Proactive Planning for Resilience: Protocols for Community-Led Climate Adaptation in Virginia
Virginia-specific Legal Considerations
Dillon Rule
Virginia adheres to the Dillon Rule, a restrictive interpretation of local government authority.1 The authority of local governments in Dillon Rule states such as Virginia is limited to those powers that are: (1) expressly granted by the legislature; (2) necessarily or fairly implied in or incident to the powers expressly granted; or (3) essential and indispensable, and not merely convenient, to the declared objects and purposes of the municipal corporation.2 By contrast, a ‘Home Rule’ state allows local governments much more autonomy, providing them with broader flexibility and authority to undertake local actions.3 Therefore, localities in Virginia must consider whether their proposed actions are authorized by the Virginia Constitution or by the General Assembly, either through legislative act or municipal charter.
Whether the legislature has authorized a specific local government action is determined by a two-part test that has been established by court cases in Virginia:
1) Does the local government have the proper authority? According to the Virginia Supreme Court, as noted above, “[L]ocal governing bodies ‘have only those powers that are expressly granted, those necessarily or fairly implied from expressly granted powers, and those that are essential & indispensable.”4 Note that cities in Virginia can rely upon authorities set forth by the legislature in their city charters, in addition to statutory authority.
2) Did the local government properly execute the power granted to it? The answer depends on how clearly the enabling authority specifies the manner of execution. If the enabling authority clearly specifies the manner of execution, no other method may be selected;5 but if the General Assembly does not direct the method of implementing a conferred power, the local government’s choice of method will be upheld as long as it is reasonable,6 whether the power is express or implied.7
The Dillon Rule is a rule of strict construction, meaning that if there is a reasonable doubt whether the legislative power exists, the doubt must be resolved against the local governing body.8 In considering whether a locality has authority to enact an ordinance, there is no presumption that it is valid.9 Thus, the Dillon Rule sometimes is a significant barrier to local action,10 and sometimes it simply causes sufficient concern about exceeding authority that local action is stymied due to lack of capacity or political will to further advance the issue. And that concern is well grounded, since courts can invalidate local government actions that exceed authority without any analysis of the reasonableness of the action;11 reasonableness is considered only to assess the method for exercising a delegated power.12 Local governments therefore should consult their legal counsel when considering undertaking a new type of adaptation program.
1 The Dillon Rule is named after John Forrest Dillon, chief justice of the Iowa Supreme Court in the mid-1800’s. It is a long-standing rule in Virginia, having been applied by the Virginia Supreme Court as long ago as City of Winchester v. Redmond, 93 Va. 711, 25 S.E. 1001 (1896).
2 National League of Cities, Cities 101 (https://www.nlc.org/resource/cities-101-delegation-of-power/). See also Jennings v. Board of Supervisors of Northumberland County, 281 Va. 511, 516, 708 S.E.2d 841, 844 (2011) (“a locality’s zoning powers are ‘fixed by statute and are limited to those conferred expressly or by necessary implication’”); Marble Technologies, Inc. v. City of Hampton, 279 Va. 409, 417, 690 S.E.2d 84, 88 (2010) (City not authorized to modify its zoning ordinance to include lands in the federal Coastal Barrier Resources System in the Resource Protection Area required by state law, because the authorizing act requires localities to delineate protected area using only the criteria set by the State); Board of Supervisors of Augusta County v. Countryside Investment Co., 258 Va. 497, 522 S.E.2d 610 (1999) (subdivision ordinance invalid because County exceeded the enabling authority set forth in Va. Code by specifying in its ordinance the size and shape of lots to be subdivided and requiring developers to set aside undeveloped areas).
3 Ibid.
4 Sinclair v. New Cingular Wireless PCS, LLC, 283 Va. 567, 576, 727 S.E.2d 40, 44 (2012) (quoting Marble Technologies, Inc., 279 Va. at 417, 690 S.E.2d at 88).
5 Marble Technologies, Inc., 279 Va. at 421, 690 S.E.2d at 90.
6 Advanced Towing Co., LLC v. Fairfax County Board of Supervisors, 280 Va. 187, 694 S.E.2d 621 (2010).
7 Commonwealth v. County Board of Arlington County, 217 Va. 558, 574-575, 232 S.E.2d 30, 41 (1977)
8 Sinclair, 283 Va. at 204, 727 S.E.2d at 44 (quoting Board of Supervisors v. Reed’s Landing Corp., 250 Va. 397, 400, 463 S.E.2d 668, 670 (1995)).
