Rhode Island Property Law

Rhode Island Property Law

Commentaries on Real Estate and Environmental Law

The Precise Boundary of Waterfront Property May Not Be What You Think

Posted in Ocean Regulation, Property Rights, Public Trust Doctrine, Riparian Rights, Waterfront Property Rights

iStock_000003901046_MediumMany prospective purchasers of waterfront property expect that they will own all the land up to the water. Some may; others may not.

The reason is that the precise boundary of waterfront property depends on a number of factors, ranging from title law to contract law to statutory and case law, not to mention specific facts, such as the type of water body involved.

In other words, as a purchaser, what you see may not be what you get.  You may see a beautiful green lawn running to a pristine beach complete with lapping waves and assume you own right to the water. Unfortunately, it is not that simple.

Given the complexity of waterfront boundary issues, this article will simply summarize some of the prevailing principals.  A fuller treatment may be found in my most recent book, “Buying, Owning and Selling Rhode Island Waterfront and Water View Property:  The Definitive Guide to Protecting Your Property Rights and Your Investment in Coastal Property”, now available on Amazon.com as well as in bookstores.

Our Rhode Island Supreme Court has definitively established the boundary at the shore between private property and public property under the Public Trust Doctrine.  Before discussing that court decision, however, an understanding of the Public Trust Doctrine is important.

This is a doctrine of ancient origin, incorporated in the common law of this country from English common law, and differing in the various states depending on case law and statutory law.  In Rhode Island, the Public Trust Doctrine, found in both our State Constitution (Article 1, Section 17) and in statute (R.I. Gen. Laws 45-5-1.2), essentially provides that the state holds title to all land below the high-water mark in a proprietary capacity for the benefit of the public, and preserves to the public the rights of fishery, commerce and navigation in these waters. See Greater Providence Chamber of Commerce v. State, 657 A.2d 1038, 1041 (RI 1995). (In the interests of full disclosure, I represented the plaintiffs in that litigation.)

The Public Trust Doctrine in Rhode Island essentially applies to tidal waters, being waters impacted by the ebb and flow of the tide.

There was, however, dispute under the Public Trust Doctrine as to where the exact boundary was drawn in Rhode Island between private ownership and public rights.  Is it the low water mark (as in Massachusetts), the high water mark (i.e. the highest tide line) or somewhere in between?  That question was answered definitively by our Supreme Court in its decision in State v. Ibbison, 448 A. 2d 278 (RI 1982). The court rejected the low tide line as being unfair to the public, as it would leave no dry sand for public enjoyment of public trust doctrine rights.  It also rejected the highest high water mark occurring during Spring tides because it would “unfairly take from littoral owners land that is dry for most of the month”.

Instead, the Court adopted the mean high tide line because it was fair to both the property owner and the public and because it could be established with scientific precision, being the arithmetic average of the high tide during an 18.6 year Metonic Cycle.  (The Metonic Cycle begins and ends when a new moon occurs on the same day of the year as it did at the beginning of the last cycle.)

The Rhode Island Supreme Court has, over its history, been extremely thoughtful and extremely fair in balancing public and private rights at the shore.  (For a discussion of this, if you are really a glutton for punishment, please see my law review article in the William and Mary Environmental Law Journal (Greater Providence Chamber of Commerce v. State: Balancing Private Property Rights in Filled Tidal Lands Under the Rhode Island Public Trust Doctrine, (Vol. 21, Issue 3, 1997).)

All of this is a long way of saying that when you look at a property bounding on tidal water, you will not know precisely where the boundary is.  For this, you will need to engage a surveyor.

That being said, there may be other factors that impact the boundary line, such as changes by the actions of nature (waves, wind, etc.).  As a generalization, when the change is natural, gradual or even imperceptible, such as a result of erosion, accretion (i.e. the accumulation of land by natural causes) or reliction (i.e. an increase in land by the withdrawal of water),  the boundaries between private and public land are changed.

However, again as a generalization, sudden changes in land mass, such as the result of a storm, do not change the boundary line between private land and public land.

And all of that pertains to tidal lands.  The rules are different for non-tidal lands, such as land abutting a non-tidal river or land abutting a lake.

When dealing with non-tidal land, first start with a careful review of the deed to the property in question. (Incidentally, you also look to the property deed when dealing with tidal lands to ensure the boundary is the ocean.)  Assume you are dealing with property bordering on a stream.  In this case, the boundary is often determined to be the “thread of the stream”, being the middle of the stream. See Tyler v. Wilkinson, 24 F. Cas. 472, 4 Mason C.C. (1827).

But look at that deed carefully.  If it says the property line runs to the stream, the boundary may well be interpreted to be the middle, or thread, of the stream.  If it says it runs to the stream or river bank, or runs with the river, the interpretation may be that the water line itself is the boundary.

Individual case by case determinations can be made by a surveyor working with legal counsel.

As I said, when dealing with waterfront property, the boundary may not be what you think!

Getting Out of the Flood Zone*

Posted in Coastal Permitting, Coastal Resources Management Council

bestGiven it is Hurricane Season, it is appropriate to ask whether Rhode Islanders are any safer from a hurricane today than they were three years ago when Hurricane Sandy hit.

The answer is probably “somewhat safer”, given the efforts of federal, state and local governments at public education and hazard mitigation.

But three years is not a lot of time, and significant change takes time.

