G THE B IN EN V C R H E

S

A N 8 8 D 8 B 1 AR SINCE WWW. NYLJ.COM VOLUME 248—NO. 106 MONDAY, DECEMBER 3, 2012 Outside Counsel Expert Analysis After the Storm: Determining Title To Changing Shoreline Property

s the flood waters left by Hur- or streams, for example—and “littoral” to ricane Sandy recede and leave bodies such as lakes and oceans.3 While By behind an altered landscape, we Eugene A. accretions and relictions serve to enlarge are reminded of the age-old dif- Pinover a landowner’s estate, erosion operates as a ficulties occasioned by human threat to title: As waters rise and dry land Aefforts to draw permanent boundaries on slowly gives way to the sea, title to the an earth that is forever changing. Where once dry land shifts from the landowner water meets land, traditional notions of to the sovereign.4 private property collide with the sea, Accretion, reliction, avulsion, and erosion The fourth phenomenon cited above which has historically been property are the four phenomena most typically is that of avulsion. In contrast with the common to all. cited in the legal literature and, together, three doctrines discussed above, avul- What has resulted is an uncertain legal describe all manner of shoreline evolu- sion denotes a sudden, as opposed to doctrine derived in part from a vexing tion. As discussed below, the distinctions gradual, change in which once dry land set of common-law rules centuries in the between these phenomena may blur at becomes submerged or once submerged making. These rules—which attempt to times but are nonetheless essential from land becomes dry. From a legal stand- reconcile the myriad, competing interests a legal perspective. point, avulsion does not give rise to a in this unique sliver of real estate with the Accretion and reliction describe instanc- change in title. Where nature operates ephemerality of its borders—have been es in which an area of dry land is gradually to shift rapidly the location of a body of further complicated by recent Fifth Amend- increased—by additional deposits of sand water such that submerged land becomes ment takings jurisprudence.1 Accordingly, and sediment in the case of accretion or, in dry, the state retains title to the newly this article discusses the effects of Sandy the case of reliction, by a receding water created dry land. Where, on the other on title to shoreline property, the govern- line that slowly uncovers once submerged hand, a landowner’s property becomes ment’s ability to regulate such property, land. Erosion is the counter-phenomenon submerged, the landowner retains title and issues related to the government’s of accretion and reliction; it describes a to the submerged land.5 condemnation or taking of private prop- situation in which dry land is slowly cov- Accordingly, the fate of the littoral own- erty in its efforts to restore the coastline ered by a body of water. er with respect to his property holdings is in the wake of Sandy’s devastation. From a legal standpoint, accretion, at the mercy of the sea. The risk of loss by Common Law Littoral Rights reliction, and erosion operate similarly. erosion and avulsion is, to some extent, As shorelines change and new dry land offset by the chance of accretion. Notably, The water shapes the shoreline in vari- is exposed, title to the once submerged the right to accretions is among the rights ous ways, and centuries of common law property shifts from the state, which is historically afforded littoral owners. Other development have resulted in no shortage the holder of sovereign title to land below of the rights include the right of access to of means to characterize these changes. the high-water mark in navigable bodies of the water and an unobstructed view.6 water, to the adjacent littoral or riparian Given that the doctrines discussed owner.2 The terms “littoral” and “riparian” above originated centuries ago under EUGENE A. PINOVER is a partner and co-chair of the real refer to land that is adjacent to navigable Roman law, it’s no wonder that courts estate department of Willkie Farr & Gallagher. EDWARD B. bodies waters. “Riparian” refers specifi- DIX, an associate at the firm, assisted in the preparation today struggle to adapt these concepts of this article. cally to moving bodies of water—rivers to contemporary disputes concerning MONDAY, DECEMBER 3, 2012

shoreline revitalization, environmental regulation of private property resulted construed as administrative action and regulation, and flood-control efforts. Over in a per se taking. thus upheld so long as they are not judged the past few decades, nowhere has this In Loretto, the court found unconsti- arbitrary, capricious, or unreasonable.14 In struggle been more apparent than in chal- tutional a New York statute requiring a waterfront residential communities, this lenges brought by landowners under the landlord to permit a cable television com- test will often apply to the myriad zoning Fifth Amendment’s Takings Clause. pany to install cable equipment on the restrictions that limit landowners’ rights landlord’s property. Such a regulation, the to develop. Takings and Coastal Property court reasoned, constituted a mandate by While the controversy in Lucas centered The boundary between land and sea the government that a property owner on restrictions that limited the landown- also typically serves as the boundary submit to a physical occupation by a third er’s right to develop vacant lots, litigation between state and private property. As party.11 The regulation at issue in Lucas in New York has concerned the limitations noted above, the state is the holder of was South Carolina’s 1988 Beachfront placed on existing homeowners and their title to land below the high-water mark in Management Act (BMA), which effected attempts to protect their