9 Ibid. (quoting Marble Technologies Inc., 279 Va. at 416-17, 690 S.E.2d at 88).
10 See, e.g., Rezoning moratorium likely illegal, county attorney says, The Smithfield Times (Feb. 2, 2024), https://www.smithfieldtimes.com/2024/02/02/rezoning-moratorium-likely-illegal-county-attorney-says/ (citing the Dillon Rule as the reason why Isle of Wight County could not adopt a “sunset clause” for review of rezoning applications, absent express authorization from the State).
11 See, e.g., Marble Technologies, Inc., supra note 2 (court invalidated ordinance without analysis of the reasonableness of including coastal barrier resources in protected area).
12 Sinclair, 283 Va. at 204, 727 S.E.2d at 44.
Private Property Rights: Eminent Domain, Downzoning and Takings Concerns
Another issue localities may face as they take steps to steer development away from recurrently flooding areas is the risk of “takings claims” if they attempt to acquire flood prone property by eminent domain – i.e., claims by private property owners that their property has been taken for public use without just compensation, in violation of the Fifth Amendment to the U.S. Constitution and Article 1, Section 11 of the Virginia Constitution.1 To avoid takings concerns, localities can try to pursue voluntary property buy outs instead, or to incentivize development on higher ground (see, e.g., the discussion of Norfolk’s zoning ordinance in Step 2). Achieving voluntary buyouts can be more complex at the waterfront, where public access and use, the need to restore beaches, and high waterfront property values can make buyouts contentious and other locality actions difficult.2
The General Assembly has delegated to local governments in Virginia broad zoning authority to address community risks and challenges, including establishing permitted uses in floodplains and providing flood protection measures.3 But downzoning flood prone areas to permit less dense development and thus incentivize development on higher ground also can trigger legal challenges from landowners in those areas. For example, the City of Virginia Beach was sued when the City Council denied a developer’s application to build a residential development in a recurrently flooding area (see Argos Properties II, LLC v. City Council for Virginia Beach – Climate Change Litigation (climatecasechart.com), which was decided on procedural issues rather than on the merits; the Court held that the City’s actions were not ultra vires, and granted the City’s Motion to Dismiss). In addition, introducing less dense zoning is of limited use in built-out areas, as continuous nonconforming uses and vested rights are protected by state law from subsequent zoning changes.4 Zoning can be a useful and powerful tool, but localities should confer with their legal counsel before altering zoning ordinances to encourage relocation. For a more detailed discussion, see Downzoning in Flood Prone Areas: Treatment by Virginia Courts.
1 Article 1, Section 11 of the Va. Constitution provides, “That the General Assembly shall pass no law whereby private property, the right to which is fundamental, shall be damaged or taken except for public use. No private property shall be damaged or taken for public use without just compensation to the owner thereof. No more private property may be taken than necessary to achieve the stated public use.”
2 See, e.g., 3232 Page Avenue Condo. Unit Owners Ass’n v. City of Virginia Beach, 735 S.E.2d. 672, 677-78 (Va. 2012) (holding that there was an implied dedication to the City where the public had used the entirety of the beach since 1926, the City had patrolled and maintained the property for over 30 years, and the Condominium Association had never objected to the City’s exercise of dominion and control there). See also Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S. 702, 711–12 (2010) (U.S. Supreme Court held that it was an avulsion, with no taking, when state allowed placement of sand over state-owned bottomland to replenish beach, thereby cutting off private property from water); J. Lubrano and V. Unnone, Va. Coastal Policy Center, Sea Level Rise and Recurrent Flooding: A Toolbox for Local Governments in Virginia (Spring 2018), slrtools_final1.pdf (wm.edu).
3 See Va. Code § 15.2-2280, Zoning ordinances generally, and § 15.2-2283, Purpose of zoning ordinances.
4 Va. Code § 15.2-2307.
Shifting Property Lines
The delineation line between privately-owned riparian property and state-owned bottomland—established in Virginia Code as the mean low water (MLW) mark1—will shift as sea level rises and as shorelines erode. Land that currently is privately-owned upland thus could become publicly owned bottomland, subject to the public trust doctrine2 and to regulation by the Virginia Marine Resources Commission. Anticipating this shift can help inform localities’ decisions about where to invest in waterfront areas to provide public recreational access and to conserve flood buffers for development that has been relocated further upland. This shifting shoreline, and its impacts on public access to beaches and water, have prompted some other states to adopt a rolling easements program. See the Rolling Easements information for a more detailed discussion.