However, perhaps there are some simple things that can be done.

One may be to require municipalities to allow those building in flood hazard areas to claim an extra margin of safety if they so choose.

For example, currently the State Building Code requires 1 foot of “freeboard”, being the minimum distance above base flood elevation that the lowest floor of a structure, or the lowest horizontal structural members, may be built.

Base flood elevation is measured by the flood level expected in a severe storm, known as a 100-year-flood.

There have been efforts to require a greater freeboard, such as two feet.  This has been opposed by some because it is unnecessary, or would block neighbor’s water views, or make access difficult for the elderly.

One person who has given this issue a lot of thought is Coastal Resources Management Council Executive Director Grover Fugate.

He notes that the highest sea level rise projected for Rhode Island by the federal government is over one foot in 20 years. That is the highest projection, and it may not prove true. But if it does, if you built a house today only one foot above the base flood elevation, twenty years into a 30 year mortgage, you would be below base flood elevation and subject to higher flood insurance rates.

Given recent federal legislation, flood insurance premiums, subsidized by the federal government for decades, are being allowed to rise gradually to true actuarial value.  That means flood insurance premiums will significantly increase over the years, and homes in flood zones could see annual insurance premiums that look more like annual mortgage payments.

That may make the house unaffordable for the current owners, and it may mean that when it is put on the market for sale, its purchase price may be reduced by tens of thousands of dollars.

Either would be disastrous for the average family.

Some municipalities allow homeowners to elevate their existing home, or build their new home, several feet above the base flood elevation.

Rather than requiring elevated construction, perhaps the General Assembly could require all municipalities to allow home owners who so choose to elevate or construct their home up to five feet above base flood elevation.

Another thought is to make low interest or no interest state or federal funding available for those who want to undertake elevating existing homes to move out of, or further out of, the flood zone. Some federal money is being used for this now in Rhode Island.

Both approaches avoid a government mandate and put the decision on the property owner.  Presumably, armed with the facts, those building new homes will opt for an increased margin of safety, and those with existing homes at risk will consider elevating their current home for increased protection.

Supporters of elevating buildings argue this keeps properties on the tax rolls, reduces storm damage, and benefits the construction industry.

And if it is voluntary, it shouldn’t create a tidal wave of new regulations!

 

*A shorter version of this article was published in the Providence Business News.

 

________________________________

John M. Boehnert practices real estate and environmental law in Providence.  His book, Zoning the Oceans, was published by the American Bar Association.

Do You Need A Survey?

Posted in Property Rights, Real Estate Title, Surveys

house moving

Prospective purchasers of real estate, and many owners, sometimes ask whether they need a survey.

Unfortunately, it is a question best answered either by obtaining a survey, or by later discovering you should have had one!

For an example of later discovering you needed a survey, consider the following recent, and unfortunate, situation.

Building On the Wrong Property

A developer who had owned a waterfront parcel of land in Narragansett, Rhode Island since 1984 engaged an engineering firm to prepare a subdivision plan in order to seek town of Narragansett approval to subdivide the property into two buildable lots. That approval was granted. In 2009, the developer sought municipal approvals to construct a house on one of the waterfront parcels. In seeking these approvals, the developer engaged another engineering firm to prepare development plans for the project, which showed property boundaries, the structure, and the individual sewage disposal system.

The developer constructed the house and negotiated a purchase and sale agreement for approximately $1,800,000. The buyer, as a part of his due diligence, engaged a registered land surveyor to conduct a survey. That survey concluded that the house was wholly constructed on property owned by an abutter, not on the property owned by the developer. Worse, the property abutter was a charitable foundation committed to maintaining its property for public park uses. Worse still, that binding commitment required the foundation to pay $1,500,000 million if it allowed the land to be used for other purposes.

Not surprisingly, the foundation had every incentive to sue for removal of the house, which it did. After several years of litigation, the net result was a lower court order requiring removal of the house and a Rhode Island Supreme Court decision upholding the lower court. The purchase and sale transaction was, of course, cancelled, and the costs of moving the structure was estimated to be between $300,00 to $400,000.

Differences in Surveys

The Supreme Court decision noted that the plan prepared by the engineer for the house construction, which apparently relied on the first engineer’s subdivision plan, stated that the “[d]epicted boundary survey conforms with a Class III standard as adopted by the Rhode Island Registration of Professional Land Surveyors.” The Supreme Court further stated in a footnote that according to the Society of Professional Land Surveyors, “a Class III survey is defined as a ‘data accumulation survey,’ which ‘measure[s] and show[s] the relative positions or locations of physical features to a stated graphical scale…’” and that “[t]his definition includes the caveat that ‘[t]o the extent that property lines are reflected on such plans, they are to be regarded as pictorial only, unless such boundaries are also certified to a Class I, Class II, or Class V standard’” (see Rose Nulman Park Foundation et al. v. Four Twenty Corp., et al., 93 A.3d 25 [RI 2014]).

In other words, do not rely on a Class III survey if you need to know precisely where your boundary lines are located.

And while news reports of this case repeatedly referred to a survey mistake, surveyors are quick to note, quite correctly, that no survey was in fact involved because the plan at issue was prepared by a professional engineer and not a registered professional land surveyor.

