds and benefits successive
owners of both parcels as if each had made the
agreement. Unless otherwise specified, covenant
running with the land means legal covenant
running with the land for which the remedy for a
violation would be an award of damages. Often a
given agreement is also an equitable covenant
running with the land, also known as an equitable
servitude.
161
-------
ROLLING EASEMENTS
Defeasible Estate
Complete ownership of land that is capable of
terminating upon the occurrence of an event.
Design Sea Level
The sea level at which a rolling easement based on
sea level changes ownership.
Dike
Wall generally of earthen materials designed to
prevent permanent inundation of lands below sea
level, tidal flooding of lands between sea level and
spring high water, or storm-surge flooding of the
coastal floodplain.
Dominant Estate
Land whose owner benefits from an easement.
Dredge and Fill
Process used extensively before the 1970s to
elevate estuarine shorelines to a height that allows
construction of homes. Commonly known as
lagoon development, channels are dredged
through tidal wetlands to allow small boat
navigation, and dredge spoil is placed on the
remaining marsh to raise the marsh high enough
to allow development. Also known as "canal
estates."
Dry Beach
1. In legal writing, the portion of a beach landward
of mean high water 2. In geological writing, the
portion of a beach landward of the wet/dry line or
upper limit of wave runup.
Dune
Landform characterized by accumulation of wind-
blown sand, often vegetated, along the coast.
Easement
Right to enter land possessed by someone else and
make limited use of that land (such as walk, fish,
change the grade elevation, or drain water). Also
known as affirmative easement.
Encroach
1. In this primer, to lie a short distance seaward
beyond the boundary line, either by advancing
beyond the boundary, or be remaining in place
while the boundary line moved inland. 2. To
advance a short distance beyond the normal
boundary line.
Easement Holder
Party who owns the rights in an easement, such as
a conservation easement. Typically the landowner
conveys a conservation easement to a holder. In
this report, however, the term usually means
rolling easement holder, which has a broader
meaning. See rolling easement holder and
dominant estate.
Easement in Gross
Easement (usually an affirmative easement) that
allows someone (called either the dominant tenant
or the easement holder) to make use of land owned
by another (the servient estate) unrelated to any
land the dominant tenant may own.
Equitable Covenant Running with the Land
See equitable servitude.
Equitable Servitude
Agreement concerning use of a parcel of land
between an owner of the parcel and an owner of a
nearby parcel, which binds and benefits successive
owners of both parcels as if each had made the
agreement. An equitable servitude is similar to a
legal covenant, except that it entitles the benefited
land to an equitable remedy, such as an injunction
to honor the terms of the covenant. A negative
equitable servitude (which limits one owner's use
of this land) is similar to negative easement, except
that courts recognize only a few types of negative
easements, whereas they allow parties to restrict
almost any type of land use in an equitable
servitude.
Erosion
Loss of sediment, sometimes indicated by the
landward retreat of a shoreline indicator such as
the water line, berm crest, or vegetation line. The
162
-------
Glossary
loss occurs when sediments are entrained into the
water column and transported from the source.
Erosion-Based Setback
Setback equal to an estimated annual erosion rate
multiplied by a number of years set by statute or
regulation (e.g., 30 years).
Estate for Years
Ownership of land that terminates after a given
period of time. When a grantor conveys an estate
for years, the interest he retains is known as a
reversion.
Eustatic Sea-Level Rise
Changes in global sea level relative to a vertical
datum. Eustatic changes represent global sea level.
The causes include ice sheet melting, increasing
temperature of surface waters, and increasing
volume of seafloor due to tectonic processes.
Exaction
Interest in land, usually an easement or a parcel of
land in fee simple absolute, that a government
agency requires a private landowner to convey to
the government as a condition for a permit.
Executory Interest
Future interest in land that entitles owner to
possession for the first time, when an event occurs
that ends the possibility of reverter or fee simple
subject to condition subsequent owned by
someone else. For example, a deed that says "O
grants Blueacre to A and his heirs for so long as sea
level is less than one meter above the NAVD, and
then to B" would give a fee simple determinable to
A and an executory interest in Blueacre to B. The
legal difference between a possibility of reverter
(or power of termination) and an executory
interest is that neither the owner of an executory
interest nor his heirs ever owned Blueacre,
whereas the owner a possibility of reverter (or a
power of termination) or his heirs owned Blueacre
at one time.