In addition, local governments need to be aware that, in a MLW state, installation of shoreline erosion control measures that encroach into the intertidal zone require the upland property owner’s permission, since that zone is not designated as state-owned as it is in Mean High Water mark states. For example, the Middle Peninsula Planning District Commission worked first with seven contiguous property owners, and then two more, to successfully apply for National Fish and Wildlife Foundation Small Watershed Grant funding for a living shoreline to protect coastal properties and structures further inland (NFWF Project ID: 0603.18.062813). The living shoreline was designed to a 15-year FEMA storm standard as calculated by the Virginia Institute of Marine Science’s Shoreline Studies Program. The Planning District Commission was able to obtain this funding to protect private property because the living shoreline will provide purpose-built wave attenuation and storm surge protection against a 15-year FEMA storm event, restore wetlands and surrounding habitat, enhance the area with the potential for growth of oysters and submerged aquatic vegetation, and increase coastal resiliency in a NOAA-designated Habitat Focal Area. For more information, see https://mppdc.com/articles/PDC_Info/May_2022_Meeting_Packet_RED.pdf (pp. 12 and 13).
Note that severe storms in inland areas can trigger extensive riverine flooding and mudslides that can change topography and shift property lines, as well. Statutory and common law will need to address such unexpected consequences in the coming years as storm severity and frequency increase.
1 Va. Code § 28.2-1202 (“[T]he limits or bounds of the tracts of land lying on the bays, rivers, creeks, and shores within the jurisdiction of the Commonwealth, and the rights and privileges of the owners of such lands, shall extend to the mean low-water mark but no farther, except where a creek or river, or some part thereof, is comprised within the limits of a lawful survey.”).
2 See Va. Constitution, Art. XI, Sec. I. For more information on the public trust doctrine in Virginia, see R. Keenan, Va. Coastal Policy Center, Riparian Rights and Public Trust: Enforcement Authority (Spring 2018), riparianrights.enforcement.final.pdf (wm.edu).
Independent Cities
The Commonwealth of Virginia is unusual because it has independent cities, separate from surrounding counties.1 This framework means that cities and counties have separate and different comprehensive plans, ordinances, capital improvement plans, and bonding capacity. In addition to making regional efforts more difficult, having independent cities also means having separate municipal charters containing different authorizations from the General Assembly; so a type of action that is authorized for one locality might not be authorized for another. Local governments and the Commonwealth therefore need to take these additional challenges into account when undertaking resilience planning at the regional level.
1 See Va. Constitution, Art. VII, Section 1 (“As used in this article (1) “county” means any existing county or any such unit hereafter created, (2) “city” means an independent incorporated community which became a city as provided by law before noon on the first day of July, nineteen hundred seventy-one, or which has within defined boundaries a population of 5,000 or more and which has become a city as provided by law…” [emphasis added]). Outside of Virginia, there are only three other cities in the United States that are separate from their surrounding counties. US Census Bureau, Geographic Areas Reference Manual, States, Counties, and Statistically Equivalent Entities, 4-2 (1994, rev. May 16, 2018) (“Three States (Maryland, Missouri, and Nevada) each have one city that is governmentally independent of county organization; Virginia currently has 41 such cities.”) (https://www2.census.gov/geo/pdfs/reference/GARM/Ch4GARM.pdf).
Downzoning in Flood Prone Areas: Treatment in Virginia Courts
Reasonableness Review
Downzoning may be subject to a reasonableness review in court. In Virginia, “[w]hen a court reviews the legitimacy of a zoning amendment, it presumes the action is ‘valid so long as it is not unreasonable and arbitrary.’”1 Instead, the party opposing the amendment “bears the burden of proving that the action is ‘clearly unreasonable, arbitrary or capricious, and that it bears no reasonable or substantial relation to the public health, safety, morals, or general welfare.’”2 If the “reasonableness” of the ordinance “is ‘fairly debatable,’” the court will uphold it.3 Thus, per Virginia case law, if a locality does downzone, the court is likely to uphold it due to its presumption in favor of local zoning authority.
