Jump to main content.

Go Back Chapter 4  Overview
4.2 Authority to Transfer the Property Right Go Forward

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 constitution[332] or a statute[333] 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 rule[337] 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] 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:

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.[347] 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 wetlands 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) would be generally preempted by state law.[350] 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. 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 protection[357] would be a taking:

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.[372]

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]




[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, Ill., 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 et al. et al., supra note 34.

[332] 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).

[333] 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.

[334] Alabama, Mississippi, and Virginia do not provide for municipal home rule. See id.

[335]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.

[337] “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 et al., supra note 335, at 45.

[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.

[343] “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 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 .

[355] 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).

[357]  Or keep a pre-existing home on the beach.

[358]  Or keep a pre-existing home on the beach.

[359] E.g., policies that prohibit shore protection as discussed in §, 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).

[361] 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. Wilson 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 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.

[365] 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 § 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).

[371] Williamson 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 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).

[375] 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).

Go Back Chapter 4  Overview
4.2 Authority to Transfer the Property Right 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

Jump to main content.