Why Build a Pier?
Many people dream of owning a waterfront home. Waterfront property is highly desirable, and people are willing to pay extra for the beauty and enjoyment that these homes provide. In fact, studies show that homes on lakes and rivers sell at a price 25% higher than similar homes which are not on the water. The disparity is even greater for homes on the coast, with a 45% premium on oceanfront property. Read more about waterfront property prices in Virginia.
There are many reasons that people want to live on the water, but one of the most common is to gain access to deeper water by way of a pier. Many of them are used as fishing piers or places to dock small boats. However, building a pier is not as easy as it seems and disputes over piers make up a large part of our law practice. There is a lot to know about building piers, but here are five things that all potential buyers should take into consideration when buying waterfront real estate.
5 Things to Consider When Building a Pier in Virginia
- You must get permits to build a pier
- You can be liable for an unpermitted pier - even if it already existed when you bought your home
- You may construct a pier only in your “riparian area”
- Your property line must legally be connected to the water
- Riparian rights can be severed
Let’s dive deeper into each of these five considerations as each can be very nuanced.
1. You Must Get Permits to Build a Pier
The Hidden Cost When Building a Pier in Virginia
It should be no surprise that building a pier is expensive. According to one experienced pier contractor, the main section of a pier is typically five feet wide and priced between $125-$300 per linear foot. The same contractor says that the end section of a pier often includes an “L-head” or “T-head” platform, which costs approximately $25-$35 per square foot to build.1
In addition to the obvious cost of construction, a homeowner who builds a pier without the proper permits may be hit with unexpected penalties and fines.
In order to construct a pier you must first get permission from several different agencies. Each agency’s role is distinct, but there is some jurisdictional overlap between them. The main agencies that are involved with a request to construct a pier are Local Wetlands Boards, the Army Corps of Engineers, and the Virginia Marine Resources Commission (VMRC). Each agency has its own guidelines and regulations which must be followed correctly. Building a pier without the proper permits may lead to severe civil penalties and even criminal prosecution. Although getting these permits may take time and money, this added cost can be worth the investment.
The Public Trust Doctrine
The Code of Virginia vests ownership of "all the beds of the bays, rivers, creeks, and shores of the sea in the Commonwealth to be used as a common by all the people of Virginia.” Va. Code §28.2-1200. The “Public Trust Doctrine” is the principle that the state acts as a trustee in holding the land lying beneath public waters for the benefit of all citizens. These submerged public areas are known as “state-owned bottomlands.” State-owned bottomlands begin at the mean low water mark, which is defined as the average low water mark over the last twenty years.
The VMRC is the state agency responsible for upholding the Public Trust Doctrine by properly managing state-owned bottomlands on behalf of the public. The VMRC Habitat Division handles permit applications for projects that use, encroach on, or disturb the water bottoms owned by the Commonwealth. Such projects include piers, docks, marinas, channel dredging, and oyster ground leases.
When it receives an application, the VMRC solicits public comments and weighs factors both for and against granting the permit. These factors include hazards to navigation and potential environmental impacts, and whether nearby property owners are opposed to the project. After it has finished its review of the application, the Habitat Division will make a recommendation to the Commission for approval; approval with modifications; or denial.
Permits For Building Piers in Wetlands
A wetland is an area where water either covers the soil, or is present at or near the surface of the soil for at least part of the year. Wetlands are highly protected by law. In Virginia, piers which are constructed on pilings that permit the “reasonably unobstructed flow of the tide and preserve the natural contour of the wetlands” do not require wetlands permits. Va. Code §1302(3)(1). However, piers which do not meet these specific requirements will require a wetlands permit.
All applications for projects that will impact any type of wetland in the Commonwealth must contain a plan to compensate for any loss of wetlands that will occur. This plan may be compensation on site, compensation within the watershed, or compensation through the use of a mitigation bank as authorized by Section 28.2-1308 of the Code of Virginia. In some localities an applicant can also choose pay into a special account dedicated to wetlands creation and restoration.
Although wetlands vary widely, in Virginia they are classified into two basic categories.
Common Types of Virginia Wetlands:
- Tidal wetlands
- Inland wetlands
Tidal wetlands are generally defined as the zone from mean low water and extending a bit beyond mean high water. If the locality in which you seek to build your pier has created a Local Wetlands Board, then the Local Wetlands Board decides whether to grant or deny the permit. In these localities if you are unhappy with the decision of the Local Wetlands board, you may appeal to the VMRC. On the other hand, if the locality has opted not to create a Local Wetlands Board, the VMRC will decide whether or not to grant the permit. If you live in one of these localities, you may appeal the VMRC decision to the appropriate circuit court.