However, the “court conducts a more expansive review . . . when a rezoning is a piecemeal downzoning.”4 A “rezoning (1) that the local governing body initiates on its own motion, (2) that selectively addresses the landowner’s single parcel, and (3) that ‘reduces the permissible residential density below that recommended by a duly-adopted master plan’” is considered piecemeal.5 A litigant can “make a prima facie case that the rezoning is piecemeal downzoning upon a showing that ‘since the enactment of the prior ordinance there has been no change in circumstances substantially affecting the public health, safety, or welfare.’”5
In a 2002 case, Turner v. Board of County Supervisors of Prince William County, the Supreme Court of Virginia overturned a piecemeal downzoning that took place in 1998, when “the Board enacted a new zoning ordinance that changed the zoning classification of only 492.4 acres out of the County’s entire land mass of more than 220,000 acres,” impacting “‘less than [one] percent of the total acreage of the [C]ounty.”7 This ordinance “limited residential development of the affected properties by imposing a minimum lot size of one acre.”8 Pre-ordinance, the landowners could have built on 419 lots on their property, but post-downzoning, they could only build on 199.9 While the downzoning was not climate-motivated, it was spurred by concern “about traffic and the effect that residential development would have upon the environment,” including “soil erosion increase, especially affecting the areas downstream .”10 Applying the piecemeal downzoning factors, the court found that the ordinance “was initiated by the Board; the ordinance targeted certain property; and the ordinance reduced the potential residential density of the property owners’ land below that recommended by the County’s duly-adopted master plan.”11 Ruling that “the last ordinance adopted by the Board before it enacted the [new downzoning] ordinance” provided the proper baseline for the “change in circumstances” analysis, the court held that that the “County failed to meet its burden” of such a change “regarding the impact of increased traffic upon the County.”12 In conducting its “change in circumstances” analysis, the court found it persuasive that: (1) “ there were no historical traffic development studies for the neighborhood where the property owners’ land is located,” (2) “the County’s current measure of traffic . . . had been in effect since 1985,” predating both the original and new downzoning ordinance, (3) “the streets that serve the neighborhood where the property owners’ land is located had already been constructed in 1991 or were under construction in 1991,” the year when the original ordinance was adopted, and (4) “the County had the ability to calculate any necessary traffic generation rates in both 1991 and 1998.”13
Accordingly, Turner indicates that localities may face piecemeal downzoning challenges for non-voluntary downzoning if they “selectively” target a “single parcel” of property, such as particularly high risk, flood-prone areas. While particularly flood-prone areas that localities would be interested in downzoning would likely span more than one landowner’s “single parcel” of property, localities would need to be careful that downzoning does not appear to single out specific parcels. Moreover, the locality must be able to demonstrate a “change in circumstances.” While localities will likely be able to demonstrate such a change in circumstances for already-affected areas through flooding data, the analysis would present difficulties for more forward-looking, preventative downzoning in areas that have not yet been affected by flooding. Of note, the Turner downzoning was motivated by impacts to the environment rather than to the residents themselves. Localities may want to explore the possibility of framing downzoning as motivated by negative impacts upon residents from recurrent flooding, such as inaccessibility due to impassable roads, damaged property, or exposure to hazardous conditions, rather than only environmental changes. Ultimately, localities should carefully consider the possibility of piecemeal zoning claims when considering downzoning as an adaptation tool.
