Waterfront Property Rights Jim Lang

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Waterfront Property Rights Jim Lang January 24, 2020 Riparian property rights = $$$ • Riparian: “Relating to or abutting any body of water” ❑ Lynnhaven Dunes Condo Ass’n v. City of Va. Beach, 284 Va. 661, n6 (2012) • Residential estimate – 45% premium for oceanfront – 25% premium for river or lake front • Industrial estimate – 2 acre parcel on inlet of Elizabeth River in Norfolk – Value of land $230k/acre ($110k (48%) attributable to value of riparian property rights) The littoral or riparian nature of property is often a substantial, if not the greatest, element of its value. Lynnhaven Dunes Condominium Association v. City of Virginia Beach, 284 Va. 661, 673, 733 S.E.2d 911, 917 (2012).

Copyright 2020 by Bryan S. Peeples (all rights reserved) What are riparian property rights? A real property right that runs with the land. Part of the “bundle of sticks.” ❑ Carr v. Kidd, 261 Va. 81, 90, 540 S.E. 2d 884, 890 (2001) Begins at the mean low water mark and extends into the water body to the line of navigability ❑ Taylor v. Commonwealth, 102 Va. 759, 47 S.E. 875, 880 (1904) Cannot be taken by eminent domain without just compensation ❑ Lynnhaven Dunes Condo Ass’n v. City of Va. Beach, 284 Va. 661, 675-76 (2012) Supreme Court has defined Five Benefits that accrue to the owner of land adjacent to a navigable river, bay, creek or the ocean: • The right to be and remain a riparian proprietor and to enjoy the natural advantages thereby conferred upon the land by its adjacency to the water. • The right of access to the water, including a right of way to and from the navigable part. • The right to build a pier or wharf out to navigable water, subject to any regulations of the State. • The right to accretions or alluvium. • The right to make a reasonable use of the water as it flows past or laves the land. Taylor v. Commonwealth, 102 Va. 759, 773 (1904)

The area in which a waterfront property owner enjoys the five riparian rights • NOT just an extension of your property line! • Requires a riparian survey to determine (approx. $5000.00) • Virginia Supreme Court set the method of determining the riparian area (4 boundary lines)

1) Near Boundary: Measure the length of the shore and ascertain the portion thereof to which each riparian proprietor is entitled • Natural shore line -- not the man made portion created with fill

2) Far boundary: Measure the length of the line of navigability and give to each proprietor the same proportion of it that he is entitled to of the shore line • No Supreme Court case defining line of navigability. Defined by Circuit Court of Lancaster County in Sanders Yacht Club, Inc. v. Crockett’s Landing (65 Va. Cir. 514, 518 (Va. Cir. Ct. 2001) • Line of navigability = the contour line, measured at mean low water, where the water is deep enough for a riparian property owner to berth a vessel of the type and size which ordinarily pass there.

3) Draw straight lines from the points of division so marked for each proprietor on the line of navigability to the extremities of his lines on the shore

Groner v. Foster, 94 Va. 650, 652-53, 27 S.E. 493, 494 (1897), cited with approval in, Carr v. Kidd, 261 Va. 81, 86, 540 S.E.2d 884, 887 (2001)

Green = riparian area Red = line of sight down property line

Copyright 2020 by Bryan S. Peeples (all rights reserved) Real Estate Considerations: • You do NOT own the water in your riparian area! • Except in rare cases, you do NOT own the land under your riparian area! • Property line is the “mean low-water mark” ❑ Va. Code §28.2-1202 • The property line “shifts with the shifting sands” – Accretion – Erosion – Natural, gradual, imperceptible changes • Adding fill? • Catastrophic storms (Avulsion)

• Commonwealth owns all the beds of the bays, rivers, creeks and the shores of the sea ❑Va. Code §28.2-1200 • Public Trust Doctrine: State acts as a trustee holding the land beneath public waters for the benefit of all citizens ❑ Virginia Marine Resources Commission (VMRC) upholds the PTD • May be used as a common by all the people of the Commonwealth for fishing, fowling, hunting, and taking and catching oysters and other shellfish ❑ Id. See also Va. Const. Article XI, §4 • Except oyster planting grounds ❑Va. Code §§28.2-600 to 650