The lessons for property purchasers exemplified by the Nulman case appear clear. First, without the benefit of a survey, you cannot be confident where the property boundaries are located. Secondly, even if something looks like a survey, it may in fact not be a survey. Both courts, in fact, found that even the experienced developer made an innocent mistake in relying on the engineer’s site plan. Finally, even if it is a survey, not all surveys will accurately depict boundary lines on which reliance may be placed. A Class III survey will not do so.

 

Getting a Survey

Accordingly, when purchasing property, particularly waterfront property or acreage outside of platted areas, it is entirely prudent to consider, within the facts of your particular circumstance, obtaining a survey stamped by a registered, professional surveyor. In order to accurately locate boundary lines, it should be a Class I, Class II, or Class V survey.

And when may you need a survey?  Reasons for a survey could include: when you need to know precisely where your property boundaries are located; when you need to know where your structures are located in relation to the property boundaries; when you need to know where easements are situated on your property; when you need to know whether something is on your property or your neighbor’s property (i.e. was the tree that fell on the car your tree or your neighbor’s tree?); when you need to know if you have sufficient area and dimension to do with the property what you intend; when you are seeking or will be seeking governmental permits that require a survey.

That list is not exhaustive but it gives you the idea.

After all, if you are going to go through the time and expense of moving a house, better you do so because you prefer the new location than because it is located on someone else’s property!

 

 

 

 

Taming Rhode Island Wetlands Regulations

Posted in Coastal Permitting, Coastal Resources Management Council, Department of Environmental Management, Development Permitting, Wetlands

 

Rhode Island property owners, developers and builders have long been frustrated by conflicting State and municipal regulation of wetland setbacks and buffers, often causing delays, increasing the cost of building, and in some cases preventing construction.

That is all about to change, given recent legislation signed by Governor Raimondo. There is no question change was necessary.

A legislative task force created by the Rhode Island General Assembly to study the problem found that approximately 11% of the State of Rhode Island, over 71,000 acres, is wetlands, most of which are freshwater wetlands (88%) and the remainder of which are coastal wetlands.  Regulation is complicated enough at the State level, with the Department of Environmental Management (“DEM”) being the primary regulator of freshwater wetlands and the Coastal Resources Management Council (“CRMC”) regulating all coastal wetlands.  However, CRMC also regulates freshwater wetlands in the vicinity of the coast, pursuant to an agreement between the two regulators.  Because DEM and CRMC have agreed on jurisdictional areas, there are maps to which property owners, builders and developers can refer so they will know which regulator is in charge.

Fair enough. But it gets worse. Many municipalities also regulate wetlands, and many of these regulations are actually more restrictive than the State standards.  These municipal regulations pertain to not only wetlands buffers but also to setbacks for onsite wastewater treatment systems (“OWTS”). The legislative task force studying this issue found that 25 of the 39 cities and towns, approximately 64%, had their own wetlands regulations, which were in addition to state requirements.  And as noted, some of the requirements are more restrictive.

As the Task Force noted:

This tiered system of protecting wetland resources through overlapping state and municipal regulations sometimes results in repetitive reviews for property developers, whether they are large or small, that require additional time for wetland and onsite wastewater treatment system (OWTS) applications” and that this has been cited as “[a] concern raised by those trying to improve the State’s business climate”.

Another problem is that the State has the primary expertise for regulation of wetlands, which are complex biological systems which often generate controversy and disagreement in just setting the boundaries of the wetlands. Land which looks dry can actually be regulated wetlands because of vegetation or subsurface conditions. Municipalities simply do not have the expertise to appropriately regulate wetlands, given their complexity.

The purpose of the task force established by the General Assembly was to make recommendations, inter alia, as to whether wetlands were being adequately protected and whether there were any gaps in the regulatory structure, and to recommend standards at the state level that would be sufficiently protective so that municipalities would not enact standards that would exceed or contradict the new standards.

(In the interest of full disclosure, I worked with small business interests proposing the legislation, and in doing so, met with legislative leaders to move the initiatives forward, in the process meeting and addressing concerns raised by some municipal representatives.)

The Task Force Report, issued December 31, 2014, was addressed by the General Assembly, which passed legislation in June, 2015 requiring the establishment of state standards for freshwater wetland buffers and setbacks and preventing municipalities from promulgating their own stricter standards.  This legislation amended Rhode Island General Laws 2-1 et seq., entitled Agricultural Functions of Department of Environmental Management, as well as Rhode Island General laws 45-24 2 et seq., the Zoning Enabling Act.

Upon its passage, the legislation effectively prevents municipalities from enacting new regulations to set standards in this area, and once the Department of Environmental Management promulgates regulations setting new standards, the municipalities can’t enforce conflicting standards.  The legislation also amends the Zoning Enabling Act to prevent municipalities from using their local zoning ordinances to regulate wetlands and buffers. Rather, such regulation will come from the State.

The legislation does require that the municipalities be informed of wetland permitting proceedings in their jurisdiction and it allows the municipalities to petition the Department of Environmental Management or the Coastal Resources Management Council, whichever is handling the matter, depending on the location of the wetlands, to seek increased buffer protections.   However, this is to be done in a way that does not result in undue delay.

Hopefully, this legislation and the soon to be promulgated regulations will effectively eliminate the overlapping and often contradictory state and municipal regulation of onsite wastewater treatment systems and wetlands issues which has plagued permitting in Rhode Island for years.