Takings Claims
Downzoning actions may also be subject to takings claims – that is, a claim that property was taken by the government without just compensation in violation of the Fifth Amendment to the U.S. Constitution. Famously, in Lucas v. South Carolina Coastal Council, the U. S. Supreme Court considered a downzoning that occurred when the South Carolina Legislature passed the Beachfront Management Act, which, in its original, pre-amendment form, “flatly prohibited” the “construction of occupiable improvements . . . seaward of a line drawn 20 feet landward of, and parallel to” a “‘baseline’ connecting the landward-most ‘point[s] of erosion . . . during the past forty years.’”14 The Act thus prevented a landowner from building “any permanent habitable structures” on two lots originally zoned for residential uses.15 The Court found that the Beachfront Management Act “depriv[ed the] land of all economically beneficial use,” resulting in a “categorical” taking which did not require “case-specific inquiry into the public interest advanced.”16 Moreover the Court held that, to prevent a takings claim, “South Carolina must identify background principles of nuisance and property law that prohibit the uses [the property owner] now intends in the circumstances in which the property is presently found.”17 On remand, the Supreme Court of South Carolina ordered the state to pay the actual damages sustained as a result of Lucas being temporarily deprived of the use of his property, up to the Legislature’s passage of an amendment in the course of litigation that allowed for “special permits.”18
While the Virginia Supreme Court has not heard a post-Lucas downzoning takings case, in a 1990 case, City of Virginia Beach v. Virginia Land Investment Association No. 1, the Court declined to find a taking when the Virginia Beach City Council “downzoned approximately 403 acres of land owned by [a land investment association] from PD-H1, planned united development district, to AG-1 and AG-2, agricultural district, by a duly enacted ordinance.”19 The Court reasoned that the investment association was only able to “show that it was unable to develop its property as a planned unit development,” but that it was able to lease its property after it was down zoned.20 Thus, the investment association “was not deprived of all economically viable uses of its property.”21
Lucas changed the takings landscape, with the Court finding that a downzoning resulting in a “coastal-zone construction ban” could render land “valueless.”22 Accordingly, City of Virginia Beach provides limited usefulness as guidance, although, notably, Virginia Beach’s agricultural districts do allow for limited construction, including of permanent habitable dwellings.23 Localities likely should hesitate to enact total construction bans like in Lucas and should consult with their counsel concerning potential takings liability.
Downzoning for Climate Change Purposes – Sample Ordinance
Although New York is a home rule state,24 the downzoning ordinance adopted by the Town of Perinton, NY may be instructive concerning what downzoning in the climate adaptation context might look like. The Perinton ordinance specifically “recogniz[ed] that variations in terrain, hydrology, susceptibility to flooding and soil conditions exist throughout the Town of Perinton.”25 Accordingly, Perinton adopted “Limited Development Districts (LDD)” that supersede area, density, setback and other provisions for the Town’s residential districts and all other zoning districts.26 The creation of these districts was justified in the Town Code by noting:
Because of these physical variations in the character of the land, different areas are intrinsically suited for different types and intensities of development. Development must be directed by the intrinsic character of the land in order that the health, safety, welfare and property of the citizens of the Town be protected and preserved. Proper and appropriate development is required to preserve water and air quality, preserve fish, wildlife and plant habitat, prevent the irretrievable loss of natural resources and maintain the aesthetic character of the community.27
LDDs were established to include areas within the one-hundred-year floodplain or floodway as identified in the most recent Flood Insurance Rate Map or Flood Insurance Study, as well as “[a]reas prone to inundation by water on a recurring basis or exhibiting a high water table.”28 LDD “permitted uses” are limited to agriculture, open space, trails, recreational uses, lawns, gardens, play areas, and the cutting and removal of dead or individual trees for safety or to maintain the health or viability of a woodlot, although listed “conditional uses” do allow for limited development after site plan review and approval.29 The LDD ordinance does not mention tax reimbursements to property owners who owned property within districts before adoption of the program, but it does exclude from LDDs areas that are “small and isolated from other LDD areas” as well as “[a]reas which at one time met the criteria for an LDD, but no longer meet the criteria due to disturbance by human activity, where such disturbance took place prior to July 1974, or was in accordance with an approved subdivision or site plan.”30 Perinton’s LDD ordinance thus provides specific examples of how localities might implement climate-motivated downzoning.
Endnotes
¹ Board of Supervisors of Culpeper County v. Greengael, L.L.C., 626 S.E.2d 357, 367 (Va. 2006) (quoting Board of Supervisors of Fairfax County v. Snell Construction Corp., 202 S.E.2d 889, 892 (1974)).
² Ibid. (quoting Board of Supervisors of Fairfax County v. Snell Construction Corp., 202 S.E.2d 889, 892–93 (1974)).
³ Ibid. (quoting Board of Supervisors of Fairfax County, 202 S.E.2d at 893).
4 Ibid.
5 Ibid. (quoting Board of Supervisors of Fairfax County, 202 S.E.2d at 893).
6 Ibid. (quoting Board of Supervisors of Fairfax County, 202 S.E.2d at 893).
7 559 S.E.2d 683, 685 (Va. 2002).
8 Ibid.
9 Ibid.
10Ibid.
11 Ibid. (p. 686).
12 Ibid. (p. 689).
13 Ibid.
14 505 U.S. 1003, 1008–09 (1992) (citation omitted).