property by most navigable bodies of water; so it’s no a permanent ban on construction in an erecting flood-control structures. At issue surprise that individual property interests area that included two vacant lots owned in Allen v. Strough15 and its companion might clash with those of the public along by the petitioner. At the time of purchase, case, Poster v. Strough16 was the decision this border. petitioner’s lots had been zoned for resi- of the Town of Southampton to reject the dential use. After enactment of the BMA, applications of beachfront residents to residential use was no longer permitted, install concrete revetments within a cer- The boundary between land and and the properties were left valueless. tain distance from the beach. sea also typically serves as the The court held that the BMA effected The Appellate Division, Second boundary between state and pri- a taking, concluding that “confiscatory Department, reasoned that the town’s regulations, i.e., regulations that prohibit decision to deny the application for vate property. all economically beneficial use of land” installation of the revetment was not cannot be newly legislated without just arbitrary and capricious, as there was Takings Doctrine. The Fifth Amendment compensation.12 “legitimate debate over the extent to provides that “private property [shall not] Lucas and Loretto are both instructive which hard structures erected to pro- be taken for public use, without just com- in the context of coastal regulation. Lucas tect one particular beachfront property pensation.”7 As the Supreme Court has is relevant because the facts of the case might exacerbate erosion-related per- reasoned, the goal underlying the Fifth relate to governmental efforts to regulate ils posed to other properties.”17 While Amendment is to prevent both the fed- coastal development. Clear from Lucas, a municipalities’ restricting landowners eral and state governments “from forcing state may not regulate the use of property in their attempts to protect their shores some people alone to bear public burdens so severely as to rob it of all economic may seem counterintuitive, according which, in all fairness and justice, should value. Under Loretto, a state is barred to many commentators, the protection be borne by the public as a whole.”8 As from subjecting landowners to physical afforded by hard structures, such as jet- originally conceived, the Takings Clause takings without just compensation. In ties and revetments, sacrifices beaches implicated only direct appropriations of dicta, the Loretto court quoted from an downdrift of such structures.18 The private property by governmental enti- 1872 case: “where real estate is actually protection of the individual’s property, ties. Thus, under the power of eminent invaded by superinduced additions of therefore, may operate to rob the public domain, the government may acquire water, earth, sand, or other material, or of recreational beaches. private property for a public purpose if by having any artificial structure placed ‘Stop the Beach Renourishment.’ In the owner is adequately compensated. on it, so as to effectually destroy or impair addition to the Loretto–Lucas line of per se The interpretation of the Takings its usefulness, it is a taking, within the takings cases, there exists another genre Clause has developed, however, such meaning of the Constitution.”13 As such, a of takings litigation wherein a landowner that a taking need not involve the gov- government seeking to erect flood-control challenges the state’s use of state-owned ernment’s actual taking of title to private structures along the coast may then be property. Where a state’s use of its own property. Rather, in the present context, required to pay just compensation to property destroys private property, the takings claims are often a question of affected landowners. Supreme Court has held that a taking the degree to which government regu- Notably, the per se takings tests out- has occurred.19 lation affects private property rights. lined in Lucas and Loretto are stringent In Stop the Beach Renourishment, Inc. Lucas v. South Carolina Coastal Council9 ones. Only the strictest regulations or v. Florida Department of Environmen- and Loretto v. Teleprompter Manhattan actual physical occupations will give tal Protection,20 littoral owners, living CATV Corp.10 provide two instructive rise to per se takings. Regulations that adjacent to the ocean, argued that the examples wherein the court held that fall short of these standards are often state’s use of submerged land effected a MONDAY, DECEMBER 3, 2012 taking of individual landowners’ littoral court reasoned that the littoral owner’s Conclusion rights. Under the authority of Florida’s right to accretion must be subordinate Beach and Shore Preservation Act, the to state’s right to fill.25 The distinctions between the various state’s Department of Environmental While Stop the Beach has not been forms of governmental takings can be as Protection undertook beach restoration without criticism,26 the question is at blurry as those between accretion and programs in various locations along the base one of state law; and notably, other avulsion. The myriad parties with inter- coast.21 The goal of the programs was states have wrestled with the question ests in the shoreline have not a small to rebuild beaches by filling submerged and arrived at the same answer as Stop task before them in trying to negotiate land with additional sand. This practice the Beach. For instance, the Supreme the legal pitfalls present in the Supreme made for a wider beach but gave rise to Court of New Jersey confronted the issue Court’s takings jurisprudence. Even so, in questions of title: Who owns the newly in City of Long Branch v. Jui Yung Liu. the wake of