Fee Simple Absolute
Ownership of the entire set of rights in land
forever. A deed that says "O grants Blueacre to A
and his heirs" conveys to A fee simple absolute in
Blueacre.
Fee Simple Determinable
Ownership of the entire set of rights in land with
the potential to last forever but which is subject to
a limitation, which would cause the estate to end.
The limitation is generally the end of the
circumstances that motivated the owner to obtain
this interest in land (e.g. the railroad closes or the
sea rises enough to threaten the property). A deed
that says "O grants Blueacre to A and his heirs for
so long as sea level is less than one meter above the
NAVD" conveys a fee simple determinable to A
unless and until sea level rises one meter above
NAVD, after which point Blueacre reverts to O or
his heirs. O retains a possibility of reverter.
Fee Simple Subject to Condition
Subsequent
Ownership of the entire set of rights in land with
the potential to last forever but which ends if a
particular condition occurs, provided the original
grantor exercises his power of termination. A deed
that says "O grants Blueacre to A and his heirs, but
if a seawall is built on Blueacre, O has a power of
termination" conveys a fee simple subject to a
condition subsequent. If a seawall is built on the
property, O has the power to terminate the estate
by going to court. The condition is generally an
action by the owner contrary to the original
agreement under which the land was transferred.
Courts have often viewed the resulting transfer of
possession as unreasonably punitive.
Flag Lot
Parcel with no true front yard, whose only frontage
along the street is for the driveway. A flag lot often
has a shape that looks like a flag (the site for the
home and most of the yard) on a pole (the
driveway).
163
-------
ROLLING EASEMENTS
Future Interest in Land
Future and possibly contingent right to a fee
simple absolute that entitles one to take possession
at some date in the future or upon the occurrence
of an event (e.g. when the sea rises to a specified
level).
Global Sea Level Rise
Worldwide average rise in mean sea level.
Grade Elevation
Adding sand, gravel, or soil to elevate a land
surface.
Groin
Engineering structure perpendicular to the coast,
used to accumulate littoral sand by interrupting
alongshore transport processes. A groin is often
constructed of concrete, timbers, steel, or rock.
In Gross
See easement in gross.
Inholding
Privately owned land within a publicly owned park,
wildlife refuge, or other natural area.
Inundation
Permanent flooding of dry lands when the sea level
rises.
Landowner
In this report, someone whose property interest in
a particular parcel entitles her to current
possession. The landowner may be the holder of
a defeasible estate, an estate for years, or fee
simple absolute subject to a conservation
easement.
Land Trust
Private charitable organization that works to
conserve land by acquiring and managing
conservation lands or conservation easements.
Levee
Wall generally of earthen materials designed to
prevent riverine flooding after periods of great
rainfall.
Life Estate
Ownership of land that terminates when someone
dies. When a grantor conveys a life estate, the
interest he retains is known as a "reversion".
Generally, the person whose death triggers the
reversion owns the life estate. If he sells the life
estate to someone else, it is known as a "life estate
par autre vie."
Littoral
Relating to a tidal shoreline.
Living Shoreline
Type of shore protection that retains some or all of
the environmental characteristics of a natural
shoreline.
Marsh
Low-lying vegetated wetlands that generally are
found between mean sea level and spring high
water, or areas that are flooded at least a few times
each month. Salt marshes occur in protected
environments, such as behind barriers. Salt-
tolerant plants colonize salt marshes.
Mean High Tide Line
General term that refers to whichever measure of
mean high water applies. This term is used in
Texas, where land conveyances before 1840
extended to mean higher high water, but land
grants thereafter extended down to mean high
water. In Texas, this line refers to the elevation
contour along the beach whose elevation is the
same as mean high tide, which is considerably
seaward of where the waves wash at high tide.