15 Ibid. (p. 1007).
16 Ibid. (p. 1015–16, 1027)
17 Ibid. (p. 1031-32).
18 424 S.E. 2d 484, 425–267 (S.C. 1992).
19 389 S.E. 2d 312, 312 (Va. 1990).
20 Ibid. (p. 314).
21 Ibid.
22 505 U.S. 1003, 1020 (1992).
23 Va. Beach Code of Ordinances § 401(a).
24 Local Government Home Rule Power, N.Y. State (last visited Feb. 7, 2024), https://video.dos.ny.gov/lg/handbook/html/local_government_home_rule_power.html.
25 Town of Perinton, NY Code pt. II, § 208-46(A) (2023).
26 Ibid.
27 Ibid.§ 208-47(B).
28 Ibid. §§ 208-47(D(2), (D)(3).
29 Ibid. §§ 208-48–208-49. Permitted conditional uses include nonhabitable structures associated with permitted uses; single-family dwellings and their appurtenant utilities and accessory structures, with a required minimum lot size of five acres; roads, to the minimum extent required; cutting or removal of trees in excess of that permitted in § 208-48D; nonresidential uses, provided that no structures are built within the LDD, a special permit is granted by the Town Board, and mitigation is provided at a 2:1 ratio.
30 Ibid.§ 208-47(F)(1) and (2).
Exploration of Virginia Authority to Use Voluntary Rolling Easement Proffers
The following existing authorities in the Code of Virginia could help support the concept of localities pursuing rolling easements as proffers for new development, particularly for commercial development projects, in flood prone areas where there is increasing risk. The easement would move, or “roll,” as the water level rises over time, with reasonable conditions articulated by specific trigger points with demarcations built into the Deed of Easement. A local government could require funds set aside in escrow by the developer of the property, to be used by the locality to fund annual inspections of the property and the removal of any remaining buildings at the time of abandonment. Those funds also could be supplemented by real estate tax revenue from the property over time. Such a program would require staff time and resources, but it could enable a locality to continue to obtain tax revenue from a property until it is no longer safe to use it. This approach also would put prospective buyers in the area on notice that there is an increasing flood risk and their use of the property would be limited to a finite period of time. Local governments should consult with their counsel before initiating such discussions.
Easement Authority
Under the Virginia Code, localities are authorized to “acquire . . . title to, or any interests in, any real property . . . within its jurisdiction, for any public use.”1 Accordingly, localities can acquire easements, which are nonpossessory property interests.
Public Trust Doctrine
As the underlying “public use” for rolling easements, localities may wish to consider utilizing Virginia’s public trust doctrine, recognized both by the Virginia Constitution and common law.2 Per the public trust doctrine set forth in the state constitution, it is “the Commonwealth’s policy to protect its . . . lands [and] waters . . . for the benefit, enjoyment and general welfare of the people of the Commonwealth.”3
Accordingly, the state holds all land below the “mean low-water mark” on behalf of the Commonwealth.4 Virginia has a well-established public trust doctrine that can limit private property owners’ rights. In Lucas v. South Carolina Coastal Council, the U.S. Supreme Court held that “background principles” of law are exceptions to takings claims,5 and localities could explore the possibility of employing the State’s public trust doctrine as a “background principle” that firmly establishes the public’s right to access its tidelands and circumvents takings claims.6 For more information, see this law review article from Boston College: Resurrecting the Public Trust Doctrine: How Rolling Easements Can Adapt to Sea Level Rise and Preserve the United States Coastline.
A local government could prioritize the preservation of wetlands in its comprehensive plan, particularly targeting areas that would allow public beach or water access, public parks and natural resource areas, or the upland migration of wetlands as sea level rises. Those goals could then be supported with the use of voluntary rolling easement proffers for development of parcels in those areas. That approach is supported by Virginia Code § 15.2-2297.A, which requires that the voluntary proffer of reasonable conditions must be in conformity with the locality’s comprehensive plan.