The next step is the promulgation of revised wetlands regulations, which is to be completed by early next summer.  It is likely those regulations will increase somewhat the setbacks and buffers protecting wetlands. And it is hoped these new regulations will be based on sound science and will be applied consistently in order to give property owners, builders and developers the certainty and transparency they require to alter, build and develop property in the vicinity of wetlands in a cost-effective and timely manner.

If so, it will certainly have been worth the several years of effort it took to implement these reforms.

 

The Taylor Swift Tax is Not Too Swift*

Posted in Property Rights, Real Estate Law, Rhode Island General Assembly
Taylor Swift's home in Westerly, Rhode Island

Taylor Swift’s home in Westerly, Rhode Island

Even excellent leaders make their share of mistakes.

Amidst Governor Raimondo’s impressive first months in office, where she has taken dead aim on economic development and job creation, she has had one clunker of an idea.

That is proposed legislation known as  the “Taylor Swift tax”, named after the popular singer who bought a Watch Hill mansion for $17 million. It is an additional tax on real estate valued at over $1 million and owned by someone living less than 6 months a year in Rhode Island.

It is patterned after legislation originally enacted in 1984 to punish absentee owners who either abandon their properties or allow them to become derelict.  That legislation properly cited the problems caused by such abandonment and lack of financial responsibility, asserting these owners placed more demand on police and fire services, without paying their “fair share”, left properties derelict to profit from rising prices, and “must be encouraged to use the properties in a positive manner”.

Unbelievably, the Taylor Swift legislation uses the same rationale to tax millionaires who, far from abandoning their property, are lavishing money on it for taxes, insurance, maintenance, security, landscaping, decoration, etc.

And many of those services are likely being provided by Rhode Islanders. That is a good thing!

Take a drive by Taylor Swift’s $17 million mansion, pictured above, and tell me if it looks derelict and abandoned.  And as for Ms. Swift not paying her fair share of taxes, PLEASE!  She no doubt already pays a hefty property tax bill, and given that much of that tax bill funds schools, which Ms. Swift surely does not use, the town of Westerly is getting far more from Ms. Swift than Ms. Swift is getting from the town of Westerly.

If the intellectual underpinnings of the Taylor Swift tax are dubious, what is really going on here? This additional tax would cost Ms. Swift an estimated $42,500 annually, and that would be on top of the hefty property tax she already pays.  Of course, Ms. Swift can certainly afford to pay the additional tax.  And that is the point. As the Governor said, the tax “asks those among us who are most able, to pay a little more”.

And by the way, the tax is styled as a tax for the “privilege” of owning property in Rhode Island valued at over a million dollars for only part-time use.

Unfortunately, the business executives the Governor hopes will favorably consider her excellent ideas for economic development and investment in Rhode Island are the same people who would, or could, be adversely impacted by the Taylor Swift tax.  While they can afford to pay such a tax, they may well see the tax for what it is – a naked money grab without moral authority.  Now, is a state that does that a place where they will decide to invest?  What happens if the next administration puts an “additional” tax on property owned by multi-national corporations for the “privilege” of allowing ownership by large out of state businesses?

Recall that a prior administration put a tax on Rhode Island yacht sales, figuring the wealthy could afford it.  The results were predictable. While the wealthy could afford to pay the addition tax, they decided not to, and it almost killed a high end, successful niche market in Rhode Island. Cooler heads prevailed and the tax was repealed in order to save Rhode Island’s boat-building industry.

For too long, Rhode Island has scored too high on the list of states unfriendly to wealth creation and success.  I have no doubt the Governor, and the House leader, who recently made his own impressive debut as Speaker, have the talent to turn that around.  But the Taylor Swift tax is more of the same and will only undermine the other fine efforts of the Governor and the Speaker. Rhode Island needs to double down on wealth creation, not on wealth punishment.

The Taylor Swift tax will net only an estimated $12 million a year, which is peanuts, even in Rhode Island.  But it will have one success.  For virtually no expenditure, Rhode Island is calling national attention to itself.  Regrettably, that attention is as a state that wants to soak the wealthy who invest there. See the recent story in the Washington Times as just one example.

We should be encouraging the Taylor Swifts of the world to invest in Rhode Island.

Hopefully, this is a trial balloon that the Governor herself will soon shoot down.

Excellent leaders, after all, have a way of correcting missteps.

 

 

*A shorter version of this article was published in the Providence Business News.

Zoning the Oceans

Posted in Coastal Permitting, Coastal Resources Management Council, Environmental Permitting, Environmental Regulation, Marine Spatial Planning, Ocean Regulation, Ocean Zoning, Waterfront Property Rights

I am pleased and proud that the American Bar Association has just published my book, “Zoning the Oceans The Next Big Step in Coastal Zone Management”.

And at approximately 300 pages and 800 footnotes, and two years of work,  I am relieved to have the process behind me!

This book comes to market just as the Obama Administration is initiating its new National Ocean Policy, and coastal states are considering ways to strengthen coastal programs.

Zoning the oceans is a new and emerging area of law, and this is the first book to focus on the legal aspects of ocean zoning.

Importantly, it alerts coastal states, including states bordering on the Great Lakes, how existing provisions of laws and regulations can be used creatively to provide states with significant environmental protection as well as with significant economic development benefits.

