Glossary

Coastal Access Toolkit
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Glossary I-P

Impact Fees: charges imposed on new development for the impact of the development on the public facilities that benefit them. Impact fees can be used to finance any type of public facility or service, such as a public oceanfront park, which will benefit the new development. However, impact fees can only be used to cover the percentage of the cost that is attributable to the new development.

Incentive or Bonus Zoning: Incentive zoning is a system by which zoning incentives are provided to developers on the condition that specific physical, social, or cultural benefits are provided to the community. Incentives include increases in the permissible number of residential units or gross square footage of development, or waivers of the height, setback, use, or area provisions of the zoning ordinance. The benefits to be provided in exchange may include waterfront access, waterfront recreational facilities, open space, , infrastructures, or cash in lieu thereof.

Income Tax: n. a tax on an individual's net income, after deductions for various expenses and payments such as charitable gifts, calculated on a formula which takes into consideration whether it is paid jointly by a married couple, the number of dependents of the taxpayers, special breaks for ages over 65, disabilities and other factors. Federal income taxes have been collected since 1913 when they were authorized by the 16th Amendment to the Constitution. Most states also assess income taxes, but at a substantially lower rate than that of the federal government.

Indemnify: v. to guarantee against any loss which another might suffer. Example: two parties settle a dispute over a contract, and one of them may agree to pay any claims which may arise from the contract, holding the other harmless.

Installment Contract: n. an agreement in which payments of money, delivery of goods or performance of services are to be made in a series of payments, deliveries or performances, usually on specific dates or upon certain happenings. One significance is that failure to pay an installment when due is a breach in which damages can be assessed based on the portion which has not been paid, and is an excuse for the other party not to perform further. In many installment contracts, failure to make a payment gives the seller of an article the right to repossess (take it back).

Installment Sale: A real estate transaction in which the sales price is paid in installments. This type of transaction may permit capital gains to be reported by installments for successive tax years in order to minimize the impact of capital gains tax in the year of the sale.

Interest: see property interest.

Invitees: A person who comes onto another's property, premises or business establishment upon invitation. The invitation may be direct and express or "implied," as when a shop is open and the public is expected to enter to inspect, purchase or otherwise do business on the premises. It may be legally important, because an invitee is entitled to assume safe conditions on the property or premises, so the owner or proprietor might be liable for any injury suffered by the invitee while on the property due to an unsafe condition which is not obvious to the invitee (a latent defect) and not due to the invitee's own negligence.

Jurisprudence: n. the entire subject of law, the study of law and legal questions.

Just Compensation: In takings the amount paid to the property owner. Just is defined as making the owner no richer or poorer than before the taking.

Land Bank: a land conservation program created to acquire, hold, and manage important open space resources and endangered landscapes for the use and enjoyment of the general public. The land bank competes in the open market to acquire land which provides the public a wide range of opportunities. It can hold beaches, wetlands, ocean frontage, and harbor frontage, and use properties for passive and active recreation.

Land Banking: A method of land conservation typically involving the outright purchase and holding of entire parcels of land.

Land Gains Tax: A capital gains tax (a tax on the difference between the sale price and the original cost, plus improvements, of the property) on land sales from land that the seller owned for a short period of time.

Land Speculation: the purchase of land for the sole purpose of selling it again for a large profit when it appreciates in value. Land speculation causes those who wish to use the land for their livelihood to compete for ownership with those using the land as an investment mechanism.

Land Transfer: the conveyance of land from one owner to another.

Land Trust: A nonprofit organization that assists landowners who wish to voluntarily conserve their properties. Land trusts are usually organized as charitable corporations, not as trusts.

Lease: 1) n. a written agreement in which the owner of property (either real estate or some object like a boat) allows use of the property for a specified period of time (term) for specific periodic payments (rent), and other terms and conditions. Leases of real property describe the premises (often by address); penalties for late payments, termination upon default of payment or breach of any significant conditions; increases in rent based on cost of living or some other standard; inclusion or exclusion of property taxes and insurance in rent; limitations on use (example: for a lobster pound only), charges for staying on beyond the term (holding over); any right to renew the lease for another period; and/or a requirement for payment of attorneys' fees and costs in case of the need to enforce the lease (including eviction).

Legal Authority: the source of the power under which a regulation is created. The legal authority of the federal government is limited to those powers enumerated in the constitution. The legal authority of state governments come from a general power to regulate for the public welfare, subject to the restrictions outline in the state constitution.

Legal Doctrine: is a framework, set of rules, procedural steps, or test, established in law, through which judgments can be determined in a given legal case. A doctrine comes about when enough judges make a ruling where a process is outlined and applied that can be equally applied to similar cases.

Liability: one of the most significant words in the field of law, liability means legal responsibility for one's acts or omissions. Failure of a person or entity to meet that responsibility leaves him/her/it open to a lawsuit for any resulting damages or a court order to perform (as in a breach of contract or violation of statute). In order to win a lawsuit the suing party (plaintiff) must prove the legal liability of the defendant if the plaintiff's allegations are shown to be true. This requires evidence of the duty to act, the failure to fulfill that duty and the connection (proximate cause) of that failure to some injury or harm to the plaintiff.