In Hampton Roads, for example, Virginia Beach and Norfolk have each established their own Local Wetlands Boards. Chesapeake, however, does not have a Local Wetlands Board. This means that, unlike the situation in Virginia Beach and Norfolk, the VMRC will decide all tidal wetlands permitting issues in Chesapeake.
So long as your pier or boathouse is constructed on pilings, in a manner that permits reasonably unobstructed flow of the tide, it should not be difficult to receive a wetlands permit from the local wetlands board or the VMRC.
Inland wetlands, or Non-tidal wetlands, are usually located inland near freshwater rivers and streams, lakes, or ponds. Regulations in non-tidal wetlands are administered by the Virginia Department of Environmental Quality (DEQ), in close partnership with the U.S. Army Corps of engineers and the Virginia Marine Resources Commission.
Regardless of whether you are seeking to build your pier in a tidal wetland or a non-tidal one, you must first obtain a permit from the appropriate wetland agency.
Pier Permits for Navigable Waterways
The U.S. Army Corps of Engineers has jurisdiction over all navigable waters in the United States, and you must obtain a permit from the Corps if you desire to build a pier in navigable waters. Navigable waters are quite broadly defined, and include all waters that ebb and flow with the tide. Navigable waters also include those inland waters which have been, or may be, used for interstate commerce. Practically speaking, unless you are buying a property on a pond or a very small lake, it is almost certain that any waterfront property that you are interested in purchasing will be considered navigable. Accordingly, in order to be allowed to build pier, you will need a permit from the Army Corps of Engineers. This is separate and apart from the wetlands permit explained above.
Joint Permit Application in Virginia:
Fortunately, applicants who wish to build a pier are not required to fill out multiple permit applications even though several permits are required. In Virginia, the applicant need only fill out a single “Joint Permit Application” (JPA) and submit it to the VMRC. The VMRC then acts as a clearinghouse for all of the JPAs, routing them to the appropriate agencies for review.
Filling out a JPA is not as easy as it may sound. These applications can be quite lengthy and highly complex. Some portions of the JPA must be prepared and certified by a professional engineer, land surveyor, or other appropriate person duly licensed by the Commonwealth. In cases of minor repairs to previously existing structures, the applicant may request a waiver from the certification requirement.
Regulations can vary widely from place to place, with some localities having more stringent requirements than others. For example, in Virginia Beach piers in larger bodies of water may not extend into the waterway more than 25% of the waterway’s width as measured from mean low water to mean low water. Narrower waterways in Virginia Beach are not subject to the 25% requirement, but the pier may not impede navigation as determined by the Planning Department. Additionally, piers may not be erected within 25 feet of an established channel. Information about the Virginia Beach permitting process can be found here; and information about the Norfolk permitting process can be found here. Our waterfront law team is very familiar with local regulations and with the JPA process, and will be happy to assist in getting the proper paperwork filled out and filed.
Source Water Street/Shutterstock.com
2. You Can Be Liable For an Unpermitted Pier - Even If it Already Existed When You Bought Your Home
Many waterfront property purchasers are surprised to find out that they can be liable for a pier that was built without a permit, even if that pier was built by a previous owner and has existed for many years. This is because having an unpermitted pier on your land is known in legal parlance as a “strict liability” violation. Under strict liability, the intent of the violator does not matter and the property owner will be liable even if she was completely unaware of the violation.
A common example of a strict liability offense is speeding. It does not matter that you didn’t see the road sign changing the speed limit from 55 to 35 -- if you are driving over 35 you can get a ticket. Similarly, in the case of an unpermitted pier, you can be summoned to a hearing before the VMRC and assessed a penalty simply because the pier is present on your property.
People summoned to appear before the VMRC have the right to have an attorney appear at the hearing and speak on his/her behalf. If this happens to you, it is wise to consult with an experienced riparian rights attorney who may be able to help reduce the penalties or even avoid them altogether.
For example, if your pier was built before 1962, a permit is not required because the VMRC did not gain its authority to regulate encroachments onto state-owned bottomland until that year and the existing pier might be “grandfathered in”. Even if your pier was built after 1962, there may be mitigating factors in your favor that can reduce the penalty.