More specifically, already existing provisions of the Coastal Zone Management Act and its extensive regulations can be exploited by states to protect their coastal environments and to foster very specific end results, such as increasing offshore alternative energy development.

Ocean zoning is in many ways similar to land based zoning, with which we are all familiar. In land based zoning, designated areas may be restricted to certain uses, such as industrial, commercial or residential, and these restrictions may, and usually do, come with numerous qualifications. The density, area, specific type of uses, even designs, setbacks, height, location and other components of facilities are often regulated. Land based zoning may also have floating zone or overlay districts, as well as provisions for special exceptions or variances to allow certain types of uses in certain areas only upon meeting certain qualifications.

Similar requirements can be established for coastal regions. That process usually starts with something called “marine spatial planning”, which sounds arcane but really means nothing more than gathering detailed information about the ecosystems in the study area, the uses that now occur in the study area, and making recommendations based on the ecology and ecosystems and current and proposed uses.

But this is far more difficult than it sounds, given we are dealing with coastal areas and open oceans, and with uses, not to mention fish and marine life, which may move through various areas at different times of the year. Often the study efforts can be extensive, expensive, and time consuming.

Additionally, the uses of the study area can at times be conflicting, which may pit interest groups against interest groups, for example, fishermen against offshore energy developers or environmentalists against oil and gas extraction industries.

Once the marine spatial planning efforts are done, the end result can be just a plan, a plan describing current conditions and uses, identifying conflicting uses or perceived harmful uses, and leaving it at that—presentation of an informed plan.

But today marine spatial planning, rightly or wrongly, is more often equated with ocean zoning, meaning the information gathered is utilized to inform and implement a regulatory structure of some sort.

That structure could look like requirements that limit or restrict certain types of uses in environmentally sensitive areas, perhaps encourage certain uses to locate in specified areas to avoid user conflicts, and perhaps designate areas which may be used for desired ends, such as offshore wind energy production.

That is precisely what happened in Rhode Island, which implemented the first federally-approved ocean zoning plan, known as the Ocean Special Area Management Plan, or Ocean SAMP. Its primary purpose was to foster offshore alternative energy development, in this case wind energy.

The Ocean SAMP designated certain areas as protected areas based on ecological and other considerations, and it sought to limit user conflicts, as for example ensuring that wind energy development would not interfere with fishing interests. An important part of the two year process involved a large stakeholders group which met regularly to be informed of the process as it was developing and to have input into the regulatory product. An indication of its success is that the fishery interests entered the process skeptical, if not opposed, and came out supportive of the Ocean SAMP.

Importantly, the Ocean SAMP study area included not just Rhode Island state waters but federal waters as well. Of course, Rhode Island could enact enforceable regulations only in its state waters. However, after the study was complete, Rhode Island utilized a special procedure under the Coastal Zone Management Act to seek to have many activities proposed in federal waters to be consistent with the enforceable policies of Rhode Island’s coastal zone management plan in order for federal permits allowing those activities to issue. Rhode Island used data gathered in the Ocean SAMP marine spatial planning process to support this successful effort.

The net result is the Rhode Island experience shows how states can use marine spatial planning and ocean zoning efforts to extend their influence over federal waters as well as the waters of other states. It is possible to design state coastal programs which will effectively provide veto authority over the issuance of federal permits to private parties seeking to conduct certain activities in federal waters or the waters of other states, if those activities are inconsistent with a state’s enforceable policies of its own coastal management program.

This is one of the key benefits of carefully and strategically using marine spatial planning and ocean zoning initiatives, and it is all fully explained and discussed in my book.

In addition, the book provides an overview and introduction to coastal zone management, including its history from colonial to modern times, a detailed discussion of coastal regulation under the Coastal Zone Management Act, and the new era of coastal zone management, involving ocean zoning efforts at the state level, as well as recent federal initiatives for a National Ocean Policy.

And there is a detailed discussion of Rhode Island’s Ocean Zoning Program, as many states, and some foreign countries, are looking at this as a possible blueprint for their own ocean zoning efforts. The book describes what Rhode Island did and how it did it, for the benefit of states which may be considering similar programs. The complete Rhode Island Ocean Special Area Management Plan Regulations are also included in the book as a CD in a pocket part.

Given the book is approximately 300 pages, these few hundred words can only summarize the material there, which incidentally also includes discussions of marine spatial planning and ocean zoning in other states as well as in Europe, which is well ahead of efforts in America, given Europe’s long interest in fostering alternative energy development both inland and offshore.

To those of you who have an interest in coastal zone management, I hope you will consider the book. Below I have attached a link to the American Bar Association Book Store where it is available.

And to those of you who suspect that book is why I have not been blogging as regularly as in the past, please go to the head of the class!

ABA Bookstore

When Buying Real Estate in Rhode Island, Absolutely Beware of Wetlands

Posted in Environmental Due Diligence, Environmental Permitting, Environmental Protection Agency, Environmental Regulation, Property Rights, Real Estate Due Diligence, Wetlands

Many property owners can innocently violate wetlands laws without even knowing they are doing it, and the penalties for doing so can be more than the cost of the property involved, far more than the cost of the property.   And this is not just the case in Rhode Island; it is true throughout the country.          

Consider this recent case from Idaho, which went all the way to the United States Supreme Court. Sackett v. Environmental Protection Agency, 132 S. Ct. 1367(2012).                                                                               

The Sackett’s Saga

Michael and Chantell Sackett bought a house lot near Priest Lake, Utah, intending to build their family home. In doing so, they did due diligence inspections to ensure the lot was buildable. They saw no red flags.

