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.