Copyright 2020 by Bryan S. Peeples (all rights reserved) Bottomland can be privately owned • The bed of non-navigable streams • The bed of a lake • Excavated upland filled with water • King’s grant • Pre-2007 conveyance by Commonwealth • Va. Code §28.2-1200.1 – Commonwealth shall NOT convey fee simple title to state owned bottom lands covered by waters – Exception: State-owned bottom lands that have been lawfully filled – Commonwealth can grant a lease or easement

• Riparian property rights can be severed in the chain of title ❑ Thurston v. Portsmouth, 205 Va. 909 (1965)

• Practice tip: Have a riparian property rights attorney evaluate your client’s waterfront real estate transaction prior to closing

• Common law right to enjoy advantages of land adjacent to water, right of access to the water, right to build pier • Va. Code 28.2-1203: It shall be unlawful for any person to build, dump, trespass or encroach upon or over the beds of bays, ocean, rivers, streams or creeks which are property of VA without a permit • Va. Code 28.2-1205: Factors that guide VMRC decision on whether to issue permit Pier Case

• Permits are required for projects that use, encroach on, or disturb the water bottoms owned by the Commonwealth. ❑ Examples: Piers, docks, marinas, channel dredging, oyster ground leases ❑Piers: subaqueous encroachment permit (Va. Code §28.2-1205) unless pier statutorily authorized (Va. Code §28.2-1203(A)(5)) ❑Oyster lease: (Va. Code §§28.2- 600 to 650) ❑ Civil and possible criminal penalties for non-compliance ❑NOTE: VMRC did not gain authority to regulate bottomland until 1962. Owner can be “grandfathered” in if project completed prior to that ❑ BUT: Can be strictly liable for projects built without a permit, even if it existed when you bought the property!

• VMRC coordinates application with other agencies including: – Army Corps of Engineers • Jurisdiction over all of the nation’s navigable waterways • Navigable waterway: all waterways that ebb and flow with the tide; or waters that have been or may be used for interstate commerce – Local Wetlands Boards (if established)

• VMRC Staff solicits public comments and weighs factors • VMRC Staff recommendation: Approve, Approve w/ modifications, or Deny • Public Hearing before full VMRC if Staff recommends denial or if project is opposed.

Copyright 2020 by Bryan S. Peeples (all rights reserved) VMRC Adjudication Statistics • Infrastructure: near 100% approval – Piers – Bulkheads – Boathouses • Oyster leases: Approx, 75% approval • Aquaculture: Approx. 70% approval

• Right to accretions or alluvium • Unaffected by system of environmental and natural resource regulation

• Right to make reasonable use of the water as it flows past or washes upon the land • Common law: “reasonable use” with extra latitude for domestic purposes • Environmental and natural resource regulation affects – Surface water withdrawal – Pollution discharged into surface water Surface Water Withdrawal

• Report if average daily withdrawal during any single month exceeds 10,000 gallons per day (9 VAC 25-200-30(A)(1)) • Numerous exemptions (9 VAC 25-200-30(B)) • Permits (9 VAC 25-210-10 to 610) Pollution Discharged into Surface Water • 9 VAC 25-31-50(A): Except in compliance with a VPDES permit, or another permit, it shall be unlawful for any person to – Discharge into state waters any noxious or deleterious substance – Otherwise alter the physical, chemical or biological properties of state waters – Discharge stormwater into state waters from municipal separate sewer systems or land disturbing activities Permits

• VPDES permits for pollution other than “fill”: 9 VAC 25-31-10 to 1020 • VWP permits for “fill” – Replacing portions of surface water with upland, or changing the bottom elevation by placement of any pollutant or material (rock, sand, earth, and man-made material or debris) 9 VAC 25-210-10 – No person shall dredge, fill, or discharge any pollutant into surface waters except in compliance with a VWP permit (9 VAC 25-210-50(A)) Industrial Waterway Case