Stop the Beach, it seems clear created property? The littoral owners in Liu claimed title that states may endeavor to protect their to approximately two acres of additional coastlines through beach replenishment, beachfront land that had been depos- the results of which have on the whole Where state actors seek to fill ited upon their shores as a result of proven mutually beneficial to landowners this submerged land in an effort the efforts of a beach redevelopment and the public alike. program. The court concluded that the to restore the beach, a taking will ••••••••••••••••••••••••••••• expansion of the Lius’ shoreline by so 1. See, e.g., Stop the Beach Renourishment, Inc. v. Fla. Dep’t have occurred, and just com- of Env. Protection, 130 S. Ct. 2592 (2010). great an amount over a two-week period 2. Id. at 2598. pensation will be due. In such a constituted an avulsion and that, con- 3. Today, there is no distinction between the rights of lit- toral and riparian owners. Given the focus of this article and situation, however, what com- sistent with common-law doctrine, the for the sake of simplicity, I will refer only to littoral owners state retained title to the subject land.27 and rights. 4. Stop the Beach, 130 S. Ct. at 2598. pensation will be deemed “just” After ‘Stop the Beach.’ In the after- 5. Id. at 2598–2599. 6. Id. at 2598; Town of Oyster Bay v. Commander Oil Corp., remains to be seen. math of Hurricane Sandy, Stop the Beach 759 N.Y.2d 566, 571 (2001). is instructive. States and municipali- 7. U.S. CONST. amend. V. 8. Elias v. Town of Brookhaven, 783 F.Supp. 758, 760 Florida maintains the common-law ties may undertake beach redevelop- (1992). 9. 505 U.S. 1003 (1992). scheme of littoral rights outlined in Part ment efforts in an attempt to restore 10. 458 U.S. 419 (1982). 2 above, so the question the court faced the waterfront to pre-Sandy conditions. 11. 458 U.S. at 426. 12. 505 U.S. at 1029. was twofold: (i) whether the filling oper- To the extent that courts are willing to 13. 458 U.S. at 427 (quoting Pumpelly v. Green Bay Co., 80 ated as an avulsion, thus vesting title to characterize the shoreline destruction U.S. 166, 181 (1872)). 14. See, e.g., Poster v. Strough, 299 A.D.2d 127, 128 (2d the newly formed beach in the state, and caused by Sandy as avulsion, title will Dept. 2002). 15. 301 A.D.2d 11 (2d Dept. 2002). (ii) if so, whether the state’s ownership of have not changed hands; that is, title to 16. 299 A.D.2d. 127 (2002). the newly created beach unconstitution- land submerged by Sandy will remain 17. Id. at 20. 18. Poster, 299 A.D.2d at 132. ally interfered with landowners’ littoral vested in the individual littoral owners. 19. United States v. Causby, 328 U.S. 256, 261–262 (1946). 22 20. 130 S.Ct. 2592, 2601 (2010). rights, particularly the right to accretion. For instance, upon filling of the channel 21 Id. at 2599. The court held that the filling of sub- cut by Sandy across Fire island the land 22. See id. at 2611–12. 23. Id. at 2611. merged land constituted an avulsion. would be owned by the littoral owner 24. Id. at 2611 (citing 93 Fla. 535, 574 (1927)). Accordingly, the state retained title to rather than the state because the littoral 25. Id. 26. Commentators have pointed out that the doctrines the newly created beach, and the land- owner would never have lost its claim of accretion and avulsion have historically applied only to natural events. See, e.g., Richard A. Epstein, “Littoral Rights owners’ contact with the water was thus to the property. Under the Takings Doctrine: The Clash Between the ‘Ius Nat- severed.23 As a result of this severance, Accordingly where state actors seek urale’ and ‘Stop the Beach Renourishment,’” 6 Duke J. Const. L. & Pub. Pol’y 37, 56 (2011). the littoral owners lost their common to fill this submerged land in an effort 27 203 N.J. 464, 484–85 (2010); see also Arkansas v. Tennes- see, 246 U.S. 158, 173 (1918) (“[I]f the stream from any cause, law right to accretion. The landowners to restore the beach, a taking will have natural or artificial, suddenly leaves its old bed and forms a argued that this loss of rights resulted occurred, and just compensation will be new one…, the resulting change of channel works no change 28 of boundary.”); J.P. Furlong Enterprises, Inc. v. Sun Explora- in a taking. Still, the court held other- due. In such a situation, however, what tion and Production Company, 423 N.W.2d 130, 134 (N.D. 1988) wise. On this point, the court relied on compensation will be deemed “just” (“Apparently, no court has refused to apply the common-law avulsion rule to artificial or man-made avulsion.”). Martin v. Busch, a 1927 case in which the remains to be seen. Where a littoral 28 Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 427 (1982) (“[W]here real estate is actually invaded by Supreme Court of Florida held that the owner’s property has been submerged, its superinduced additions of water, earth, sand, or other mate- state retained title to a lakebed after the value may be negligible, and little compen- rial, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking, state had caused the lake in question to sation would therefore be due. Moreover, within the meaning of the Constitution.”) (quoting Pumpelly be drained.24 The landowners argued that in light of the value enhancement provided v. Green Bay Co., 80 U.S. 166, 181 (1872)). because their contact with the water had by the state’s reclamation efforts, property Reprinted with permission from the December 3, 2012 edition of the NEW YORK LAW been lost, their right to accretion had owners in most instances only stand to JOURNAL © 2012 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or reprints@alm. been taken. Relying still on Martin, the benefit from beach redevelopment. com. # 070-12-12-04.