Coastal Access Toolkit
There are multiple ways that coastal access challenges can be addressed. You can:
Acquiring & Transferring Access
People desiring access to a beach or shore across privately held land can purchase the right either by buying/acquiring the land outright or by buying a limited right just to cross it.
Landowners can transfer, or “convey,” by donation or sale, all or part of the ownership interest of their land.
A landowner can convey her land or limited path across it to anyone she wishes. In this circumstance, a landowner may control how the land is used and even give herself the right to get the land back if terms or conditions aren’t met.
Acquisition or conveyance of land, also called transferring land, is typically achieved through a contract, although it could also be done through a will or some other legal instrument.
What rights of access can be transferred?
Public access rights can be transferred in full interest of private property rights, or partial interest, as in easements or user agreements.
To whom can access be transferred?
Landowners can transfer interest of their land to individuals, or to entities, organizations and agencies that have public access as part of their purpose, which can include land trusts, local, regional, state and federal governments and special purpose government bodies such as the Middle Peninsula Chesapeake Bay Public Access Authority.
How can access be enhanced, secured, granted, or created?
Parties can transfer property ownership interest (either the complete title, or a subgroup of rights) through a variety of means, including buying it outright, or partially through easements, conservation easement, development rights, or leases. These interests can be purchased at or below market value, or can be donated depending on the wishes of and related tax benefits to the private property holder. The interests can be conveyed unconditionally or with conditions attached.
If the property owner is not a willing seller, the government can exercise its rights to acquire the land through eminent domain.
What are the tools for granting access?
Sale or donation of easements or partial property interest: Easements allow the right to the use of real property interest of another for a specific purpose. There are a number of kinds of easements and ways that they can address access, including conservation easements, development rights, and floating easements. Because easements do not require the entire parcel, they are significantly cheaper than full title acquisition and are becoming an important and increasingly common tool for addressing coastal access needs. More on Easements.
Developing covenants or written promises about the land: Covenants can be used to specifically address ways that landowners legally promise to address water access on their land. Some examples include:
- Working Waterfront Covenant
- Restrictive Covenant
What existing programs can help with the transfer of land that includes access rights?
Coastal and Estuarine Land Conservation Program (CELCP) – Established in 2002 to provide funding for the acquisition and conservation of coastal and estuarine land with protecting important coastal land with significant conservation, recreation, ecological, historical, or aesthetic values, or that are threatened by conversion from their natural or recreational state to other uses, giving priority to lands which can be effectively managed and protected and that have significant ecological. Funding is administered by NOAA’s Office of Coastal Resource Management and is available to state and local governments with matching funds to purchase coastal and estuarine lands, or conservation easements on such lands, from willing sellers. For more information: http://www.deq.state.va.us/coastal/celcp.html
Department of Conservation and Recreation – The Land and Water Conservation Fund Act of 1965 established a federal reimbursement program for the acquisition and/or development of public outdoor recreation areas. The Land and Water Conservation Fund (LWCF) is administered in Virginia by the Department of Conservation & Recreation (DCR) for the National Park Service. The program represents a federal, state and local partnership. A key feature of the program is that all LWCF assisted areas must be maintained and opened, in perpetuity, as public outdoor recreation areas. This requirement ensures their use for future generations.
Virginia Department of Transportation (VDOT) – VDOT is responsible for building, maintaining and operating the state’s roads, bridges and tunnels. And, through the Commonwealth Transportation Board it provides funding for airports, seaports, rail and public transportation. The PAA has worked closely with VDOT to identify road endings/terminus points that could yield access to public waters. Currently the PAA is working with VDOT to acquire the first of numerous road endings.
Land Trusts – Land Trusts and conservation organizations can serve as third party interests in addressing access issues. For more information, contact the Middle Peninsula Land Trust, the Virginia Outdoors Foundation, Land Trust of Virginia and/or Friends of Dragon Run.
Supporting Programs
Virginia Coastal Zone Management Program – Is part of the national Coastal Zone Management (CZM) program, Virginia CZM Program was established in 1986 to protect and manage Virginia’s “coastal zone.” VA CZM provides funds for coastal resource protection and sustainable use initiatives, as well as coastal management coordination.
Coastal and Estuarine Land Conservation Program (CELCP) – Established in 2002, the CELCP provides funding for the acquisition and conservation of coastal and estuarine land with significant conservation, recreation, ecological, historical, or aesthetic values, or that are threatened by conversion from their natural or recreational state to other uses. The program gives funding priority to lands which can be effectively managed, protected and that have ecological significance. Funding is administered by NOAA’s Office of Coastal Resource Management and is available to state and local governments with matching funds to purchase coastal and estuarine lands, or conservation easements on such lands, from willing sellers.