Mean High Water
Tidal datum. The average height of all high water
heights observed over a 19-year period.
164
-------
Glossary
Mean Higher High Water
Tidal datum. The average height of the higher of
two daily high tides observed over a 19-year
period. This measure is often used along the Gulf
of Mexico, where one of the high tides each day is
much higher than the other high tide. Along most
of the U.S. Atlantic coast, by contrast, the two daily
high tides reach similar heights.
Mean Low Water
Tidal datum. The average height of all low water
heights observed over a 19-year period.
Mean Sea Level
Average water level position measured over a 19-
year period that takes into account natural tidal
oscillations. Often computed by the arithmetic
mean of observed hourly heights over a 19-year
period. Local mean sea level is determined relative
to the local land at a tide station. Global mean sea
level is the average level of the global ocean.
Mudflat
Level area of fine silt and clay along a shore
alternately covered or uncovered by the tide or
covered by shallow water.
Negative Easement
Right to prevent the owner of land from doing
something on her land that she would otherwise
have the right to do.
Nanotidal Wetlands
Wetlands that are irregularly flooded by wind-
generated tides in estuaries with little or no
astronomical tides. These wetlands are often
classified as nontidal wetlands, but like tidal
wetlands, their frequency of inundation is
controlled directly by sea level.
Nontidal Wetlands
Wetlands that are not flooded by tides.
Ocean
In this report, the Atlantic, Pacific, and Arctic
Oceans; the Gulf of Mexico, and other bodies of
water with large waves.
Ordinary High Water Mark
Demarcation between the publicly owned land
along the water and privately owned land.
Generally based on mean high water, the definition
varies by state. Along beaches with significant
waves, it may be based on the line of vegetation,
the water mark caused by wave runup, surveys of
the elevation of mean high water, or other
procedures. Along flat waters, it is the same as the
average high water mark
Possibility of Reverter
Future interest in land that entitles the owner to
re-possess the land if and when a specific event
occurs. That event is also the limitation that ends
the preceding fee simple determinable occurs. A
possibility of reverter is automatically created
when the owner of a fee simple absolute conveys a
fee simple determinable.
Power of Termination
Future interest in land that entitles the owner to go
to court to re-possess the land if and when a
particular condition occurs, which is specified in
the conveyance of a fee simple subject to condition
subsequent. A power of termination is
automatically created when the owner of a fee
simple absolute conveys a fee simple determinable
subject to condition subsequent.
Privity of Estate, Horizontal
Situation in which the original parties of a
covenant shared some interest in the land that is
the subject of the covenant, or the covenant is
created as part of the subdivision process when
both owners can trace their titles back to a
common owner of a larger parcel that included
their respective parcels.
165
-------
ROLLING EASEMENTS
Privity of Estate, Vertical
Situation in which the present owner of a parcel
that is benefited or burdened by a covenant owns
the entire estate that was owned by the original
party that made the agreement, to whom the
owner traces his title.
Public Trust Doctrine
Legal principle derived from English common law.
The essence is that the waters of the state are a
public resource owned by and available to all
citizens equally for the purposes of navigation,
hunting, fowling, and fishing, and that this trust is
not invalidated by private ownership of the
underlying land.
Relative Sea Level Rise
Rate of sea level change measured with respect to a
specified vertical datum relative to the land, which
may also be changing elevation over time.
Recorded Rolling Easement
1. A rolling easement recorded in the local land
records office. 2. Any property interest designed to
prevent shore protection or ensure that a property
boundary or right of access migrates inland. 3. A
conservation easement, affirmative easement,
covenant, future interest in land, or ambulatory
boundary designed to ensure that a property
boundary or right of access migrates inland.
Reliction
Slow and imperceptible advance of the shoreline
resulting from falling sea level, as distinct from the
deposit of sediment, which is known as accretion.
Retreat
One of three general pathways by which society
can respond to rising sea level or shoreline erosion,
in which human activities move inland to make
way for the landward migration of wetlands,
beaches, open water, and public rights associated
with the shore and tidal waters.
Revetment
Sloped facing of stone, concrete, etc., built to
protect a scarp, embankment, or shore structure
against erosion by waves or currents.
