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2.3 Facilitate Landward Relocation of Roads and Other Infrastructure

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 run 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 land[98] (assuming that there is some intervening dry land between the roadway and the parcel that lost access[99]). 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 5e). 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.

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.

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 water[100] 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. 

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.

[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 LRev. 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 Wis. 2d 141, 149, 672 N.W.2d 63, (2003) at 11 (holding pedestrian access through ¼ 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 necessity justified when only access available is by boat or walking along a channel at low tide).

[102] 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..

Go Back2.2.3  How rolling easements preserve public access
2.4  Help wetlands migrate inlandGo Forward

This page contains a section from: James G. Titus, Rolling Easements, U.S. Environmental Protection Agency. EPA‑430‑R‑11‑001 (2011). The report was originally published by EPA's Climate Ready Estuary Program in June 2011. The full report (PDF, 176 pp., 7 MB) is also available from the EPA web site.

For additional reports focused on the implications of rising sea level, go to Sea Level Rise Reports.

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