Coastal setbacks, buffers, or public easements are traditionally used to restrict development within a given distance from the shoreline. A rolling easement rolls along with shoreline encroachment while adopting newly created property lines due to SLR/flooding encroachment & enforcing property lines, development restrictions, etc. in light of the evolving parcel characteristics. (More info)
A rolling easement “rolls” upland as sea level rise & coastal erosion cause coastline encroachment. In addition to prohibiting development, this can help facilitate the migration of living shorelines & wetlands, preserving their value for flood mitigation.
Maine: Sand Dune Rules combine limitations on upland development & restrictions against hard-armoring. Projects are rejected if a proposed development is reasonably expected to be severely damaged after allowing for a 2 foot increase in sea level rise over 2 years. Existing sea walls may be repaired, but only if they are relocated landward or made less damaging to the system of sand dunes. Structures located seaward of the mean high tide line for 6 consecutive months must be removed.
Texas: Open Beaches Act held a public right of use over the line of mean low tide to the line of vegetation bordering the Gulf of Mexico. 2012 - Supreme Court of Texas ruled rolling easements are created only through the gradual process of erosion, not through sudden land erosion following severe weather events.
North Carolina: Administrative Code for Ocean Hazard Areas establishes setback requirements based on annual erosion rates. One drawback - erosion rates are specific to each part of the coastline (creating projections is a complicated, time-consuming process).
Maui County, HI: "50-year coastal setback" based on 50x the annual erosion rate. The County's Planning Department has proposed increasing the planning horizon for useful life of infrastructure from 50 to 70 years, thereby adding an additional buffer to sea rise.
Virginia Shoreline Resiliency Fund: Revolving loan program for shoreline protection. Although not yet funded, the program may one day be a useful tool in financing rolling easements.
The implementation of a rolling setback may face a lesser risk of being constituted as a takings as opposed to an easement, as no rights would convey to the public through a setback.
- Rolling easements can help to ensure that the migration of a natural shoreline will continue without impediment in face of sea level rise
- Rolling easements have the potential to reduce administrative complexities, as they would automatically account for shoreline erosion & sea level rise
- Takings liability
- Largely conceptual
- Property owner’s reluctance to lose land as the shoreline migrates upland
The most plausible approach to using a rolling easement may be through a voluntary easement agreement. The rolling easement would be considered a variation from a more traditional open space easement. Coastal property owners could agree to limit development on coastal property in exchange for tax incentives. Conditions placed on the easement could include prohibiting hard armoring (but allowing for the construction of living shorelines) & requiring the removal of structures as they grow closer to the mean low water line. Incorporating projected annual erosion rates into the creation of setbacks can accomplish similar goals of a rolling easement.
Rolling easements could potentially be used as an exaction to offset the negative externalities of coastal development. New regulation governing the use of exactions in VA could be a barrier to implementation.
Combining a rolling easement with a prohibition against coastal armoring = policy of managed retreat. Without prohibiting coastal armoring, beaches or shorelines will not be able to migrate upland, rendering the rolling easement ineffective.
Recommendation: The state could encourage implementation through codifying localities’ explicit authority to use rolling easements.
Credit for preserving open space in the floodplain. Extra credit for open space land protected by Deed Restriction (Activity 420, DR, pg. 420-11). Extra credit for open space parcels preserved in or restored to their natural state (Activity 420, NFOS, pg. 420-13).
Code of Virginia, § 15.2-1800:
Authorizes localities to acquire real property & easements
Code of Virginia, § 15.2-2279:
Home building regulation (setbacks, minimum lot size, etc.)
Englander, J. (2015). Shoreline Adaptation Land Trusts: A Concept for Rising Sea Level. Institute on Science for Global Policy, St. Petersburg.
Grannis, J. (2011). Adaptation Tool Kit: Sea-Level Rise and Coastal Land Use. Georgetown Climate Center.
Siders, A. (2013). Managed Coastal Retreat: A Legal Handbook on Shifting Development Away from Vulnerable Areas. Columbia Law School, Center for Climate Change Law.
Silton, A., & Grannis, J. (2010). Stemming the Tide: How Local Governments Can Manage Rising Flood Risks. Georgetown Climate Center.
Titus, J. (2011). Rolling Easements. Climate Ready Estuaries.