Rolling Conservation Easement
1. Conservation easement that both restricts
construction and other land use with the purpose
of maintaining existing conservation value of land,
and prohibits shore protection, i.e., a standard
conservation easement combined with a shoreline
migration conservation easement. 2. Conservation
easement with boundaries that migrate as a result
of changing environmental conditions or forest
practices. 3. A shoreline migration conservation
easement. This report uses the first definition.
Rolling Design Boundary
Shoreline (or a line that generally follows the
shore) that defines the landward boundary of
certain rights or restrictions in a rolling easement.
The most common examples are the dune
vegetation line, spring high water (upper edge of
tidal wetlands) mean high water, mean low water,
and a given distance inland (e.g., 100 feet) from
any of those boundaries.
Rolling Easement
1. Regulation or an interest in land in which a
property owner's interest in preventing real estate
from eroding or being submerged yields to the
public or environmental interest in allowing
wetlands, beaches, or access along the shore to
migrate inland. 2. An interest in land along the
shore whose inland boundary migrates inland as
the shore erodes. 3. In Texas, an easement along
the shore whose inland boundary migrates inland
or seaward as the shore erodes or accretes.
There is generally a rolling design boundary
seaward of which the restrictions apply, such as
the dune vegetation line. At a minimum, a rolling
easement prohibits hard shore protection and
other structures that prevent the landward edge of
166
-------
Glossary
wetlands or beaches from migrating inland or
block public access along the shore. A rolling
easement may also require removal of preexisting
buildings as they become nonconforming
structures seaward of the rolling design boundary.
Along estuaries, a rolling easement may also
prohibit grade elevation of dry land, which would
tend to squeeze wetlands.
Rolling Easement Holder
Person, land trust, or government agency that
owns the property rights from a rolling easement
or has the legal power to enforce it. The rolling
easement holder could be a local planning
department or land use regulatory agency (in the
case of rolling easement zoning), a state regulatory
agency (in the case of state regulations prohibiting
shore protection), the state agency responsible for
managing public trust lands (in the case of a
rolling easement that derives from the public trust
doctrine of common law), a government agency
that acquires conservation easements (in the case
of a recorded rolling easement that had been
conveyed to a government agency), a qualified land
trust (in the case of a rolling easement that had
been acquired by a land trust), or a nearby
landowner (in the case of a covenant, equitable
servitude, or affirmative easement with a rolling
boundary).
Rolling Easement Zoning
Land use zoning that prohibits shore protection in
some zones.
Running with the Land
See covenant running with the land.
Sand Dunes
Mounds or ridges of sand. They are formed from
sand that is transported and deposited by the
wind.
Sand Replenishment
See beach nourishment.
Safety Valve
l. A provision in a regulation or recorded property
interest that limits the potential harm to the
property owner. 2. In this report, a provision that
the rolling easement will not require the removal
of the home before a specified date, even the land
is submerged more rapidly than expected.
Sea Level Rise
In this report, relative sea level rise. In other
contexts, the term may refer to global sea level rise.
Seawall
Structure separating land and water areas,
primarily designed to prevent erosion and other
damage from wave action.
Servient Estate
Land that is burdened by an easement.
Setback
Requirement that construction be located a
minimum distance inland from tidal wetlands,
tidal water, the primary dune line, or some other
definition of the shore.
Shore
Narrow strip of land in immediate contact with the
sea, including the zone between high and low
water lines. A shore of unconsolidated material is
usually called a beach. (In common parlance,
"shore" may refer to an entire coastal community;
but that meaning is not used in this report.)
Shoreline migration conservation easement
Conservation easement whose sole restriction is to
make a property subject to a rolling easement.
Shoreline migration easement
See shoreline migration conservation easement.
167
-------
ROLLING EASEMENTS
Shore Retreat
l. Migration of a shoreline toward higher ground
away from deeper water, whether through direct
inundation from higher relative sea level or
shoreline erosion. 2. One of three general
pathways by which society can respond to rising
sea level and other processes that cause the
shoreline to migrate inland. See retreat.