For instance, at the January 2019 VMRC meeting a homeowner was assessed a fine of only $1000 and granted an after-the-fact permit for his previously-constructed pier because he successfully argued that he was an innocent purchaser and he was very cooperative with the process. While paying $1000 may seem steep, this was a small price compared to the much larger fines which the VMRC could have imposed.
3. You May Construct a Pier Only If it Will Be Contained in Your “Riparian Area”
As we have explained elsewhere on this blog, riparian property rights are specific benefits that accrue to the owner of land that is adjacent to navigable waters. The Supreme Court has stated that there are five separate and distinct riparian property rights. These are:
Your Riparian Property Rights
- The right to enjoy the natural advantages conferred upon the land by its adjacency to the water. This is usually interpreted to mean the right to enjoy such benefits as fishing, swimming, or having a reasonably unobstructed water view.
- The right of access to the water, including a right of way to and from the navigable part.
- The right to build a pier or wharf out to navigable water, subject to any regulations of the State.
- The right to make a reasonable use of the water as it flows past or leaves the land.
- The right to accretions or alluvium. This means that your property line changes over time, as sand and sediment are slowly and imperceptibly deposited (accretion) or washed away from (alluvium) your shoreline.
Defining Your Riparian Area
Importantly, a waterfront property owner enjoys these five rights only in his or her “riparian area.” Most people mistakenly assume that the riparian area is determined simply by extending his or her property line out into the water. This is incorrect. As we have explained elsewhere in this blog, establishing A Riparian Area Under Virginia Law it is actually determined using a highly complex formula which first measures the length of a property owner’s shoreline, and then measures the length of the “line of navigability.” Each property owner’s riparian area is then determined according to his or her proportionate share of the line of navigability as compared to the length of shoreline.
How to Build a Pier that is Legal For “Riparian Property”
It is critical to have an accurate survey conducted of your riparian area. Our team works closely with expert surveyors who know exactly how to do this complicated work. Using these riparian surveys, we have been successful in both defending our clients’ rights to build piers in their riparian areas, and in preventing neighbors from building structures that encroached into our clients’ riparian areas.
4. Your Property Line Must Legally Be Connected to the Water
Close Is Not Good Enough, and an Inch Can Make a World of Difference
It is imperative to understand that a property owner has riparian rights only if the land is adjacent to the water. This means that the land must actually touch the water. We were recently involved in a case in which a buyer purchased a lovely house on the water, believing that she would have riparian property rights with her new home. However, shortly after closing, a survey revealed that the property line was actually one inch shy of the river.
Even though it only missed the water by an inch, because her land is not adjacent to the water this unfortunate buyer does not have riparian property rights. Consequently she is unable to exercise any of the five benefits laid out by the Supreme Court, including the right to build a pier. This is true even though she purchased the property (and paid a substantial premium for it!) with the clear intent of building a pier for deep water access. Needless to say, this buyer is very unhappy with her real estate agent and may be pursuing legal action.
5. Riparian Rights Can Be Severed
Anyone who has ever purchased real estate knows the importance of a good title search. Most real estate agents and title companies are good at searching through chains of title to find encumbrances on the land such as liens, easements, and rights of way. However, it is not common knowledge even among real estate professionals that riparian rights can be severed in the chain of title.
This means that at some point in the past, a previous seller conveyed a parcel of land but retained the riparian rights for herself. Most real estate professionals are not aware of this possibility, and therefore it is unlikely that they will always check for riparian rights during the title search.
A buyer who purchases real estate for which the riparian rights have been severed will find herself in the same situation as the buyer described above whose land did not touch the water. In other words she will not have riparian rights and will be prevented from building a pier, among other things. Potential buyers of waterfront property would be well advised to have the chain of title examined by an attorney who is well-versed in riparian property rights prior to signing any land sale contract.
Owning waterfront property is a dream-come-true for many, but it is also an expensive investment that is not for the unwary. There are many things that a potential buyer of waterfront real estate should consider. The five issues explained here are some of the most common pitfalls that owners face, but there are many others as well.
If you are thinking of buying waterfront property, or if you have any other concerns about riparian property rights, contact Jim Lang and his team of waterfront lawyers. We’re standing by and ready to help navigate your unique situation - Click here to Schedule Your Consultation.
1 Rodgers & Burton Distinctive Waterfront Homes, Accessed on November 26, 2019 at: https://virginialuxurywaterfronthomes.com/docks-piers-your-gateway-to-the-water/