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As Coastal Migration Continues, Waterfront Property Owners Encounter Complicated and Costly Environmental Regulations - September 2015

September 15, 2015

by James T. Lang

Waterfront property owners in Hampton Roads are privileged to enjoy the ambiance and a fantastic view, in addition to a highly valuable set of riparian property rights.[1] These benefits however come at a cost. Waterfront owners must be prepared to carry the expense of operating their properties in compliance with a multi-faceted and complicated web of federal, state and local legal environmental requirements designed for and specifically applicable to waterfront property. These requirements are administered by an arcane and sometimes demanding bureaucracy using confusing language and terms, possessing the power to order owners to make changes to their property at their own expense, and imposing fines as high as $25,000 per day per violation. In addition, the waterfront property owner may become a media topic such that their friends and neighbors are learning of their challenges through local newspaper or television stories.  

A recent example of this type of media coverage is the reporting on Walter Arnemann, who (it is alleged) built and fortified a fence at the edge of his property on the Chesapeake Bay, making it difficult for beachgoers to pass.[2] According to news accounts, the Environmental Services Manager for the City of Norfolk issued a Notice of Violation on September 1, 2015, which will be heard by the Norfolk Wetlands Board at its October meeting. The Norfolk Wetlands Board has the power to order Mr. Arnemann to remove the barrier and to fine him.

Mr. Arnemann's difficulties provide a recent example of the special scrutiny waterfront property owners receive from government officials, but he is hardly alone. In 2012, local media reported on the City of Portsmouth having rejected Danny Meeks’ application to build a garage and swimming pool and change the elevation in the backyard of his waterfront home. The denial was based on noncompliance with the requirements of The Chesapeake Bay Preservation Act of 1988.[3] In 2013, Mr. Meeks found himself once again in the crosshairs (and in the media) when the City of Chesapeake alleged that he violated The Chesapeake Bay Preservation Act of 1988 by clearing trees and laying gravel at his waterfront property on the Southern Branch of the Elizabeth River.[4] In 2013, waterfront owners Doug and Tammy Nicoll were cited by the Norfolk Wetlands board for mowing grass at their property.[5] Their neighbors, waterfront owners Deanne and Mark Pulliam, were cited for using a truckload of dirt to fill ruts in the ground left by vehicles trespassing at their property.[6] Local media reported several times in 2014 on the efforts undertaken by seventeen waterfront homeowners on the Chesapeake Bay, in the Cottage Line neighborhood in Norfolk, to reduce the size of the sand dunes on their properties.[7]

One-half of the U.S. population now lives in coastal communities, an increase of 51 million people from 1970 to 2010. Hampton Roads – the very first coastal community in the nation – is not immune from this trend. Its population grew from 913,000 in 1970 to 1.7 million in 2010 and is projected to reach 2 million in 2040. The Commonwealth of Virginia’s primary legislative enactments that balance property rights and use of resources at the point where the water meets the land are:

The Submerged Lands Act (some provisions date to the 1700’s), Virginia Code §§ 28.2-1200 to 1213;

The Tidal Wetlands Act of 1972, Virginia Code §§ 28.2-1300 to 1320;

The Coastal Primary Sand Dunes and Beaches Act of 1984, Virginia Code §§ 28.2-1400 to 1420; and,

The Chesapeake Bay Preservation Act of 1988, Virginia Code §§ 62.1-44.15:67 to 44.15:79.

These statutes, the implementing regulations, and the City Ordinances adopted in furtherance of them, establish a complicated multi-layered web of state and local agencies and boards. Each statute has its own set of requirements that must be satisfied before the waterfront owner modifies the land and carries the power of legal sanction if requirements are violated. The Virginia Department of Environmental Quality (DEQ) website is a good resource for information on The Tidal Wetlands Act of 1972 (click here). The Virginia Marine Resources Commission website has helpful information on The Coastal Primary Sand Dunes and Beaches Act of 1984 (click here). The DEQ website offers additional useful information on The Chesapeake Bay Preservation Act of of 1988 (click here).

If you need assistance with the use and enjoyment of your waterfront property, consistent with applicable environmental requirements, please contact Jim Lang at (757) 502-7326 or jlang@pendercoward.com.

 


[1] See my article “Riparian Rights When You Own Land in Contact with the Water: A Mix of Environmental, Admiralty and State Law” published as an Opinions & Observations article on the Pender & Coward website in June 2013.

[2] Eberly, Norfolk Steps Into Bay Beach Dispute With a Citation for the Property Owner, The Virginian-Pilot, Sept. 10, 2015, at 3, col. 1.

[3] Eberly, Judge Hears Arguments in Councilman’s Suit Over Backyard Alterations, The Virginian-Pilot, March 20, 2014, at 8; Eberly, Portsmouth Councilman Says Officials are Halting His Home Improvement Efforts, The Virginian-Pilot, Aug. 9, 2014.

[4] Eberly, Councilman Lands in Hot Water Over Work on His Land, The Virginian-Pilot, Nov. 9, 2013, Hampton Roads section, at 1.

[5] Clayton, Norfolk Residents in Hot Water Over Mowing Wetlands, PilotOnline.com, Feb. 12, 2014.

[6] Clayton, Norfolk Residents in Hot Water Over Mowing Wetlands, PilotOnline.com, Feb. 12, 2014.

[7] Nolin, Some Feel Dumped on by Evolving Sand Dunes, The Virginian-Pilot, Jan. 3, 2014, at 1; Opinion: Protect Dunes in Cottage Line, The Virginian-Pilot, Jan. 7, 2014, Hampton Roads section, at 6; Wilson, Decision on Norfolk Dunes Goes Next to State, PilotOnline.com, June 24, 2014; Wilson, Dispute Over Sand Dunes Grows Heated in Ocean View, PilotOnline.com, Sept. 26, 2014.