Shoreline
Intersection of a specified plane of water with the
shore or beach. The line delineating the shoreline
on National Ocean Service nautical charts and
surveys approximates the mean high water line.
Shoreline Armoring
Placement of fixed engineering structures, typically
rock or concrete, on or along the shoreline to
mitigate the effects of coastal erosion and protect
structures. These structures include seawalls,
revetments, bulkheads, and rip-rap (loose
boulders).
Shore Protection
l. Activity that protects land from inundation,
erosion, or storm-induced flooding, generally
either through shoreline armoring or soft shore
protection. 2. One of three general pathways by
which society can respond to rising sea level and
other processes that increase the risk for flooding
and coastal erosion through use of shore
protection measures, such as shoreline armoring,
beach nourishment, or grade elevation.
Soft Shore Protection
Method of shore protection that prevents erosion
through use of materials similar to those already
found in a given location, e.g., adding sand to an
eroding beach, planting vegetation whose roots
will retain soils along the shore, and elevating the
surface grade of dry land.
Special Exception
Land use permitted within a given zone, provided
that an administrative fact finder is satisfied that
specific conditions are met.
Spring High Water
Average height of the high water during semi-
monthly times of spring tides (full and new
moons).
Submerge Date
l. The day the rolling design boundary migrates
inland of a given building or parcel of land subject
to a rolling easement. 2. In the case of a rolling
easement structured as a future interest in land,
the day that the property reverts from the
landowner to the owner of the future interest.
Submerged Land
l. Land that is below the water all of the time or on
a regular basis. 2. In this report, tidelands plus the
bottoms of bays and other estuaries, as well as the
ocean floor along the coast.
Submergence
l. In this report, the conversion of dry land to
wetland or open water through either shoreline
erosion or inundation. 2. In the case of a rolling
easement, the occurrence of the submerge date.
3. A rise in sea level or sinking of the land surface
so that areas that were formerly dry land become
intertidal or open water. 4. Inundation.
Taking
An action by a government that diminishes an
owner's property rights enough to require
compensation under the 5th Amendment of the
U.S. Constitution.
Tidal Inlet
Opening in the shoreline through which water
penetrates the land, thereby providing a
connection between the ocean and bays, lagoons,
marsh, and tidal creek systems. The main channel
of a tidal inlet is maintained by tidal currents.
Tidal Range
Vertical difference between normal high and low
tides often computed as the elevation difference
between mean high water and mean low water.
168
-------
Glossary
Spring tide range is the elevation difference
between spring high water and spring low water.
Tidal Wetlands
Wetlands that are flooded by high tides and
exposed at low tides. In some contexts, this term
refers to vegetated wetlands (e.g., marshes and
swamps) but not non-vegetated wetlands such as
tidal mudflats and beaches. In other contexts, it
may refer to both vegetated and non-vegetated
wetlands.
Wetland Migration
Process by which tidal wetlands adjust to rising sea
level by advancing inland into areas previously
above the ebb and flow of the tides.
Zoning
A system of regulating the use of land based on
dividing a jurisdiction into several zones, each of
which has different allowed land uses.
Title
The sum of all property rights to a particular parcel
owned by a particular owner.
Tidelands
Lands that are flooded during ordinary high water
and hence available to the public under the public
trust doctrine. They include beaches, vegetated
wetlands, mudflats, salt flats, and rocky intertidal
areas.
TLC (The Land Conservancy)
An example land trust that accepts conservation
easements in coastal communities.
Transfer Title
To convey all of one's property rights in a
particular parcel to someone else. A title transfer
conveys only what the transferor owns, which may
be less than fee simple absolute.
Variance
An exemption to a local land use rule granted to an
applicant because of hardship or because the
enforcement of the rule might violate a statute or
constitutional provision.
Wetland Accretion
Process by which tidal wetlands keep pace with
rising sea level through peat formation and the
accumulation of sediment, so that the land level
rises at approximately the same rate as the sea
rises. Also known as "vertical accretion".
169
-------
-------
United States
Environmental Protection
kl M mAgency
EPA 430R11001
June 2011
------- |