Rolling Easements

Titus, James G.

Rolling Easements

James G. Titus. 2011. Washington, D.C.: U.S. Environmental Protection Agency. 176 pp.

The entire text of the report is online on this web site. The Preface is on this page following the Table of Contents. You can also download a low-resolution (PDF, 3.4 MB, 176 pp.) version of the report report here, or a medium resolution version (about 6 MB) from the EPA web site.

How Much of This Report Should I Read?
(from Chapter 1)

This primer examines more than a dozen different legal approaches to rolling easements. It differentiates opportunities for legislatures, regulators, land trusts, developers, and individual landowners. We also consider different shoreline environments (e.g. wetlands, barrier islands) and different objectives (e.g. public access, wetland migration). So most of the possibilities described in this primer might not apply to your situation.

For a general understanding of what a rolling easement can accomplish, see Chapters 1, 2, and 6. Sections 3.1 and 3.2 explain what a rolling easement is-but they are much more detailed.

If you are considering rolling easements for a particular location, you might start with the particular section in Chapter 2 that addresses your objectives-plus Sections 2.2.1 and 2.2.2, which explain public and private property rights along the shore. Regulatory options are examined in Sections 3.1 and 4.1. Options for landowners, developers, land trusts, and government resource managers are discussed in Sections 3.2, 4.2, and 5.2. Chapter 8 looks at some of the issues a land trust may face managing a rolling easement. Chapters 6 and 9 discuss practical issues that may arise with any type of rolling easement,

If you are considering rolling easements for many locations, it may be best to read the same sections of Chapter 2, 3, and 4 as you would read for a particular location, plus Chapter 7.

Chapter 1: Introduction
1.1 Possible Responses to a Rising Sea
1.2 Roadmap

Chapter 2: What Can a Rolling Easement Accomplish?
    2.1 Preserve Beaches and Other Eroding Shores
    2.2 Preserve Access along the Shore
        2.2.1 Existing Access along the Shore
        2.2.2 Impact of Sea Level Rise on Access
        2.2.3 How Rolling Easements Can Preserve Public Access along the Shore
    2.3 Facilitate Landward Relocation of Roads and Other Infrastructure
    2.4 Help Wetlands to Migrate Inland
    2.5 Facilitate the Inland Migration of Barrier Islands

Chapter 3: Legal Approaches for Creating a Rolling Easement
    3.1 Regulation
        3.1.1 Rolling Easement Zoning and Other Local Regulations
        3.1.2 State Coastal Management
    3.2 Interests in Land
        3.2.1 Easements, Conservation Easements, and Covenants
        3.2.2 Defeasible Estates and Future Interests in Land
        3.2.3 Ambulatory Boundaries
        3.2.4 Summary of Rolling Property Interests
    3.3 Combinations of Rolling Easements
    3.4 Combination with Other Coastal Policies
        3.4.1 Setbacks and Other Limits on Development
        3.4.2 Transferable Development Rights
        3.4.3 State Management of Public Trust Lands to Facilitate Barrier Island Migration
        3.4.4 Cluster Development

Chapter 4: Choosing the Approach: Is There Legal Authority?
4.1 Regulatory Rolling Easements
4.2 Interests in Land

Chapter 5: Advantages and Disadvantages of Rolling Easements
    5.1 To the Community at Large
    5.2 To Landowners
        5.2.1 The Tax Advantages When Donated
        5.2.2 When Sold at Fair Market Value
        5.2.3 Exacted Rolling Easements

Chapter 6: Defining How It Will Work
6.1 The Rolling Design Boundary: Which Resources and Rights Roll Inland?
6.2 Restrictions Imposed by the Rolling Easement

Chapter 7: Defining Where to Apply the Rolling Easement
7.1 Where is Retreat Preferable to Shore Protection?
7.2 Where are Rolling Easements Preferable to Other Measures for Ensuring a Retreat?

Chapter 8: Managing the Rolling Easement
    8.1 Inspection and Enforcement of Conservation Easements
    8.2 Attempts to Invalidate the Rolling Easement
    8.3 Rolling Easement Zoning and Other Regulatory Approaches

Chapter 9: The Endgame: Managing the Transition
    9.1 When the Terms of the Rolling Easement Start to Affect Decisions by the Owner
    9.2 Actions Required or Encouraged by the Rolling Easement
    9.3 Financial Assistance for Relocation
    9.4 After the Land Is Submerged

Glossary

Preface

Rising sea level is inundating low-lying lands, eroding beaches, and exacerbating coastal flooding. In undeveloped areas, landowners have generally allowed wetlands, beaches, and barrier islands to adjust naturally to rising water levels, by migrating inland. In developed areas, by contrast, governments and landowners have usually attempted to hold back the sea by adding sand to eroding beaches or erecting dikes, seawalls, revetments, and other shore protection structures. Very little developed land has been given up to the rising sea-especially along estuaries where individual landowners can usually protect their own property without government assistance.

Coastal development continues, as new communities replace forests and farms, and large houses replace small seaside cottages. With few exceptions, the new residents believe that they (and their heirs) can own the land forever if they choose. But permanent coastal development might not be economically or environmentally feasible everywhere. Most scientists expect a warmer climate to cause the sea to rise more rapidly in the future. Defending coastal development from the rising sea would prevent wetlands from migrating inland, expose large numbers of people to the hazard of living below sea level, and often cost more than what the property being protected is worth.

This document presents an alternative vision, in which future development of some low-lying coastal lands is based on the premise that eventually the land must give way to the rising sea. We provide a primer on more than a dozen approaches for ensuring that wetlands and beaches can migrate inland, as people remove buildings, roads, and other structures from land as it becomes submerged. Collectively, these approaches are known as rolling easements.

The question about which-if any-of these approaches should be adopted is beyond the scope of this primer. We do not evaluate how much of the coast should be protected or how much of it should give way to the rising sea. Our objective is merely to provide a summary of the tools that could be adopted and their possible rationales, to help encourage a thorough consideration of the many available options for responding to rising sea level. We do not exclude possible approaches merely because they have not been tested or would require existing policies to change. We hope that this primer helps communities to consider the full range of options for anticipating the consequences of a rising sea.

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Rolling Easements

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Preface

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