Implied Easements
The Virginia Supreme Court has employed the concept of implied public beach easements in two recent cases where (1) the public had a long history of access, (2) the municipality had a history of patrolling and maintaining the property, and (3) the property owner never objected to the city’s exercise of dominion. In 3232 Page Ave. Condominium Unit Owners Association v. City of Virginia Beach, the Court upheld the lower court’s “finding that the City had acquired ownership of the Easements by implied dedication.”7 Specifically, the Court was persuaded by “ample evidence that the public has used the entirety of Cape Henry Beach since 1926, the City has patrolled and maintained the property for over thirty years, and the Condo Association never objected to the City’s exercise of dominion and control.”8 Similarly, in Lynnhaven Dunes Condominium Association v. City of Virginia Beach, the Court found an “implied dedication and acceptance of the Easements” in light of “ample evidence demonstrating that the public has had open access to the entirety of Cape Henry Beach since at least 1954, the City has patrolled and maintained the Easements for over thirty years, and Lynnhaven has never objected to the City’s exercise of dominion and control over the Easements.”9 The Virginia Code also supports the concept of implied public access by extending it in the face of coastline changes due to beach improvement projects: when such projects result in “newly created land channelward of the former mean low-water mark,” creating “natural accretion for purposes of ownership,” that ownership is subject to “the public’s [established] right of use and maintenance upon the newly created land as previously existed on the adjacent land above the mean low-water mark.”10
Blight Prevention
To prevent blight, rolling easements could require the removal of structures as they are brought under the easement because of shifting shorelines due to sea level rise and erosion, rather than waiting until the structures fall into the water. The Virginia Code mandates that “[a]ny person constructing or erecting any structure upon or over state-owned subaqueous bottoms, or their grantees or assignees for value, shall be responsible for [its] maintenance or removal . . . upon its abandonment or its falling into a state of disrepair.”11 In addition, when any structure “is found in or upon the bays, oceans, rivers, streams or creeks of the Commonwealth in a state of abandonment, in danger of sinking, or in such disrepair as to constitute a hazard or obstruction to the use of such waterway, the [Virginia Marine Resources] Commission may ascertain the owner of the property and require him to repair or remove the property.”12 Therefore, localities should consult with the VMRC about the removal of such structures to prevent blight. Read the full Code provision here: https://law.lis.virginia.gov/vacode/title28.2/chapter12/section28.2-1209/.
30-Year Timeline for Chesapeake Bay Preservation Act Climate Resilience Regulation
Current regulations require localities in Tidewater Virginia to adopt a long-term outlook on climate resilience for new development that is compatible with the longer timeframe required for rolling easements. The State Water Control Board’s regulations, issued in conformity with the revision to the Chesapeake Bay Preservation Act (CBPA) to address climate change impacts,13 require localities to “assess the impacts of climate change and sea-level rise on any proposed land development in the Resource Protection Area” using “a potential impact range of 30 years or the lifespan of the project if less than 30 years.”14 [Note that this 30-year range is different than the Virginia Marine Resources Commission’s Tidal Wetlands Guidelines, which require “[a]ll shoreline alterations [to] be designed and constructed to mitigate coastal hazards . . . that may reasonably be expected over the useful life of the project.”]15 The Virginia Department of Environmental Quality recently issued Resiliency Draft Guidance for the regulations.16 Read the full regulatory provision here: Chapter 830. Chesapeake Bay Preservation Area Designation and Management Regulations; and access the draft guidance here: Local Program Regulations & Guidance | Virginia DEQ.
It is important to note that the Resource Protection Area alongside perennial waterways that is required by the CBPA is established at the time of development, and shifts with changing shorelines. So it is an already-established variant of a rolling easement or rolling setback in Virginia. For an example of another state’s approach to rolling setbacks for built structures, see New York’s Coastal Protection Shoreline Measures, Section 3.2, Coastal Setbacks.
Living Shorelines
Virginia law discourages hard armoring and instead requires the use of “soft,” nature-based living shorelines when possible. Virginia’s stance on living shorelines is compatible with rolling easements—while “hard” structures “allow for continued use of a developed area, even as sea levels rise,”17 living shorelines allow for “rolling”—i.e., the “natural migration of shorelines in the face of sea level rise.”18 Under the Virginia Code, the Virginia Marine Resources Commission (VMRC) “shall permit only living shoreline approaches to shoreline management unless the best available science shows that such approaches are not suitable.”19 Even if living shorelines are not suitable, “the Commission shall require the applicant to incorporate, to the maximum extent possible, elements of living shoreline approaches into permitted projects.”20 The VMRC has issued guidance reiterating its statutory commitment to living shorelines.21 Read the full Code provision here: § 28.2-104.1. Living shorelines; development of general permit; guidance, and read the VMRC guidance here: Tidal Wetlands Guidelines Update.
