Deed Restricting The Shoreline: Are Permanent Restrictions Workable In Light Of Changing Conditions?

July 22, 2013 | No Comments
Posted by Steven M. Dalton

A recent Asbury Park Press article (the web link provided below) highlights difficult practical and legal issues that may arise when shoreline properties are subject to permanent conservation or other “deed” restrictions.  Restrictions are legal instruments created at a fixed point in time that typically last in perpetuity.  The shoreline, by its nature, is ever changing.  Attempting to “fix” shoreline conditions existing at a point in time through legal instruments that will last in perpetuity despite changing conditions often leads to legal dilemmas for future land owners.

The article concerns a bulkheaded lot in Red Bank.  The property deed apparently contains restrictions that require the owner to maintain the bulkhead on the property, which was dedicated for public use.  A debate has arisen over the merits of replacing the bulkhead, compared to converting the shoreline to a more natural area.  Often, shoreline restriction issues involve “conservation” restrictions that preclude use of man-made structures.  Here, the legal instrument at issue apparently has the opposite effect, requiring maintenance of a man-made structure and precluding efforts to convert to a natural shoreline.

The New Jersey Department of Environmental Protection recently adopted a “living shoreline” rule in its Coastal regulations to promote restoration, protection and enhancement of littoral habitat (N.J.A.C. 7:7E-4.23), and NJDEP’s rules often promote natural shoreline protection over man-made shoreline protection.  The article does not address what would happen and how the deed would be interpreted if maintenance or replacement of the bulkhead, a regulated activity, cannot be achieved under NJDEP’s rules.  Likewise, conservation restrictions often restrict and preclude the undertaking of activities that are otherwise permissible under NJDEP’s rules but for the conservation restriction.

These types of conflicts, which arise because shoreline conditions as well as mankind’s attitudes and value systems change over time, call into question the use of permanent deed restrictions to address shoreline properties.  To the extent such instruments are utilized, they should include express provisions to allow for termination or other modification of the restriction to address changed conditions over time.

http://www.app.com/article/20130710/NJNEWS/307100157/

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