Licensees: A person who is privileged to enter or remain on land only by virtue of the possessor's consent. Under Maine law, an owner or occupier of land owes the same duty of reasonable care in all the circumstances to all persons lawfully on the land. This does not require an owner or occupier to insure the safety of his lawful visitors. Rather it merely extends the protection previously afforded invitees to those persons who had heretofore been classified as licensees.

Life Estate: n. the right to use or occupy real property for one's life. Often this is given to a person (such as a family member) by deed or as a gift under a will with the idea that a younger person would then take the property upon the death of the one who receives the life estate. Title may also return to the person giving or deeding the property or to his/her surviving children or descendants upon the death of the life tenant-this is called "reversion." Example of creation of a life estate: "I grant to my mother, Molly McCree, the right to use and/or receive rents from the boat house on said real property, until her death," or "I give my daughter, Sadie Hawkins, said real property, subject to a life estate to my mother, Molly McCree." This means a woman's mother, Molly, gets to use the property until she dies, then the woman's daughter, Sadie, will own the property.

Market Value: The most probable price a property should bring in a competitive and open market under all conditions to a fair sale.

Mean High Tide: The line on the shore made by the average of all the high tides as calculated over a long period of time.

Mean Low Tide: The line on the shore made by the average of all the low tides as calculated over a long period of time.

Navigable Waters: waters sufficiently deep and wide for navigation by all, or specified vessels.

Negative Easement: An easement that limits a landowner from using their land in ways they would otherwise be entitled to.

Non-water-dependent: Uses that do not require direct access to the water to accomplish their primary function.

Option / Right of First Refusal: n. a right to purchase property or require another to perform upon agreed-upon terms. An option is paid for as part of a contract, but must be "exercised" in order for the property to be purchased or the performance of the other party to be required. "Exercise" of an option normally requires notice and payment of the contract price. Thus, a potential buyer of a tract of ocean front land might pay $5,000 for the option which gives him/her a period of time to decide if he/she wishes to purchase, tying up the property for that period, and then pay $500,000 for the property. If the time to exercise the option expires then the option terminates. The amount paid for the option itself is not refundable since the funds bought the option whether exercised or not. Often an option is the right to renew a contract such as a lease. A "lease-option" contract provides for a lease of property with the right to purchase the property during or upon expiration of the lease.

Partial Interest: A property interest to a share of real property that is less than the entire ownership of that property.

Perpendicular Access: reaching the beach or shore from a road or otherwise publicly accessible location across the upland area.

Physical Access: the ability to actually reach the beach or shore.

Police Powers: n. from the 10th Amendment to the Constitution, which reserves to the states the rights and powers "not delegated to the United States," which include protection of the welfare, safety, health and even morals of the public. Police powers include licensing, inspection, zoning, safety regulations (which cover a lot of territory), quarantines, and working conditions as well as law enforcement. In short, police powers are the basis of a host of state regulatory statutes.

Preferential Tax Program: A tax program that reduces the tax burden based on the use of the property. This can take the form of tax abatements or current use taxation.

Prescriptive Easement: n. an easement upon another's real property acquired by continued use without permission of the owner for a period provided by state law to establish the easement. The problems with prescriptive easements are that they do not show up on deeds or title reports, and the exact location and/or use of the easement is not always clear and occasionally moves by practice or erosion.

Private Agreement: a mutual exchange of promises that may or may not rise to the level of a legally enforceable contract.

Property Interest: legal ownership share (either partial or entire) of a piece of real property.

Property Tax: n. an annual governmental tax on real property or personal property based on a tax rate (so many dollars or cents per $100 value of the property). The value is usually established by an Assessor, a municipal official.

Property Tax Abatement and Deferral: Abatements apply a credit or reimbursement to forgive all or part of a landowner’s property tax. Deferrals allow property owners relief from paying a portion or the entirety of the tax, but the unpaid tax remains a debt owed by the owner to the state and gathers interest until repaid.

Property: n. anything that is owned by a person or entity. Property is divided into two types: "real property," which is any ownership interest in land, real estate, growing plants or the improvements on it, and "personal property," which is everything else. "Public property" refers to ownership by a governmental body such as the federal, state, county or city governments or their agencies (e.g. waterfront parks). The government and the courts are obligated to protect property rights and to help clarify ownership.

Protracted Purchase Agreement: A contract to purchase real property where payment is drawn out of a long period of time. For example, an installment sale. Structuring payment over a long period may have tax benefits, but a government may be forbidden to enter into such contracts because current legislators may not have the ability to contractually bind future legislators to allocate money to pay for the installments.

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. Usually has a minimum required effective lifetime of twenty years, and is often designed to be permanent, reversible only by the court.

Psychological Access: knowledge that the shore is available and unspoiled, even if physical access does not occur.

Public Access: defined by the Maine State Planning Office as people reaching the shoreline either physically (actively being there), visually (seeing the shore from a distant location) or psychologically (knowing the shore is available even if physical access is not achieved).

Public Easement: n. the right of the general public to use certain streets, highways, paths or airspace. In most cases the easement came about through reservation of the right when land was deeded to individuals or by dedication of the land to the government. In some cases public easements come by prescription (use for many years) such as a pathway across private property down to the ocean. Beach access has been the source of controversy between government and private owners in many seaboard states.

Public Investment: The use of public funds to fund infrastructure that will benefit the public over the long term.

Public Trust Doctrine: n. the principle that the government holds title to submerged land under navigable waters in trust for the benefit of the public. Thus, any use or sale of the land under water must be in the public interest.