What they did not do was engage a wetlands biologist to examine the lot to determine if it was a wetland. Perhaps it never occurred to them, as the lot was dry. Yes, dry, as in no visible water.

The Sacketts applied for and received local permits and began their building process by bringing in dirt and stone to level the lot and prepare it for construction. That was when they received a Compliance Order from the Environmental Protection Agency, in essence telling them they had just “filled”  “waters of the United States”. The EPA ordered them to cease construction activity, to remove the dirt and fill material, to plant vegetation, and to monitor the property for three years, during which the property could not be used. Of course, by implication there were being forbidden to ever build a house on the land they purchased for the purpose of building a house, in a neighborhood with other houses .

And the order had teeth. The Sacketts could be subject to substantial fines as well as possible jail time for failure to comply. For example, fines of $37,500 per day of violation of the Clean Water Act were possible, and these could be doubled to $75,000 per day for failure to comply with the Compliance Order. One month’s fines, at just $25,000 per day would be $750,000 and a year’s fines at that level would be $9,000,000.

Unfortunately for the Sacketts, wetlands are determined on the basis of a number of factors, including subsurface hydrology and vegetation, and what looks dry may actually be wetlands. In fact, wetlands may be characterized by certain types of vegetation, and by subsurface water near the surface for only a couple of weeks of the growing season, and not visible on the surface.

Identifying a swamp is easy, but identifying a “dry” wetland takes professional help. I am told by an old environmental hand, Dave Westcott, of Mason & Associates in North Scituate, Rhode Island, that young biologists are sometimes  taught a rhyme to help them determine what is wetlands vegetation:

Sedges have edges
and rushes are round
and grasses have joints
where they grow from the ground.

When the Sacketts tried to convince the EPA that in fact their land was not a wetland, the EPA wasn’t particularly interested. From its perspective, its Compliance Order was in effect, and the Sacketts had no ability to even question EPA jurisdiction.

Now, how many average property owners could effectively cope with this, and defend themselves against the overwhelming weight of the United States Government?   Not many, of course.

“The EPA used bullying and threats of terrifying fines, and has made our life hell for the past five years”, Sackett was quoted in the Los Angeles Times as saying. Well, that is not exactly a glowing citizen tribute of a federal agency. 

Fortunately for the Sacketts, their case was handled "pro bono” by the Pacific Legal Foundation, which took the matter to Federal District Court, where they lost, to the Ninth Circuit Court of Appeals, where they lost, and to the United States Supreme Court, where they won (9-0).

That was not a victory on the merits, however. It was simply, but importantly, a victory which allowed the Sacketts to question in a court of law the jurisdiction of the EPA to regulate their land—in this case for the Sacketts to argue, inter alia, that their land was not in fact “wetlands” and therefore not “waters of the United States”, implicating jurisdiction under the Clean Water Act.

This is important,  because the EPA issues between 1,500 and 3,000 Compliance Orders in a year, and now the recipients of those orders have the ability to challenge the EPA’s jurisdiction before being crushed by the weight of the potential fines.

So the Sacketts are back in Court. Thankfully, they are still represented by their pro bono lawyers, the Pacific Legal Foundation.

A Wetlands Story From  Rhode Island

Here is yet another example, this time closer to home, of the disastrous consequences of unknowingly buying property with wetlands.

A couple was interested in purchasing a lot in Little Compton, Rhode Island to build a house. They bought the property only after being assured permits would issue for construction, including a permit from the Department of Environmental Management for installation of an individual sewage disposal system (“ISDS”). They bought the lot and installed a foundation and part of the ISDS system pursuant to their local building permit and the permit issued by the Department of Environmental Management.

Incredibly, the Department of Environmental Management then issued them a violation for constructing their foundation and ISDS system in wetlands. Yes, the same Department that issued them the ISDS permit in the first place, allowing them to construct. 

It gets worse; DEM then ordered them to remove the foundation and the rest of their construction, which they eventually did after an unsuccessful court battle. 

Some years later, after they had spent tens of thousands of dollars and over a decade trying unsuccessfully to build on their property, my former firm undertook representation of them and was able to procure permits to develop the property, but this also involved another trip to court. Williams  v. Coastal Resources Management Council, C.A. No. 08-2188 (Super. Ct.)(RI July 30, 2009).

Lessons Learned

What are the lessons of this for those seeking to purchase property?

1) If you intend to do any construction work, even just construction of a new house, or building an additional structure on already developed property, it would be prudent to have a wetlands biologist visit the site before you buy to make sure you are not buying wetlands, or if you are, that you can nevertheless proceed with your construction plans.

2) Do not assume that because a building official will issue a permit for construction, there are no wetlands on the property. There may well be. Just ask the Sacketts!

3) And do not assume that because the property looks dry, it is not wetlands. It may well be.

Finally, not to be outdone by Mr. Westcott, I submit my own rhyme.                                                 

I Got Those EPA Black and Blues

Off I went to buy some property
To raise my family properly.
All of my money I would use,
For on a house, who could lose?

I looked at land that to my eye
Could only be considered dry,
So I signed on the bottom line
In order to build that house of mine.

