Jump to main content.

Go Back 3.3.4 Combinations of Rolling Easements
3.4.2 Transferable Development Rights Go Forward

3.4 Combinations 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. 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 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.[294]

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 acres[295] 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 water.[300] 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. /font>

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] 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 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 prevent[309] (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 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]

[292] 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 3040 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 note 472 and accompanying text, in which case no compensation would be due, see infra note 303.

[295] Md. Code Regs.  §

[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.  §–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).

[301] See infra notes 473 & 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 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 (II)(E)(2) (2001). Cited on March 26, 2004 at http://www.dnr.state.md.us/rural legacy/easement.pdf.

[305] See  id., which clearly allows an earthen dike.

[306] Id.  §  (II)(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.

[310] 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.

Go Back 3.3.4 Combinations of Rolling Easements
3.4.2 Transferable Development Rights Go 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.

| Ways to Create a Rolling Easement | Legal Authority? | Tax Consequences | The Endgame| Glossary| Just the Graphics

Local Navigation

Jump to main content.