Acquiring Access
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Acquiring & Transferring Access

  • People desiring access to a beach or shore across privately-owned land can purchase the right either by buying/acquiring the land outright, or by buying a limited right just to cross it.
  • Landowners can transfer, or "convey," by donation or sale, all or part of the ownership interest of their land.
  • A landowner can convey her land or limited path across it to anyone she wishes. In this circumstance, a landowner may control how the land is used and even give herself the right to get the land back if terms or conditions aren't met.
  • Acquisition or conveyance of land, also called transferring land, is typically achieved through a contract, although it could also be done through a will or some other legal instrument.

Overview

What rights of access can be transferred?

Public access rights can be transferred in full interest of private property rights, or partial interest, as in easements or user agreements.

To whom can access be transferred?

Landowners can transfer interest of their land to individuals, or to entities, organizations and agencies that have public access as part of their purpose, which can include land trusts, local, state and federal governments, and private trusts.

How can access be enhanced, secured, granted, or created?

Parties can transfer property ownership interest (either the complete title, or a subgroup of rights) through a variety of means, including buying it outright, or partially through easements, conservation easement, development rights, or leases. These interests can be purchased at or below market value, or can be donated depending on the wishes of and related tax benefits to the private property holder. The interests can be conveyed unconditionally or with conditions attached.

If the property owner is not a willing seller, the government can exercise its rights to acquire the land through eminent domain. More on eminent domain.

What are the tools for retaining coastal access by conserving coastal lands themselves?

Sale or donation of easements or partial property interest: Easements allow the right to the use of real property interest of another person for a specific purpose. There are a number of kinds of easements and ways that they can address access, including conservation easements and floating easements. Because easements do not require the entire parcel, they are significantly less expensive than full title acquisition and are becoming an important and increasingly common tool for addressing coastal access needs. More on Easements.

Development rights can be separated from other rights of ownership, making it possible for one person to own the property while another person or entity (such as a land trust) owns the right to develop it. Usually development rights are separated for the purpose of preventing the development of the property. Development rights can be transferred in one of two ways:

    Purchase of development rights (PDR), involves payment by a private entity, such as a land trust, or a public entity, such as a town, city, or county in exchange for an easement or covenant that limits future development on the identified property. This tool usually has a minimum required effective lifetime of twenty years, and is often designed to be permanent, reversible only by the court.

    Transfer of Development Rights (TDR) is a technique for guiding growth away from sensitive resources and toward controlled development centers through the transfer of development rights from one area to another. In this case, development rights in coastal areas would be restricted by the town and the landowner would be compensated for the restriction. The town would then recover the cost of the restriction by selling the development rights to developers in other specially designated areas, allowing them to develop more densely than they otherwise would be permitted.

Developing covenants or written promises about the land: Covenants can be used to specifically address ways that landowners legally promise to address water access on their land. Some examples include:

Land banking is a method of land conservation typically involving the outright purchase and holding of entire parcels of land. Privately financed and operated, nonprofit land trusts traditionally have used both PDR techniques and land banking, but states and municipalities also have used the land banking tool to conserve farms, forests, coastal lands, etc. Specifically, Washington, Florida, New York, and North Carolina have established land-banking programs to help preserve coastal properties. The Land for Maine’s Future program is a variation on the land banking approach. See Real Estate Transfer Taxes, Land Banking, and Lessons for Maine case study for more information.

Several means have been used to fund land banks, including:

  • real estate transfer tax (RETT). Depending on the enabling legislation in the given state, this tax may be levied at the state or local level. In Maine, the majority of the RETT revenues collected are allocated to the state’s general fund, but notably, legislation passed in the 1980s directs a percentage of those funds to the HOME Fund for affordable housing. The HOME Fund was authorized in 1982, and beginning in 1984 was funded through allocations from the state's RETT. The statute designates RETT funds to be allocated 45% to the state general fund, 45% to the HOME Fund, and 10% to the counties. Actual allocations to the home fund tracked since 2000 indicate that the percentage to the HOME Fund has varied from a high of 45% in the earlier years, to as little as 7% in 2009. Attempts to increase the Maine state RETT rate (less than one-half of one percent) have repeatedly failed. More on Real Estate Transfer Tax; also see Real Estate Transfer Taxes, and Land Banks case study.
  • bond financing uses long-term promissory notes issued and backed by the government, for funding at the state or local level. Bond financing can be enacted at the state or local level. In a Maine example, the Working Waterfront Access Pilot Program (WWAPP) has been successful when embedded within larger requests for a Land for Maine’s Future bond. In a local example, the town of Tremont, Maine purchased a working waterfront property from a private seller at foreclosure. The voters of Tremont authorized the Town to finance the purchase with a loan from a local bank. See Tremont, Maine Bond Financing case study.
  • other financing strategies include dedicated excise taxes and financing purchases through the State’s general fund (generally via broad-based income and sales taxes).

Case Studies

See successful examples of planning and regulating for access:

What programs exist to acquire access?

Click here for more information.

Where can I find more information?

Conservation Options: A Guide for Maine Landowners, Maine Coast Heritage Trust, 2003.

Planning and Implementing Public Shoreline Access Maine State Planning Office. Maine Shore Access Public Access Series. Augusta, ME. 1990.

Legal Tools to Enhance Public Coastal Access While Protecting Private Property Rights. By David Kallin and Rita Heimes, University of Maine School of Law Marine Law Institute, March 2008.

Tax-based Opportunities and Challenges for Working Waterfront Protection
By Michael Dixon, University of Maine School of Law, July 2010.

Working Waterfront Tax Strategies (PDF 216 KB)
By Steven R. Gerlach, Esq., Bernstein Shur, Counselors At Law, September, 2010.