That’s when I got a note in the mail
From the EPA, threatening jail.
Stop building on wetlands, they said.
That land’s for critters, not a homestead.

It’s a mistake I said, a teenie weenie,
Why, this land’s dry as a martini.
There is no water to be found,
Not enough for a flea to drown.

You may think so, they replied
But underground water we spied.
That means it’s wet, even if dry,
So pay your fines or you will fry.

It was quite some time ago,
When all the Courts told me “No”!
But the EPA has since become my friend,
Letting me visit my land on the weekend.

Marine Spatial Planning, Ocean Zoning, and the Oceans’ 12 Conference

Posted in Marine Spatial Planning, Ocean Zoning

 

I recently had the opportunity to address the Oceans’ 12 Conference meeting in Virginia, having been asked to serve on a panel to discuss the new phenomenon of  “ocean zoning”, which I see as the next big step in  coastal zone management.

The panel itself was focusing on “coastal and marine spatial planning”, or MSP, as it is often referred to in shorthand.  MSP is a comprehensive and integrated ecosystem-based spatial planning process, relying on sound science, to gather information and data about conditions of the ocean, the seabed, and the marine life that inhabit the study area.  MSP can also analyze current and anticipated uses of ocean and coastal areas, and in this country, the Great Lakes as well.

The MSP process can identify areas most suitable for specified activities, whether fisheries, mineral extraction, ship transport, etc.  When this information is translated into a regulatory framework, which is often referred to as "ocean zoning",  it can reduce user conflicts and environmental impacts and preserve critical habitats and ecosystems while fostering specified uses to meet specific objectives. 

For example, marine spatial planning and ocean zoning has been seen as important to fostering alternative energy development.  Witness Rhode Island’s Ocean Special Area Management Plan, also known as the Ocean SAMP, a new regulatory ocean zoning program which was the first of its kind in the nation approved by federal regulators as part of a state coastal management plan.  Rhode Island’s Ocean SAMP  was in large part designed to foster utility scale offshore wind energy development by using marine spatial planning to identify the areas best suited to such development in a cost-effective manner while protecting sensitive habitat and marine life and avoiding user conflicts.

Massachusetts adopted a similar ocean zoning plan, the Massachusetts Ocean Plan, which received federal approval as part of Massachusetts’ coastal program shortly after Rhode Island.

While Rhode Island and Massachusetts have clearly taken the lead in MSP, other states are not idle, and programs are being pursed in Oregon, Washington and California, for instance.  In fact, Oregon just held a workshop this month on the possible amendment of its “Territorial Sea Plan”  in order to “create guidelines for the siting of marine renewable energy development projects” within the three nautical miles off Oregon’s coast covered by the Territorial Sea Plan. This amendment would effectively integrate marine spatial planning into Oregon’s Territorial Sea Plan.

While Rhode Island and Massachusetts can be proud of their pioneering efforts, soon to be joined by other states, the fact is that Europe is far ahead of the United States in pursuing marine spatial planning.

That was driven home at the Oceans’ 12 Conference when two members of our panel, a British Captain in the Royal Navy, and an English consultant widely experienced in MSP, described the programs completed in the United Kingdom and elsewhere in Europe.  These programs are so advanced that in a recent English MSP regimen, inland infrastructure, such as bus terminals and other inland transportation facilities, were directly involved in the planning for use of offshore and coastal waters.

While MSP does not have to lead to a regulatory structure, such as ocean zoning, that certainly appears to be the trend, as the planning information gathered in the MSP process is often used to inform decisions as to what uses to allow, where to allow those uses and subject to what conditions, and what uses to foster, limit, or restrict. 

The potential regulatory effect of marine spatial planning can, of course, give rise to controversy, as it has in this country with President Obama’s recently proposed National Ocean Policy, which has as one of its central elements coastal and marine spatial planning.

A U.S. House of Representatives Committee has held hearings and expressed serious concerns about the potential of “ocean zoning” arising from the MSP process, although Administration officials argue that the National Ocean Policy  will have no direct regulatory effect. 

That is a dispute that will likely play out over the coming years, given President Obama’s reelection.

What there can be no dispute about is that  marine spatial planning has a life of its own at the state level, and it is likely that other states will join Rhode Island, Massachusetts and soon Oregon with ocean zoning plans of their own.

 

 

Land Use Tax Policy — How Unfair is Fair?

Posted in Land Use Regulation, Real Estate Law


“This is a case of fundamental unfairness masquerading as rational tax policy”

“This is a case which plumbs the depths of how unfair a government can be to taxpayers and still be constitutional”.

That’s how I introduced to a regional conference of land use planners my discussion of a recent decision of the United States Supreme Court.

I was speaking in Hartford to a full house of land use planners, both those in the public sector and those in the private sector, with a panel of distinguished real estate, land use and environmental attorneys from throughout Southern New England. While we discussed many recent court decisions, including eminent domain (i.e. takings) cases, equal protection cases and First Amendment cases, this one was my pick for the best of the worst. Armour v. Indianapolis, 132 S.Ct. 2073 (2012).

The case arose out of payments required to be made by property owners to connect to a municipal sewer system. The City of Indianapolis had for years funded sewer projects by assessing property owners equally per lot, and allowing them to pay the full amount upfront, or finance it over a number of years with interest.