Proffers
To mitigate takings liability, localities could consider implementing rolling easements as voluntary proffers by the developers of proposed waterfront construction in areas subject to sea-level rise and coastal erosion. Specifically, the proffer could ensure public access to the waterfront that “rolls” with rising sea levels, and require removal of structures that come within the easement as it rolls, with a deed provision that runs with the land and gives notice to all subsequent purchasers. The reduction in value as flooding worsens and the easement “rolls’ closer to existing structures would be reflected in lower purchase prices as time goes on, bringing to buyers’ attention that they are purchasing an at-risk property with a limited future.
The Virginia Code authorizes qualifying localities to adopt “reasonable conditions” that “have been proffered in writing, in advance of [a] public hearing . . . by the owner of the property.”22 Proffers must “address[] an impact” of the new construction23 – in this case, upholding Virginia’s long-held commitment to public access to the waterfront, as embodied by the public trust doctrine. Read the full Code provisions here: § 15.2-2296. Conditional zoning; declaration of legislative policy and findings; purpose; § 15.2-2297. Same; conditions as part of a rezoning or amendment to zoning map; § 15.2-2298. Same; additional conditions as a part of rezoning or zoning map amendment in certain high-growth localities; § 15.2-2303. Conditional zoning in certain localities; § 15.2-2303.4. Provisions applicable to certain conditional rezoning proffers. A rolling easement thus would enable interim productive use of properties subject to increasing flooding, pending the point when flooding and erosion become too great; the production of tax revenue that can be used by the locality to plan for the time when the area can no longer be inhabited or used; and provision of notice of the risk to future buyers.
Endnotes
1 Va. Code § 15.2-1800, https://law.lis.virginia.gov/vacode/title15.2/chapter18/section15.2-1800/2 Reeana Keenen, “Riparian Rights and Public Trust: Enforcement Authority” VA Coastal Policy Center, (2018), https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1052&context=vcpclinic.
3 Va. Const. art. XI § 1, https://law.lis.virginia.gov/constitution/article11.
4 Va. Code § 28.2-1202(A), https://law.lis.virginia.gov/vacodefull/title28.2/chapter12/
5 505 U.S. 1003, 1029–31, https://case-law.vlex.com/vid/lucas-v-south-carolina-889849360.
6 Erica Novack, “Resurrecting the Public Trust Doctrine: How Rolling Easements Can Adapt to Sea Level Rise and Preserve the United States Coastline,” 43 Boston College Environmental Affairs. L. Rev. 575, 600–601 (2016).
7 735 S.E.2d 672, 676 (Va. 2012).
8 Ibid. (p. 677).
9 733 S.E.2d 911, 915 (Va. 2012).
10 Va. Code § 28.2-1202(C), https://law.lis.virginia.gov/vacodefull/title28.2/chapter12/
11 Va. Code § 28.2-1209, https://law.lis.virginia.gov/vacodefull/title28.2/chapter12/
12 Ibid. § 28.2-1210.
13 Va. Code § 62.1-44.15:72.
14 9 Va. Admin Code § 25-830-155.
15 Va. Marine Res. Comm’n, Tidal Wetlands Guidelines 9, https://mrc.virginia.gov/Notices/2021/Final-Draft-Wetlands-Guidelines-Update_05-19-2021.pdf
16 Va. Department of Environmental Quality, “Resiliency Draft Guidance 3,” (2024),
https://www.deq.virginia.gov/our-programs/water/chesapeake-bay/chesapeake-bay-preservation-act/local-program-regulations-guidance
17 “Hard Armoring,” Wetlands Watch, https://wetlandswatch.org/hard-armoring.
18 “Soft Armoring,” Wetlands Watch, https://wetlandswatch.org/soft-armoring.
19 Va. Code § 28.2-104.1(D), https://law.lis.virginia.gov/vacode/title28.2/chapter1/section28.2-104.1/
20 Ibid.
21 Va. Marine Resources Commission, “Tidal Wetlands Guidelines 9,” (2021), https://www.mrc.virginia.gov/regulations/Final-Wetlands-Guidelines-Update_05-26-2021.pdf
22 Va. Code § 15.2-2303, https://law.lis.virginia.gov/vacode/title15.2/chapter22/section15.2-2303/
23 Ibid. § 15.2-2303.4.