Virginia Sea Grant (VSG) – Is part of a national network of Sea Grant programs which focus to support coastal resource use and conservation. Through research facilitation, education, and outreach activities, VSG promotes sustainable management of marine resources.
Virginia Institute of Marine Sciences (VIMS) – Is a marine science institute mandated to conduct interdisciplinary research in coastal ocean and estuarine science, educate students and citizens, and provide advisory services to policy makers, industry, and the public.
Virginia Department of Conservation and Recreation (DCR) – Works to conserve, protect, and enhance lands; improve the quality of the Chesapeake Bay and Virginia’s rivers and streams; promote the stewardship and enjoyment of natural, cultural and outdoor recreational resources; and ensure the safety of Virginia’s dams.
Virginia Department of Transportation (VDOT) – Is responsible for building, maintaining and operating the state’s roads, bridges and tunnels. And, through the Commonwealth Transportation Board it provides funding for airports, seaports, rail and public transportation.
Virginia Department of Forestry – Protects forest land from fire, insects and disease, manages lands for timber, recreation, water, research, wildlife and biodiversity, and assists non-industrial private forest landowners through professional forestry advice and technical management programs.
The Nature Conservancy (TNC) – works to preserve the plants, animals and natural communities that represent the diversity of life on Earth by protecting lands and waters they need to survive.
Friends of Dragon Run (FDR) – A citizen group organized by Virginia’s Middle Peninsula citizens, who generously donated funds to purchase, preserve and manage lands within the Dragon Run watershed.
Mathews Maritime Foundation – Is a non-profit organization dedicated to preserving and protecting Mathews County’s maritime and cultural heritage through research, conservation, documentation and education.
Chesapeake Bay Restoration Fund – Revenues generated from the sale of Friend of the Chesapeake license plates is used to fund projects that restore or educate people about the Bay.
Middle Peninsula Land Trust – Seeks to protect and preserve for the benefit of the public the natural, scenic, and historic resources of the Middle Peninsula.
Contracting for Access
Landowners and waterfront users can enter into private agreements that define the terms of use of private waterfront lands.
Private agreements provide a means to enforce promises between two or more parties, typically formalized in a written contract.
Private agreements do not transfer ownership of the land. In most private agreements the landowner continues to have all of the same property rights that were present before the agreement was made. (Visit Acquiring Access for information on how to transfer ownership interests.)
A landowner may informally agree (verbally or in a non-binding statement) to allow certain people the privilege of gaining access to the shore across his or her property. In order for a private agreement to be legally enforceable, it must convey a benefit to each party (the owner and the user) otherwise it lacks “consideration,” and can be easily revoked. These agreements are inexpensive to create and do not bind the landowner or subsequent purchasers of the land, but they are risky for those acquiring access through informal agreement, as the access privilege could be revoked at any time. Landowners and beach users can also enter into more formal and binding agreements in which the landowner specifies how the land is to be used and to create conditions that, if not met, would allow revocation of the access rights. They can be useful to avoid more onerous access rights compelled by the government.
How can agreements be made legally enforceable?
For a contract to be legally enforceable, it needs to include benefits for both parties. The scope of this tool is limited mostly by the imagination of the parties involved. As long as the parties are negotiating on equal footing, and as long as each party is conveying a benefit to the other, almost any type of private agreement can be entered and enforced. It is important to note that a private agreement that only conveys a benefit to one party (such as a landowner promising to provide access rights with nothing in return) may not be an enforceable agreement. It could lack “consideration, a necessary element for a valid agreement. For this reason, once the parties have come to an agreement, it is important that a lawyer be consulted to draft the agreement in a manner that will be enforceable in court.
What happens if one of the parties breaches the agreement?
If the landowner breaches the agreement, the other party may need to be compensated, but it’s unlikely that access will be enforced. Private agreements differ from conveyance/acquisition in that the landowner is agreeing to permit a use of her land, but is not actually transferring the property interest in that land. For this reason, if the landowner breaches the contract she becomes liable to the other party only for the value of the allowed use she subsequently refused to permit. She may need to compensate the other party by monetary means, but the court will not likely force the landowner to grant the other party the promised access. This is particularly true if the other party could acquire similar access elsewhere. An exception might exist if the access point is unique to the area. The specifics of the agreement will determine the likelihood that monetary compensation (as opposed to continued performance) will be required in the case of a breach of the contract. This is another reason to consult an attorney over the specifics of any agreement.
The agreement must be written to address the consequences if a user breaches it. If a user breaches the agreement, the legal consequences must be defined in the agreement itself and are completely left to the discretion of the parties involved. Commonly under these circumstances, monetary damages would be paid to the landowner.
How can landowners reduce risk when providing access?