This system was applied to a 180 unit subdivision, where 38 paid the total assessment of $9,278 in advance  and the remainder paid in installments of 10, 20 or 30 years.

However, one year later this financing scheme was abandoned and the City decided that all those opting to pay in installments would be forgiven their unmade future installments, but those who paid the entire fee in advance  would not be given a refund, even a prorated refund.

The homeowners who paid in advance asked for a partial refund, in an amount equal to the smallest forgiven installment debt (i.e. $8,062). The City refused the request for refunds.

Homeowners who paid in advance sued, saying they were denied equal protection of the law. In essence, they argued that they were treated differently and unfairly from all those other lot owners who opted to pay in installments.

The state trial and appellate court found for the homeowners, but the Indiana Supreme Court found for the City, saying the City’s decision was rationally related to its legitimate interests in reducing its administrative costs.

The United States Supreme Court reviewed this as a traditional equal protection case. Since there was no suspect classification and no fundamental right at issue, a city’s distinction among taxpayers does not violate the Equal Protection Clause if there is a rational basis for the distinction–if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.

And the Court found it, in a 6 to 3 majority decision.

And what is that rational reason for the difference in treatment?  It is avoiding an administrative burden.  And what is that burden?  Well, for goodness sakes, don’t be so insensitive; the city would have to determine who is owed what and figure out how to refund the money.

Given there were only 38 homeowners involved, one might think a municipality as sophisticated as Indianapolis would somehow be able to meet that crushing administrative burden.

The Court did not appear troubled by the disparity, where some homeowners paid $9,278 for their sewer connections and many other paid far less, some as little $309, or about 30 times less.

At oral argument it was clear that some of the Justices were concerned that this could result in taxpayer claims for refunds under all sorts of public works or amnesty programs.

The dissent clearly appears to have the better of the argument.

First, it noted that the statutory scheme at issue expressly required that the sewer costs are to be “primarily apportioned equally among all abutting lands or lots”. Thirty to one is far from equal.

Secondly, the dissent noted that in 1989 the Court had struck down a local property tax assessment scheme which determined the valuation of homes for tax purposes based on their date of sale, with the result that some homes which sold recently were taxed far more than comparable homes that may have been last sold 20 years before, given the inflation in housing prices over the ensuing decades.

And the dissent noted that the majority’s argument that this is very similar to an amnesty program missed the point, since amnesty programs are directed toward enticing those who may never pay what they owe to come forward and pay, and is not justified by administrative convenience.

As the dissent observed: the desire to avoid administrative hassle and fiscal challenges (i.e. repaying money it already spent) does not justify gross disparity in tax treatment, and such gross disparity is irrational, triggering an Equal Protection violation.

Unfortunately, the lesson drawn from this case may be that if it is only money at issue, it may be hard for a government to be found to be so irrational as to be unconstitutional under the Equal Protection Clause. That may be welcome news to governments, but it is decidedly not welcome news to taxpayers.

 

So When Is An Abandoned Road Abandoned Anyway?

Posted in Real Estate Law

That was the question facing the Rhode Island Supreme Court when neighbors sued to claim title to a former road that clearly had not been used, maintained or repaired by the City of Newport for decades, and was in fact no longer functional as a road.

And it is the question many residents in many Rhode Island cities and towns confront when they seek to use former dedicated streets or roadways which either have never been put into actual use or actual use of which has been dormant for years and years.

The Rhode Island Supreme Court answered this question definitively in a recent decision. Shannon Reagan et al v. The City of Newport et al, No. 2010-428-Appeal (April 17, 2012).

The street at issue was the Washington Street Extension running northerly from the northerly end of Washington Street to the south side of Cypress Street, being approximately 50 feet wide. Established in 1915, it was used as a public highway until the late 1960s, when the construction of the Newport Bridge effectively made it dysfunctional, being a dead end.

Accordingly to neighbors, the street became “an eyesore”, falling into disrepair, littered with trash, overgrown with weeds, marred by potholes, etc. Neighbors also claimed the former street was used for teenage drinking and “sex parties”, although at least one resident refuted that.

Neighbors also asserted that the street had not been maintained by the City since the Newport Bridge was constructed, and plaintiffs stated they took over maintenance responsibilities.

The abutting property owners sought formal abandonment by the City and sought to purchaser the former street, without success. However, the abutting property owners entered into a Memorandum of Understanding (“MOU”) with the City, whereby they were given “non-exclusive access” to the property to maintain and improve it, but were precluded from excluding other members of the public from the street.

The abutters then spent approximately $27,000 improving the street by removing the asphalt, planting grass and installing curbs. When the City Council terminated the MOU, the abutters filed suit, seeking title to the street by virtue of “the city’s de facto abandonment of such property”.

In essence, the abutters were asserting that the town’s evident, obvious, and factual “abandonment” of the former street constituted an effective legal abandonment. Unfortunately, for them, and their $27,000 investment, the trial court and the Supreme Court disagreed.

The Court unequivocally held that the only way to abandon a street was under the statutorily established procedure, requiring formal town council abandonment, posting of “Not a public highway” signs, advertisement in a general circulation newspaper for three weeks, and a formal notice served on abutters. See R.I.Gen. Laws Section 24-6-1(a).

In other words, intent to abandon, nonuse, and “external acts to put that intention into effect” simply are not enough.

So, if you have designs on that “abandoned” roadway in your neighborhood, you may want to abandon them!