Eugene A. Pinover
As the flood waters left by Hurricane Sandy recede and leave behind an altered landscape, we are reminded of the age-old difficulties occasioned by human efforts to draw permanent boundaries on an earth that is forever changing. Where water meets land, traditional notions of private property collide with the sea, which has historically been property common to all.
What has resulted is an uncertain legal doctrine derived in part from a vexing set of common-law rules centuries in the making. These rules—which attempt to reconcile the myriad, competing interests in this unique sliver of real estate with the ephemerality of its borders—have been further complicated by recent Fifth Amendment takings jurisprudence.1 Accordingly, this article discusses the effects of Sandy on title to shoreline property, the government's ability to regulate such property, and issues related to the government's condemnation or taking of private property in its efforts to restore the coastline in the wake of Sandy's devastation.
Common Law Littoral Rights
The water shapes the shoreline in various ways, and centuries of common law development have resulted in no shortage of means to characterize these changes. Accretion, reliction, avulsion, and erosion are the four phenomena most typically cited in the legal literature and, together, describe all manner of shoreline evolution. As discussed below, the distinctions between these phenomena may blur at times but are nonetheless essential from a legal perspective.
Accretion and reliction describe instances in which an area of dry land is gradually increased—by additional deposits of sand and sediment in the case of accretion or, in the case of reliction, by a receding water line that slowly uncovers once submerged land. Erosion is the counter-phenomenon of accretion and reliction; it describes a situation in which dry land is slowly covered by a body of water.
From a legal standpoint, accretion, reliction, and erosion operate similarly. As shorelines change and new dry land is exposed, title to the once submerged property shifts from the state, which is the holder of sovereign title to land below the high-water mark in navigable bodies of water, to the adjacent littoral or riparian owner.2 The terms "littoral" and "riparian" refer to land that is adjacent to navigable bodies waters. "Riparian" refers specifically to moving bodies of water—rivers or streams, for example—and "littoral" to bodies such as lakes and oceans.3 While accretions and relictions serve to enlarge a landowner's estate, erosion operates as a threat to title: As waters rise and dry land slowly gives way to the sea, title to the once dry land shifts from the landowner to the sovereign.4
The fourth phenomenon cited above is that of avulsion. In contrast with the three doctrines discussed above, avulsion denotes a sudden, as opposed to gradual, change in which once dry land becomes submerged or once submerged land becomes dry. From a legal standpoint, avulsion does not give rise to a change in title. Where nature operates to shift rapidly the location of a body of water such that submerged land becomes dry, the state retains title to the newly created dry land. Where, on the other hand, a landowner's property becomes submerged, the landowner retains title to the submerged land.5
Accordingly, the fate of the littoral owner with respect to his property holdings is at the mercy of the sea. The risk of loss by erosion and avulsion is, to some extent, offset by the chance of accretion. Notably, the right to accretions is among the rights historically afforded littoral owners. Other of the rights include the right of access to the water and an unobstructed view.6
Given that the doctrines discussed above originated centuries ago under Roman law, it's no wonder that courts today struggle to adapt these concepts to contemporary disputes concerning shoreline revitalization, environmental regulation, and flood-control efforts. Over the past few decades, nowhere has this struggle been more apparent than in challenges brought by landowners under the Fifth Amendment's Takings Clause.
Takings and Coastal Property
The boundary between land and sea also typically serves as the boundary between state and private property. As noted above, the state is the holder of title to land below the high-water mark in most navigable bodies of water; so it's no surprise that individual property interests might clash with those of the public along this border.
Takings Doctrine. The Fifth Amendment provides that "private property [shall not] be taken for public use, without just compensation."7 As the Supreme Court has reasoned, the goal underlying the Fifth Amendment is to prevent both the federal and state governments "from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."8 As originally conceived, the Takings Clause implicated only direct appropriations of private property by governmental entities. Thus, under the power of eminent domain, the government may acquire private property for a public purpose if the owner is adequately compensated.
The interpretation of the Takings Clause has developed, however, such that a taking need not involve the government's actual taking of title to private property. Rather, in the present context, takings claims are often a question of the degree to which government regulation affects private property rights. Lucas v. South Carolina Coastal Council9 and Loretto v. Teleprompter Manhattan CATV Corp.10 provide two instructive examples wherein the court held that regulation of private property resulted in a per se taking.
In Loretto, the court found unconstitutional a New York statute requiring a landlord to permit a cable television company to install cable equipment on the landlord's property. Such a regulation, the court reasoned, constituted a mandate by the government that a property owner submit to a physical occupation by a third party.11 The regulation at issue in Lucas was South Carolina's 1988 Beachfront Management Act (BMA), which effected a permanent ban on construction in an area that included two vacant lots owned by the petitioner. At the time of purchase, petitioner's lots had been zoned for residential use. After enactment of the BMA, residential use was no longer permitted, and the properties were left valueless. The court held that the BMA effected a taking, concluding that "confiscatory regulations, i.e., regulations that prohibit all economically beneficial use of land" cannot be newly legislated without just compensation.12
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