For least risk to the landowner, a non-legally enforceable contract can be used. This tool can also be used in a non-legally enforceable manner. If a landowner gives permission for his land to be used for public access but does not receive anything in return, that agreement will not be enforceable if the landowner changes his mind. While not legally enforceable, such an arrangement provides public access with minimum risk to the landowner. The landowner would have the ability to unilaterally revoke the access for any reason. This type of arrangement relies solely on the good will of the landowner, and provides a strong incentive for the other party to the agreement to ensure that such good will is maintained. The other party might set up a means to ensure stewardship of the access point. The landowner likely would not incur increased risk of liability from such an arrangement because Virginia statute provides for limited liability for landowners allowing recreational use (see Virginia Landowner Liability Law). Landowners have a strong incentive to offer access in this manner because they remain in ultimate control of the arrangement. Further, by alleviating some of the demand for access, the landowner helps reduce the likelihood that the tool of eminent domain will be used to force a non-voluntary conveyance of some permanent interest. This type of non-binding agreement might be used as a first step to test whether certain conditions of use will be satisfactory to a landowner. The parties could then enter into a binding agreement for a period of time, or use the tool of a formal conveyance/acquisition of a property interest.
Why would coastal property owners benefit from the use of a private agreement?
Private agreements offer landowners continued flexibility and control of uses on their property. Private agreements are ideal for landowners who are willing to consider certain types of coastal uses on their properties, but are not willing to transfer ownership, at least initially. In this same way, contracts allow landowners to test their comfort with particular uses before entering into a more binding long-term agreement such as an easement. Landowners may also have a strong incentive to enter into such agreements because they could forestall the need for more severe regulatory or non-voluntary acquisition approaches. Incentives such as use fees and property maintenance may also be negotiated with users to the benefit of the landowner. The ability of a landowner to change his mind is more present in private agreements than in a transfer of a property interest..
Why would potential users benefit from the use of a private agreement?
Private agreements may offer users the only possibility of access to some sites. Because private contracts impose minimum risk on the landowner, owners may be more inclined to try this tool than others that are more binding. Therefore the use of private agreements may provide users with access locations and uses, even if temporarily, that might otherwise have been impossible.
When are private agreements best used?
Private agreements can be more flexible and cost effective that an outright conveyance, or acquisition, of land. They are best used when:
- The landowner does not want to transfer all or part of the land long-term;
- The landowner wants to allow access but control how or when it takes place and be in a position to revoke that privilege;
- The landowner wishes to dissuade a government entity from enforcing a more permanent and/or less favorable access obligation on the landowner.
When are private agreements not the best tool for access?
Other tools are best used when permanent access is desired. Private agreements are not ideal when landowners wish to convey or others wish to acquire permanent, predictable and/or long-term rights of access that bind future landowners as well as the existing one.
What are the types of private agreements? When is each type best used?
Private agreement: permits certain uses to identified users, in exchange for some benefit to the land owner. Private agreements differ from conveyance/acquisition in that the landowner is agreeing to permit a use of her land, but is not actually transferring the property interest in that land. Private agreement is a general term used here to encompass a category of specific tools described below.
To be effective, any type of private agreement should be drafted to address the following:
Right of renewal: for private agreement to be used for more than just a short term solution, the agreement should include a description of each party’s right of renewal, such as in a contract that provided access for a specific period of time. The right to renew the agreement could be conditioned on one party performing specific obligations such as adequate policing or maintenance of the property.
Specific use restrictions: agreements can limit public use to specific user groups, such as clammers, recreational boaters, etc…
There are two general types of private agreements:
Lease: Best used when a defined time period is desired for the agreement. A lease is a written agreement, in which the owner of property (either real estate or some object like a boat) allows use of the property for a specified period of time (term) for specific periodic payments (rent), and other terms and conditions.
Contract: Most enforceable when both parties receive a benefit. A contract is an agreement with specific terms between two or more persons or entities in which there is a promise to do something in return for a valuable benefit known as consideration (a legal concept that requires both parties to give up something in exchange for receiving something). For a contract to be legally enforceable, it needs to include benefits for both parties. For example: If a landowner gives permission for his/her land to be used for public access but does not receive anything in return that agreement will not be enforceable if the landowner changes his/her mind.
If desired, a contract can be drafted as:
Installment contract: Best used when the landowner wishes to receive her benefit over a period of time. An installment contract is an agreement in which payments of money, delivery of goods or performance of services are to be made in a series of payments, deliveries or performances, usually on specific dates or upon certain happenings.
Lease-option contract: Best used when the leasee wishes to purchase the property, but cannot do so at the time of the agreement. The lease-option contract provides for a lease of property with the right to purchase the property during or upon expiration of the lease.
Planning and Regulating for Access
How do I control public access?
Virginia localities, the state, and the federal government can regulate in ways that address coastal access.
Regulation may take the form of zoning, harbor management, marine spatial planning or environmental regulation that protects coastal resources.
Regulation is best used to limit the types of development that are either incompatible with access, or displace uses that have historically provided access.
While creating and enforcing regulations is unique to the government, knowledge of the planning process will enable interested parties to lobby for effective regulations and plan for the future of their localities.
Governments have authority to use their regulatory power on behalf of the public, with restrictions. The legal doctrines involved include police power, the common law public trust doctrine, and the protection of private property provided by the “takings” clause of the U.S. Constitution. For a more in-depth description of legal authority, visit Common Law and Statutes and Eminent Domain and Takings.
What planning processes exist for securing access in waterfront communities?
Comprehensive planning: Under Virginia Code 15.2-2223, localities are required to have a comprehensive plan to guide orderly growth and support land use regulation and zoning ordinances. Comp Plans are required to address public access to coastal waters and should address recreation and marine harvesting activities.
For more information on Comprehensive Planning, contact your local planning department or regional Planning District Commission (click here for a list by region).
Shoreline Access Planning: Coastal communities can undertake public access studies and analyses to document the need for improved and enhanced access, locate potential access sites and facilities, and undertake projects to acquire and develop access to coastal waters. Planning grants may be available from the Virginia Coastal Zone Management Program in concert with your local Planning District Commission.
Chesapeake Bay Preservation Act: The Virginia General Assembly enacted the Chesapeake Bay Preservation Act in 1988. The Act is a critical element of Virginia’s multifaceted response to the Chesapeake Bay Agreement. The Bay Act established a cooperative relationship between the Commonwealth and local governments aimed at reducing and preventing nonpoint source pollution. The Bay Act, like many other environmental protection programs, is an extension of the public trust doctrine. The beds of Virginia’s streams, rivers and estuaries and the waters above them are held and managed by the Commonwealth for the benefit of all Virginians. The Bay requires the provision of public access to be addressed by Virginia coastal localities. The Act is managed by the Virginia Department of Conservation and Recreation – Chesapeake Bay Local Assistance.
What is zoning and how can it be used as an incentive for protecting access?
Zoning is a tool for assisting localities to plan how various geographic areas (zones) are restricted to certain uses and development, such as water-dependent use zoning or marine spatial planning. By preventing certain uses, zoning can ensure that some land remains open for access or for the possibility of being acquired for access. Also, zoning can help prevent residential uses from competing with marine uses. Exception to zoning restrictions can be negotiated in exchange for a public good, such as a public boat ramp or path to the shore. More on zoning for coastal access.
How do environmental regulations address coastal access issues?
Environmental regulations, such as habitat protection and storm-water runoff regulations can impose restrictions that affect access use. Regulations can be crafted to include access as a compatible use, but exclude other uses that might restrict access. These differ from zoning in that restrictions cannot be contracted out of or negotiated away. More on environmental regulations.
What kinds of ordinances can be used to address access needs?
Ordinances can be used in many ways to address access needs. For example, a boat ramp might have quiet hours overnight (a sound control ordinance), thereby protecting the rights of the nearby landowners but minimizing how the ramp can be used at night. Or a river can have restrictions on a vessel’s use such as speed, anchoring and moorage. Light pollution ordinances can also affect access.
What are other regulatory options?
Rediscovery of Public Rights-of-Way: Over time, Cities, Counties and Towns often lose track of the location, bounds, and uses of existing public rights of way or access points. Abutting landowners may encroach on a public way, or challenge people using the way. The Middle Peninsula Chesapeake Bay Public Access Authority has been granted unique enabling authority by the Virginia General Assembly to assist participating localities with research needed to re-establish, acquire and defend existing public ways to coastal waters.
Using Taxes for Access
The tool of taxation can be used to encourage public access in two major ways.
Fees on certain activities at places where the public enjoys the beach or shore, can raise money for the acquisition of additional access rights.
Tax incentives can encourage particular uses deemed socially or economically important, or discourage uses that would inhibit coastal access.
Ad Valorem Tax: Creation of a special purpose taxing district, such as a dredging district to improve water access.
How can taxes be used to generate funding for access?
Taxes and fees can be used as a means of raising funds that the public can invest in the acquisition of public access through voluntary conveyance/acquisition tools or through eminent domain. A land gains tax, real estate transfer tax, impact fees (though not technically a tax), or tax increment financing are examples of such taxation strategies.
What tax-related programs could exist that can be used for access?
A Current Use Program for Working Waterfronts could offer owners of commercial fishing-related property a reduction in their assessed value based on certain criteria. This designation would require action by the Virginia General Assembly.